CDRs without the Section 65B certificate.

THE SUPREME COURT OF INDIA

SUNDAR @ SUNDARRAJAN — Appellant VS STATE BY INSPECTOR OF POLICE — Respondent

( Before : Dr. Dhananjaya Y. Chandrachud, CJI., Hima Kohli and Pamidighantam Sri Narasimha, JJ. )

Review Petition (Crl.) Nos. 159-160 of 2013 in Criminal Appeal Nos. 300-301 of 2011

DATE OF DECISION 21-03-2023

27. Finally, the petitioner has argued that the CDRs cannot be relied upon due to the lack of production of the Section 65B certificate. The call detail records were verified in the testimony of the Legal Officer of Vodafone, PW11, who himself produced the documents from the computer. He has in his crossexamination specifically corroborated the details of the calls made between the petitioner and PW1 and PW8 (from whom the number of PW1 was received after enquiring about it during the call by petitioner). The call detail records of the mobile number ending with XXX5961 confirm that two calls were made to PW8 at 9:22PM and 9:25PM on 27 July 2009. Immediately after this he called on the number ending with XXX847 at 9:39PM. However, admittedly the certificate mentioned under Section 65B of the IEA was not produced.

28. Section 65B was inserted in the IEA along with various other amendments by the Information Technology Act 2000[6] which took into account digital evidence. Section 65B provides for the admissibility of electronic records.

[6] "IT Act"

29. Section 65B of the IEA is reproduced below:

"65-B. Admissibility of electronic records.(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as "the computer output") shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely-

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section-

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation - For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."

30. The petitioner has relied upon the judgment of this court in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal, 2020 (7) SCC 1 which reiterated the dictum in the decision in Anvar P.V. v P.K. Basheer, 2014 (10) SCC 473 requiring mandatory compliance with Section 65B of the IEA.

31. One of the earliest decisions on the provision was of a two judge bench of this Court in State (NCT of Delhi) v Navjot Sandhu, 2005 (11) SCC 600 where the Court held that Section 65B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions. The Court noted that:

150. According to Section 63, "secondary evidence" means and includes, among other things, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65. (emphasis supplied)

32. The principle which was enunciated in Navjot Sandhu was overruled by a three judge bench of this Court in Anvar P.V. where it was held that:

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. (emphasis supplied)

33. Accordingly, in terms of the decision in Anvar P.V. for admitting any electronic evidence by way of secondary evidence, such as CDRs, the requirements of Section 65B would necessarily need to be satisfied and no other route under the IEA may be adopted for the admission of such evidence.

34. However, a three judge bench in Tomaso Bruno v State of Uttar Pradesh, 2015 (7) SCC 178 took a different approach and observed that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act without referring to the decision in Anvar P.V. It held that:

24. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the Accused or the liability of the Defendant. Electronic documents stricto sensu are admitted as material evidence. With the amendment to the Evidence Act in 2000, Sections 65-A and 65-B were introduced into Chapter V relating to documentary evidence. Section 65-A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65-B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65-B of the Evidence Act. Sub-section (1) of Section 65-B makes admissible as a document, paper printout of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in Sub-section (2) of Section 65-B. Secondary evidence of contents of document can also be led Under Section 65 of the Evidence Act. PW 13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it. (emphasis supplied)

A two judge bench in Shafi Mohammed v State of Himachal Pradesh, 2018 (2) SCC 801 strayed even farther away from Anvar P.V. and held that the Sections 65A and 65B cannot be held to be a complete code on the subject. It held that:

24. We may, however, also refer to the judgment of this Court in Anvar P.V. v. P.K. Basheer, delivered by a three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65-B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65-B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65-B of the Evidence Act.

25. Though in view of the three-Judge Bench judgments in Tomaso Bruno and Ram Singh, it can be safely held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65-B(4).

26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V., this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. (emphasis supplied)

36. The Court in Shafi Mohammed even diluted the requirement of the Section 65B certificate. This led to contradictory positions in these cases vis-a-vis the law laid down by Anvar P.V. which was settled by a reference to a three judge bench of this Court in Arjun Panditrao Khotkar. The Court reiterated Anvar P.V. and held Tomaso Bruno per incuriam and overruled Shafi Mohammed. It held that:

73. The reference is thus answered by stating that:

73.1. Anvar P.V., as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P., do not lay down the law correctly and are therefore overruled.

73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,.". With this clarification, the law stated in para 24 of Anvar P.V. does not need to be revisited. (emphasis supplied)

37. Therefore, the law is now settled: a Section 65B certificate is mandatory in terms of this Courts judgment in Anvar P.V. as confirmed in Arjun Panditrao Khotkar.

38. However, Anvar P.V. was decided on 18 September 2014. Till then, the interpretation of law in Navjot Sandhu, which was decided on 4 August 2005 prevailed. In the instant case, the Trial Court pronounced its judgment on 30 July 2010. Two months later, on 30 September 2010, the High Court affirmed the decision of the Trial Court to award the death sentence. This Court dismissed the appeal and confirmed the death sentence on 5 February 2013. Even the review petition was dismissed in chambers on 20 March 2013 before being re-opened in the instant proceeding in view of the Constitution Benchs judgment in Mohd. Arif alias Ashfaq.

39. Accordingly, none of the courts had the benefit of the law laid down vis-a-vis the mandatory requirement of the Section 65B certificate in Anvar P.V.. The courts as well as the investigative agency proceeded in accordance with the law that was then prevailing.

40. In Sonu alias Amar v State of Haryana, 2017 (8) SCC 570 this court considered the impact of the retrospective application of Anvar P.V. upon trials that had already been held during the period when Navjot Sandhu held the field and observed that:

37. The interpretation of Section 65-B(4) by this Court by a judgment dated 4-8-2005 in Navjot Sandhu held the field till it was overruled on 18-9-2014 in Anvar case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of Section 65-B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials have been held during the period between 4-8-2005 and 18-9-2014. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar case has to be retrospective in operation unless the judicial tool of "prospective overruling" is applied. However, retrospective application of the judgment is not in the interest of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage. Attempts will be made to reopen cases which have become final.

41. However, it did not decide upon this issue being a two judge bench and kept the question of law open for it to be decided in an appropriate case. In Arjun Panditrao Khotkar this court did not consider the question raised in Sonu.

42. On the other hand, Sonu did deal with the question of whether, at the appellate stage, the reliance upon CDRs can be reconsidered if the objection was not raised during the trial. As the counsel for the State of Tamil Nadu has argued, the defense as well did not raise the plea of the CDRs being inadmissible in the absence of a Section 65B certificate at the trial or at the appellate stage. On this issue, this Court in Sonu noted that:

32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof. (emphasis supplied)

43. While the Court in Arjun Panditrao Khotkar did not directly deal with the issue of allowing objections against CDRs, due to a violation of the procedure under Section 65B, being raised at a belated stage, it kept it open for trial courts, in exceptional cases, to allow the prosecution to provide such certificate at a later stage. It held that:

54. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an Accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the Accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution Under Sections 91 or 311 of the Code of Criminal Procedure or Section 165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the Accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the Accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case-discretion to be exercised by the Court in accordance with law. (emphasis supplied)

44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRs are inadmissible in the absence of a Section 65B certificate, especially in cases, where the trial has been completed before 18 September 2014, i.e. before the pronouncement of the decision in Anvar P.V.. However, we are also mindful of the fact that the instant matter involves the death sentence having been awarded.

45. Most recently, in Mohd. Arif v State (NCT of Delhi), 2022 SCC OnLineSC 1509 a three judge Bench of this Court while deciding a review petition in a case involving the review of a death penalty faced a similar fact situation where the decisions of the trial court and appellate courts were rendered during the period when Navjot Sandhu was the prevailing law. In that case as well, the Court took note of it being a matter involving a death sentence and held that:

"24. Navjot Sandhu was decided on 4.8.2005 i.e., before the judgment was rendered by the Trial Court in the instant matter. The subsequent judgments of the High Court and this Court were passed on 13.9.2007 and 10.8.2011 respectively affirming the award of death sentence. These two judgments were delivered prior to the decision of this Court in Anvar P.V. which was given on 18.9.2014. The judgments by the trial Court, High Court and this Court were thus well before the decision in Anvar P.V. and were essentially in the backdrop of law laid down in Navjot Sandhu. If we go by the principle accepted in paragraph 32 of the decision in Sonu alias Amar, the matter may stand on a completely different footing. It is for this reason that reliance has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P.V. and Arjun Panditrao.

25. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act." (emphasis supplied)

46. Accordingly, we too deem it appropriate to consider this review petition by eschewing the electronic evidence in the form of CDRs as they are without the appropriate certificate under Section 65B even if the law, as it was during the time the trial in the present case was conducted, allowed for such electronic evidence to be admitted.