Header image alt text

Naavi.org

Building a Responsible Cyber Society…Since 1998

The January 30, 2018 order of the two member bench of the Supreme Court consisting of  Justices A.K.Goel and U.U.Lalit, in the case of Shafhi Mohammad Vs State of Himachal Pradesh dated 30th January 2018 (SPECIAL LEAVE PETITION (CRL.)  was discussed in these columns earlier. While commenting on the order, it was pointed out that it would unleash “Judicial Anarchy” in India as it would encourage lower Courts to pass judgements against the higher Courts by way of “Clarification” and also because this judgement having the banner of Supreme Court could put the lower courts in a state of confusion on how to address the Section 65B (IEA) certification. The final judgement of 3rd April 2018 as a final order on the SLP has indicated that the Court has not made any attempt to set right its erroneous interim order.

The Judgement was also called a “Tragedy” since it indicated the inability of the Supreme Court to understand technology and an attempt to find short cuts to some imaginary problems.

It was pointed out that the erroneous judgement would give a thrust to mischievous criminals who would fabricate evidence to harass innocent persons.

Unfortunately, the speculation that this Supreme Court judgement would spur Cyber Crimes appears to be coming true sooner than expected.

The essence of the objections raised is as follows.

  1. Under Section 65B of Indian Evidence Act,(IEA), an electronic document is admissible in a Court without the production of the original if it is properly certified as required under the section.
  2. There is some confusion in the Judiciary as well as some legal practitioners as to why certain procedures mentioned in the section are relevant and how they should be interpreted. This includes who has to issue the certificate and how the certificate has to be constructed etc. These have been explained in detail in the columns of www.naavi.org and www.ceac.in
  3. The Supreme Court itself in the celebrated case of P.K.Basheer has explained at length why Section 65B certificate is mandatory under Section 65B and it has been so since 17th October 2000 though different Courts were unable to understand the section and allowed its violation from time to time. This was a three member bench of the Supreme Court and the Shafhi Mohammad bench had no authority to amend the judgement with a “Clarification”.

During our earlier discussions on the Shafhi Mohammad judgement, we have clearly pointed out that it gives a free license to falsify evidence and it could be mis-used.

Now one such case has been reported from Bangalore and is an indication that more such cases will surface in the coming days.

Further, we predict that the Police themselves under the influence of the politicians will falsify evidence and create human rights issues in future. At that time the same Supreme Court will harp on “Freedom of Speech”, “Right of Privacy” and other fundamental rights to criticise the Police. Politicians will then direct the criticism against the Modi Government. The rebellious judges of the Supreme Court and the activist lawyers like Dushyant Dave, Kapil Sibal etc will enjoy the predicament of the Government.

The complaint I am referring to is an incident where a suspected student of an educational institution posted a message in the time line of the Dean, took a screen shot, distributed it in WhatsApp groups, deleted the time line post. After this, a police complaint has been filed either by the same person or some body at his instance that the Dean had made the objectionable posting and has since removed it.

It is clear that such insertion of objectionable posts on the time line in Facebook can be done wherever the owner of the Face Book account has enabled postings on his time line by the public or Friends.

While we advise every reader to check their Privacy Settings in their Face Book account to ensure that such postings on the time line are limited to “Me Only”, we proceed to discuss here how the Shafhi Mohammad judgement creates a problem for the innocent victims of such crimes.

According to the Shafhi Mohammad judgement, since Face Book account of the Dean is not under the control of the complainant, there is no need for him to submit the Section 65B certificate along with the print out of the screen shot allegedly containing the objectionable post. It would be admissible and the trial would begin with the Dean trying to defend that he did not either post the content or delete it subsequently.

The only person who can come to the assistance of the Dean is Face Book which must have the log records including the IP address of the person who made the objectionable post. But getting the evidence out of Facebook is impossible for an ordinary mortal unless the Police move quickly which in most cases is not possible.

(Ed: we have earlier pointed out how the Cyber Crime Police Station of Mumbai-BKC botched up a complaint by refusing to issue a simple request to Google for an IP address resolution possibly in pursuance of some illegal gratification and the higher officials of the Mumbai Police did nothing to correct the situation even when it was brought to their attention. Refer here)

If Section 65B certificate is considered mandatory, then the complainant would have to file the certificate. It could have been filed by the complainant himself in which case the Court could have the option to reject it as not credible since it is a “Self Serving evidence.”

If it is submitted  by a trusted third party, such a person would have to view the objectionable post himself and certify its existence with some additional information and also be ready to face the charge of “perjury” if it really did not exist on the time line.

Since Section 65B certificate is a matter of fact certification, the certifier  would not be able to forensically certify the genuineness of the posting but he would have given some additional material information for investigation to proceed. This would have created one hurdle for the complainant to first find a suitable accomplice to provide the certification and then to convince him that the request is genuine. Then the credibility of the certifier could have acted as an additional check against provision of the false evidence.

Unfortunately, if Shafhi Mohammad judgement is to be applied, there would be no need for a Section 65B certification and it is left to the wisdom of the Court to accept the evidence as presented and proceed with the trial.

By God’s grace, we can say that the  “Clarification” provided by the SLP order is by a two member bench and hence should be ignored. But we strongly feel that this tendency of the lower bench to pass an order over turning the larger bench view and terming it as “Clarification” needs to be corrected by the intervention of the CJI.

In the meantime, we urge the Bangalore Cyber Crime police to prove that they are not like the Cyber Crime Police of BKC, Mumbai and would ensure that Facebook would be made to provide the evidence and resolve the complaint appropriately. If during the investigation it is found that the posting was done by the complainant himself, he should be punished for hacking into the Face Book account of the Dean with a dishonest intention and take action under Section 66 of ITA 2008 along with other provisions of IPC.

In case, like the BKC Cyber Crime Police Station, Bangalore Cyber Crime PS also dithers, then innocent victims will keep cursing the Shafhi Mohammad judgement until it is corrected.

Naavi

The tragedy of Shafhi Mohammad judgement

Posted by Vijayashankar Na on April 19, 2018
Posted in Cyber Law  | Tagged With: , | No Comments yet, please leave one

“This erroneous interpretation of the bench will directly result in honest persons being harassed by dishonest persons” …. Naavi

The honourable Supreme Court in its order dated 3rd April 2018 pronounced its final order on the Special Leave Petition (SLP 2302 of 2017) regarding the use of videography including body cameras in crime scene evidence capture. There was an earlier interim order of 30th January 2018  on the same SLP which had elaborated more on the issue of Section 65B of Indian Evidence Act.

The order indicates that the Supreme Court wanted to allow such videography and tried to manufacture an acceptable argument to reach a preconceived conclusion. This tendency was earlier seen in the Shreya Singhal case where Section 66A of ITA 2008 was scrapped and also in the Puttaswamy case on Privacy. In all these cases, the Judiciary has come out in poor light as trying to fit its logic to a pre conceived decision. In the process, the judgement creates some untenable and undesirable consequences.

In the Section 66A scrapping, the SC was adamant that it cannot “Read down” the section and nothing short of scrapping it would be acceptable to it. In the Privacy judgement, it was an attempt to rush through a judgement to influence another judgement. Now this Shafhi Mohammad judgement falls into the same category.

In a bid to allow such videography, the two member bench has tried to bend the law in a manner that is highly detrimental to the society and could lead to corruption in judiciary and harassment of innocent citizens by powerful and more intelligent evidence manipulators.

It is not our argument that body cameras and police TV footage should not be used as evidence. In fact these and much more of technology is to be used and is aleady being used.

However, we have a serious objection to the attempt of the two member bench to re-interpret the law as it exists and in derogation of a three member speaking order in the case of P V Anvar Vs Basheer.

The Indian Evidence Act 1872 (IEA) was amended when ITA 2000 was notified and one of the major changes that was brought about  was the introduction of Section 65B for “Admissibility of Electronic Evidence”. This has to be read with Section 65A, Section 22A, Section 17 and Section 3 of the same Act.

Section 65B of IEA is one of the most innovative aspects of ITA 2000/IEA and the Court has failed to recognize the purpose and scope of the section before jumping into passing an order which is bad in law and bad for the community.

The problem which the Police had in using the Videography as evidence was that the videography was captured in some camera and the first copy would be recorded in the device memory which could be the hardware or the removable media. It is then transferred to the Police in the back room and subsequently viewed, edited and presented as evidence in a Court.

In this scenario, if Section 65B was followed, then some body in the Police should have taken the responsibility to give a Section 65B certificate which would pin him down against any manipulation of the evidence.

The Court conveniently ignored  that Section 65B was about presenting a “Computer Output” of an electronic document which may be present either in a camera device or on a server or on a removable media such as a pen drive or memory card. The only requirement was that the Certifier had to take the responsibility to state how he was able to view the document in his computer and how he was able to produce the computer output (say a print out).

Section 65B does not require the lawful owner of the first device which created an electronic impression (sequence of zeros and ones) of an event to either himself give the evidence in the Court. It would suffice if he hands over a memory card to the Police repository in charge with a standard form which identifies the memory card along with a hash value of the entire set of bits and sequences contained there in such as “Videograph of day …. in camera ….) and a signed covering letter. This form of handing over the recorded removable device can be standardised and is not complicated.

Subsequently it is the responsibility of the repository in charge to create clones and copies as may be required along with his own Section 65B certificate. The forensic expert may actually extract much more information than what is visible by using his own tools and he  can provide his findings with his own Section 65B certificate. Similarly if there is a need to edit the video, there is no bar on it under Section 65B except that it has to be recorded as a process in the Certificate. For example if the video is of one hour duration between say 20.30 and 21.30 on 17th April 2018, the edited version may be video between 20.55  to 21.10 and it can be stated as such in the certificate.

What the Court has done now is to say that “No Certificate is required under Section 65B when the electronic document is presented from a device not owned by the person presenting the evidence”. Police can conveniently say that they engaged the services of a free lance video grapher and the camera belonged to him and hence no certificate is required for whatever the Police present.

Even if the evidence is manipulated, there is no responsibility fixed on any body in the absence of the Certificate.

In the same manner, when an electronic document lies on a server not owned by the person it can be manipulated and presented as evidence and the Court has to admit the evidence and ask the defendant to prove that the evidence is wrong.

If therefore some body hacks into a web server, downloads a document, makes changes and captures it, then goes onto to delete the document on the server, he will be in possession of a doctored document which can be produced as evidence which will be automatically admitted. Then it will be the burden on the defendant to prove that the version presented to the Court is fake. This can also happen in WhatsApp messages and Social media where fake documents can be created, captured as uncertified evidence, destroyed in original form and uncertified copy presented to the Court which the Court has no option but to admit.

I would like the two honourable Judges to confirm if they have considered the above scenario before boldly declaring that they would clarify that Section 65B is only a procedural requirement which they consider as redundant in some cases. If they have not, it is necessary for them to review their own decision rather than creating a bad law which exposes the ignorance of the Judiciary.

I accept that the Government has the power to change the law and can even scrap the entire Sections 65A and 65B if they want. But as long as they exist, they exist as independent sections and as the three member bench in the Basheer case rightly observed, it is a special provision applicable for electronic documents and over rides the provisions of Sections 62,63 and 65.

It is therefore incorrect to interpret

” The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by  person who is in a position to produce such certificate being in control of the said device and not of the opposite party.”

It is also incorrect to interpret

“In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving,”

In fact

“This erroneous interpretation of the bench will directly result in honest persons being harassed by dishonest persons”

In fact

“This erroneous interpretation will pave the way for a high level of Judicial corruption because it provides the discretion to the Judiciary to accept evidence without any body taking responsibility for its existence”

In fact

“This erroneous interpretation will place all web place all web based documents admissible without any person taking the responsibility for stating how it was seen and recorded.”

In fact

“This erroneous interpretation will create more rogue judgements where the lower courts will order against the higher courts by way of clarification”

It is therefore essential that the bench immediately reviews its own order and state nothing beyond, that

“The Supreme Court reserves the right to accept electronic evidence without Section 65B evidence in such cases as it deems fit after a necessary examination”

The MHA should get back to the bench for the review as otherwise the MHA under Mr Modi’s Government will be accused of having manipulated the Judiciary to pave the way for Police to file uncertified fake videos as evidence.

Naavi

(This article is a continuation of this previous article)

We draw attention of the public on our earlier article on the interim view expressed by a bench of the Supreme Court on January 30, 2018, which was headlined by most news publications as “Courts can rely on electronic records without certificate: SC”

We had commented in the context “Recipe for corruption in Judiciary- Supreme Court judgement in Shafhi Mohammad V State of Himachal Pradesh“.

This was a two bench order on an SLP but it had stated in the order that

“An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that

if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities.

It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate couldnot be mandatory.

It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronicrecord, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.

This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”

The Court quoted one judgement of 1985 and an American judgement of 1972, (delivered long before Section 65B was conceived for electronic evidence) which stated “…it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. “

A case was made out  through two other cases to state

 “Scientific and electronic evidence can be a great help to an investigating agency.”

 “new techniques and devices are order of the day”

“threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.”

Then the judges referred to the Anvar PV Vs P.K. Basheer case as well as the Navjot Sandhu (alias Afsan Guru) case which it over ruled.

The two member bench referred to the Tomasho Bruno (2015) and Ramsingh (1985 judgement) and went on to conclude

“it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions.”

Proceeding further, the two member bench over ruled the judgement of the three member bench in Basheer Judgement which took into account the recent developments in technology and had examined the question of Section 65B in great length and made the following statements.

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.”

” The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by  person who is in a position to produce such certificate being in control of the said device and not of the opposite party.”

“In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.”

Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Now the bench has released its final judgement in the case and a final order has been issued on 3rd April 2018.

We therefore re-visit the judgement on what is stated in the final order, read in conjunction with what was stated in the earlier order of January 30, 2018.

We would like to state that we have no disagreement to the use of Videography by Police through body cameras which was central to the discussions in this case. We are not in disagreement even with the use of  Surveillance, Profiling, use of Artificial intelligence in Policing etc which are opposed to the policy of “Privacy Protection” which are dear to the Supreme Court judges.

But we are in disagreement with the views of the bench as to the conclusions that they have drawn and also to the fact that they have gone against the tradition of not trying to over rule a verdict of the higher court.

We do agree that the Court should exercise discretion when “Justice so justifies” to bend some rules temporarily. This was done in the Sonu @ Amar judgement  for the right cause and we support it. However the judgement in the Shafhi Mohammad Case is boarne out of a wrong interpretation and hence needs to be opposed.

Our opinion on the reasons of why this judgement is bad for the society and is wrong in law is presented below. This is not to show any disrespect on the Court but to engage in an academic debate on a point where we feel that technology related interpretation has gone wrong in this instance and needs to be corrected if necessary.

However, we feel that this being a two member decision relevant to a specific reference cannot create an over riding law against the three member judgement though the Judges seem to think that it should be.

More discussion will follow…

Naavi

The SLP order of the Supreme Court in the case of Shafhi Mohammad Vs State of Himachal Pradesh dated 30th January 2018 in which a two member bench of the Court passed an order which was clearly meant to over rule an earlier three member Judgement of the Basheer Case as regards the applicability of Section 65B of Indian Evidence Act is now having its adverse impact on the system of judiciary in India.

The SLP order was delivered by  the two judges namely Justice Adarsh Kumar Goel (Seniority order 11) and Uday Umesh Lalit (Seniority order 15).

This order was conspicuously rebellious  over ruling the earlier judgement passed by three judges namely  Justices RM. Lodha (Then CJI now retired) Kurian Joseph(Seniority order 5) and Normally when a Judge has a different opinion from an earlier judgement Rohinton Fali Nariman (Seniority order 12).

Normally, when a Judge has a difference of opinion with the earlier order of a superior court, the option available to him is to make a reference back to a comparatively bigger bench and seek a review. This is an established convention. It was diligently followed in the Aadhaar case when the question of “Whether Privacy is a Fundamental Right in our constitution or not” came up with a smaller bench which felt that an earlier 5 member bench had a view which could be reviewed. Accordingly the matter was considered by a 9 member bench which gave its clarification after which the earlier bench resumed its hearing.

This process was not followed by the A.K. Goel-U.U.Lalit  bench which preferred to pass its clarification order in derogation of the order of the earlier three member bench. Though there was the next hearing on 13th February 2018, the bench simply continued with other matters and left its earlier order on Section 65B  remain on paper though its validity is questionable.

We consider that the order was erroneous, is amenable to be misused and would open doors of corruption in Judiciary.

It is also infructuous being an order of a smaller bench.

But by not reviewing the order in the next available opportunity the two member bench has shown disregard to the conventions and cyber jurisprudence.

It is necessary for the CJI to take note of this development and if he allows such breaking of conventions go unquestioned, it will be spreading like cancer in the Supreme Court and through out the judicial system.

Some time back we had the Justice Karnan episode where he challenged the Supreme Court and was later convicted for Contempt of Court.

But the current CJI did not take similar contempt action against the four judges who held a press conference. Now if CJI continues to remain quiet without acting against the breaking of convention by the AK Goel-UU Lalit bench,  every judge will ignore every other judgement of a bigger bench and turn  Jurisprudence upside down.

If a lower bench of Supreme Court can over rule a higher bench, a lower court can also over rule a higher Court. We will see chaos and anarchy spreading through the system if proper measures are not initiated by CJI now.

Such a situation will give a free hand for corruption to decide which order of a superior court will be followed as a precedence and which will be ignored under the special precedent set by the AK Goel-UU Lalit bench.

The Order of this bench to turn Jurisprudence upside down is completely illogical and indicates that this could be part of a rebellion developing inside the Supreme Court.

CJI needs to take note and take corrective action. Silence will not be a solution and it may be too late to correct the situation if more such decisions contemptuous of the higher benches can be allowed to be taken.

In the meantime, if any situation arises in Courts where there is an attempt to accept electronic evidence with Section 65B certification on the basis of the SLP order, it has to be challenged first with a request for review, if necessary supported with an expert counter opinion, failing which with an appeal to a higher court specifically on this issue.

It is regrettable that Supreme Court judges are creating anarchy in the system by not being consistent with their commitment to delivery of justice and the poison seeded by the four rebellious judges seems to be having its effect in destroying the revered system. I hope the fear is misplaced and things will turn out well with the bench in its next hearing on 7th march 2018, issuing a clarification that they are not over ruling the earlier judgement.

If the Amicus Curie is unable to find a solution to a practically permissible and legally acceptable solution to the problem on hand (Evidence to be presented by the Police from the crime scene videography), it is necessary for the Court to hold a larger consultation with other experts before passing further orders.

Naavi

During the last week, Bengaluru witnessed a disturbing display of lawlessness by a group led by a son of a Congress MLA. The case involved a brawl in a Pub called “Farzi Cafe” in UB City in which another person was beaten to near death by the group.

Similarly there was another incident of VIP misbehaviour of another Congress worker sprinkling petrol and threatening destruction of a BBMP office also in the same week.

While the discussion on the incidents is outside the scope of this website, I would like to only discuss the role of “Digital Evidence” that plays an important part in both these incidents.

In both the incidents, there is video evidence and in one case the offence is an “Attempt to Murder” and in the other case it is “Threatening to commit arson and destruction of Government property”.  Both are very serious offences and requires a fair trial in a Court. The evidence available would therefore be very important.

But there are unconfirmed media reports indicating that since the offenders in both cases relate to the ruling party, the Police are favouring the accused and are unlikely to pursue the case properly. In the process, there will be a possibility of destruction or manipulation of the digital evidence which is in the form of CCTV footages.

The Video in the case of threat to burn BBMP office has already gone viral and is now in the public space. Courts can take cognizance of the incident even if the Police try to suppress it.

But in the incident related to the brawl in the Pub,  there are two videos one from the Farzi Cafe where the brawl first took place and the other from Mallya Hospital where the accused tried to break in perhaps to cause further hurt to the victim. Initial media reports suggest that the Farzi cafe Video has already been tampered with by the Police and will only show the victim slapping the accused and not the earlier first attack by the accused.

If the report is true, it is expected that the case will eventually not get proved in a Court of law and will be dismissed for lack of evidence. Worse still, the victim himself may be punished for attacking a respectable person who is the present accused and provoking him.

The incident highlights the importance of protecting the digital evidence which is extremely useful in such cases with CCTV cameras spread across the city and in most public establishments. Recently, Bangalore Police solved a case of harassment of a lady in the middle of the night only through the CCTV footage that was available.

But if CCTV footages become only tools of manipulation where at the discretion of the Police it would be used in certain cases and in certain other cases it would simply vanish, then the question of accountability for such CCTVs arise.

There is already an argument that installation of CCTV cameras is a threat to the Privacy of Citizens. This will only gets strengthened. The defence that it helps in “Security” falls flat because of the frequent misuse of the CCTV footage by the law enforcement to suit their political objectives.

I therefore request the Bangalore Police to make public the entire unedited version of the Farzi Cafe incident to the public in the interest of transparency in public life. The Court should also direct for such a disclosure.

I believe that Farzi Cafe owners would be having a copy of the video and unless they want to be called for taking sides in the dispute, should go public with the copy of the video in their hands. Since this Video would be relevant not only to the accused but also to the victim as well as other people who would be in the Cafe at the time of the incident, there is a “Public Interest” in the disclosure and Courts can order for the disclosure.

While some body who has the courage to face the wrath of Congress Government in Karnataka can take up the issue as a public interest litigation, the Courts also can take suo moto action if they consider the matter to be of consequence.

If however Farzi Cafe owners have deleted the evidence then they would be liable for prosecution under Section 65 of ITA 2000/8 and Section 204 of IPC for destruction of evidence. If manipulation of evidence has taken place after the Police took charge of the evidence, similar charge can be made on the police personnel also. Probably the Karnataka Human Rights Commission has the jurisdiction to investigate the matter.

It would be interesting to see how the case proceeds from here and what lessons the police and organizations like Farzi Cafe will take from the current incident on handling of CCTV footages which become “Potential Evidence” in criminal cases.

Our discussion would be incomplete without also highlighting why the recent decision on an SLP by the Supreme Court in the case of Shafhi Mohammad  was called by us as an “Recipie for Corruption…” If the order is to be accepted, then the CCTV footage which the Police will produce may be argued as acceptable as evidence without a Section 65B certificate. If the decision in the Basheer case is followed at least there will be one person who will look into the evidence and certify and while doing so will consider if the evidence is trustworthy or not. This important element of check on fraudulent production of digital evidence for admission would be removed if the Safhi Mohammad decision is to be considered as valid. Fortunately this is a two member order on an SLP where as the Basheer judgement is a three member judgement and hence it would prevail.

Naavi

After the Basheer judgement, there has been several discussions on the Section 65B (IEA) certification of electronic evidence for “Admissibility”. I suppose some clarity has dawned on the community with these discussions, though there are some areas which continue to create doubts.

In the recent SLP order issued by Supreme Court in the case of Shafhi Mohammad Vs State of Himachal Pradesh, the two member bench consisting of Adarsh Kumar Goel and Uday Umesh Lalit actually challenged the P.V Anvar Vs P. K Basheer judgement given by a three member bench and created confusion in the judicial circles.

One of the issues discussed in the Shafhi Mohammad case was how an electronic document present in a device not under the control of the producer of the evidence be produced for admissibility. The Court came to a very illogical decision that in such cases, Section 65B certificate itself is not required. We have already stated that the decision has to be ignored since a two member SLP order cannot over ride a three member Judgement.

Our objection to the order was that if at some point of time the presenter of evidence had access to an electronic document and today that document is not available for Section 65B certification, then it is a failure of the person in getting the Section 65B certificate at the time when he had access to it.

Since Section 65B certificate can be provided by any person who has a viewing access to the document, there should be no problem in getting the certificate if people are aware of the provision. Ignorance of law is not an excuse and hence if the original electronic document is no longer available and the earlier copy is not admissible because it is not Section 65B certified, then the evidence should be considered as lost.

Just because “Documentary Electronic Evidence” is lost, it does not mean that justice would be lost. It would be difficult of course but not entirely unthinkable.

For example, if you have just witnessed a murder before your eyes but did not take out your mobile and take a picture, the documentary evidence of murder is lost for ever. It does not mean that you can excuse the evidence itself since every body does not carry a camera around to capture the events happening around.

However, we are not trying to debate why the SLP order said what it said and whether it was out of ignorance or out of a need to challenge other Judicial order or for any other purpose. We have another point emerging out of the situation which we have already discussed but can be recalled again.

In many instances, we donot know if an electronic document before us is an “Evidence” or not. But an intelligent person would know if it is a “Potential Evidence”. For example, when we enter into a business deal, we want a written paper so that if tomorrow there is any dispute, we know what we have agreed upon. The document becomes an evidence if there is a dispute before a judicial authority. Until such time, it is a redundant piece of paper.

In the case of electronic documents, the “Potential Evidence” if any, has to be archived along with a Section 65B Certificate so that if and when it is required later, the electronic document is already bundled with the Certificate at the archival center.

Once such a document is archived, even if the original gets destroyed, the evidence is still admissible. However, no person should deliberately destroy an evidence which is in his hands since it may attract Section 65 or Section 67C of ITA 2008 or Section 204 of IPC if what is being destroyed is an “Evidence” at the time it was destroyed.

There is however the case where we may have an archived electronic document along with Section 65B certificate but the original which was in the hands of a third party (eg ISP/MSP). Though law provides that such a person can be summoned to  produce the evidence, many times this may not be practical or the document might have been removed in the ordinary course of business by the holder who did not know that it was “Evidential Matter”.

It was to accommodate such a situation that Shafhi Mohammad order came to the absurd conclusion  “Let’s do away with the Section 65B certificate itself”.

On the other hand, CEAC (Cyber Evidence Archival Center)  when confronted with the challenge in the E Commerce scenario, thought differently and introduced a service called “Evidence Drop Box”.

Evidence Drop Box is a service provided by CEAC to ensure that “Contingent Evidence” can be submitted for Section 65B certification without any cost and held in “Contingent” condition for a period of 30 days. By the end of this 30 day period if the person decides to use the “Contingent Evidence” as “Evidence”, he may request for a Section 65B certificate and acquire it at the cost specified by CEAC.

The “Contingent Evidence” becomes “Evidence” when the contingency materializes. For example, in an E Commerce transaction, when a purchase has been made on the basis of a product description that has been mentioned on the E Commerce website, the information provided about the product is a “Marketing Information” and is read before the purchase decision is made but is more often not kept on record. If subsequently, a “Dispute” arises and the buyer or the seller is claiming that the product description was not what the product supplied indicates, the “Marketing Information” becomes an “Evidence”. The “Dispute” is therefore is the contingency under which the contingent evidence turns into evidence.

The CEAC-Evidence Drop Box provides an opportunity to the buyer to deposit the evidence before he completes the purchase with no financial stake until the contingency arises.

It will take some time for the market to absorb the utility of this proposition and also some time for CEAC to automate and fine tune the certification process but it will be a boon to E Commerce in India.

Explore it next time when you make any online purchase.

Naavi