- The Certificate u/s 65B is not required to be on an affidavit.
- Though normally to be filed along with the electronic record (print-out, USB drive, etc), it can be filed subsequently too, either as a supplementary chargesheet, or by resort to S.311/391 of the CrPC.
- In Civil cases, the certificate can be brought on record subsequently by relying upon Order 18 Rule 17, Order 16 Rule 14 CPC r/w 151 of the CPC. (Also see Order 8 Rule 1A and Order 7 Rule 14 CPC)
- Objections relating to admissibility of electronic evidence should be taken promptly else they are taken to have been waived.
Category: Tech law
First published on Bar & Bench
Like it or not, we are all part of various WhatsApp groups. In fact, nearly all of us are in more groups than we’d prefer. From project groups to groups for every legal file that comes into office, or the random temporary group that was created for a brief discussion, and last but not the least – the extended family WhatsApp group (with those nauseating good morning flowers!). There are, therefore, WhatsApp groups of all shapes and sizes on our phones.
Fun and games so far. However, things get serious when we start these groups or are assigned the hallowed privilege called– ‘The Group Admin’. Is being an ‘Admin’ really a privilege, or a potential millstone around one’s neck? In other words, what are the implications of this? Can there be – for instance, legal consequences of (mal)administering a group or failing to moderate messages/content? With great admin rights come great responsibilities?
These were precisely the questions that the Bombay High Court answered recently in Kishor v. State of Maharashtra,(2021 SCCOnLine Bom 654). In this case, an application under Section 482 of the CrPC was filed before the Nagpur Bench of the Bombay High Court challenging the charge-sheet that named the applicant as an accused. The applicant was charged for being a WhatsApp admin (a position that many of us have occupied) of a group in which one of the members allegedly used filthy language including sexual coloured remarks against another member of the same group.
The charges levelled against the admin were serious- ‘sexual harassment and punishment for sexual harassment (S. 354-A, IPC), ‘words, gestures or acts intended to outrage the modesty of a woman’ (S.509, IPC), ‘punishment for publishing or transmitting obscene material in electronic form’ (S. 67, IT Act) and ‘abetment of a thing’ (S. 107, IPC).
If you are wondering whether these allegations are a little too drastic to be levelled against an admin of a group, let us clear the air and inform you that this was not a one-off incident.
For instance, in 2017 a WhatsApp group admin was arrested in Karnataka because one of the members of the group posted an ‘obscene and ugly’ image of the Prime Minister. Recently, law enforcement agencies have also attempted to provide some legitimacy to such arrests, particularly during this period of the pandemic.
In April 2020, for instance, the Office of the Special Inspector General Police, Maharashtra Cyber issued an ‘advisory for WhatsApp users and admins during the Covid-19 pandemic’. A list of duties was prescribed for both WhatsApp users and in particular for WhatsApp group admins.
In the past, similar advisories have been issued by the Jharkhand Government and even by a District Magistrate in Jammu and Kashmir. According to the Maharashtra Cyber Cell advisory, failure to follow these duties would result in criminal liability attracting various sections of the Disaster Management Act, the Indian Penal Code and the Bombay Police Act.
Interestingly, one of these consequences included action under Section 68 of the Bombay Police Act which states that “all persons shall be bound to conform to the reasonable directions of a Police officer given in fulfilment of any of his duties under this Act.” The question, however, is whether such directions against WhatsApp admins are reasonable?
According to the Bombay High Court in Kishor, “A group administrator cannot be held vicariously liable for an act of a member of the group, who posts objectionable content, unless it is shown that there was common intention or pre-arranged plan acting in concert pursuant to such plan by such member of a Whatsapp group and the administrator.”
In other words, WhatsApp admin does not incur liability solely on the ground that she holds such a position within the group. Thus, even if the admin does not remove the member who posted objectionable content on the group, she would still not be liable.
Similarly, while determining a civil defamation case, the Delhi High Court in Ashish Bhalla v. Suresh Chawdhary,(2016 SCCOnLine Del 6329) observed that an admin of a group cannot be held liable. According to the Delhi High Court –
“When an online platform is created, the creator thereof cannot expect any of the members thereof to indulge in defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. It is not as if without the Administrator’s approval of each of the statements, the statements cannot be posted by any of the members of the Group on the said platform.”
Another aspect in these cases which is worth examining is the routine invocation of the provisions of the Information Technology Act, 2000. In this context, the Bombay High Court clarified that an admin, by merely creating a group does not publish or transmit material over the internet. Thus, the Court drew a distinction between a mere group admin and an intermediary under the Act. The term intermediary refers to any person who, on behalf of another person, receives, stores or transmits an electronic record or provides any service with respect to that record. Generally, the admin of a group does not store or receive electronic records on behalf of another. Rather, it is WhatsApp itself which is arguably an intermediary as it acts as medium between two or more persons.
To cut the long story short, tn both these judgments, the Courts have rightly recognised that the admin of a WhatsApp group has limited control and her functions are on par with that of any other member.
According to the Courts, the only privilege that an admin enjoys is to add or delete members from the group, apart from creating the group itself.
However, in many cases, the current admin may not even be the person who created the group. For instance, Junaid Khan, an admin of a WhatsApp group was arrested and charged with sedition as well as other offences under the IT Act. However, Junaid had not created the group but became the admin by default when the original creator exited. While the judgment of the High Court does not explicitly recognise that many admins may even be inactive members, it is still clear that Bombay High Court’s interpretation of the law must come to the rescue of those like Junaid, who are victims of a negligent police force.
In fact, the law as interpreted by the Bombay High Court must equally protect Junaid as well as an active admin who created the group. Unfortunately, the issuance of unreasonable threats to admins via legally tenuous advisories only suggests that an admin is more powerful in the eyes of the police than she is in the eyes of her own members.
Of course, there are limits to what one can say on a public platform and there must be consequences, in certain cases, but a narrowly focussed defamation action against the maker of the statement may be enough to address that mischief. It is high time that law enforcement agencies learn from the above decisions and refrain from making an artificial distinction between the members and the admin and initiating frivolous prosecutions.
Authored by Bharat Chugh and by Siddharth Shivakumar.
By Bharat Chugh. 
First published one SCC Online Blog here.
On the legality of compelling an accused to disclose his smartphone/laptop password, or open his phone through face-scan, or fingerprint and the constitutional protection against self-incrimination.
Our smartphones are an extension of our minds and souls. Our deepest desires. Our darkest secrets. Our smartphones know it all. You remember that smartphone ad where the manufacturer said something on the lines of, ‘Your phone knows all about you, but not us’? They weren’t lying. Your smartphone indeed knows everything about you. Knows way too much – in fact.
It, therefore, comes as no surprise that smartphones can offer up a wealth of evidence as far as criminal investigations are concerned. An accused’s phone reveals not only where the accused was, at a given time, but also – who did she text or speak with. It tells us, what did she google and what did she buy online. It also demonstrates the trends and history of her financial dealings. When coupled with a smart watch, a smart car, or even a smart refrigerator, it offers even deeper insights both into the criminal, as well as the crime. It offers much more evidence than a house/office search ever has or will.
Smartphones are, therefore, a great aid in crime detection and investigation and their importance can hardly be emphasized enough.
Our notoriously arcane procedural laws, however, were not designed with the smartphone in mind. Therefore, there is little guidance in our laws, on whether an accused can be compelled to deliver-up/produce his smartphone/laptop/email password, in the course of a criminal investigation.
Let us assume that, in a given case, a smartphone/laptop (being ‘property’ or ‘thing’ within the meaning of CrPC), is seized by the police. However, that – by itself – is not the end of the matter. After that arises the issue of retrieving evidence from that electronic equipment or mailbox. This is what brings us to the elephant in the room:
If the seized smartphone/laptop is locked (as they are likely to be – in almost every case), how do the investigators access the contents of the smartphone/laptop/mailbox and retrieve evidence?
Can the accused be compelled to provide his password, or give his face-scan/fingerprint?
Would that violate the constitutional protection against ‘being compelled to be a witness against oneself’? (Article 20(3) of the Constitution of India).
And, secondly, is there a provision in our procedural law that permits the investigators to seek disclosure of passwords, face-scans, etc?
The Court’s ruling in Virendra Khanna
These were precisely the questions that arose for consideration in the recent case of Virendra Khanna v. State of Karnataka (2021 SCC Online Kar 5032).
The facts of the case were fairly straightforward. The accused was charged for an offence under the NDPS Act. The investigators claimed that the accused’s smartphone and email account contained crucial incriminating evidence, and since the same were locked, the IO sought Court’s intervention in this regard.
To further its case, the Prosecution argued:
- Disclosure of phone or computer password is not in the nature of personal testimony. (Reliance in this regard was placed on State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808)
- Such an order does not violate the fundamental Right to Privacy as the Right to privacy is not an absolute right and can be curtailed in case:
- It is sanctioned by law;
- It serves a legitimate state interest/compelling state interest; (prevention and investigation of crime, in this case);
- It is proportionate; in the sense that there is a rational nexus between the object (the discovery of truth in a criminal investigation) and the means adopted to achieve the said object. (The ‘means’, therefore, should not be excessive and the object sought to be achieved should be so important and time-sensitive – so as to justify the making of in-roads into someone’s privacy.)
- In order to satisfy the requirement of ‘sanction of law’, the prosecution argued that Section 139 of the Evidence Act, Section 54-A and 311-A of the CrPC empower the Court to direct the Accused to disclose his password/faces-can, etc.
- Analogy was drawn to permissibility of ‘identification’ of the Accused, and taking of DNA samples, specimen signatures/handwriting samples, and voice samples.
The accused, of course, resisted this on the ground of this amounting to ‘compulsion to testify against himself’, and a violation of his right to privacy. Further, this, it was argued, amounted to a denial of his right to silence and rights under Articles 20 & 21 of the Constitution.
In this background, the Court framed and decided the following issues:
Issue No. Issue Court’s decision & reasoning 1. Can a direction be issued to an accused to furnish the password, passcode, or Biometrics in order to open the smartphone and/or email account? Yes. The Investigating Officer (“IO”) can always issue directions for “furnishing of information, material objects or the like”. 2. Can a Court issue a suo moto order to the accused to furnish a password, passcode or Biometrics? No. Investigation is the domain/prerogative of the IO. Court is not supposed to be investigating itself, and can act only on an application filed by either of the parties. 3. In the event of a direction being issued and the accused not furnishing the password, passcode, or Biometrics, what is the recourse available to an investigating officer? IO can approach the Court seeking directions to the accused to provide the same and/or “carry out search of the smartphone or electronic equipment” 4. What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system? It is open to Courts/IOs to issue a notice under Section 91 of the CrPC to the accused to produce a “document” or “thing” which would include a smartphone, a laptop, etc. Section 92 CrPC may permit the IO and/or the Court to seek documents from a “telegraph authority”. Section 93 permits the Court to issue search warrants w.r.t a “place”. These provisions empower the search and seizure of things from a “place” and smartphones, computers, servers, etc. may construed as “places” for the purposes of this section. Further, Section 100 of the CrPC requires a person in-charge of a closed place (analogy to a phone, laptop or a mailbox) to permit and facilitate a search ordered by the Court. In emergent circumstances, powers under Section 102 of the CrPC may also be exercised by the IO to seize electronic equipment, and under Section 165 a search/seizure can be carried out even without a warrant. Further, Section 69(1) of the IT Actalso empowers specified officers to pass orders compelling decryption of any information generated, transmitted, received or stored in a computer resource. 5. Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused? Depends. Data gathered from the accused’s phone/laptop, etc would be like any other property/evidence gathered during investigation. What would be the weight attached to such evidence is a fact-intensive exercise and a matter of appreciation of evidence, in the light of specific facts and circumstances of each case. 6. Would providing a password, passcode or Biometrics amount to self-incrimination or testimonial compulsion? No. Given the law laid down in Kathi Kalu Oghad’s case (supra), such information does not amount to accused being compelled to be “a witness against oneself”. Merely providing one’s password, passcode, biometrics, does not amount to making an “oral statement” or a “written statement”. Therefore, it cannot be said to be a “testimonial compulsion”. Article 20 and S.161 of the CrPC is, therefore, not violated. 7. Would providing of password, passcode or Biometrics violate the right to privacy of a person providing the said password, passcode or Biometrics? No. The case comes within the exceptions carved out in Justice Puttaswamy’s case (2017 SCC OnLine 1462). The IO, however, should not disclose this information to third parties without the permission of the Court and deal with it in a manner conducive to the Accused’s Right to privacy. 8. What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or Biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or Biometrics of that person? In default of Accused providing his password, the Court can draw an adverse inference against the Accused u/s 114 of the Evidence Act, if password is not provided or a wrong password is provided. In such a case of non-coperation of the accused, the IO may reach out to the manufacturer to access such information and in case of manufacturer not facilitating such access, the IO can, with the permission of the Court, “hack into the smartphone and/or email account” with, of course, the necessary expert assistance. 9. What are the protection and safeguard that the Investigating Officer would have to take in respect of the smartphone and/or electronic equipment? No proper rules formulated in this regard. Pending such formulation, Court laid down some broad guidelines, such as inclusion of qualified forensic examiners in such endeavors and preparation of proper chain of custody documents, etc.
The judgment must be lauded for addressing a gaping hole in our procedural law and introducing some semblance of a method to the process.
Having said that, the judgment falls short on a few counts. For instance, it fails to engage with the issue of right to privacy in sufficient detail, in general and – specifically, the requirement of proportionality.
While the court permitted search/seizures of electronic equipment and it added a caveat that when the court is issuing search warrants it should tailor the order narrowly and with precision so as to “preserve the privacy of the concerned” (Para 12.22) but, unfortunately, it did not elaborate on this further. More specific directions in this regard would have been apt for the guidance of the Courts and the investigators, and would have prevented misuse.
Further, the requirement of any transgression into right to privacy being ‘sanctioned by law’ wasn’t sufficiently examined. Though the judgment must be credited for interpreting ‘place’ (used in CrPC) as applicable to a device/electronic equipment/mailbox, (which is a fairly modern and technocratic interpretation!), it fails to engage adequately with the other sections relied upon by the prosecution – including Sections 54-A, 311-A CrPC, for instance.
Further, the judgment, when it sources the power of seeking passwords to Section 91 CrPC (as tantamount to seeking “documents”), commits another fallacy. It ignores a line of decisions where Section 91 of the CrPC has been held to be inapplicable in case of an Accused. (See, for instance, Shyamlal Mohanlal Choksi (1965 AIR SC 1251) and Kalanithi Maran (2003 SCC Online Mad 936). These cases categorically hold that a notice u/s 91 of the CrPC cannot be issued to an accused as the same amounts to compelling the accused to be a witness against himself. The effect of these decisions has not been considered while sourcing the power to Section 91 of the CrPC.
Another aspect that hasn’t been considered is the fact that, in some jurisdictions, the courts have made a search warrant mandatory in such cases, with a view to ensure some judicial scrutiny. The desirability of having such a safety valve hasn’t been considered adequately.
Another aspect of practical importance is the issue of rights of the accused upon seizure. For instance, greater clarity is needed on whether the accused would be able to seek a cloned copy of the smartphone/laptop seized, with a view to be able to use it, and to find out and rely upon exculpatory evidence, if any.
We hope a future decision would go into these aspects. Given how vexed the issue is, this is certainly (and hopefully!) not the last that we read on this issue.
All said and done, the decision is a crucial one. Indeed, there are privacy related concerns when it comes to a smartphones/laptops etc, but a narrowly tailored right with the investigators to seek such information is the need of the hour. The judgment would hopefully lead to a more nuanced discourse on balancing of the competing imperatives of a proper investigation, on one hand, and the accused’s right to privacy on the other.
 Authored by Bharat Chugh, Lawyer, Supreme Court of India. The Author can be reached at email@example.com. The Author wants to thank Siddharth, Shreyash, Roopali, Rashi, Yachika, Hamna, and Tejbir for their excellent suggestions and research.
An interesting guest post by the very talented Shreyash Sharma (4th Year, National Law University Odisha) & Gultash Guron (Final Year, Campus Law Centre Delhi) where they examine a rather vexed question relating to the scope of the protection against self incrimination in the context of phone passcodes (face scans, finger prints) and the fundamental right to privacy.
Mobile phones, these days, have become an extension of the human mind. They are privy to our darkest secrets and our deepest desires. Our phones possibly know us better than our families and friends, and arguably, better than we know ourselves. Everything that we do on our cell phone : from liking cute cat videos, navigating to a location on GPS, to shopping online, we are leaving digital footprints everywhere. Investigators love all of this. This means contemporaneous cogent forensic/objective evidence of what the accused does. Now in this context, picture this: a suspect in a criminal case is compelled to provide his fingerprint or a face scan or his password to unlock his phone. Can he be so compelled? What about the constitutional protection of not being compelled to be a witness against herself? Or the fundamental right to privacy?
Article 20(3) of the Constitution of India provides that “No person accused of an offence shall be compelled to be a witness against himself.”
Data encryption and decrypting digital/electronic content are some of the difficulties faced by the prosecution and investigating agencies and the fastest way around this hurdle is to unlock the encrypted devices.
Broadly, evidence is classified into three categories, namely, oral, documentary and physical evidence. Article 20(3) read with Section 161(2) of Cr.P.C. protects an accused against any oral testimony which has a tendency to expose her to a criminal charge. However, compulsory extraction of physical evidence lies outside the guarantee of Article 20(3) of the Constitution.
In M.P Sharma v. Satish Chandra, the court noted that compelled production of incriminating documents by a person against whom an FIR has been made is testimonial compulsion within Art 20(3) of the Constitution. The court gave a wide import to Article 20(3) so as to cover not only oral testimony or statements in writing by an accused but also furnishing of evidence by production of a thing or of a document or in other modes.
This interpretation was curtailed in State of Bombay vs Kathi Kalu Oghad, where the court considered whether directing an accused to provide his handwriting specimen, signatures or thumb or finger impression violated Article 20(3) – the court answered in negative.
The Court held that testimonial evidence means “to be a witness” and being a witness “may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense so as to include giving of thumb impressions or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for the purpose of identification.” Thus, physical characteristics such as hair sample, blood sample, saliva and fingerprints are not testimonial in nature.
The reasoning applied in Kathi Kalu was also used in a recent case by the Apex Court to hold that compulsory production of voice samples was not in violation of Article 20(3). 
Suffice to say that the accused cannot refuse to unlock a phone protected only by a fingerprint or face or iris scan as neither of them are testimonial. Fingerprints and passwords by themselves do not have any evidentiary value and would not be protected under Article 20(3) of the Constitution. The Supreme Court clearly noted in Kathi Kalu that for a testimony to be self-incriminatory it must be of such a character that by itself it should have the tendency of incriminating the accused.
In fact, it cannot be denied that fingerprints and other physical characteristics such as hair and voice samples are the most powerful tools of personal identification which are available to the police and the courts. The biometric technologies have dramatically increased the successful identification of suspects and are indispensable parts of the police investigation today, facilitating more efficient investigation.
However, there is no denying the fact that using a fingerprint, or a password for that matter, to access a smart phone can reveal or lead to possibly incriminating information.
In Selvi v. State of Karnataka, while considering the question of what constitutes “incrimination” for the purpose of Article 20(3), the court reflected on derivative use, i.e, when information revealed during questioning led to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.
The court noted that, “The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.”
Can the argument that disclosing a password involves the use of mental faculties, hold when the phone is being unlocked for the purpose of corroboration or identification of already available evidence? Can it then be considered to not be ‘testimonial’ and thus not be protected under Article 20(3). Perhaps, the same possibilities were present in the mind of the judges in Selvi, when they observed that, “We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.”
Privacy and Smart Phones
In a post-Puttuswamy world, privacy must always be put on the highest of pedestals. The draft Personal Data Protection Bill provides various safeguards for protection of privacy of individuals and Per Section 43 of the Data Protection Bill, 2018 these safeguards can only be waived off if so authorised by a law made by the Parliament and the State legislature. However, as has been recently held by the Hon’ble Supreme Court, the right to privacy must, “bow down to compelling public interest”. A harmonious construction of these two positions of law (supposing that the Bill is passed by the legislature and Section 43 remains unaltered) would entail that right to protection of privacy and by an extension personal data must not be interfered with or unduly taken advantage of unless so authorised by law while at the same time being subject to reasonable restrictions.
This discourse surrounding privacy and smart phones poses an interesting question: Since, no law requiring the accused to unlock their phones (either by production of fingerprints, face scans or passwords) exists at present and keeping in mind that the right to privacy is subject to reasonable restrictions, can unlocking a phone be successfully argued before a court of law on the grounds of privacy alone? Considering how a phone is a treasure trove of personal information, will a court of law hold the private nature of smartphones above the duty of the investigating authorities?
At this stage, it is pertinent to understand how other jurisdictions have dealt with passwords and compelled testimony.
Comparison drawn with the US & UK position.
An English court in R v S & Another held that a password is similar to a locked drawer and has an independent existence to that of the will of the accused. Thus, as one can be compelled to produce a key to open a drawer, the court can also compel the accused to provide these passwords.
Per contra, the American approach can be understood by, In Re Boucher. The court considered passwords to be analogous to the password combination of a safe revealing which would invariably reveal personal knowledge of the accused. The case also relied on the “doctrine of foregone conclusion” which is used to determine if the Fifth Amendment rights will come into the picture or not.
In general, the American courts have held that the refusing to disclose passwords is within the ambit of the Fifth Amendment as an oral testimony and being the contents of the mind. In In re Grand Jury Subpoena Duces Tecum for instance, the court held passwords to be testimonial in nature and thus covered by the Fifth Amendment and also rejected the doctrine of foregone conclusion as the State could not satisfactorily prove the existence of incriminating material on the encrypted hard disk drive.
A contrary view appeared nearly three years ago in State of Florida v. Stahl where it was held that the password itself is the ‘foregone conclusion’ and not the material sought to be obtained by unlocking the device. This approach has subsequently been criticised in both Katelin Eunjoo Seo v. State of Indiana and G.A.Q.L v. State of Florida where the material sought was held to be the foregone conclusion and not the password to the electronic device as the principal objective of the investigating authority is to obtain access to the evidentiary material stored on the device and not simply unlocking it.
The issue of privacy has been considered in In the Matter of the Search of a Residence in Oakland where the court relied on the landmark judgment of Riley v California to highlight the importance of mobile phones in this day and age and opined, “mobile phones are subject to different treatment than more traditional storage devices, such as safes, and should be afforded more protection”. The court herein pointed out that, where the fingerprint itself IS the password, the fifth amendment is implicated, despite these features, otherwise, being non testimonial.
The judge put it succinctly, “utilizing a biometric feature to unlock an electronic device is not akin to submitting to fingerprinting or a DNA swab”as “in this context, biometric features serve the same purpose of a passcode.” “If a person cannot be compelled to provide a passcode … a person cannot be compelled to provide one’s finger, thumb, iris, face, or other biometric feature to unlock that same device.” Thus, the act of unlocking a phone with a finger of thumb scan far exceeds the “physical evidence” created when a suspect submits to fingerprinting to merely compare his fingerprints to existing physical evidence (another fingerprint) found at a crime scene, because there is no comparison or witness corroboration required to confirm a positive match.
Way forward for India
There are two important points which the Indian courts must consider. First, whether passwords are by themselves testimonial in nature and second, will unlocking a phone be subject to the accused’s right to privacy?
For the first question, the courts must either consider passwords to be similar to a physical key or akin to a combination of a safe. Referring to the pith and marrow of Kali Kathu, a testimonial act was equated with providing ‘personal knowledge’ about relevant facts. Therefore, a password will be protected by Article 20(3) only if it the courts hold it to be within the realms of ‘personal knowledge’ and not if it is equated to production of a physical key having an independent existence outside the mind of the accused.
For the second question, it is essential to keep in mind that the law continues to evolve as we reach finer levels of understanding. Once, men could refuse even lawful search of their houses as they were considered in control of their domicile and every man’s house was his castle. Clearly, this defence failed to stand the test of time. Yet, the underlying framework of a private sanctum sanotrum is still applicable to this day. Further, as smartphones more often than not contain intimate information and almost always embarrassing details about a person, does providing an unrestricted access to the device in order to safeguard the ideals of justice trump the accused’s right to privacy? Thus, the courts must consider whether privacy can be infringed in order to protect the interest of the public or not?
It will be interesting to see how the courts tackle all these issues when they arise, which they surely will.
Today mobile phones can be considered to be extension of our minds. The mind of any person is undeniably a protected space and in light of the advancements in technology, the following observations by Justice L’Heureux-Dube, of the Canadian Supreme Court need to be mentioned:
Although the search of an individual’s home is an invasion of privacy, and although the taking of fingerprints, breath samples or bodily fluids are even more private, there is no doubt that the mind is the individual’s most private sanctum. Although the state may legitimately invade many of these spheres for valid and justifiable investigatory purposes vis-a-vis the accused, it is fundamental to justice that the state not be able to invade the sanctum of the mind for the purpose of incriminating that individual. This fundamental tenet is preserved, in its entirety, by the principle against self-incrimination.
 Throughout this article, the term ‘password’ is used as a catch-all phrase for various kinds of unlocking mechanisms which require the use of mental faculties such as a numeric pin, pattern based unlocking options, alphanumeric passphrases, encrypted data keys etc.
 Article 20(3), Constitution of India
 Section 161(2), Code of Criminal Procedure, 1973
 M. P. Sharma And Others vs Satish Chandra 1954 AIR 300
 State of Bombay vs Kathi Kalu Oghad AIR 1961 SC 1808
 Ritesh Sinha vs State Of U.P.& Anr 2019 SCC OnLine SC 956
 Selvi v. State of Karnataka AIR 2010 SC 1974
 Justice K.S.Puttaswamy(Retd) vs Union Of India (2018) 1 SCC 809
 Section 43, The Data Protection Bill, 2018
 Ritesh Sinha vs State Of Uttar Pradesh 2019 SCC OnLine SC 956
 R vs S & Anr.  EWCA Crim 2177
 In Re Boucher 2007 WL 4246473
 In re Grand Jury Subpoena Duces Tecum 670 F.3d 1335; see also United States v. Kirschner, 823 F. Supp. 2d 669 and Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014)
 Katelin Eunjoo Seo v. State of Indiana 29A05-1710-CR-2466
 G.A.Q.L v. State of Florida So. 3d at 1066 (Fla. 4th DCA 2018)
 In the Matter of the Search of a Residence in Oakland, 354 F. Supp. 3d 1010 (N.D. Cal. 2019)
 Riley v California, 189 L. Ed. 2d 430
 R.J.S. v. Her Majesty The Queen,  1 S.C.R. 451, 605
by Bharat Chugh & Siddhi Kochar
The recent pandemic has not only locked us up, made us read compulsively about force majeure and watch cat videos, but has also made us meditate. Many certainties have broken down and we’ve been compelled to look-within and our place in the future. The authors intend to share their musings on that – through this column. But, a small disclaimer first : At the very outset, we caution the reader that this is not going to be a comforting read, & if you want to read something more reassuring, you might want to look elsewhere. This, nevertheless, may be an important read, for this is about the future, our collective future. A hundred-year throwback would tell us that, while a revolution of the powerless may still command an audience, a revolution of the redundant is, well, for want of a better term, redundant. In this background, the question we ask ourselves is: are lawyers and judges facing an unprecedented existential crisis; in other words: What really is the future of the legal profession?
A profession, which despite its stellar role in social change, is otherwise hard-wired to always look behind in terms of precedent, analogy, custom & tradition. We’ve known this for some time now. But the very nature of our profession often makes us averse to change and, as we lawyers love to call it – status quo-ists. But, as the adage goes – even if we can’t see the future, the future can still see us. We are living in the age of acceleration and disruption. While society and technology are moving by leaps; law and legal education, is struggling to catch up. Do we have the necessary skills to survive? Would the skill sets that we have serve us well in future?
While we confront this question, the essential egocentricity of the profession makes it difficult for us to adapt to a mindset which Richard Susskind appropriately calls ‘outcome based thinking’. An approach of taking a step back, beyond oneself and thinking in terms of outcomes and solutions. Just as a person afflicted with cancer has a cure at the top of his priority list rather than a rockstar of an oncologist; a person having a legal problem is usually not looking for a great lawyer; instead, he’s looking for a solution to his problem. A lawyer merely helps him achieve that, with his expertise and efficiency.
With this framework of thought in mind, we argue that, even if we overcome the essential dynamics of our species and look at things in an outcome/solution-based approach, we are still faced with another important question, which is, what are the questions that we’d be asked to resolve, in the next few years, as lawyers and judges? The central task of this column is to raise a few questions and illustrate how technology is changing every conceivable legal vertical and demanding us to be super-lawyers.
IMPACT ON CRIMINAL LAW
Lawyers are being asked questions relating to criminal liability for technology and machines; take, for instance, liability for injury in cases of driverless cars, robots and autonomous weapons.
We can all agree that, given the fact that most accidents occur because of human error, a driverless car is certainly better than, say, a 16-year-old at the wheel, coming back from a frat party. But what if the autonomous vehicle causes an accident and people are hurt? Where should the liability lie in such a case? Would there be a difference as far as tortious and criminal liabilities respectively concerned? Would the engineer who programmed the car be made liable, or the purchaser of the car is to be made liable if he chooses to have the car driven in ‘selfish/sports’ mode and not the ‘altruistic mode’. Or do you think liability should lie with the regulator who passed such a car as fit to be run on roads? These are vexed questions.
The coming into existence of autonomous weapons might spell trouble in interpreting the rules of warfare. Currently, international humanitarian law is already grappling with issues regarding the use of modern means of warfare, such cyber warfare. There is a raging debate regarding the use of cyber technology amounting to an act of war, and the liability of a State in cyberspace. Autonomous means of warfare will need international humanitarian law to answer various questions, such as, state liability, and whether usage of an autonomous weapon crosses the threshold of an act amounting to war, which are some of the basic conditions for an act to qualify an act of war.
Alibi and GPS location
For defense lawyers, the use of GPS location has already altered the law surrounding the plea of alibi and criminal conspiracy. Evidence from a person’s pacemaker, smart watch is also being used to determine a person’s location at a given time and place. In a very interesting case, a person in US lost his (false) insurance claim when the insurance company successfully proved that the claimant was never in a danger (as he claimed to be) by leading evidence of his pacemaker activity (at the time of the alleged incident) which did not show any heightened activity and his claim was thrown out and he was prosecuted for setting fire to his own house to make a false insurance claim.
Can the accused be compelled to share the passcode/face scan/finger print for his phone?
We are already being confronted with questions such as whether an accused has a right to silence qua passcode to his smartphone or can he resist sharing his face-scan for opening his phone on the ground of it amounting to ‘being forced to be a witness against oneself.’ in light of the protection granted under Article 20. In a world where a smartphone is an extension of one’s mind, it becomes crucial for the law to evolve and address the pressing issues of right to privacy and self incrimination.
An 1860 law and modern forms/means of committing crimes
Criminal law may need to be upgraded to amend the definitions of certain criminal activities to include the modern means of committing those offences. Soon, following someone via drone technology or through online means may constitute stalking (if it doesn’t already!), and data theft might amount to theft under the Indian Penal Code. (Currently, data theft may not be theft under IPC given the fact that it is not tangible/corporeal property).
Sexual Assault in the virtual worlds.
Similarly, various problems are beginning to emerge in the world of virtual and augmented reality. Crimes such as sexual assault within virtual worlds have raised concerns about the emotional and psychological impact on victims (in the offline world) and some vexed ethical and legal questions about how to deal with such behavior, in the offline world.
Regulation of use of 3D printers & cyber attacks/murders.
Some rather disturbing possibilities could involve usage of 3D printers to print AK47s and other weapons; or a terrorist may use a website to purchase the recipe of the Ebola virus, which he pays for in cryptocurrency; similarly, hackers may shut down entire essential water supply/fire systems and cause city-wide destruction. Similarly, a hacker may intercept into the servers of a hospital connected with the Internet of Things (IOT) and alter the dosage to be administered to a patient fatally, or it refuses to release the digitized patient history for doctor’s to diagnose unless there is a heavy monetary payoff or worse, it hacks into a pacemaker to stop it from working.
Virtual currency and law
With the recent historic verdict of the Hon’ble Supreme Court reversing the two-year old de-facto ban on cryptocurrency, it is legal for the citizens of India to participate in the block-chain Revolution, but this is de hors any regulatory framework. Lawyers, Judges and legislators would be asked to regulate working of this technology.
In such a situation, it becomes absolutely necessary for budding lawyers and other stakeholders in the legal industry to be diligent and engage with these issues ardently, or face becoming irrelevant.
Impact on Constitutional Law
The debate surrounding the emerging technology of CRiSPR, a technology that allows for genetic alteration of an organism so as to affect intelligence, height, and certain other key characteristics, raises some pertinent legal questions within the ambit of even Constitutional Law. Along with this there are discussions surrounding the ethical and legal implications of the right to, for want of a subtler term, have designer babies. Such an environment, involving super-humans competing with ordinary human beings might require a re-look and a unique perspective on the right to equality under Article 14. The desirability of affirmative actions for ordinary human beings to give them a level playing field with super-humans, is something that constitutional law thinkers would be grappling with – the next few years.
Questions surrounding the constitutionality and legality of bio-hacks, such as performance-enhancing drugs are being re-examined afresh.
Impact on other branches of law
Other branches of law won’t stay unaffected either; they too would need legislative and judicial reform, owing to the rapid changes in technology. Due to the increasing importance of data, possible questions that may arise for consideration could be the need for a revised outlook towards taxation of data and its accumulation. In addition to that the regulation, use, ownership and storage of data by national and multinational companies is also a facet that needs deliberation. The uncertainty looming over the whole data privacy issue also not lost upon us, especially in light there being no law on it in India, as of today. In the same vein, the questions of data localization, cloud computing and the right to be forgotten will also need contemplation.
Impact on contract law
Take for instance : An AI system that can take and make calls on one’s behalf and act as an executive assistant. It is capable of mimicking the voice of a human, so much so that the person on the other end would never know whether they spoke to a human or an AI program. The possible legal issues surrounding this may be : violation of parties’ consent to have their voice recorded in order to elicit a response from the AI (on the receiver’s end); the manner in which the voice is recorded, stored and transmitted, the uses of the recorded audio, and any consequent privacy violations. A question which does not seem to be far off would be one regarding the formation and enforceability of oral contract that the AI undertakes on one’s behalf. Can there, legally, be an agent-principal relationship between the AI programme and the human being, and how would the the existing scheme of the Indian Contract Act, 1872, is to align with it? Can an AI system be an agent for the purposes of the Indian Contract Act, 1872?
On a larger point, we would be looking into as to how would the Indian Contract Act respond to the challenge of block-chain and self executing smart contracts?
These are the challenges that a lawyer/judge of tomorrow would be asked to defend/argue and resolve. We’ll dig deeper into each of these legal-tech conundrums in the next few columns, so stay tuned.
The views expressed herein are personal.
Special thanks to Advocate Asmita for hours of great discussions and bouncing off ideas.
- How to prove an email in a court case ?;
- What is the manner in which a voice/video recording is to be led before the court and proved in evidence ?;
- How to prove electronically maintained Bank Statements ?;
- How to prove a Facebook, Twitter post, a WhatsApp message or an SMS ?;
- The proof of Call Detail Records in a court case ?
These are some questions that the courts are faced today, almost on an everyday basis. The use of computers is all-pervasive now. Almost all data is digital these days and most communication is exchanged electronically through SMS,Email, Whatsapp, Facebook, Twitter etc. In Civil as well as Criminal Cases, the courts are frequently called upon to rule on whether ‘electronic evidence is admissible or not’. Practice has shown that this is by no means an easy question to answer.
This write-up is an attempt to simplify the complex law relating to admissibility of electronic evidence and to touch briefly upon some of the most pressing issues, as discussed above.
- The First principles of law
First, a few words about how the law embraced the IT revolution. The IT Act, 2000 has given sanctity to electronic records and the definition of ‘evidence’ in the Evidence Act, has been expanded to include electronic records. Data in electronic form has to be stored and preserved. An electronic record, simply put, is information/data recorded in an electronic form. Therefore, data recorded on a hard drive, pen drive, CD, DVD, or even the Internet qualifies as ‘electronic record’. An image file on your pen drive, or a photo clicked on your phone or a WhatsApp message on your phone memory or service provider’s server are all ‘electronic records’.
The original device in such a case which produced the electronic record is ‘primary evidence’. For eg : The sound recorder/CCTV Camera and attached hard disk used to record a video/audio clip are primary evidence of its contents. Another example may be huge servers where data is created and stored. Such servers are what qualifies as ‘primary evidence’. The general rule of law of evidence is that when primary evidence is available, secondary evidence is not admissible. However, the same principle cannot be strictly applied in cases of electronic records. Large Servers/Original devices cannot be expected to be brought before the court in each case. Therefore, secondary evidence in the form of a output such as Printout or soft copy in the form of CD/DVD etc is admissible in a court of law, provided certain conditions are met.
These conditions are laid down with a view to ensure that the secondary evidence is true and accurate representation of the original electronic record and has not been tampered with, in any manner.
- What is Section 65B of the Evidence Act ?
Section 65-B of Indian Evidence Act, simply put, lays down the conditions and procedure of proof of an electronic record in a court of law. Section 65B is important insofar as it recognises that the original primary evidence of electronic record cannot be expected to be brought before the court and even if it is, the same being in binary form (Binary is the language that the computer/machine understands – where everything is stored in a string of zeros and ones!) the same cannot be understood by the court. The net effect of Section 65B is that the output in the form of a printout or data copied on CD/DVD etc produced by the computer is rendered admissible in the court, provided certain conditions are met. This is the import of Section 65B(1).
Section 65B(2) lays down certain conditions relating to integrity of the data. These conditions are there to ensure that :
a) there has been no unauthorised access to the data in question;
b) the computer was functioning properly and therefore the reproduction of data is accurate and genuine.
3. Certificate u/s 65B of the Evidence Act : Who is to issue, and what is that it is supposed to contain ?
The output of a electronic record, in order to be admissible in a court of law, has to be filed along with a certificate u/s 65B(4) of the Evidence Act. Such a certificate has to be issued by a person occupying responsible position with respect to the computer from which the data is produced. The certificate has to certify the conditions laid down in S. 65B(2) relating to integrity of data and computer system; the manner of production of the output of electronic record, identity and particulars of device used (including the original device). The entire idea behind the certificate is to ensure, once again, integrity of source, authenticity of data, so that the court can place reliance on it. This is important since electronic data is more prone to tampering and alteration.
Questions such as : How the certificate is to be prepared, who is to issue the certificate, and the exact contents of the certificate, will depend on the specific nature of electronic record that is sought to be proved. For instance : A image taken with the mobile phone camera, will be first copied onto the laptop and thereafter printed out. In such a case, the certificate will have to mention the process of transfer and printing so as to prove ‘integrity in the chain of movement’ and will have to be prepared and given by the operator of the mobile phone and the laptop. It has to compulsorily conform to the conditions in S.65B(2) & (4). It has to identify the original mobile phone and the other devices used in preparing the output. In such cases, preserving the original is also extremely necessary. Computer Forensic Experts advise the retention/preservation of the original in a dust/transmission resistant environment, making a clone copy of the contents therein (after using devices such as write-blocker to ensure no data is written onto the device during access and process of copying), and access to the document through the clone/mirror copy only. Accessing the data on the device itself may make the authenticity/integrity of the document suspect and may make it open to challenge. Taking the ‘Hash Value’ of the device at the time of seizure (Simply put, a Hash Value is a specific string of numbers that each file produces; any change in the file, even a space or a comma, leads to a total change of hash value; this algorithm is used to preserve the document in original shape and ensure no tampering takes place). Taking the hash value at the time of seizure of electronic evidence and thereafter, at the time of evidence before the court convinces the court as to non-tampering with the device. (The different forensic practices used to guarantee evidentiary value, in greater details, will be discussed in a different post of ours).
Things get slightly more complicated when information over the internet is sought to be proved. One view is that the person taking the printout from a website/email – is to give the certificate; the other view is that the person incharge and responsible for the server where the information resides is to give the certificate. The latter option spells great trouble and will render most electronic information extremely difficult to be proved as most servers are located in distant locations, spread over a large geographical area ,under managerial control of different personnel, and most importantly outside the jurisdiction of our courts.
The question on as to who is to issue the certificate is also important, and assumes even greater importance in case of proof of Call Detail Records etc.
By virtue of decision of Delhi High Court in Kundan Singh Vs. The State [MANU/DE/3674/2015], the doctrine of hearsay, in its application to proof of electronic evidence, has been limited a great deal. The court has recognised the fact that in cases of huge information contained across various servers, which is sought to be proved years later, it may not be possible to procure the evidence/certificate issued by persons incharge of the computer system at that time. In such cases, people who have subsequently taken over charge of such computers can issue certificate u/s 65B Indian Evidence Act. Evidence in such cases cannot be eschewed merely on the ground of hearsay. Therefore, what follows is that a person holding a responsible official position in relation to the operation of the relevant device/activities can give a certificate u/s 65B in relation to CCTV Records/CDR Etc. This flows from the fact that the fact that system was working properly at a relevant time is something that can be gauged from system logs, and is not something that is strictly within personal knowledge of one individual.
Another peculiar situation that may be visualised is when the output of an electronic record is seized from the Accused; for eg, at the time of arrest, the accused is made to take a printout from his email account; whether in such a case it is the accused who can be made to issue the certificate; and if yes, whether the same amounts to ‘self incrimination’ and resultantly, runs foul of Article 20(3) of the Constitution. Conversely, can one also say that this printout is a ‘fact discovered’ for the purpose of Section 27 of the Evidence Act, and therefore, admissible in evidence even de hors Section 65B of the Evidence Act. The jury is out on this one, and a authoritative decision of the court is awaited. Till then, there are arguments for and against each position.
- Is the certificate u/s 65B(4) of Evidence Act mandatory for reception of electronic evidence ?
In this regard, the earlier view_ was that compliance with S.65B of the Evidence Act is not an absolute requirement of law and Secondary evidence, in terms of Section 65 IEA can still be led in proof of a electronic record. However, the Supreme Court in ANVAR P.V. VS. P.K. BASHEER AND OTHERS [MANU/SC/0834/2014] has ruled that a certificate u/s 65B is compulsory for admission of electronic evidence and over ruled Navjot Sandhu(supra) to that extent. The Court observed that Section 65B of the Evidence Act begins with a ‘non-obstante clause’ and would override the general law on secondary evidence, as laid down under Section 63 and 65 of the Evidence Act. Section 65B is a special provision concerning proof of electronic records. The very caption of S.65A read with S. 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed u/s 65B of the IEA, 1872. This is a complete code in itself and being a special law, the general law under sections 63 and 65 has to yield. (Generalia specialibus non derogant : special law will always prevail over the general law.) Therefore, Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act. No expert evidence/oral evidence can be led in absence of the certificate. The case concerned proof of video footage relating to an election malpractice matter. The court held that the output in the form of CD/DVD/Pen drive was inadmissible in absence of the certificate; however, if the original recorder/hard drive attached to CCTV is led in evidence, the same can be received even without the certificate as it will be primary evidence itself. Also see : Kishan Tripathi Vs. The State (MANU/DE/0434/2016), where it was held that Original Hard Disk containing CCTV Footage is a primary evidence u/s 62 EA.
This position has been reaffirmed by the Hon’ble Supreme Court recently in Harpal Singh @ Chhota Vs. State Of Punjab (CRIMINAL APPEAL NO. 2539 OF 2014) Date of Decision : 21.11.2016.
In cases relating to voice/video recording : the absence of tampering, identity of voice (confirmed through ‘voice samples’ taken before the magistrate and subsequent examination through Forensic Labs) is extremely crucial.
Another contentious question in this regard that came up in a series of cases was : whether a witness who is seeking to prove an electronic record can be allowed to depose in the court in his examination in chief as to the conditions of S.65B as sufficient compliance. The answer to this question has to be ‘No’. When the statute demands something to be done in a specific manner, it has to be done in that manner alone and the procedure cannot be circumvented. Therefore, the requirement of certificate u/s 65B cannot be satisfied by a witness deposing as to these conditions, in the examination in chief. This is the import in the decision of Jagdeo Singh and Ors. Vs. The State (MANU/DE/0376/2015)
- Proof of SMS
In case of proof of SMS, the original handset can be led in evidence as primary evidence. In case of extracted copy of SMS, certificate u/s 65B of the IEA becomes essential. In both these cases, it is of extreme significance to first of all – clone the mobile phone device, take a backup and operate on the backup copy only. Any alteration of data on the mobile phone will seriously undermine the evidentiary value of the SMS.
- Proof of Email
If the email rests on a web based email facility like gmail/yahoo etc – A printout of the email (alongwith meta data/header information (required u/s 7 of the IT Act) has to be accompanied with a certificate u/s 65B of the Evidence Act, given by the person operating the account and taking the printout. Section 88A of the Evidence Act also provides for certain presumptions with respect to receipt of emails, which may be useful in proof of email correspondences.
In case of server based emails, the certificate ought to come from the incharge of the computer servers.
In all these cases, the preservation of what is called ‘meta-data’ is extremely crucial. Simply put, meta data is data about data and contains information relating to date/time/origin/authenticity/access date of the data, which goes on to strengthen, or destroy its evidentiary or believability quotient. (More on this on our piece of digital forensics!)
There might be one more provision that may become important insofar as emails are concerned :-
Section 88A – Presumption as to Electronic Messages. It reads :
“The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.” .
Simply put, the presumption in this section is to the effect that data sent by email from X computer corresponds to data received at Y computer. The court may not draw the presumption, or the same may be rebutted, being a rebuttable presumption of fact. Besides this, there is no presumption as to the identity of the sender as the section makes clear.
In addition to this, under section 65B it has to be proved that the computer during the relevant period was in the lawful control of the person proving the email [Babu Ram Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors. 2013 IIAD (Delhi) 441].
In Abdul Rahaman Kunji Vs. The State of West Bengal [MANU/WB/0828/2014] the Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication.
- Proof of Bank Statements, whether compliance of S.65B essential ?
- This is governed by a special law. As per the Bankers Book Evidence Act, (Sec 2A of BBEA), the following three certificates are required to prove a bank statement :-
- A certificate regarding authenticity of entry/printout by the principal accountant or branch manager.
- Authenticity certificate from person in-charge of computer system regarding:-
- Details of Computer System
- Process of Data Storage
- Safeguard to protect Computer System and Data
- the fact that such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question.
- Whether a certificate u/s 65B conclusively proves the facts contained in the electronic record and amounts to truth ?
The answer has to be a resounding ‘No’. S.65B deals with conditions precedent for admission of the electronic evidence. Compliance of S.65B Evidence Act allows the court to read the document. The court still has to examine relevancy, genuineness, veracity and reliability of the document. The probative worth, that is to say, whether the document has an actual bearing on the case or not or how much weight is to be attached to it, is also to be examined independently.
- Whether a Certificate u/s 65B of the Evidence Act has to be mandatorily filed along with the printout/CD, or can the same be filed subsequently as well?
The earlier view was that the certificate had to be filed alongside the print of electronic record, and not thereafter. However, after the Delhi High Court Judgment in Kundan Singh Vs. The State [MANU/DE/3674/2015], the position in law has been clarified : A certificate u/s 65B can be filed even thereafter, and need not be filed alongside. The witness who had tendered the electronic record in evidence can be recalled u/s 311 of the CrPC for the purpose of producing the certificate. The underlying basis of this view is that initial lapse on the part of the party should not detain the court from having the required evidence before it, which will assist the court in discovery of the truth. The court shall seek all evidence before it which is essential for a just decision of the case. All endeavour is to be made to decide the case on merits, rather than exclude what may be important evidence on technical considerations.
What follows is that the certificate can be filed even after filing of chargesheet, and can form part of a supplementary chargesheet u/s 173(8) of the CrPC.
Even the Rajasthan High Court in Paras Jain and Ors. Vs. State of Rajasthan, [MANU/RH/1150/2015] has held that : non filing of certificate u/s 65B Evidence Act is not an incurable irregularity and can be rectified later on.
- Whether an objection as to non compliance of S.65B of the Evidence Act can be waived or conceded ?
- Though there is no direct decision on this point, but if the opposite party admits a printout/CD/DVD etc and does not dispute it, in such a situation, admission acts as waiver of proof and compliance of S.65B IEA to prove the same is not required. An objection as to mode of proof can be waived if not taken at the appropriate stage. Shamsher Singh Verma Vs. State of Haryana [MANU/SC/1345/2015]
Law relating to proof of electronic evidence is in a state of huge flux in view of rapid technological advancements. The law is struggling to keep pace with them. Some questions relating to time of filing of certificate have been answered, while some relating to the authorship of the certificate are still to be worked on and authoritative precedent on these points is required.