A book that we absolutely need, though not necessarily a book that we deserve.
We live in a world that is increasingly surrendering itself to a mind-numbing state of a willing suspension of disbelief. Where what we believe in is not based on the purifying streams of evidence and proof, (or enough evidence – at any rate) – but just rumour, gossip, and hearsay.
Where we forget Carl Sagan’s admonishment that “Extraordinary claims require extraordinary evidence”.
Where we believe in things such as ‘absence of evidence is not evidence of absence’ and go by uninformed intuition, gut, faith, and other forms of uncritical thinking and decision making patterns.
If you are a human being reading this, and want to think better, and make better decisions, read this now.
*Law in 100 Words – important legal/litigation concepts/procedures/practices explained simply and in less than 100 words.
We kick-off this column with a very important subject : Confronting a witness with documents during cross-examination
Here goes:
An element of ‘surprise’ is essential to a successful cross examination. To impeach the credibility of a witness or to expose inconsistencies/falsehood, a witness, during cross examination, can be confronted with a document. Such documents are not required to be filed with the plaint or the written statement and can be shown to the witness for the first time during cross examination. Contrary to popular misconception, such confrontation material is not limited to a witness’ previous statements but can include other material also;material which the witness is expected to know/be able to explain/comment on.
From the desk of Bharat Chugh
Further readings/Sources:
Surinder Kumar Bajaj vs Sheela Rani Pasricha, 2009 SCC Online Del 3855
Subash Chander v. Bhagwan Yadav, 2010 (114) DRJ 306
Guest post by the very bright Hamna Rehan (A student of law at Jamia Millia Islamia, interning at the Chambers of Bharat Chugh)
“Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves…”
– Justice Thurgood Marshal
Presumption of innocence is one of the cardinal principles of our criminal justice system (“CJS”) and recognized as a non-derogable right by various international instruments. Bail is a constitutional recognition of the fundamental principle of presumption of innocence.[1]
We also hear often that Bail is the rule and jail is the exception but as anyone who’s had a brush with our CJS would know that this rule – more often than not – is disregarded in practice. Bail is often denied merely because the charge is serious (often returning sweeping findings on the merits of the case, at a preliminary stage) and without an examination of the well-established triple test (flight risk, possibility of tampering with prosecution case etc.). Bails are often denied punitively and often as marks of disapprovals of an accused’s conduct (turning the presumption of innocence right on its head).
We sometimes forget that the only constitutionally permissible justification for denial of bail is when denial is necessary to protect the integrity of the investigation.
Once investigation is over, normally – no purpose is served by keeping the accused in detention. Further, given the centrality of ‘presumption of innocence’ to our system, detention after completion of investigation is disfavored by law.
In this background, the question that often arises is: “If an accused in a criminal case is not arrested during investigation at all, is he entitled to bail as a matter of right or is there still some discretion involved?”
To answer this, let’s look at the judicial precedent on this point:
Court on Its Own Motion v. Central Bureau of Investigation[2]
A bare perusal of this decision of the High Court of Delhi makes it clear that those accused who have not been arrested during investigation are entitled to be released on bail.
The Court premises this on the fact that no purpose would be served to deny bail to a person who has been free for several years and not arrested even during the time of investigation.
In the words of the High Court:
“26 (v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.”
The next in line is the decision in the case of:
Dataram Singh v. State of Uttar Pradesh and Anr.[3],
The facts of the case were fairly straightforward. In 2016, an FIR was lodged under Sections 419, 420, 4016 and 506 of the IPC, alleging that the accused had cheated the Complainant of an amount exceeding 37 lakhs. It was also alleged that the accused issued a cheque of 18 lakhs to return a part of this amount, but stopped its payment, violating Section 138 of the Negotiable Instruments Act, 1881.
After a period of 7 months, chargesheet was filed, but the accused was not arrested during the investigation. Bail application was moved by the accused, which was vehemently opposed by the opposing counsel on the ground of gravity of the offence. Subsequently, bail was rejected by both the trial court and the Allahabad High Court.
The question finally came up for consideration before the apex court, which made it clear that no purpose would be served in denying bail to the accused who has not been arrested during investigation. The court said:
“While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.”
The investigating officer did not apprehend that the accused would abscond or hamper the trial in any manner, and there was nothing on record to indicate it either.
Accordingly, bail was granted by the court and rightly so.
In this recent 2021 judgment, the apex court weighed-in on the interpretation of S.170 of Cr.P.C. explicitly holding that if the investigating officer does not feel that the accused would abscond or disobey the summons of the court, she is not required to be arrested and produced in custody alongwith the filing of the police report:
In the words of the court:
“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”
While observing the above, the Apex Court by its order set aside the impugned order of the High Court, and granted anticipatory bail to the accused, clarifying that it is not mandatory for the investigating officer to arrest the accused and forward the accused to the court alongwith the chargesheet.
Another recent decision on this point is:
Satender Kumar Antil v Central Bureau of Investigation and Anr.[5]
The issue of procuring the appearance (of an accused who is never arrested during investigation) also arose recently in the above case. In this case, the apex court laid down certain guidelines on the aspect of granting bail to the accused who is not arrested during investigation. There are certain prerequisites for the guidelines to apply. The accused:
Should not be arrested during investigation.
Should have co-operated throughout the investigation including appearing before the investigating officer whenever called.
For the purposes of guidance, offences have been categorized as follows:
“Categories/Types of Offences:
A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
D) Economic offences not covered by Special Acts.”
In the cases of CATEGORY ‘A’ OFFENCES, the guidelines for securing accused’s appearance are:
Court concerned should issue ordinary summons at the 1st instance/including permitting appearance through a lawyer.
If such an accused does not appear despite service of summons, then a Bailable Warrant for physical appearance may be issued.
NBW (non-bailable warrant) on failure to appear despite issuance of Bailable Warrant.
NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of the accused if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date of hearing.
Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.
CATEGORY ‘B’ AND ‘D’ OFFENCES
For Category B and D offences, the bail application has to be decided on merits on the appearance of the accused in Court.
CATEGORY ‘C’ OFFENCES
For Category C offences, the same guidelines as Category B & D are applicable with the additional condition of compliance of the provisions of Bail under NDPS, PMLA, Companies Act, UAPA, POSCO etc.
Having said that, in order to benefit from the above, the accused ought to have participated in the investigation at all times. To this end, the court has noted in the order, “The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with”.
The Court also noted that the “trial court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which hasnot warranted arrest”
Conclusion:
A review of the above decisions clarify that : it is not mandatory to take the accused into custody at the time of filing the chargesheet and producing him before the Court in custody. Further, if the accused is not arrested during investigation, he is to be normally considered entitled to be released on bail as no purpose would be served by denying bail to a person who has not been arrested during the investigation, the stage when the accused has the best opportunity to adversely affect its outcome.
By Hamna Rehan
A student of law at Jamia Millia Islamia, interning at the Chambers of Bharat Chugh.
First published at SCC Online Blog (Expert Column) here
It is now well settled that compelling the taking of voice samples from an accused for the purpose of an investigation does not amount to a violation of Article 20(3) of the Constitution. In other words, seeking voice samples from an accused does not amount to compelling an accused to be a witness against herself.
But the question that still remains is : which statute or legal provision provides the power to compel the accused to provide a voice sample? In the last decade, 5 judges of the Supreme Court (over three different opinions) have attempted to locate this power within the law. And, well, none of them have succeeded.
Justice Ranjana Prakash Desai in Ritesh Sinha v. State of Uttar Pradesh AIR 2013 SC 1132, acknowledged that there is no specific legal provision under which the magistrate can authorise the investigating agency to take voice samples. Justice Desai then proceeded to painstakingly identify provisions that could be purposively interpreted in order to empower the magistrate to authorise the collection of voice samples.
For this purpose, the Court began the quest to find such authority in the Identification of Prisoners Act 1920 – a legislation aimed at securing the identification of an accused person.
Previously (and before the matter landed before the Supreme Court in Ritesh Sinha-2013), in this context, the Bombay High Court in Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors. 2005 Cri. L.J. 2868 (Telgi), had held that measuring the frequency or intensity of speech sound waves can be considered to be ‘measurement’ as defined under the Identification of Prisoners Act. Therefore, the Magistrate who is empowered under section 5 of the Act to order a person to be ‘measured’, may compel the accused to provide their voice sample.
However, the Delhi High Court in Rakesh Bisht v. Central Bureau of Investigation 2007 Cri. L.J. 1530 (Rakesh Bisht),disagreed with the Bombay High Court and ruled that the purpose of Section 5 of the Act was only to identify the accused person after the investigation was complete.
Though the Delhi High Court’s logic in Rakesh Bisht appears to be more sound, Justice Desai followed the reasoning of Telgi, without providing any reason to disagree with Rakesh Bisht.
In his dissent in the same judgment, Justice Aftab Alam recognises that even if – by some interpretive gymnastics – a voice sample can be considered ‘measurement’ under the Act, that would lead to the unseen consequence that even the police (without magisterial authorisation) may be empowered to compel the accused persons to provide the voice sample. This is because Sections 3 and 4 of the Act empower the police to take measurement of convicted and non-convicted persons.
Apart from the Identification of Prisoners Act, Justice Desai also examined various provisions of the Evidence Act and the CrPC. Section 73 of the Evidence Act, which deals with ‘comparison of signature, writing or seal with others admitted or proved’, only enables the Court to compare these writing/signature specimens. Section 73 does not empower the Court to direct the accused to provide such samples to the investigating agency for the purpose of investigation. While, Parliament attempted to correct this anomaly by the inserting Section 311A of CrPC, the problem still remains. This is because Section 311A of the Code deals only with specimen signatures and handwriting and does not empower the magistrate to authorise the taking of voice samples.
Having ruled out these provisions, the Court then examined Section 53 and 54A of the CrPC. Section 54A provides that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court having jurisdiction, may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit. Surprisingly, the Court has consistently overlooked Section 54A without providing any justification. In our opinion, a possible reason for this could be that Section 54A relates to only arrested persons and not all accused persons.
Having examined the various provisions, Justice Desai eventually located the power of the Magistrate under Section 53 of the CrPC. Section 53 of the CrPC deals with ‘Examination of accused by medical practitioner at the request of police officer’. According to the explanation to this provision –
“examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other testswhich the registered medical practitioner thinks necessary in a particular case”
A bare perusal of this section and its genealogy would reveal that it was never meant to apply to voice samples.
Position elsewhere in the world.
Elsewhere in the world, a similar question came up before the Supreme Court of Appeal of South Africa, in Levack, Hamilton Caesar and Ors. v. Regional Magistrate, Wynberg and Anr. [2003] 1 All SA 22 (SCA)(28th November 2002). Even though the power to obtain voice samples was not explicitly mentioned in South Africa’s Criminal Procedure Act (No. 51 of 1977), the Court provided a purposive interpretation to Section 37 of the South African legislation and held that the Police was empowered to obtain voice samples as under this section they retained the power to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the accused.
Adopting a similar approach, Justice Desai applied the rule of ejusdem generis to the explanation to Section 53 of CrPC and held that voice samples were covered under ‘such other tests’. However, Justice Alam disagreed with this conclusion, as according to him, ‘such other tests’ is to be decided by the medical practitioner and not the police.
More importantly, Justice Alam disagreed with the judicial exercise to purposively interpret statutes in order to locate the magistrate’s power to authorise the collection of voice samples. According to him such a power must be explicitly granted by Parliament. The 87th Law Commission Report had made recommendations to provide statutory power to collect voice samples. Parliament’s non-implementation of the Report and other similar suggestions only add weight to Justice Alam’s reasoning, that the Court should not legislate, when the Parliament is itself apprehensive about making law. Thus, unable to reach a consensus, the quest to discover the power of the Magistrate to compel the production of voice samples was now passed on to a three-judge-bench of the Supreme Court.
Making law, instead of finding it!
The problem that 2 judges could not solve was – strikingly – now totally avoided by 3 judges in Ritesh Sinha AIR 2019 SC 3592 (Ritesh Sinha 2). In the interregnum, before the matter was heard by the 3-judge bench, in a well-reasoned judgment, the Gujarat High Court painstakingly examined various provisions of the Code but also failed to locate the statutory powers of the magistrate to compel the accused to submit to a voice spectrograph test.
The 3-judges bench of the Supreme Court, instead of considering the applicability of various provisions including Section 54A of the Code, appears to have decided that it would rather make the law, than find it! The Court observed that –
“we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court Under Article 142 of the Constitution of India”
The judgment of the Court was premised on the principle that “Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation.” Therefore, instead of dealing with this procedural thorn in the State’s right to investigate, the Court invoked its extra-ordinary powers under Article 142 of the Constitution and gave a carte blanch to the investigators without laying down any safeguards against the abuse of this power, or laying down the modalities of exercise of this right.
Privacy concerns
In our humble opinion, this is deeply problematic. The Court ought not to use its discretion under Article 142 in a manner that may infringe and violate the inalienable fundamental rights of the citizens. While the issue of Article 20(3) is no longer res integra, it is pertinent to note that compelling voice samples from an accused may also raise right to privacy concerns. The Court acknowledged this concern but dismissed it without any analysis by stating that –
“the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.”
The Court may have dodged the bullet but the silence has only compounded the problems. For instance, the Punjab and Haryana High Court, has placed reliance on the above-mentioned observation of the Supreme Court to dismiss any and all privacy concerns vis-à-vis the collection of voice samples. Apart from the issue of privacy, many other crucial questions remain unanswered.
What is most problematic is that while the 3-judge-bench has allowed the magistrate to authorise the collection of voice samples, the Court has provided absolutely no guidelines or procedure by which the magistrate must exercise these powers. While, the power has finally been identified/granted, the dilemma on implementation or exercise of the power remains:
How should the voice samples be collected?
Should the Magistrate direct and oversee the collection of voice samples?
Can the legal representative of the accused person oversee and supervise the collection of the samples?
How long should the sample be?
Can the magistrate direct the investigating agency to use the voice samples only for a specific purpose?
Can any and all police officers be authorised to collect samples?
Who decides the transcript of the voice sample?
What, if at all, is the quality control and how can false positives be avoided.
Procedural issues/issues of implementation.
Some of these questions have already reached courts. For instance, in Sudhir Chaudhary v. State (2016) 8 SCC 307, the accused person consented to providing a voice sample, but raised an issue with the transcript that was provided by the investigating agency. It was argued that the transcript contained serious inculpatory statements. This was problematic, since a sample of the inculpatory statements would be similar to a testimonial confession. Compelling a voice sample does not violate Article 20(3) because the sample is to be matched with the evidence. But the sample itself cannot be a confession or a testimony. On the other hand, science demands that the transcript must incorporate the language of the recorded evidence, to ensure best results. Such cases drive home the point that issues of science and policy, which require specialised training and understanding, cannot be comprehensively resolved by a Court of law on a case-by-case basis or an ad-hoc decisional basis and need a more nuanced response. In this case, the Supreme Court while balancing the right of the accused under Article 20(3) and the interest of the State to prosecute, directed that the proposed passage which the accused person shall be required to read out for the purpose of giving their voice samples shall use words, but not the sentences from the inculpatory text.
While, this safeguard is laudable (particularly since the judgment has been followed by a few High courts[2]) it is crucial that the Court acknowledges that the numerous unanswered questions reflect a dire need to provide more such protections to the accused persons. Doing complete justice, would not only be to recognise or grant powers to the courts/investigators but also provide an instruction manual on how such power must be exercised, for the process to be just, fair and reasonable.
[1] Bharat Chugh is a Delhi based lawyer. Siddharth Shivakumar is an advocate and a counsel at The Chambers of Bharat Chugh
[2] Kumaresan v. State, 2021-1-LW(Crl) 147; Manish Mourya v. State of Madhya Pradesh, Misc Crim Case No. 35470 of 2019 (Madhya Pradesh)
Always keen to work with bright young legal minds who are passionate about law and justice.
BUT you’ll have to meet me half-way and give me a reason to want to know you. A reason to work and engage with you, and a reason to share the little that I know about law, and – in turn, learn from you.
Template/Format based applications, therefore, are a strict NO. They don’t help me know you at all. Also, I am not a “Sir/Madam”. Never have been, and don’t intend to be. Please don’t do this. I’m not going to read another line of your application if that’s how you start. The essence of legal practice is the ability to step out of your own skin and walk the town in someone else’s. Think like me, or whoever is reading you email. Why should I continue to read your email when you haven’t put in the effort of communicating well with me. Good writing reflects good and clear thinking. Think well. Write well. Your application should reflect how you think and who you are. Don’t be generic. Talk about your dreams and ideas, not the dreams and ideas of the one whose internship application you blindly aped.
Therefore, please avoid cookie-cutter applications which lack individuality, and are boring to read.
Be creative. Show us the value that you can add to the team – in terms of law, and life. We are happy to share the little that we know with you, but you’d have to show us that it’s worth the effort and you’d be amenable to learning, and have the basics in place.
Instead of using adjectives such as I am “hardworking” or a “team player”, demonstrate in your application a challenging situation that you dealt with and came out winning from. As someone wise said : Show, don’t tell! Story telling is one of the most important parts of being a lawyer and the sooner you learn it – the better it is. I don’t care what law school you are from. But it’s important to me that you’re passionate about the subject.
Good writing is fun to read. Talk to me (in your application) – for instance, about the evolution of an interesting legal concept, a case law that you read and don’t agree with, or a tough legal proposition that you worked on, or an article that you once wrote. Write to me, for instance, about the challenges of the criminal justice system and how we can make it better. Talk to me about how litigation would look like 20 years from now. Ideas, concepts, dreams. Show me that you have led, or are – at-least, willing to lead an examined life.
Write, for instance, a story, or a poem, or – even crazier – a letter that your future self would write back to your present self, talking about your journey in the profession. Anything! Just keep it interesting and ensure that it brings out who you really are!
Good luck!
I really hope you’d give me a reason to work with you.
On my side of the bargain, I’d try not disappointing either….
And – yes, one more thing, when you email me your application at contact@bharatchugh.in ensure that you have the word “Career” in the subject line.
Look forward to working with you!
PS : request you to note that there’s no other way to apply except the above. No calls/SMS/Whatsapp/DM.
This column is based on talk delivered by Bharat at the National Police Academy to a batch of 132 IPS officers/probationers, currently on training, with the very able assistance of Abhijay Srekanth (4th year, Jindal Global Law School.)
**
Multiple FIRs, Chargesheets, Joinder of Charges and Accused and Splitting of Trials is an area of procedural law fraught with great confusion for the investigators. In this column, we seek to address the following questions that an investigator often puts to herself:
When do I need to register separate FIRs & file separate charge-sheet?
In what cases can I club different accused persons and different charges in one FIR and one charge-sheet?
Can there be multiple FIRs and challans after registration of first FIR?
What happens in cases where there are rival versions of fact; as in cases of cross/counter complaints? Accused in one case (Complaint No.1)– complainant in the other (Complaint No.2).
What if some of the accused are absconding? Can police report/challan still be filed?
In what cases request for splitting of trial can be made?
But – first:
The broad stages | From FIR to Framing of Charges.
Unfortunately, the CrPC provides guidance on joinder of charges only at the last stage (where the court is to frame charges) and doesn’t really help the investigator in deciding in what cases to register one FIR or Multiple FIRs or file a single or multiple charge-sheets. Having said that, the principles applicable on a court (framing a charge) may also guide the investigator in make an appropriate decision w.r.t joinder.
We’ll dig deeper into these shortly but – first, a brief discussion of the basic principles governing ‘charge’ in the CrPC:
Basics of Charge
A charge, simply put, is an accusation on the accused framed by the court with a view to give the accused an opportunity to contest the case.
To be distinguished from charge-sheet. (or more appropriately, police report u/s 173 CrPC which is for the investigator to file.)
Important from Natural Justice standpoint. To give the accused an opportunity to understand and respond and put up an adequate defence.
Even God didn’t banish Adam and Eve before giving them an opportunity.
Section 211 lists out what must be present in a charge:
The offence committed;
The name of the offence and how it was committed; date, time, names of victims, etc.
The name of the law broken and the section;
The charge must be written in the language of the court.
Chapter 17 of CrPC– which deals with charge framing – kicks-in only at the time of charge framing by court.
Filing of Police Report (Charge-sheet)
Upon completion of an investigation, the police must submit a final report with their conclusion. This report is also known as the police-report and is to be filed under Section 173, CrPC and it must contain:
(f) Whether he has been released on his bond and, if so, whether with or without sureties;
(g) Whether he has been forwarded in custody under section 170.
(h) Medical Examination of victim of sexual assault.
173(5) – a Police Report should have relevant documents and statements of witnesses.
Joinder of Charges | Basic Principles.
Chapter 17 of the CrPC lists out the various circumstances where a joinder may be permissible. The general rule as per section 218 of the CrPC is that : each distinct offence must be tried separately. Here, understanding the difference between the terms ‘distinct’ and ‘separate’ is essential, as two offences committed may be separate, but not necessarily distinct.
For instance, if A were to steal a bag from B and assault C in order to escape & get away, these offences would be ‘separate offences’ under the Indian Penal Code, but not ‘distinct’ as they are joined by the circumstance in which they occurred. The offences here can be joined together since they form part of the ‘same transaction’ (more on that later!). However, two distinct incidents of theft committed on two different people by the same person are distinct and can’t be investigated or tried together.
Good news is that the basic principle of : ‘distinct offences, separate trials’ is not absolute, and a joinder of charges or accused is permissible if : (i) the case falls within the statutory exceptions provided under sections 219, 220, 221 and 223 of the CrPC, or if the accused herself moves an application for the offences to be tried together.
Exception 1- Three offences of the same kind in the same year
Section 219 of the CrPC allows for a joinder of three offences ‘of the same kind’ committed by a single accused within a span of twelve months. Offences are termed to be of the same kind when they warrant the same period of punishment and under the same section. These ‘same offences’ need not be committed in the course of the’ same transaction’ to be tried together.
Ex: Three thefts committed by the same person within one year may be tried at one trial.
This section deals with separate offences which are not connected to one another.
But what happens when the offences are part of the ‘Same transaction’?
“Transaction” was defined by Sir James Stephen as “a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue”.
There has to be a real connection between different offences to constitute ‘offences committed in the same transaction’. A unity of purpose and objective. This is a very circumstantial and fact-intensive test.
For instance: Robbery and causing hurt (IPC) by using an unlicensed revolver in the commission of the robbery (Arms Act) & intimidating witnesses present on the spot not to report the matter to police (Criminal Intimidation u/ IPC).
It would be absurd in this case to be trying these charges separately as they are all committed in the same transaction and in the same continuity of things, which is what brings us to the second exception:
Exception 2- Multiple Offences in the same transaction
Section 220(1) of the CrPC allows for the offences of a singular accused to be joined when committed in the same transaction. This is without any maximum limit of the number of offences. Unlike section 219, the offences may not be of the ‘same kind’ and may span across multiple legislations and the offences may be totally different.
As discussed earlier, a transaction refers to a group of closely related facts. The courts usually examine time, unity or proximity of place, continuity of action, community of purpose or design when ascertaining whether an offence falls within the same transaction.[2]
For instance, if an accused, who was part of a riot, causes grievous hurt to an official, charges under section 142 and 325 of the Indian Penal Code may be joined in the same charge-sheet, they having been committed in the course of the ‘same transaction’[3]
Applicability in cases involving issuance of various licenses.
In Chaman Lal Sankhla vs State Of Haryana, the Court had to deal with an accused who had issued 177 licenses in violation of the Motor Vehicles Act.[4] The Court held that each issuance was a separate transaction, even though the offence under question was the same as far as nature of the offence and modus operandi was concerned. It did, however, remark that sets of three offences may be joined as per section 219, but that’s something that the court has to do – it being a purely judicial function.
Applicability in investor/fraud/ponzi scheme cases where there are multiple complaints
The Delhi High Court dealt with the applicability of section 220(1) when dealing with investor frauds/scams.[5] State vs Khimji Bhai Jadeja Here – the accused allegedly floated a fraudulent investment scheme and allegedly scammed 46.40 Cr. out of 1850 investors. The Court had to decide whether each complaint would mandate a separate FIR and charge-sheet. The Court held that: since each person was induced on different dates and times for different amounts, each instance would amount to a separate transaction and need a separate FIR/charge-sheet. The judgement has currently been stayed by the Supreme Court as it hears the accused’s SLP, however, the earlier SC judgments that Delhi High Court relied on, i.e : State of Punjab & Anr. V. Rajesh Syal, AIR 2002 SC 3687 & Narinderjit Singh Sahni vs. Union of India & Ors still stand and may be pressed to argue for seperate FIRs and Seperate Chargesheets. Though this view may pose logistical/administrative difficulties for the investigators but it goes a long way to ensure that each victim is heard seperately and has certain rights vis-a-vis the trial. Any other view would reduce all the victims (except the first one who files the complaint and is characterised as informant) to mere witnesses. Further, a common chargesheet and a common trial may seriously incapacitate the court in granting appropriate sentence in each case.
Exception 3- Offences of Criminal breach of trust, Missappropriation of Money and Falsification of accounts may be tried at one trial
Section 220(2) quite simply allows for offences of criminal breach of trust and/or misappropriation of property to be joined with one or more falsification of accounts offences that were committed to aid or conceal the above in the same charge-sheet.
Exception 4- Same act falling under different offences
Section 220(3) deals with the situation where an act/series of acts may be defined under different offenses. An accused in such a case may be jointly charged under some or all of the offences that the act is deemed to amount to. Therefore, when A grievously assaults B, he may be charged under both sections 323 and 325 IPC.[6]
Another example may be when A exposes her child to danger knowing it is likely to kill her child. The mother may be charged jointly with offences under 317 and 304 IPC.
Also, for offences such as data theft, an accused may be charged under both the IT Act as well as the IPC. Similarly, for a murder committed by making the brakes on a driver-less car go fail, may be charged both under the IT Act (hacking) and IPC (murder).
Exception 5- Constituent offences forming a separate offence together
Section 220(4) takes into account situations where a series of acts in a transaction may constitute offences independently, which when looked at as a whole constitute an entirely different offence.
In such a case, the accused may be charged with the constituent offences as well as the umbrella offence.
For example, when A forcefully breaks into B’s house and steals property and in doing so assaults him, he may be charged with offences under sections 323, 392 and 395 of the IPC. In other words, section 323 + section 392 = 394. All may clubbed and tried together.
Exception 6- Where there is doubt regarding the offence committed
The CrPC recognises situations where there may be confusion as to what offence has been committed. Section 221(1) allows the police to charge the accused of alternate offences only in these cases, as alternate charges are generally prohibited under section 218.
What needs to be kept in mind however is that for this exception to kick-in, only the law must be uncertain; there cannot be any uncertainty around the facts from which the act emerged.[7]
Furthermore, the alternate offences cannot be altogether distinct. For instance, charges of abetment to suicide (s. 306 IPC) cannot be framed in the alternative to murder (s. 302 IPC), as the ingredients are completely different.[8]
Section 221(2) complements the above exception and allows the Court to convict an accused of an offence not charged, as long as the evidence clearly establishes such commission, and a conviction does not prejudice the accused’s defence.
However, for this exception to kick-in, the offence charged and the offence that is inferred on evidence to have been committed must be cognate offences.[9]
Exception 4- where multiple accused may be joined
Section 223 allows for accused to be charged together if they meet any of the following critetion,
same offence in same transaction;
Persons accused of main offence and persons accused of attempt/abetment of that offence;
of more than one offence of the same kind (same kind having the meaning in section 219, CrPC) committed by them jointly within the period of twelve months;
different offences in same transaction;
persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and those who are accused of receiving, retaining, assisting with disposing or concealing such property; as well as abetting or attempting to commit such offences.
The Court adjudges multiple accused to have jointly involved in the commission of the ‘same kind of offence’ by looking at using the “continuity of action’ and ‘unity of purpose’ test.[11]
The courts explored this test when determining whether two individuals accused of offences under the NDPS act could be tried together.[12]
The facts were as follows:
The bags of two foreign officials are searched.
A was found to have 87 grams of hashish and B is found to have 136 grams of hashish.
Can they be tried together under section 223, CrPC for offences under the NDPS Act?
It must be shown that an offence was committed by the two accused in the same transaction.
Mere illegal possession of hashish by two distinct people who happen to be sitting close to each other and staying in the same hotel does not automatically meet the tests in section 223 of CrPC.
The State was directed to prosecute the two accused independently.
Facts are based on State of Kerala v Wolf Hang Kannad Fivert, 1995 (3) Crimes 384 (Ker)
Proximity of time, place, etc., may be present, but community and continuity of action are paramount in proving that the offences were in the same transaction for a joinder under section 223, CrPC.[13]
Furthermore, the Law Commission in its 41st Report on the CrPC stated that principle implicit in section 223(1) is whether separate charges/trials lead to an incomplete comprehension of the totality of the crime or conflicting verdicts.[14] This principle is the acid test in determining whether two or more accused should be jointly charged.
Where continuity in action is shown, the goals towards the accused work towards is irrelevant.[15]
Say A picks the lock of B’s flat to let C in to rob him. A does this due to some personal enmity with C, and C robs B simply to enrich himself.
The purposes motivating their actions are irrelevant. As they acted in the same transaction, they can be jointly charge-sheeted.
CASE STUDY : Joinder of Accused in conspiracies-
The Court dealt with a case where the CMD of a PSU was accused of accepting bribes.[16] The CBI sprung a trap and arrested and charged the CMD and his co accused. They also separately arrested and charged the CMD’s wife for conspiring to open a benami locker. The Court ruled that where a set of actions are committed to facilitate the commission of a main offence, or if they involve the same system and/or persons and there is a hint of continuity, the offences are in the same transaction, and can be charged jointly.
In contrast, in another case: An officer investigates two instances of corruption regarding leaking of the Constables’ recruitment exam. The officer arrests two accused who individually leaked the paper, one in one year, and one in the other. They are charge-sheeted together. Is this valid?
The Court held ‘No’. There is nothing to show that the two instances were in the same transaction. The accused committed the offenses independently of each other & on two separate occasions.
The joinder was therefore illegal as per section 218, CrPC as it does not fall under the exceptions.(Facts adapted from J. Duraimunusamy v State 2011 CIJ 341 ALJ)
Multiple FIRs
You’d frequently face the situation of multiple complaints. There is already an FIR in place and some new information comes in. The question is should a separate/second FIR be registered?
The SC in the case of Amitbhai Shah v CBI (2013) Cri.L.J. 2313dealt with this.
In this case, investigation was transferred from the local police to the CBI following the death of X, a witness to the death/alleged encounter of A and his wife B (which was already subject matter of FIR and Chargesheet No.1)
The CBI filed fresh FIR and chargesheet in connection with alleged encounter of X once they began to investigate(FIR and Chargesheet No.2)
Court disallowed this on the ground that the conspiracy alleged (encounter killing of 2 people) was covered in the first FIR itself and a supplementary chargesheet in the first case would suffice. The conspiracy and the transaction being the same.
Therefore, multiple FIRs held to be not not permissible. Further, same principle applies when the new fact is a mere ‘consequence’ of the original act only – which need not merit a second/new FIR.
However, this is not an absolute rule. When the instances and the corresponding offences are different in the second complaint, a new FIR may be registered and a fresh charge-sheet may be filed.
The Court in Anju Chaudhary vs State Of U.P. & Anr(2013) 6 SCC 384 held so.
Here the court was dealing with the Gorakhpur riots.
Pursuant to the riots, an FIR was registered against unnamed persons from a particular organization. (First FIR)
Following this, another complaint was lodged w.r.t inflammatory speeches by head of that organization (Second FIR).
The Court used the ‘sameness test’ to see whether the second FIR related to the incidents and occurrences in the first.
The second one would be valid as long as it was distinct.
Court held:
“these were two different FIRs relatable to different occurrences, investigation of one was no way dependent upon the other and they are neither inter-linked nor inter- dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case.”
Anju Chaudhary vs State Of U.P. & Anr(2013) 6 SCC 384
The Court in Awadhesh Kumar Jha v State of Bihar (2016) 3 SCC 8 again engaged with the question of multiple FIRs. Brief Facts :
An FIR had been lodged against the Accused for offences under the Immoral Traffic (Prevention) Act, 1956. A subsequent FIR for offences under 173 of the IPC was filed (giving wrong personal information). The accused approached the court claiming the second FIR was illegal.
The Court noted that normally multiple FIRs in the same transaction would be a violation of Article 21 of the Constitution, and additional FIRs cannot be registered. If if the first charge-sheet has been filed, the police has the option of further investigation u/section 173(8) CrPC and filing supplementary charge-sheet.
However, in the instant case, the transactions were different : one was illegal trafficking, and the other providing wrong information to the police. Therefore the two FIRs would not be illegal.
To be noted : if there are two FIRs initially – for whatever reason – and the IO feels that it there are clearly part of one transaction – they can be clubbed together and one chargesheet can be filed. (However, in the opinion of the author – this is not advisable and seperate FIRs should, for reasons procedural and otherwise, lead to seperate police reports).
C.Muniappan & Ors vs State Of Tamil Nadu, 2010 (9) SCC 567
Case Studies on Cross/Counter Complaints.
Cross complaints are confusing as the accused in one case is a complainant in the other, and the complainant in one case is the accused in the other. In other words – there are rival versions as to the facts and circumstances and as to what really happened. Both parties accused each other.
What is to be done in such a case?
Should the classic principle of ‘no-multiple-FIRs’ as laid down in TT Antony (SC) and clarified in Amitbhai (supra) apply?
Well, in cases of cross/counter FIRs providing counter/rival narratives of the same incident, the answer broadly is ‘No’.
Surender Kaushik & Ors. vs. State of U.P. & Ors (2013) 5 SCC 148is one such case where the accused filed a counter FIR against the complainant, as well as a third party. (Dispute relating to election of a management committee of an educational institution).
The Court ruled that the principle of ‘No-Two-FIRs’would not apply here since the factual version was totally distinct and quite opposite to the original FIR.
Also, only the original complainant is disallowed from filing a second FIR – this is crucial so as to prevent the complainant from improving upon his or her case.
Rationale for allowing cross/counter FIR to be registered separately:,If there can be only one FIR w.r.t an incident, the real offender could easily pre-empt & file a false case himself to pre-empt and stop the affected party from filing an FIR.
Similarly, in Uphar Singh v Ved Prakash AIR 2004 SC 4320, the complainant had filed a complaint accusing the respondent of offences u/sections 452 and 307 IPC. The Accused attempted to lodge a counter-complaint accusing the complaint of offences u/sections 506 and 307 IPC.
The Court held that in the case of rival contentions on the same offence, both would have to be investigated, as the true purpose of investigation is to find out who has in fact committed the alleged crime.
The police would, therefore, were directed to register the accused’s complaint as well – separately.
Splitting of A Trial
We’ve talked about cases:
Where there has to be one FIR and one chargesheet;
Where there has to be multiple FIRs and multiple chargesheets;
Now we look into splitting of cases/trials.
Classic case where splitting will be needed: if one of the accused, for instance, is absconding and the trial of others is held up because of that.
Let’s take a hypothetical:
FIR registered against A,B,C and D.
A,B and C caught during investigation.
D remains absconding.
60/90 days running out and there’s pressure to file police report/challan
Investigation vis-à-vis D not complete because he was never interrogated.
In such a case, police report may still be filed mentioning that D is absconding.
Section 299 of the CrPC
In such a scenario, Section 299 of the CrPC provides in cases where an accused person has absconded and there is no immediate prospect of his arrest, court can go ahead and record evidence in his absence, and the evidence recorded in the absence of the accused may be used against him – once she is apprehended and trial resumes– provided that the witnesses are dead, or otherwise unavailable. S.299 (2) similarly provides for similar proceedings where accused is unknown.
It is to be noted however that CrPC does not provide for a trial in absentia and only for recording of evidence in absentia.
Another power of splitting of trial: Section 317(2) of the CrPC
Section 317(2) states that an accused trial may be adjourned or separated from the other accused in two situations : Where the accused is not represented by a pleader or where the personal attendance of an accused is deemed necessary by the court and he is not so present.
Intrinsic power to Separate Trials
It may be useful to be reminded that the power to join charges is only an enabling power. The Court has the option but no obligation to conduct joint trial. Separate trial (of charges and accused) is the rule and joinder of charges and accused is an exception.
Power may be exercised in cases, for instance :
where summons on a particular accused (who’s outside India) remain unserved (because of non-cooperation of foreign country) and trial of Indian accused is unduly held up because of that; in such cases, power to separate may be exercised to go ahead vis-à-vis the accused before the the court and seperate trial of the accused whose appearance cannot be procured.
Does a technical impediment w.r.t some of the charges vitiate the whole trial?
Case study:
The Deputy Superintendent of Police issues a prohibitory order against processions.
A few days after the said order, the Chief Minister of the state is sentenced to undergo one year imprisonment. Despite the prohibitory order, members of a political party take out Dharnas and compel the shopkeepers to close their shops.
The protests turn violent and case for offences such as Sections 147, 148, 149, 341, 342, 307 read with Sections 302, 114 IPC and Sections 3 and 4 Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 were registered.
The accused were also charged with Section 188 of IPC.
For the court to take cognizance w.r.t offence u/s 188 IPC, the public servant needs to file a complaint (public servant whose order is violated).
For the other sections – you don’t need a complaint and an FIR followed by chargesheet is enough.
In such a case, the absence of a complaint under Section 195(1)(a) of CrPC will not result in falsifying the entire case of the prosecution, though case insofar as it concerns 188 IPC must fail. Other charges may still be sustained.
Facts adapted from C. Muniappan & Ors vs State Of Tamil Nadu, 2010 (9) SCC 567
Parting words
Adherence to the above principles may go a long way in ensuring that there are no misjoinders and trials are conducted in a way that ensures : there is no needless multiplicity of proceedings, a complete comprehension of the totality of the crime, while at the same time – ensuring no prejudice to the accused and the victim.
[1]Pandian v The Inspector of Police, 2005 (1) Crimes 268 (277)
The times are dreary and before you stop reading, my dear reader, let me assure you, this is not another article on ‘Law of Force Majeure’. Trust me, I’d never do this to you and I’d never lie to you! We are friends. Also, this is not an introduction or an invitation to another webinar on ‘Tech and Law’. I know you’d stab me in the abdomen (and slowly turn the knife) if I did that. This is existential. It is the truth and you must read on. So, as I was telling you : the times are dreary. More so because we, as judges and lawyers get to see humanity mostly at its very worst. This can be rather unnerving and disillusioning; especially for a young lawyer working hard to practice the noble profession, with great idealism but at a stipend that is less-than-minimum-wage. As old as it makes me sound : this column is dedicated to you, my young underpaid-struggling-lawyer friend, and an ode to your indomitable spirit, and your enthusiasm to laugh (visibly) at the terrible PJs that sometimes pass-off as humour in our Courts. This is a dictionary that you couldn’t find in your college library. You couldn’t find it – not because I just wrote it but because it was officially outlawed by the ‘Let-not-the-young-lawyer-find-out-the-real-deal-about-the-profession’ society. But truth has a way of getting out, and since we are all dying anyway, without further ado, let me present to you : ‘The Devil’s Dictionary (of Law)’, written in the spirit of Ambrose Bierce’s profoundly amusing and honest satire: ‘The Devil’s Dictionary’.
Please note: Any resemblance to any lawyer, judge or institution, dead or alive, is purely co-incidental. No judges, lawyers or institutions were hurt in the writing of this piece.
Here goes:
A Acquittal. Technically – an exoneration, but given the fact that, in India, the process itself is a punishment, it is a victory that is more devastating than defeat.
Adjudicating Authority: An authority set up under a special law to decide disputes. But for all practical purposes, an authority so over-burdened with work that it neither adjudicates nor has much authority. It is, for want of a better description, a victim of its own success. Also, a specialised court/tribunal providing a post-retirement employment opportunity, both for the forward-looking and the ones looking-forward.
Accomplice: A co-accused. Also, a future client, if you argue the case better than your co-counsels. Scratch that : Certainly your next client, if you simply make more noise than the other side or if you channel your inner Sunny Deol and pull out a Tareekh pe tareekh moment. (See-what-you-learnt-in-your-first-internship: ‘Clients like aggressive lawyering!’).
Also, A for ‘Appreciation from the Judge in the open court’: Wow! Well done……Not really! What this really means, novice, is : ‘You are losing the case; better luck next time!’
B Bail: A state of temporary release from jail only to be confined by one’s own possibilities in life.
Bankruptcy: Something that will stay with you forever – as a lawyer: In the initial few years of practice – you will work hard to avoid it yourself, and, if you sail through (and not join family business) work harder to successfully procure it for your clients.
Biased: Something that you accuse the judge of, if he doesn’t share your world-view and ideology.
C
CPC: Cumbersome Procedure (in) Courts. Also, Civil Procedure Code. A tail on a dog; A tail so powerful that it has not only started wagging the dog but is now openly and unabashedly strangulating the dog. Procedure : 1. Substantial Justice: 0.
Confirmation Bias: A state of mind in which a young lawyer, raised on an unwholesome diet of Suits and Boston Legal, refuses to get over the romanticism of the profession, despite overwhelming evidence to the contrary.
D Date: Difficult for a young struggling lawyer to get, both inside and outside the Court.
Dasti: A copy of the order judicially directed to be supplied to the counsel/party, without them having to apply for a certified copy. Also, an order, the obtainment of which from the court master/staff- teaches the junior counsel valuable lessons in ingratiation, charm and small talk.
E Ex-parte Order: An order as difficult to get as getting a PG in Delhi as a young struggling litigator.
Ex-parte Stay: as all discretionary orders, best sought right after breakfast or lunch, and when the judge has enough glucose in his blood-stream and is not suffering from decision fatigue. (PS : Offering the judge a chocolate bar before hearing may get you (dis)bar(ed). So – don’t try this at court!)
F Fraud: An allegation frequently levelled, seldom proved. An enemy of ADR. If given a veneer of seriousness by clever drafting, a stratagem to make an ‘arbitrable dispute’ magically turn in-arbitrable, or, given the judicial delays, inarbitrable – at least for some time.
Fugitive: A creature who commonly owes his freedom to the investigating authority’s initial slumber and subsequent inability to make out a case for extradition.
G Garnishee: It’s a truth universally established: An enemy of your enemy can be made a friend, Fret not when a debtor can’t pay- Court will have the debtor’s debtor attend….
H Hostile Witness: Who says : crime doesn’t pay; it does, should you change sides.
I Investigation (Criminal): Often an exercise in valuation of assets. An exercise through which an officer finds out the depth of the pocket of each of the stakeholders in a criminal case, and depending on the objective evidence of their assets, follow it up with a charge-sheet or a closure report, as the case may be.
J Judicial Activism: To keep strengthening one arm and stop using the weak arm, till it atrophies away and dies, totally and irrevocably.
K Kesavananda Bharati: A case that a lawyer quotes more often than any other case and still gets away without-ever reading in full.
L Learned Friend: The epithet that you use to describe the lawyer on the opposite side, prior to the act of his total destruction by your sophisticated legal reasoning and oratory. Also, a term used to refer to one that you know for a fact to be neither learned, nor a friend, but, ‘kya karein, bolna padhta hai!’.
Leading Questions: Questions that demand ‘Yes!’ or ‘No!’ responses to Catch 22 (and-impossible-to-answer-in-yes-or-no) questions such as: “Have you stopped beating your husband?”
M Minimum Wage: An amount that the young litigator tries to secure for his client, but possibly not for herself.
Moot Court: Something that one wishes one had done more of, in law-school, when one ends up calling the judge “Sir” or “Madam” on the first day in Court.
N Necessary Party: A party that a young lawyer must necessarily have, in order to cope up with the stress of the profession and retain at least some semblance of sanity.
O Obiter Dicta: Observations made by the judge because, well, he could!
P Para-Wise Reply: A highly sophisticated exercise of taking everything in the plaint and pre-fixing it with “It is denied that….”
Proclaimed Offender: An accused who runs away, often taking the property of the complainant, and leaving the lawyer’s unpaid bills.
Q Quantum Meruit: Payment of an amount, which, though not contractually agreed upon, is commanded by the “merit and effort” of a person. A principle that a junior lawyer often invokes to ensure payment of just compensation for a client but pretty much never for herself. (See: ‘no-stipend-internships-because-well-working-with-me-is-honor-enough’ and other similar horror stories).
R Review Petition: Another bite at the cherry. Also, something that you convince the client to pursue, if not for any other reason, but for the sheer pleasure of being able to say stuff like :“Melords, finality is good, but justice is better!” in the court and turn around and exit the court (real slow and stylish). All of this, though, in an over-optimistic attempt to get the judge to admit (on record!) that he was wrong the first time around. Good luck with that!
Registry (Court): Please write to the author if you figure this one out.
S Senior Advocate: The reason that you didn’t go to engineering or med school and came to law school instead. The carrot part in the ‘carrot and stick’ of legal profession.
T Transfer Application: An application filed seeking a change of bench/court on the ground of the inexcusable insistence of the judge to apply the law fairly and squarely.
U Undertrial: Somebody who has kissed his rights and the constitution good-bye at the prison gates. Also, one with a bad case or a bad lawyer, or both.
V Vagueness doctrine: A vague criminal law is usually open to a constitutional challenge and you may, provided you’re doing this on billable hours, safely advice your client(s) : what happens in vagueness, stays in vagueness.
W Witness: A temporary-condition-of-being for a person about to give evidence in court, before being won-over (or run-over) by the opposite side. Also, a poor creature that you hammer – should you find yourself in the unfortunate situation of having neither the law nor the facts on your side.
Witness Protection Programme in India: Error 404. Webpage not found!.
X (e)Xception: Of a departure from the rule, just like this entry in the dictionary.
Y Y: “Your honour…..Hmm….Quick question?….. Am I winning?” Never ask the judge this. Ever!
Z Zombie Firm: A company/firm that is neither dead nor alive, which moves about with the help of the nourishing blood of subsidies, and one which is intent on biting the healthier companies too, and with it, the health of the sector. If you encounter any of these, dear reader, please contact the NCLT nearest to you or dial 911-IBC immediately!
The Author is a Partner at a leading law firm here in Delhi. The views expressed here are personal.
Before making an attempt to understand how electronic evidence is treated in a court of law, it is essential to understand what is meant by the terms “electronic evidence” and “electronic record”. Once we establish that, we will see whether electronic records can be classified as “documents”?
It is only after we have established these links, that will we be in a position to examine as to how an electronic evidence is proved in a court of law.
PRESERVATION/RETENTION OF ORIGINAL/PRIMARY ELECTRONIC RECORD
Let us begin by taking a look at what is meant by “electronic record” and what are the various parameters of its classification under the Information Technology Act, 2000 (“IT Act”).
Some basics:
Anything “required by law to be in writing” – can be in the form of electronic record too now pursuant to certain provisions in the IT Act:
S. 4 – Legal Recognition of electronic records.
S. 5 – Legal Recognition of electronic signatures.
Is there a requirement of retention of the electronic record?
Section 4 (b) Electronic Record shall suffice when a written document is needed provided, of course, it is “useable for a subsequent reference”.
Section 7, among other things, requires metadata of electronic records to be retained.
What is meta-data?
Simply put data behind, or data about data. More specifically : “Details which will facilitate the identification of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record”.
Retaain original. As per Order XI of CPC & Section 91 of the Code of Criminal Procedure, 1973 (“CrPC”) – The Court can order production of the original electronic record at any time.
ELECTRONIC RECORDS AS DOCUMENTS UNDER THE INDIAN EVIDENCE ACT
As per the Indian Evidence Act (“IEA” or “Evidence Act”) electronic records are treated as documents. Section 3 of IEA provides:
“Evidence” – ‘Evidence’ means and includes —
All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.
All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
ELECTRONIC RECORD
Having dealt with the basic statutory definitions, let us turn to more nuanced questions regarding electronic records.
WHETHER A ‘HARD DISK’ IS A DOCUMENT?
This issue came up before in a case before the Delhi High Court where the court answered in affirmative –Dharambir vs. CBI (2008) DHC. It reasoned that:
New Hard Disk (blank slate) is merely a storage device.
Hard Disk, once data/information is written on it, becomes an electronic record. (S.2(t) of the IT Act).
Since it’s an electronic record, by virtue of Section 3 of the Evidence Act, it is also a Document.
Two Levels of Electronic Record: Active memory & Subcutaneous memory;
Accused entitled to both at the time of supply of documents to him.
Right of the accused under sections 207 (v) and 173(5)(a) of the CrPC.
PROOF OF ELECTRONIC EVIDENCE – PRIMARY OR SECONDARY
In addition to knowing how a particular electronic device will be treated by a court of law, knowing its evidentiary value is equally important.
The original device in such a case which produced the electronic record is ‘primary evidence’ and may be directly be admissible in evidence u/s 62 of the Evidence Act. For eg.: The sound recorder/CCTV Camera and attached hard disk (DVR) used to record a video/audio clip, or the server in case the clip is saved on a cloud, are primary evidence of its contents.
General rule of law of evidence – When primary evidence is available, secondary evidence is not admissible.
Primary electronic evidence, for example a mobile phone in case of text messages, or a hard drive in case of data or original DVR/memory card, can be admitted into evidence as is, as primary evidence. Raj Kumar vs. State(MANU/DE/0909/2016) – Certificate not needed when original mobile itself produced in court.
Similarly, in Kishan Tripathi vs. State (2016 – Delhi High Court) original hard drive containing CCTV footage produced is primary evidence.
An output in form of a printout or a soft copy in the form of CD/DVD etc. of the original contents is a “deemeddocument” as per Section 65-B of the IEA and it is this kind of an output that is required to be proved in accordance with Section 65-A and 65-B of the IEA.
Section 65B of the IEA is the cornerstone of court procedure surrounding electronic documents. At this juncture, it is essential to examine the ins and outs of this section.
REASON FOR HAVING SOMETHING LIKE SECTION 65B OF THE EVIDENCE ACT
The general principle of primary-secondary cannot be strictly applied in cases of electronic records. Large servers or original devices cannot be expected to be brought before the court in each case.
Therefore, secondary evidence in the form of an output such as Printout or soft copy in the form of CD/DVD etc. has been made 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. This is because electronic records, by their very nature, are more prone to tampering.
SECTION 65B(1)
Notwithstanding anything contained in this Act, any information contained in an electronic record
which is printed on a paper;
stored, recorded or copied in optical or magnetic media produced by a computer
shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
CONDITIONS TO BE MET: SECTION 65(2)
CERTIFICATE UNDER SECTION 65B(4)
What should the Certificate contain?
identifying the electronic record containing the statement and describing the manner in which it was produced;
giving the particulars of any device involved in the production of that electronic record or any other info necessary to show that the electronic record was produced by such computer;
dealing with any of the matters to which the conditions mentioned in sub-section (2) relate.
Who is Competent to issue the certificate?
a person occupying a responsible official position in relation to the operation of the relevant device or
the management of the relevant activities (whichever is appropriate).
THE EVOLUTION OF SECTION 65B JURISPRUDENCE
State (NCT of Delhi) vs. Navjot Sandhu 2005 11 SCC 600
Section 65-B was only one method for admission of evidence, other methods of adducing secondary evidence at not excluded.
The Supreme Court favoured a relaxed approach to allow relevant evidence and let the judge deal with it, rather than exclude it as inadmissible altogether on account of what it considered a technicality.
PV Anvar vs. PV Basheer[2014] 10 SCC 473
Section 65-B is a mandatory requirement for reception of electronic evidence and the certificate has to be contemporary.
Generalia Specialibus Non Derogant – Special law supercedes the more general one.
When something is categorically prescribed to be done in law in a certain manner, it has to be done in that manner alone and no other.
However, this strict approach affected existing cases adversely.
Sonu vs. Haryana (2017) 8 SCC 570
Drew distinction between issues of “inherent admissibility” (matter of law) and “mode of proof” (matter of procedure), held that non-compliance with S. 65-B was a ‘mode of proof issue’
This required parties to raise this objection at the time of exhibition of electronic record and barred them from raising it for the first time in appeal.
Thus, SC developed a different line to allow for curing the anomalies that might result from Anvar. Effectively, it had shielded trial court verdicts from a retrospective application of Anvar, something it specifically flagged as a concern.
But this is applicable only in cases where no objection was taken at the time of exhibition of documents, in other cases, where objection was taken but overruled, those can effectively be re-opened.
Shahfi vs. State of Himachal Pradesh(2018)2 SCC 801
Suppose a person relies on a computer-generated receipt or a bill of a departmental store, which computer is obviously not in possession of that person, can the court say ‘first go and get the certificate’ and in absence of certificate – we won’t look into that e-record?
Held – Sections 65-A and 65-B are supplemental in nature/not a complete code on the subject of electronic evidence and are procedural in nature.
Courts can relax the 65B requirements in the interests of justice if the original device is not in the possession of the person adducing evidence.
Arjun Panditrao Khotkar vs. Kailash Khusanrao CA – 2082520826/2017 SC
In this case SC held that, in view of Anvar, Shafhi needs reconsideration, and was referred to a larger bench.
held that in cases where the person bringing the electronic record is not in possession of the original device, the person can seek the court’s aid in getting a proper certificate u/s/ 65B on record by the concerned person(s);
WHERE COMPUTER OUTPUT ADMITTED, IS A CERTIFICATE U/S 65B(4) STILL NEEDED?
Judicial admission acts as waiver of proof.
Section 294 of the CrPC in this regard may be relied upon.
Shamsher Singh Verma vs. State of Haryana, 2015 SCC ONLINE SC 1242.
Shamsher (supra) read with Sonu (supra) may be relied upon to argue that admitted electronic record is exempt from the rigours of Section 65B of the Evidence Act.
Food for thought; the way ahead for Section 65B.
The Indian draftsman, while inserting S. 65B in IEA in year 2000, had heavily relied on S. 5 of UK Civil Evidence Act, 1968 and S. 69 of Police and Criminal Evidence Act, 1984.
Notably, both of these provisions had been repealed at that point of time: S. 5 of UK CEA, 1968 was repealed in 1997 and S. 69 of UK PACE Act, 1984 was repealed in 1999.
Time to rethink S. 65B, IEA too and make the regime of admissibility of electronic evidence more relaxed, as has been done in the UK?
STAGE OF FURNISHING A CERTIFICATE U/S 65B(4):
Kundan Singh vs. The State, 2015 SCC OnLine Del 13647.
Paras Jain and Ors. vs. State of Rajasthan, 2015 SCC ONLINE RAJ 8331
TMS Prakash vs. The State, 2018 (1) ALD(Crl.) 297 (AP)
State of Karnataka vs. MR HireMath, (2019) 7 SCC 515
Certificate u/s 65B IEA can be filed even after receipt of document/Electronic evidence on record.
Court may utilize Sections 311, 91, 391 of the CrPC. Investigating authority (police) can also file the certificate along with a supplementary police report u/s 173(8) of the CrPC
In civil proceedings, Ord. XVI R. 14, Ord. XVII R.17 r/w 151 CPC can be used to recall a witness for the purpose of certificate.
SECTION 65B(4) CERTIFICATE & DOCTRINE OF HEARSAY
In cases where information as to proper functioning of computer system/server is derived from system logs, made in the ordinary course of business, a witness deriving his knowledge from such written records can produce certificate u/s 65B(4) and prove the electronic record and his testimony is not barred by doctrine of hearsay.
This is premised on the fact that: Proper functioning of the computer in such cases is not a matter of personal testimonial knowledge but knowledge derived from records maintained in the usual course of working of the system.
Doctrine of hearsay primarily applies in the domain of oral evidence.
Doctrine of hearsay limited in its application in cases of Electronic Evidence. (Kundan Singh Vs. The State, 2015 SCC OnLine Del 13647).
S. 65B CERTIFICATE AT THE TIME OF BAIL
Pravata Kumar Tripathy vs. Union of India (C.B.I.) 19 (2015) CLT 177: 2014 (II) OLR 941
Held – At the time of consideration of bail application, it is not at all necessary to ask prosecution to first satisfy the fulfillment of all the criteria laid down in the case of Anvar P.V. Vs P.K. Basheer [2014] 10 SCC 473 before taking into account Forensic Voice Examination Report as well as transcription of CD.
IF A CERTIFICATE U/S 65B IS FAULTY, CAN ANOTHER ONE BE FILED?
If the certificate under S. 65B, Evidence Act which was originally produced was rejected as not being in compliance with the Section, a fresh certificate may be produced.
WHAT DOES A CERTIFICATE U/S 65B(4) PROVE?
A Certificate u/s 65B does not conclusively prove the facts contained in the electronic record, or that the same amount to truth.
S.65B deals with conditions precedent for admission of electronic evidence.
Compliance of S.65B 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.
CASE STUDIES ON COLLECTION OF ELECTRONIC EVIDENCE
Now that we have analysed Section 65B in detail, it is pertinent to take note of a few real life examples which will assist in understanding the application of law and how the courts dealt with some of them.
CASE
An image taken with a mobile phone camera, first copied onto the laptop and, thereafter, printed out.
CERTIFICATE u/s 65B
To mention the process of transfer and printing so as to prove ‘integrity in the chain of movement’.
To be prepared and given by the operator of the mobile phone and the laptop and person producing the output.
To compulsorily conform to the conditions in S. 65B(2) & (4).
To identify the original mobile phone and the other devices used in preparing the output.
OTHER TIPS
Preserve the original in a dust/transmission resistant environment.
As far as possible, record in a device which directly saves it on a memory card, which becomes primary evidence.
Make 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). Access the document through the clone/mirror copy only, as accessing the data on the device itself may make the authenticity/integrity of the document suspect and may make it open to challenge.
Take the ‘Hash Value’ of the device at the time of seizure (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). Compare it with the Hash Value at the time of evidence before the court, to convince the court as to non-tampering with the device.
WHAT IF THE COMPUTER MALFUNCTIONS? – THE BANK ATM WITHDRAWAL CASE
Case– Sri. P. Padmanabh vs. Syndicate Bank Limited, [2008 (2) Kar. LJ 153]
Facts– ATM link lost > person took out more money than he was entitled > bank alleged defendant took advantage of computer malfunction > sued for recovery of that amount > in evidence, relied on electronic evidence of withdrawal of money.
Held– when the ATM/Computer itself was admittedly malfunctioning, output not admissible in evidence.
Therefore, the proper functioning of the computer > accuracy of data > chain of integrity is extremely important.
MEMORY CARD / PEN DRIVE
P Gopal Krishnan v State of Kerala – 2019 SCC OnLine SC 1532
Held–
Thus, the footage/clipping contained in such a memory card/pen drive, being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000, is a “document” and cannot be regarded as a “material object”.
Thus, the contents of a memory card or a pen drive in relation to a crime being a ‘document’ and not a ‘material object’, the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973.
To balance right of privacy of victim, right to inspection only may be given.
PROOF OF E-MAIL
In addition to the law in Section 65B, Section 88A, IEA Section 88A – Presumption as to Electronic Message
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 – 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 berebutted, being a rebuttable presumption of fact.
There is no presumption as to the identity of the sender as the section makes clear.
Preservation of ‘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.
MOBILE PHONES
A Mobile Phone is a computer as envisaged under the IT Act, 2000. – Syed Asifuddin vs. State of A.P (2005 CriLJ 4314)
A mobile phone tendered in evidence is primary evidence of data/messages etc. in it, no 65B certificate needed – Raj Kumar vs. State (2016, Delhi HC)
A printout of screenshots of messages on a mobile phone is secondary evidence, admissible after complying with S. 65B.
Call Details Records – play crucial part in any investigation today. Needs to be properly submitted in evidence.
IMEI number is irrefutable evidence that the device with accused or X person was used to make a call. – Gajraj vs. State(NCT of Delhi), (2011) 10 SCC 675) (What about IMEI Spoofs?)
PROOF OF BANK ACCOUNT STATEMENTS
Governed by a special law – the Bankers Book Evidence Act, 1891.
Sec 2A – Conditions in the printout
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 (among others):-
Details of Computer System
Process of Data Storage
Safeguards adopted to protect Computer System and Data
A certificate to the effect that 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.
Case Law:
State Bank of India vs. Rizvi Exports Ltd
(Debt Recovery Tribunal “DRT”, Allahabad)
SBI had filed for recovery, but the bank statements filed as evidence were not accompanied by certificates as required u/s 2A of BBEA.
DRT held such bank statements to be inadmissible.
ELECTRONIC EVIDENCE AND THE COMMERCIAL COURTS ACT, 2015 (“CCA”)
As we know, commercial courts deal with commercial involving disputes over and above a particular monetary limit. It is interesting to see how electronic evidence is treated by these courts.
A Declaration on Oath, as required under CCA to be filed along with pleadings, when concerned with electronic evidence must contain all the information mentioned in Order XI Rule 6(3) for it to be accepted.
Order XI Rule 6(3) warrants more information than Section 65B, IEA and is also on oath unlike the latter.
This requires information such as:
Parties to E-record
Manner of production
Date and time of preparation or storage or issuance or receipt of such e-record;
Source of such e-record and date and time as to when it was printed;
In case of email ids, details of ownership, custody or access to such email ids;
In case of documents stored on a computer or computer resource (including external servers or cloud), etc……
When coupled with the fact that S. 21 of the CCA gives overriding effect to the Act, this warrants the question –
“Does Rule 6(3) render it absolutely redundant to secure a separate Certificate under Section 65-B for cases under the CCA?”
ELECTRONIC EVIDENCE – SEIZURE & PRESERVATION
Regardless of the court dealing with the evidence, collection and preservation of the evidence need special mention.
Three stages of a digital crime scene search and seizure:
Preparation/Planning stage.
Collection Stage.
Preservation / Transportation stage.
AT A CRIME SCENE, HOW TO SEIZE DIGITAL EVIDENCE:
Now that we have dealt with seizure, preservation and submission of electronic evidence, let us take a look at a few interesting scenarios involving the interplay of tech and law.
IS IP ADDRESS CONCLUSIVE PROOF OF IDENTITY?
An IP Address only identifies a particular computer device, not a real person.
As such, an IP Address identified to be involved in the commission of a crime should not be held to be conclusive proof of identity of the person who committed the offence.
An IP address alone is not enough to prove that a particular person did any particular act (in this case, downloaded files illegally).
It is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call
EXPERT OPINION IN CASES OF ELECTRONIC RECORDS
Sec 79A – IT Act 2000 – Central Government may notify agency of government as an examiner of electronic evidence for expert opinion.
Sec 45A – Evidence Act – Opinion of examiner of electronic evidence notified U/s 79A of IT Act on Digital Evidence becomes a relevant fact.
Anvar P.V vs. P K Basheer, (2014) 10 SCC 473 – No expert opinion can be led w.r.t an electronic evidence without first complying with Section 65B of the IEA.
ELECTRONIC EVIDENCE – FOOD FOR THOUGHT!
How to Prove a Social Media Post Since Deleted
Scenario – A defamatory tweet about Y, posted by X. Y takes a printout of the screenshot – and along with certificate u/s 65B files it in court as evidence. In the meanwhile, X deletes the said tweet and his account.
Question – How to prove such a tweet?
Recent case – DELHI HIGH COURT
Woman filed a complaint in 2015 for harassment, receiving ‘filthy’ messages and pornographic pictures from a specific Facebook account.
A Letters Rogatory for Judicial Assistance sent to competent judicial authority in California, USA.
Facebook informed that the said account has been deleted 4 years back and thus no information can be provided.
Delhi HC directed Police to recover digital footprints or metadata relating to the post.
The case is pendin
In case of electronic information/evidence contained on servers outside India – assistance of Mutual Legal Assistance Treaties (MLATs)
A number of cloud based companies don’t maintain their data in servers located in India.
Resist S. 91 CrPC with “No contract with customer, it’s with the US entity”, “data not in our power or control”.
Efficacy of MLATs and other ways in such scenario.
Electronic Evidence vis-à-vis Criminal Law & the Constitution
An Accused, while being arrested, is made to take a printout from his email account.
Now –
Can the Accused be made to issue the certificate u/s 65B?
If yes, whether the same amounts to ‘self-incrimination’ and resultantly, runs afoul of Article 20(3) of the Constitution?
The jury is out on this one, and till an authoritative decision of the court is awaited. Till then, there are arguments for and against each position.
Conditions : Section 65B(2) (a) & (c) related to computer’s integrity;
What if Computer Malfunctions ?
Conditions in Section 65B(2) (b) & (d) relating to the informational ‘chain of integrity’;
Section 65B(4) Certificate
Whether Mandatory ?
Oral Testimony as to S.65B – whether sufficient compliance of Section 65B(4) ?
Who is to file the certificate ?
Stage of filing – Can the certificate u/s 65B(4) be received at a later stage, that is to say, after filing of the electronic evidence on record in the form of an output ?
Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?
E-Contract – territorial jurisdiction;
Challenging issues in interface with Criminal Law.
What is an Electronic Record ?
2(t) of the IT Act “Electronic Record” means Data, Record or Data Generated, Image or Sound Stored, Received or Sent in an Electronic Form or Micro Film or Computer Generated Micro fiche;
Electronic Records as ‘documents’ for the purpose of Evidence Act.
Section 3 of Indian Evidence Act.
“Evidence” – ‘Evidence’ means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
Such statements are called oral evidence
(2) all documents including electronic records produced for the inspection of the Court;
such documents are called documentary evidence.
Whether a ‘Hard Disk’ is a document ?
Answer is Yes.
Dharmabir Vs. CBI (2008) DHC –
New Hard Disk (blank slate) is merely a storage device.
Hard Disk once data/information is written on it, becomes a electronic record. (S.2(t) of the IT Act)
From Electronic Record to document (S.3 IEA)
Two Levels of Electronic Record : Active memory & Subcutaneous memory;
Accused entitled to both.
Right of the accused under sections 207 (v) and 173(5)(a) of the Cr.P.C.
Proof of Electronic Record : Primary – Secondary
Primary Evidence – (eg : Original Device/Electronic Record) directly admissible u/s 62 of the IEA. (Kishan Tripathi Vs. The State, Delhi High Court – 2016 held : Original Hard Disk containing CCTV Footage = primary evidence u/s 62 IEA
Secondary Evidence (Output) –Admissible u/s 65B of the IEA.
CONDITIONS AS TO ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT
Section 65B(1)
Notwithstanding anything contained in this Act, any information contained in an electronic record
which is printed on a paper;
stored, recorded or copied in optical or magnetic media produced by a computer
shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.
in relation to the information and
computer in question and
shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
Use of Non Obstante clause in S.65B(1)
“Notwithstanding anything contained in this Act” ~ See class notes for detailed discussion.
65B(2): Conditions (a) & (c)
a) The computer from which the record is generated was regularly usedto store or process informationin respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
Broadly related to Computer’s integrity and Lawful Control
What if computer is malfunctioning ?
Bank ATM – withdrawal case !
Sri. P. Padmanabh Vs. Syndicate Bank Limited, 2008 – Karnataka High Court.
If Computer is malfunctioning – output may become inadmissible.
ATM link lost > Person took out more money than he was entitled > Bank alleged defendant took advantage of computer malfunction > sued for recovery of that amount > in evidence, relied on electronic evidence of withdrawal of money > held : when the ATM/Computer itself was admittedly malfunctioning, output not admissible in evidence.
Therefore, the proper functioning of the computer > accuracy of data > chain of integrity is extremely important.
65B(2): Conditions (b) & (d)
b) Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;
d) Information reproduced is such as is fed into computer in the ordinary course of activity.
Broadly related to informational integrity
Certificate u/s Sec. 65B(4): Certificate :
identifying the electronic record containing the statement and describing the manner in which it was produced;
giving the particulars of any device involved in the production of that electronic record
dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
Whether certificate u/s 65B Evidence Act is mandatory ?
Earlier view – No (State (NCT of Delhi) v. Navjot Sandhu (2005) SC)
Current view – Yes. ((ANVAR P.V. VS. P.K. BASHEER AND OTHERS – 2014 (SC) Navjot Sandhu stands overruled in this context by PV Anvar.
See Dictation Notes for detailed discussion.
Generalia Specialibus Non Derogant
Oral Deposition as to conditions of S.65B(2) – whether sufficient compliance ?
Oral Statement in court as to compliance of Section 65B of the IEA will not suffice and certificate u/s 65B is mandatory. Jagdeo Singh and Ors. Vs. The State (2015) Delhi High Court
Principle : When something is categorically prescribed to be done in law in a certain manner, it has to be done in that manner alone and no other.
Who is Competent to issue the certificate ?
After mentioning the contents of the certificate, the latter part of Section 65B(4) reads as under :-
and purporting to be signed by a person.
occupying a responsible official position in relation to the operation of the relevant device or
the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
Section 65B(4) Certificate and the Doctrine of Hearsay
In cases where information as to proper functioning of computer system/server is derived from system logs, made in the ordinary course of business, a witness deriving his knowledge from such written records can produce certificate u/s 65B(4) and prove the electronic record and his testimony is not barred by doctrine of hearsay.
This is premised on the fact that : Proper functioning of the computer in such cases is not a matter of personal testimonial knowledge but knowledge derived from records maintained in the usual course of working of the system.
Doctrine of hearsay primarily applies in the domain of oral evidence.
Doctrine of hearsay limited in its application in cases of Electronic Evidence. (Kundan Singh Vs. The State (2015) Delhi High Court)
Stage of filing of certificate u/s 65B(4) ? Is it mandatory to file it alongside the electronic evidence output or can it be filed later ?
Certificate u/s 65B IEA can be filed even after receipt of document/Electronic evidence on record.
Court may invoke Sections 91, 311,391 of the CrPC to facilitate filing of certificate. Investigating authority (police) can also file the certificate alongwith a supplementary police report u/s 173(8) of the CrPC.
In civil proceedings, Ord. XVI R. 14, Ord. XVIII R.17 r/w 151 CPC can be used to recall a witness for the purpose of certificate.
(See : Kundan Singh Vs. The State (2015) Delhi High Court & Paras Jain and Ors. Vs. State of Rajasthan,(2015) Raj. HC).
Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?
Judicial Admission by the Witness as to electronic record waives the requirement of formal proof and conditions of Section 65B IEA need not be complied with. (Shamsher Singh Verma Vs. State of Haryana, 2015 – SC)
E-Contract – territorial jurisdiction;
Section 13(3) of the IT Act reads as under :-
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
P.R. Transport Agency vs. Union of India & others – 2005 SCC OnLine All 880 Allahabad High Court.
No expert opinion can be led w.r.t an electronic evidence without first complying with Section 65B of the IEA. (See Anvar P.V v. P K Basheer, 2014 SC)
Electronic Evidence Vis-à-vis Criminal Law and the Constitution.
Section 27 of IEA or Section 65B – which one is to prevail ?
Certificate from the Accused u/s 65B(4) IEA – is it a violation of Article 20(3) of the Indian Constitution ?
Bharat Chugh 