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Synopsis

The Supreme Court has decided to examine a question whether its 2015 judgment -- holding that the certificate required under Section 65B(4) of the Indian Evidence Act is a condition precedent to the admissibility of evidence by way of electronic record-- would be applied retrospectively or prospectively.

A bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan has sought assistance of Solicitor General Tushar Mehta to determine the issue.

Dealing with a miscellaneous application, the bench said, "The issue for determination in this application is whether the three Judge Bench Judgment of this Court in the case of “Anvar P V Vs P K Basheer & Ors" (2015) will apply prospectively or, following the settled principle that the declaration of law will relate back to the date when the law was enacted, the said judgment will have to be retrospective."

The court fixed the matter for consideration on August 22, 2024.

In Anvar case, the apex court had held that the electronic evidence shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

The three-judge bench had the said that safeguards under Section 65B(4) are necessary to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. 

"Electronic records being more susceptible to tampering, alteration, transposition, excision, etc without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice," it had said.

The court had also said, Section 65B is a special provision, specifically dealing with electronic evidence.

"The language of the section starts with a non-obstante clause thereby overruling the application of any other provision for determining the admissibility and validity of electronic evidence. According to the maxim of “Generalia specialibus non derogant“, such special law will always prevail over the general law. Thus, if any electronic record is not made admissible under Section 65B, it cannot be presented under Sections 63 and 65 for they have no application in the case of secondary evidence by way of electronic records," the bench had added.

The three judge bench had then also overruled two judge bench decision in Navjot Sandhu case, which had held that, “It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.“