CASE ANALYSIS OF P.V. ANWAR VS P.K.

BASHEER IN
RESPECT TO SECTION 65B OF THE INDIAN EVIDENCE ACT,
1872

PROJECT SUBMITTED TO

Ms. Vinita Tripathi

(Faculty, Law of Evidence)

PROJECT SUBMITTED BY

Abhijeet Sahu
Roll No. 02
Section- a
SEMESTER- VII

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

I
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to complete this project with sheer

hard work and honesty. This research venture has been made possible due to the generous co-

operation of various persons. To list them all is not practicable, even to repay them in words is

beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher Ms. Vinita

Tripathi, Faculty, The Evidence Law at HNLU, who had always been there at my side whenever

I needed some help regarding any information. He has been my mentor in the truest sense of the

term. The administration has also been kind enough to let me use their facilities for research

work.

HNLU, Raipur Abhijeet Sahu

Date: 16.08.2018

II
 DECLARATION

I, Abhijeet Sahu hereby declare that, the project work entitled, “Case Analysis of P.V.

Anwar v. P.K. Basheer in respect to Section 65b of The Indian Evidence Act, 1872” submitted

to Hidayatullah National Law University, Raipur is record of an original work done by me under

the able guidance of Ms. Vinita Tripathi, Faculty Member, H.N.L.U., Raipur.

Abhijeet Sahu

Roll No-02

Section A

SEM -VII

III
 TABLE OF CONTENTS

Declaration II
Acknowledgement III

CHAPTER 1: INTRODUCTION ............................................................................................. 1

1.1 Research Methodology

1.2 Aims and Objectives
1.3 Nature and Scope of the Study
1.4 Research Question

CHAPTER 2: SECTION 65 B: BEFORE AND AFTER ......................................................... 3

CHAPTER 3: LIMITING METHODS OF AUTHENTICATION .......................................... 8

CONCLUSION ...................................................................................................................... ..12

BIBLIOGRAPHY/REFERENCES........................................................................................ ..13

IV
 CHAPTER 1: INTRODUCTION

In short, by their very nature, electronic records are easily manipulated. Consequently,
their accuracy and reliability is frequently suspect. This creates a conflict between the relevancy
and admissibility of the evidence, something that has been recognized by jurisdictions world
over. It is trite that the world‘s transactions are increasingly electronic in nature. One inevitable
outcome of this proliferation is that the courts have been compelled to take cognizance of
electronic evidence - from CCTV footage to emails, their contributions are crucial. However,
despite the evidentiary relevance, they suffer from problems that their physical counterparts do
not. Electronic data is easy to create, copy, alter, and destroy, and transfer from one medium to
another. S. 65B of the Indian Evidence Act, 1872 (‗Evidence Act‘) was introduced in 2000 to
reconcile this conflict. However, the special and specific standards that it creates for electronic
evidence have been unfortunately controversial.

A cursory examination of the treatment of the electronic evidence by lower courts is

sufficient to reveal lack of uniformity in evidentiary practices – from oral evidence to bit image
copies and hash codes, a variety of standards have been employed. 1 This inconsistency was
sought to be resolved by the Supreme Court most recently in P.V. Anvar v. P.K.
Basheer.2(Herein referred as Anvar) This project seeks to examine the changes that this has
introduced into the law on authenticating electronic evidence, in light of the Evidence Act as
well as principles of evidence law. This inquiry extends to both the specific content as well as
the requirement of contemporaneity of the certificate. Applying principles of statutory
interpretation, Also this project considers the methods of proving (or authenticating) electronic
records that are permitted by S. 65B. Post-Anvar, the question whether this is necessarily limited
to certificates‘ has become crucial.

1
Gajral v. State, CRL.A. No.461/2008 (oral evidence).
2
P.V. Anvar v. P.K. Basheer, (2014) 10 SCC 473. [―Anvar‖]

1|P a g e
 1.1 RESEARCH METHODOLOGY

This Research Project is descriptive and analytical in nature. Accumulation of the

information on the topic includes wide use of primary sources such as cases as well as secondary
sources like books, e-articles etc.

1.2 OBJECTIVES

The objectives of the current project are:

1. To critically analyze the pre and post interpretation of Section 65B.

2. To critically analyze the case P.V. Anwar vs P.K. Basheer.

1.3 SCOPE OF THE STUDY

The current projects scope is confined to the study analyze and critically examine Section
65B of the Indian Evidence Act, 1872.

1.4 RESEARCH QUESTION

 Whether Section-65B mandate the submission of a certificate for secondary electronic

records as evidence or not?
 If the nature of electronic record is of such importance, then what are the methods to identify
whether the documents are primary or secondary source of the electronic data/record?
 Whether Post Anvar situation makes the conviction of case where evidences are obtained
through unauthorized source difficult (Such as corruption cases etc.)?

2|P a g e
 CHAPTER 2:
SECTION 65 (B): BEFORE AND AFTER

2.1 Overview of S. 65B

S. 65B(1) states that information contained in electronic records that is transferred on to any
media produced by a computer – such as say, a CD or a USB device – will be admissible in court
as evidence of the electronic record. This is subject to one caveat: the conditions in the section
relating to the information and computer in question must be satisfied. This can be seen in S.
65B(2), which stipulates four mandatory conditions, relating inter alia to the regularity of use of
similar information by that computer, to whether the information in question was regularly fed in
to the computer in the ordinary course of business, to who had control over the computer etc.
These are all clearly attempts to safeguard against inauthenticity of an electronic record. Sub-
sections (3) and (5) of S. 65B are largely technical in nature, relating to the nature of the
computer and methods of supplying and production of information.

The Information Technology Act, 2000 was passed primarily in an attempt to regulate e-
commerce transactions. This need for regulation necessitated amendments to Chapter V of the
Evidence Act, which deals with documentary evidence. Ss. 65A and 65B were introduced as
special law regulating the admissibility of electronic evidence. The only perceivable purpose
served by the former – S. 65A – is to refer one to S. 65B, which elaborately describes the
method of authenticating electronic evidence.3

The sub-section most relevant for our purposes is (4), which speaks of a ―certificate‖ in
relation to the electronic record. As one 169-word long sentence, S. 65B(4) is admittedly
difficult to follow. However, if one focuses purely on the crux of the provision, the following
clarity emerges:

3
It is interesting to note that S. 65A states:
―Special provisions as to evidence relating to electronic record.- The contents of electronic records may
be proved in accordance with the provisions of section 65B.‖ (emphasis added).
This could arguably be interpreted as permitting the proving of the contents of electronic records in any other
manner, say under Ss. 61-65.

3|P a g e
―In any proceedings where it is desired to give a statement in evidence by virtue of this
section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement and describing the manner in
which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that the electronic record was produced by a
computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation
to the operation of the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter stated in the certificate…
(emphasis added)

Therefore, the provision makes a certificate containing information under clauses (a), (b), or
(c) of sub-section (4) evidence of that matter. Accordingly, a certificate under (a) i.e. one that
identifies an electronic record and describes the manner in which it was produced, is evidence of
the identity of the electronic record, and the manner in which it was produced. It can go no
further – the contents of the electronic record are not established by that certificate.

2.2 RE-INTERPRETION OF S.65B BY ANVAR CASE

The question of law under S. 65B in Anvar arose in connection with an election petition
under S. 100(1)(b) of the Representation of People‘s Act, 1951 challenging P.V. Basheer, the
respondent‘s election to the Kerala Legislative Assembly. P.K. Anwar, the petitioner claimed
that the respondent‘s election propaganda in the form of songs, speeches, and announcement was
defamatory and amounted to a ―corrupt practice, and prayed for the setting aside of the
election. In response, the respondent challenged the admissibility of CDs containing said
propaganda on the grounds that the requirements under S. 65B were not satisfied. The Supreme
Court was thus granted an opportunity to determine the nature of admissibility of evidence under
S. 65B.

4|P a g e
 The attention of the Court was focused almost exclusively on sub-sections (2) and (4).
On a joint reading of both, the Court came to the following conclusions:4
―Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any
proceedings pertaining to an electronic record, it is permissible provided the following
conditions are satisfied:

a) There must be a certificate which identifies the electronic record containing the
statement;
b) The certificate must describe the manner in which the electronic record was
produced;
c) The certificate must furnish the particulars of the device involved in the production
of that record;
d) The certificate must deal with the applicable conditions mentioned under Section
65B(2) of the Evidence Act; and
e) The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device

The first and immediately observable result of this reading is that a certificate under S.
65B(4) is now mandatory. The import of this reading is analysed in greater detail in Part II of
this paper.

Second, the Court‘s reading of clauses (a), (b), and (c) of S. 65 B(4) is very curious. First,
they understand them as being individual compulsory aspects of the certificate. This is in blatant
disregard of the fact that the provision says the certificate must do ― any of the following things
(emphasis added).5 The Court‘s does not explain this strict reading of the clearly flexible
requirements.

The third closely related point is that the Court ignores words that introduce elements of
voluntariness and alternativeness into the sub-sections. For instance, S. 65B(4)(c) permits the
certificate to deal ―with any of the matters to which the conditions mentioned in sub-section (2)
relate‖ (emphasis added).6 The Court reads it to mean that all of the conditions mentioned in sub-
section (2) must be specified.

4
P.V. Anvar v. P.K. Basheer, (2014) 10 SCC 473, ¶14.
5
S. 65B(4), Indian Evidence Act, 1872.
6
S. 65B(4)(c), Indian Evidence Act, 1872.

5|P a g e
 Fourth, the Court states that all the ―applicable conditions of sub-section (2) must be
specified in the certificate. No such language of applicability’ exists in the section itself. Further,
such a reading creates a dichotomy between sub-section (2) and sub-section (4). Sub-section (2)
makes all the conditions mandatory, without regard to their ―applicability. Given this, it is
unclear how an element of ―applicability can be introduced into sub-section (4) by judicial
interpretation.

Fifth, the Court engages in selective paraphrasing; parts of many sections have been
completely ignored. For instance, clause (b) of S. 65B(4) not only requires the certificate to give
details of the particulars of a device involved in the production of the electronic record; it also
requires these details to be such as to show that the electronic record was produced by a
computer.7 The SC overlooks this aspect. Similarly, the person required to sign the certificate
must be in an official position either in relation to the ―operation or in the “management of the
device, as is appropriate. However, the SC refers merely to ―operation.8 While the nature of the
consequences that will flow from this are uncertain, this does indicate a degree of negligence on
the part of the Court.

Thus, it is obvious that the reading in Anvar does violence to the language of the statute,
which both unambiguously and repeatedly adopts a policy of flexibility with respect to the
certificate‘s contents. Such an approach is in complete contravention of the literal rule of
statutory interpretation.9 What is truly unfortunate is that no part of the Court‘s decision
acknowledges or attempts to explain the deviations made.

This deviant approach to statutory interpretation doesn‘t stop there, however. The Court goes
further to read in a requirement of contemporaneity in the production of the certificate. It is
worth extracting the same here:10

Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in
terms of Section 65B obtained at the time of taking the document‖ (emphasis added)

This dicta is to be read alongside a reference made to the 2005 decision in State (N.C.T.
of Delhi) v. Navjot Sandhu @ Afsan Guru (Afsan Guru‘),11 which is examined in greater detail
7
P.V. Anvar v. P.K. Basheer, (2014) 10 SCC 473
8
Ibid
9
G.P. Singh, PRINCIPLES OF STATUTORY INTERPRETATION (2004); MAXWELL ON THE INTERPRETATION OF
STATUTES, (P.St.J. Langan ed., 12th edn., 1969).
10
Ibid

6|P a g e
in Part II of this paper. The Court in Anvar specifically notes that in Afsan Guru, a ‗responsible
officer‘ had certified the documents in question ―at the time of production itself‖.12 That
contemporaneous authentication is met with implicit approval in Anvar.

This contemporaneity requirement is one of the reasons the electronic evidence in Anvar was
finally held to be inadmissible. The Court held that since a certificate was not produced at the
same time the electronic records were produced, it could not be admitted at all. What this means
is that if a party forgot to get a certificate at the time of, say, generating CD or printout, the
evidence becomes inadmissible. This requirement imposes additional burdens on parties, who
may not always be in a position to obtain such a certificate at the time of generating the
evidence. The conclusion that the Court has arrived at on this point also unnecessarily privileges
the usefulness of the certificate. Unlike safeguards employed in the case of physical evidence
which prevent tampering or ensure an unbroken chain of custody, it is merely a certification that
the evidence was generated in a particular manner.

Therefore, the level of authenticity it is bestowing on the evidence is in any case minimal.
Finally, it must be noted that the contemporaneity requirement is unquestionably extra-statutory.
S. 65B makes no mention of any time period within which the certificate must be produced, let
alone that the certificate must be taken at the same time as the document. Thus, unlike with the
question of specific format, this is not misreading or misinterpretation of existing conditions, but
the creation of new conditions. The effects of this strange holding are already being felt. In a
recent decision, the Delhi High Court applying the contemporaneity requirement held that there
was ―no point in now permitting the prosecution to place the…certificate on record.13

11
State (NCT of Delhi) v. Navjot Sindhu alias Afsan Guru, (2005) 11 SCC 600
12
Ibid
13
Ankur Chawla v. CBI, Crl. M.C. No. 2455/12 & Crl. M.A. Nos. 8308 and 8318/2014 & Crl. Rev. P. 385/2012,
16-17 Dec

7|P a g e
 CHAPTER 3:
LIMITING METHODS OF AUTHENTICATION

The law prior to Anvar on admitting evidence under S. 65B had been laid down by the
Supreme Court in Afsan Guru. That court had held that while S. 65B prescribes certain specific
procedures, it does not bar evidence adduced in accordance with Ss. 63 and 65 of the Evidence
Act. The petitioners in Anvar attempted to rely on this ruling to get the CDs in question
admitted; however, the Court in its interpretation of S. 65B declared that Afsan Guru is bad law,
and expressly overrules it.

This decision to overrule is based on the understanding that S. 65B is a complete code in
itself. Applying the principle of generalia specialibus non derogant,14 they exclude the
applicability of Ss. 63 and 65 to electronic records. On the face of it, this seems to be a
reasonable interpretation of the relationship between Ss. 63 and 65, and S. 65B. While the
former deal with general documentary evidence, S. 65B only refers to one special subset –
electronic records. That it opens with a non-obstante clause could be understood as further
evidence of an intention to exclude the operation of Ss. 63 and 65.

However, Anvar‘s analysis goes further, arguably stretching the conclusion beyond its
logical limits. Not only is electronic evidence to be admitted only as per S. 65B, the Supreme
Court states that a certificate under sub-section (4) is the only way in which the conditions
stipulated in sub-section (2) can be satisfied. According to the SC, this ensures the ―source and
authenticity of the document. The consequence is that post-Anvar, only one method of
authentication of the electronic record is permissible; all other authentication methods are
barred,15 even if they are in ―substantial compliance‖ with S. 65B. This rule has already seen
application: the Delhi HC in a recent decision held that oral evidence regarding electronic
evidence was insufficient. In the absence of a certificate satisfying the Anvar conditions, the
evidence was held to be inadmissible.16

14
Latin maxim of interpretation: the provisions of a general statute must yield to those of a special one. Also known
as the rule of implied exception.
15
Ibid
16
Jagdeo Singh & Ors. v. State, CRL.A. 527, 529 and 607 of 2014

8|P a g e
 This is not a conclusion supported by the language of the provision. On the contrary, on a
plain and literal reading, S. 65B(4) merely states that a duly signed certificate containing some
matter compliant with (a), (b), or (c), shall be evidence of that matter. Nowhere does the
provision state that a certificate shall be submitted if electronic evidence is to be admitted, or that
all other authentication methods are barred. In the absence of any such bar, the conclusion drawn
by the court is incorrect. This is supported by S. 65B(1) and (2), which deem computer output of
electronic records as documents subject to the fulfillment of certain conditions. The mode of
fulfilling the conditions is not specified.

One question logically follows: if S. 65B does not mandate the submission of a certificate,
what other authentication methods are possible?

Generally speaking, the Evidence Act allows for two kinds of evidence: oral evidence, and
documentary evidence.17 The latter would relate to certificates, affidavits, and the like, which are
permitted under the Evidence Act. The former is trickier – S. 22A of the Evidence Act expressly
bars the use of oral evidence to prove the contents of electronic records. Crucially, however, it
makes an exception: oral evidence can be adduced if it goes towards the ―genuineness of the
record.18

What is any authentication mechanism but an attempt to prove that the document is what it
claims to be; in other words, the genuineness‘ of the document? Undoubtedly the conditions
stipulated in sub-section (2), which must be satisfied, are ones going to genuineness. To
illustrate, if the computer alleged to have produced the record was not operating properly at the
relevant time,19 it cannot have generated the document. Consequently, the document‘s
genuineness will obviously come under serious doubt.

Anvar considers and unduly rejects this line of argument, stating:

―Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act,
the question would arise as to the genuineness thereof…20

17
S. 3, Indian Evidence Act, 1872.
18
S. 22, Indian Evidence Act, 1872
19
S. 65B (2)c, Indian Evidence Act, 1872
20
P.V. Anvar v. P.K. Basheer, (2014) 10 SCC 473

9|P a g e
 This is incorrect for two reasons. First, as established above, for a record to be duly
produced in terms of S. 65B, authenticity is required to be established. This is something the SC
itself acknowledges, in just the preceding paragraph! Since any distinction sought to be made
between ‗authenticity‘ and ‗genuineness‘, which are dictionary definitions of each other, cannot
be anything but specious, there is clear contradiction in the reasoning.

Second, the court is attempting to make a distinction between admissibility of evidence,

and genuineness. Pointing rather inaccurately to the American Federal Rules of Evidence, the
court states that reliability is considered only when giving weight to the evidence, and not in
admitting it.21 This raises fascinating questions about the process of proving a fact in evidence
law. Some jurisdictions, most notably the US, make relevancy and admissibility into statutorily
distinct steps in the process of adducing evidence; the Indian Evidence Act does not.

Under S. 136 of the Evidence Act, if the judge thinks a fact is relevant, he ―shall admit
it. On the face of it, therefore, relevancy is conflated with admissibility. However, there is
significant jurisprudence that has made a distinction between the two stages, something that was
brought to the notice of the Kerala HC, before whom the original petition had been filed. 22
Starting with R.M. Malkani, a line of SC cases concerning the evidentiary value of tape-recorded
conversations have held that reliability of the evidence must be established before it is admitted.

The reason for this has consistently been that new technology, like tape-records, can
easily be tampered with. There is no reason why this cannot be extended to electronic evidence
As well; in fact, the same logic applies seamlessly.23 Ironically, the SC in Anvar itself
emphasized the importance of authenticity of electronic evidence for these very reasons.

Finally, it is interesting to note that Anvar’s restriction on authentication methods leads to

curious difficulties in the case of illegally or improperly obtained evidence. Indian evidence law
famously does not follow the ―fruit of the poisoned tree (means - evidence that is obtained
illegally) doctrine; instead we have adopted the position that the method by which the evidence

21
Freiden & Murray, The Admissibility Of Electronic Evidence Under The Federal Rules Of Evidence, XVII(2),
RICHMOND JOURNAL OF LAW AND TECHNOLOGY, 1 (2012).
22
R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471
23
But see 185th Report of the Law Commission of India, Review of the Indian Evidence Act, 1872, Part II, 19
(2003)

10 | P a g e
is obtained is irrelevant.24 In cases where electronic evidence is improperly obtained,
certification by a ―person occupying a responsible official position in relation to the operation
of the relevant device or the management of the relevant activities25 will be impossible. A person
in a responsible official position over a computer from which the data was, say, stolen is hardly
likely to sign a certificate authenticating the information contained therein. Therefore, the
reading of S. 65B in Anvar will lead to a dichotomous situation: while illegally obtained
evidence will be admissible in the case of non-electronic evidence, it may be inadmissible in the
case of electronic evidence. This dichotomy has so far gone unaddressed.

Supreme Court has recently held Right to Privacy as a fundamental right available to
everyone in terms of Article 21 of the Constitution. This judgement has specifically dealt with the
privacy required in the cases of electronic records at the hands of both – the Government and
the Private Parties. With such interpretation of privacy, it is very difficult to access electronic
records of individuals and even if access is obtained through unlawful means, such evidence is
inadmissible owing to conditions mentioned in s. 65B(2) of IEA. This is a disability which we, as
a society, must conquer.

24
See 94th Report of the Law Commission of India, Evidence obtained illegally or improperly: Proposed Section
166A, Indian Evidence Act, 1872 (1983); Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147; R.M.
Malkani v. State of Maharashtra, (1973) 1 SCC 471.
25
S. 65B(2)(a), Indian Evidence Act, 1872.

11 | P a g e
 CONCLUSION

The judgement interprets a very important principle of evidence law dealing with
admission of electronic evidence. The admissibility of the secondary electronic evidence must be
adjudged within the parameters of Section 65B of IEA. The proposition is clear and explicit that
if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not
admissible and any opinion of the forensic expert and the deposition of the witness in the court
of law cannot be considered by the court.

In summary, the decision of the SC with due respect in Anvar case cannot be described as
anything other than poorly reasoned. The blatant disregard of the language of S. 65B goes
against principles of statutory interpretation: not only does it violate the principle of literal
interpretation it is also contrary to the legislative intention that can be. From a practical point of
view, it has led to inconvenient rigidity. At the same time, from a policy perspective, in the
interests of uniformity and certainty in evidentiary practices regarding electronic evidence, the
decision amounts to progress. Despite the aberrant decision of the SC in Tomaso Bruno in
January 2015, by and large, it has created clarity; since September 2014, most lower courts have
consistently been applying Anvar.

We cannot stop here however. In the interest of maximizing the reliability of electronic
evidence and to capitalize on technological advances, it is essential that the methods of
authenticating electronic evidence not be restricted.

12 | P a g e
 BIBLIOGRAPHY/REFERENCES

BOOKS

1. Freiden & Murray, The Admissibility Of Electronic Evidence Under The Federal Rules
Of Evidence, XVII(2), RICHMOND JOURNAL OF LAW AND TECHNOLOGY, 1 (2012).

2. Ratanlal & Dhirajlal‘s the Law of Evidence, Lexis Nexis; Twenty Sixth edition (18 July
2017).

3. Batuk Lal ,The Law of Evidence, Publication – Central Law Agency ,Twentieth Edition-
2017

WEBSITES

 www.manupatrafast.in
 synergy.net/ADR/anvar_adv.aspx

13 | P a g e