Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors.
(2020) 3 SCC 216
In the Supreme Court of India
C.A. 20825-826/2017
Before Justice Ashok Bhushan and Justice Navin Sinha
Decided on July 26, 2019

Relevancy of the case: Admissibility of electronic records as secondary evidence under Section 65B of the Indian Evidence Act, 1872

Statutes and Provisions Involved

• The Indian Evidence Act, 1872 (Section 59, 63, 65A, 65B)

Relevant Facts of the Case

• It is a landmark judgment related to the admissibility of electronic records as secondary evidence and the certificate requirement under Section 65B of the Indian Evidence Act, 1872.
• Two essential precedents have been referred to in the present case. 
• In Anvar v. Basheer, the Apex Court held that an electronic record could be admissible as secondary evidence only if requirements under Section 65B are satisfied. Therefore, an electronic record that needs to be admitted as secondary evidence shall mandatorily accompany a certificate under Section 65B, without which it would be inadmissible. 
• The certificate is required to ensure the source and authenticity of the electronic record as it is more prone to tampering, alteration, etc.
• But in Shafhi Mohammad v. State of H.P., the Supreme Court observed that the requirement of a certificate under Section 65B is procedural and not mandatory if the electronic evidence was produced by a person not having possession of the device which generated the electronic document. The same was reiterated in the Tomaso Bruno and Ram Singh case.
• It was also stated that if the procedure under Section 63 and 65 were not permitted to be invoked, it would be a denial of justice to the person who could not secure the certificate despite having authentic evidence. Hence, the Shafhi Mohammad case held that the certificate requirement was not mandatory.
• Hence, after the two conflicting decisions, there was ambiguity related to the certificate requirements under Section 65B of the Indian Evidence Act, 1872.

Opinion of the Bench

• The judgment in Shafhi Mohammad v. State of Himachal Pradesh needs to be reconsidered, given Anvar P V v. P K Basheer. With the increasing reliance on electronic records during investigations, a certainty in law is required. Therefore, this court referred the matter to a larger bench urgently.

Final Decision

• Matter referred to a larger bench.