Form vs. Substance

**Saloni Maheshwari

Opening Overview 

The Supreme Court of India recently in Chandrabhan v. State of Maharashtra, overturned a Bombay High Court judgment that had affirmed the conviction and death sentence of an individual accused of raping and murdering a 23-year-old woman. The prosecution had relied on 14 pieces of circumstantial evidence, including CCTV footage, witness statements, and an alleged extrajudicial confession, to establish the accused’s guilt. Based on this, the trial court convicted the appellant and imposed the death penalty, which was subsequently upheld by the Bombay High Court in December 2018. Challenging the decision, the appellant approached the Supreme Court, contending that the prosecution had failed to prove its case beyond reasonable doubt. 

Judgment

Upon review, the Apex Court outlined the following deficiencies: Firstly, the witness statement in this case lacks reliability as they were recorded after a two-month delay and had inconsistencies. The identification parade is rendered unreliable due to the appellant’s photo being widely publicized in the media. The prosecution’s reliance on the ‘last seen’ theory also fails, as it did not establish that the time gap between when the accused and deceased were last seen together and when the body was found was narrow enough to exclude the involvement of others.

Secondly, the extra-judicial confession was allegedly made to a person with whom the accused had not been on speaking terms for nearly two years. Such confessions are inherently weak and require strong corroboration, which was absent in the instant case. 

Thirdly, the CCTV footage was deemed inadmissible due to the absence of a certificate under Section 65B(4) of the Indian Evidence Act, in line with the precedent set in Anvar P.V. v. P.K. Basheer. The paper will primarily focus on the validity of this section of the judgment. It advocates for a liberal, flexible interpretation of Section 65B(4), so that electronic evidence is not excluded solely due to the absence of a certificate. It reasons that strict procedural compliance should not override substantive justice, especially when the evidence is otherwise reliable, relevant, and the party made genuine efforts to obtain the certificate.

Unpacking 65B Of The Evidence Act, 1872

Section 65B of the Indian Evidence Act, (hereinafter as the ‘Act’), deals with the admissibility of electronic records (like emails, WhatsApp messages, CCTV footage, audio or video files, etc.) as evidence in the court. It says that when you want to present a copy of an electronic record (for example, a printout or a CD copy of a video) instead of the original device (like the actual computer or phone), then that copy can only be accepted in court if it is accompanied by a certificate. This certificate must be signed by someone responsible for handling the device or system and must confirm a few things: how the data was produced, what device it came from, and that it was done in the regular course of work. The reason for this rule is to make sure that the electronic evidence is genuine and not tampered with.

The legal landscape concerning the admissibility of electronic records under Section 65B of the Indian Evidence Act has evolved through a series of judgments that initially produced inconsistent interpretations, concerning the necessity of a certificate under sub-section (4).

Critical Analysis

Balancing Procedural Compliance with Substantive Justice

In the instance case, the exclusion of CCTV footage was not primarily due to doubts about its reliability, such as the 12-day lifespan of the DVR-II, lack of identification of both the appellant and the deceased in the same footage. Although these concerns were raised, the main reason the footage was not admitted was the absence of a certificate as required under Section 65B(4) of the Indian Evidence Act.

The author agrees to the proposition that the CCTV footage should not be allowed as it lacked authenticity and reliability. However, the requirement of certificate should merely be seen as procedural rather than substantive. Drawing from the reasoning in State v. Mohd. Afzal, the author contends that courts should retain the discretion to relax the certificate requirement where it is impractical for the party to obtain it, particularly when the electronic record is clearly genuine and relevant. In the instance case, the Respondents had made genuine efforts to secure the certificate from a third party beyond their control. Thus, a flexible interpretation of Section 65B(4) serves the broader interests of fairness and prevents technically sound yet substantively unjust outcomes.

The purpose of Section 65B(4) is to establish the genuineness of the electronic evidence. However, a strict reading of Section 65B(4) that treats the certificate as mandatory misrepresents the language of the provision. The statute merely states that if the conditions outlined in clauses (a), (b), or (c) are satisfied and a certificate is produced, the electronic record shall be considered as evidence. It does not say that such a certificate is the only mode of authentication available.

Additionally, Section 22A of the Evidence Act prohibits oral evidence to prove the contents of electronic records. But it carves out an exception in cases where the issue concerns the genuineness of the record rather than its content. Thus, in Shafhi Mohammad v. the State of Himachal Pradesh, it was ruled that oral testimony may validly be used to satisfy the conditions laid down in Section 65B(2), such as whether the computer was functioning properly during the relevant period.

Furthermore, courts have long performed the role of evaluating the weight and credibility of evidence, including expert and technical testimony. To argue that a judge lacks the competence to assess the authenticity of a digital record unless a certificate is filed assumes that the certificate itself is foolproof, which it is not. A forged or incorrect certificate can be just as misleading as manipulated data. Therefore, judicial scrutiny, aided by expert input, can serve as an effective safeguard. 

Flexible Admissibility and the Primacy of Relevance in Electronic Evidence

It was argued in Anvar P.V. v. P.K. Basheer, that the certificate under Section 65B(4) serves an important function in preventing tampering by verifying the source and method of data generation. The author does not advocate for a blanket exemption from this requirement. Instead, the argument is for a context-sensitive approach where strict compliance should not defeat the admissibility of reliable and probative evidence solely on procedural grounds. In instances where the certificate cannot be procured despite genuine efforts, especially from third-party custodians, courts should consider alternative forms of verification, such as system-generated metadata, testimony from those familiar with the data’s handling, or corroborative circumstances. Excluding evidence solely due to the absence of a certificate, even when its authenticity is otherwise verifiable, risks elevating form over substance and undermining the objective of justice.

Moreover, it was also argued that the fact that an electronic record is obtained from a third party or without adhering to proper seizure procedures renders it inadmissible. But what truly matters is whether the evidence is authentic, reliable, and relevant to the case. The Indian legal system follows the ‘relevance test’ for admissibility, rather than the exclusionary ‘fruit of the poisonous tree’ doctrine adopted in some other jurisdictions like the United States. This position was affirmed by the Supreme Court in Pooran Mal v. Director of Inspection, where it was held that illegally obtained evidence is admissible if it is otherwise relevant and does not infringe a specific constitutional safeguard. Thus, courts are concerned more with the truthfulness and evidentiary value of the material than with the method of its acquisition.

Interpreting 65B(4) in Practice

The Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, it was stressed that Section 65B overrides general provisions under Section 63, which deals with secondary evidence, as it constitutes a special law for electronic records. However, the mechanical application to Section 65B(4) ignores the contextual realities of digital evidence and the purpose of the Evidence Act as a whole. In R. v. Maqsud Ali, it was ruled that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved.

Another argument was that an application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. However, the process of obtaining such an order can be time-consuming, procedurally complex, and uncertain, especially in time-sensitive matters like bail hearings, urgent injunctions, or fast-moving criminal investigations. Furthermore, many private entities may simply refuse to cooperate, citing lack of obligation or concern over liability.

Hence, Section 65B (4) should be liberally interpreted taking into account justice. 

Social Impact

The judgment holds considerable importance as the Supreme Court, which typically refrains from re-evaluating factual findings, overturned the conclusions of two lower courts in a capital punishment case, citing serious investigative lapses. This reflects the judiciary’s growing sensitivity to procedural integrity, especially when the stakes involve a person’s life. In today’s digital age, Section 65B plays a vital role by allowing courts to admit electronic materials such as emails, CCTV footage, call logs, and chats, forms of evidence increasingly central in cases of cybercrime, financial fraud, and online abuse, where traditional evidence is often unavailable. However, the strict procedural demand for a certificate under Section 65B(4) can sometimes hinder justice, particularly when the evidence is stored on devices controlled by third parties like telecom companies or surveillance systems. This places an unfair burden on victims, activists, and others who rely on digital evidence but lack the means to authenticate it formally. But this comes with a caveat as the growing reliance on electronic records brings with it serious privacy implications and without adequate safeguards, there’s a real risk of misuse, including unauthorized surveillance or fabrication of evidence.

**Saloni Maheshwari is a 4th-year student at NALSAR University of Law, Hyderabad 

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.