Recent Supreme Court Judgments on Digital Evidence

Over the last decade the Supreme Court of India has moved from treating electronic records as an exotic category to laying down a detailed procedural code for them. Three decisions in particular define the current position, and a string of later rulings shows how strictly the trial courts are expected to apply it.

Anvar P.V. v. P.K. Basheer (2014)

The three-judge bench in Anvar overruled the earlier view in State (NCT of Delhi) v. Navjot Sandhu that electronic records could be proved under Sections 63 and 65 like any other secondary evidence. The Court held that Section 65B is a complete code: without a certificate under sub-section (4), secondary evidence of an electronic record is simply inadmissible.

Anvar also drew the line that practitioners still rely on: where the original device itself is produced in court, the certificate is not required, because the record is being proved as primary evidence.

Shafhi Mohammad v. State of Himachal Pradesh (2018)

A two-judge bench in Shafhi Mohammad took a softer view, holding that the certificate requirement is procedural and can be relaxed where the party relying on the record is not in possession of the device. The decision was welcomed by litigants but created an obvious conflict with Anvar.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

The reference was answered by a three-judge bench in Arjun Panditrao Khotkar. The Court reaffirmed Anvar, declared Shafhi Mohammad to be bad law, and held that the Section 65B(4) certificate is a mandatory condition for the admissibility of electronic records produced as secondary evidence.

• Where a party cannot obtain the certificate from a device in someone else's control, it should apply to the court to summon the person concerned or direct production of the certificate.
• The certificate should ordinarily accompany the record, but it may be produced later at the court's discretion, provided the trial is not over and no prejudice is caused.
• Telecom and internet service providers should preserve call and server records in matters where they may be needed, so that certificates can be issued when sought.

How the trial courts have responded

In Ravinder Singh alias Kaku v. State of Punjab (2022) the Supreme Court set aside reliance on call detail records produced without a certificate, even though the records were otherwise uncontested. High Courts have followed suit, routinely excluding WhatsApp screenshots, social media printouts and CCTV clips tendered without the statutory certificate.

With the Bharatiya Sakshya Adhiniyam, 2023 carrying the requirement forward as Section 63, the jurisprudence built around Anvar and Khotkar will continue to govern how electronic evidence is proved in India for the foreseeable future.