Production Of A Certificate Of Authentication Is Unnecessary Where The Original Electronic Evidence Is Tendered — A Strong Voice From India

CASE REVIEW SERIES – NO 4
SUNDARRAJAN v STATE BY INSPECTOR OF POLICE
Case No: Criminal Appeal Nos 330-301 of 2011
Court: Supreme Court of India
Coram: Dr. Dhananjaya Y. Chandrachud, CJI; Hima Kholi, Pamidighantan Sri Narasimha, JJSC
Reviewer: Hon. Justice Alaba Omolaye Ajileye

PRODUCTION OF A CERTIFICATE OF AUTHENTICATION IS UNNECESSARY WHERE THE ORIGINAL ELECTRONIC EVIDENCE IS TENDERED – A STRONG VOICE FROM INDIA

1. Introduction

On Tuesday, the 21^st day of March 2023, the Supreme Court of India delivered a landmark judgment in Sundarrajan v. State By the Inspector of Police that has the capacity of significant implications for the jurisprudence of electronic evidence beyond the shores of India. In that case, the court dealt with the admissibility of electronic evidence particularly, digital evidence obtained from a mobile phone. Specifically, the case tackles one critical legal issue that is momentous to the law of electronic evidence,  which I believe could ultimately emerge as a persuasive authority with the potential to set new precedents in Nigeria. Fundamentally, the Supreme Court of India held that  Section 65B of the Indian Evidence Act, 1872 (as amended), which is similar to Section 84 of the Nigerian Evidence Act, 2011 (though not in every material particular), is not a complete code. This implies that the provision is not comprehensive or exhaustive in its coverage of the subject of electronic evidence. In other words, it signifies that the law does not address all possible scenarios for every situation that may arise and, therefore, admits to some exceptions. It reflects the understanding that laws are not static or absolute but are subject to proactive interpretation and adaptation to changing circumstances. In that case, the Supreme Court of India authoritatively establishes that the production of a certificate of authentication under Section 65B(4), i.e., Nigeria’s Section 84(4), is unnecessary when the original electronic document is tendered before the court.

Where the context so admits, it shall be convenient for me to refer to the Indian Evidence Act, 1872 simply as “IEA, 1872”, while the Nigerian Evidence Act, 2011 shall be abbreviated as “NEA, 2011.”

The facts of the case

The petitioner was accused of kidnapping and the murder of a 7-year-old child. He’s alleged to have picked up the victim while he was returning from school in the school van on 27 July 2009. Prosecution witnesses testified to the petitioner having picked up the victim on his motorbike. When the child did not return from school on time, his mother attempted to find his whereabouts and was informed of the above sequence of events by one of the witnesses. Accordingly, she proceeded to register a complaint at a police station. On the same night, she received a call on her mobile phone from the petitioner, demanding a ransom of Rs. 5 lakhs for the release of the victim. Further, another ransom call was made on the following day from a telephone booth. One of the witnesses was the individual who ran the booth and he testified that the petitioner made a call enquiring about the payment of money.

The police raided the house of the petitioner and arrested him along with a co-accused who was later acquitted. The petitioner made confessional statements based on which three mobile phone sets, two of which had SIM cards, were recovered. The petitioner confessed to strangling the deceased, putting his dead body in a gunny bag, and throwing it in the Meerankulam tank. The body of the deceased was recovered from the tank on the basis of the confessional statement. The petitioner was convicted of the offence for which he was charged and sentenced to death. He sought a review of his conviction and the award of the sentence of death.

An aspect of the case relating to electronic evidence revolves around the argument of the petitioner that the call detail records (CDRs) tendered at the trial were inadmissible and could not be relied upon due to the lack of production of a certificate of authentication under the Section 65B(4), IEA, 1872 (NEA, Section 84(4). It is relevant to place on record here that the CDRs were verified in the testimony of the Legal Officer of Vodafone, PW11, who himself produced the documents from the computer. The issue was whether or not the CDRs were admissible. Admittedly, the certificate of authentication mentioned under Section 65B (4) IEA, 1872 (Section 84(4) NEA, 2011), was not produced.

2. Production of certificate of authentication and its seeming intractability

Over the years, both in Nigeria and India, the fulfilment of the requirement of production of a certificate to authenticate an electronic document and the computer that produced it, as provided for under Sections 84(4) of the NEA, 2011 and 65B(4) of the IEA, 1872 (as amended), respectively,  has engendered weighty legal arguments and raised probing questions that have tasked the courts in both countries and tested their malleability.  To date, the courts are still embroiled in many such questions in a way that the last cannot be said to have been heard about the seemingly intractable provisions in both countries. In a paper delivered at the Criminal Law Review Conference  (2021), using Nigeria as a case study, I identified some of the questions as consisting of the following, amongst others:

(i) What form should a certificate of authentication take – a mere statement or an affidavit? (ii) Who is the proper person to tender a certificate of authentication in evidence? (iii) Who is the proper person to sign a certificate of authentication? (iv) Who is a responsible officer within the meaning of section 84 (4) (b)(i) of the Evidence Act? (v) What should be the exact content of a certificate of authentication? (vi). Is a certificate of authentication under sub-section (4) an alternative to oral evidence under sub-section(2)?  (vii) At what stage of a judicial proceeding is a certificate to be tendered? (viii) Should a certificate of authentication be treated as a formal document that is required to be filed at the registry of the court or not? (ix) What happens when the proponent of an electronic document has no connection with the computer that produced it, can such a person authenticate the document with a certificate? (x) Is compliance with Section 84(4) mandatory even in a situation when it is impossible to obtain the certificate from the competent authority or entity?

I can add two more questions here: (a). If a point of objection on electronic evidence was not raised at the trial court, could it be taken up for the first time on appeal? (b). Is the issue of admissibility of electronic evidence a matter of substantive or procedural law?  The questions are endless.

Adoption of a new approach in other climes

The dynamism of technology has been acknowledged such that has compelled some jurisdictions around the world to adopt a new approach that simplifies the process of admissibility of electronic evidence in a way that overcomes the cumbersomeness and challenges posed by the requirement of production of certificates under Section 65B of the IEA, 1872 (as amended) and Section 84(4) of NEA, 2011. In the United States of America, for instance, courts have held that electronic data can simply be authenticated by confirming that they were produced by the adversary during document discovery, as the act of production itself implicitly authenticates the documents. In the United Kingdom, with the repeal of Section 5 of the UK Civil Evidence Act in 1995 and Section 69 of the PACE Act in 1999, a common law presumption that, in the absence of evidence to the contrary, the court will presume that mechanical instruments were working in order at the material time when they were used. In Singapore, Section 16A of Singapore’s Evidence Act (as amended), contains three types of presumptions to address authentication issues. They are: (i). the presumption that mechanical devices were in order when they were used. (ii). a presumption of the authenticity of business records of someone who is not a party to a civil or criminal proceeding, and (iii). presumption of electronic records obtained by a proponent from an adverse party to a civil or criminal proceeding.

The foregoing suggests a paradigmatic shift that liberalises the process of admissibility of electronic evidence.

The Indian Experience

India, like Nigeria, has stuck to its legislative provisions for the admissibility of electronic records since 2000 as contained in Section 65B of the IEA, 1872 (as amended), and has continued to contend with the challenges associated with them. What is witnessed, as a consequence, is the spectacle of conflicting opinions of the Supreme Court of India on the subject in many cases. The law on the interpretation of Section 65B of IEA, 1872, (as amended), has, accordingly, been caught in a web of confusion until now. The Supreme Court of India, since 2005, has continued to churn out conflicting decisions on the same issue of production of certificates under section 65B(4).

In State (NCT of Delhi) v Navjot Sandhu, one of the earliest decisions of the Supreme Court of India dealing with the issue of admissibility of electronic evidence it was held that even if a certificate containing the details in sub-section (4) of section 65B was not filed, that should not mean that secondary evidence cannot be given if the law permits such evidence to be given under other provisions. The court held further that Section 65B is only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting such evidence through other provisions.  From that decision, it’s clear that the apex court did not give Section 65B the requisite significance as envisaged by the Legislature. This represented the position of the law in India for about nine years (2005-2014).

In 2014, the same Supreme Court, in Anvar v Basheer and Others held conclusively, that documentary evidence in the form of an electronic record can be proved only by the procedure set out under section 65B of the Evidence Act. It was in this case that the importance of section 65B was fully recognized and appreciated. The Supreme Court of India held further that a certificate under Section 65B is compulsory for admission of electronic evidence. The court thereby overruled its early decision in Navjot Sandhu.

In 2018, the Supreme Court of India came up with its decision in Shathi Mohammed v. The State of Himachal Pradesh. It held the legal position on the subject of admissibility of electronic evidence, that a party who is not in control of the device from which the document is produced, cannot be required to produce a certificate under section 65B(4). And, in Arjun  v. Kailash and Others,  the apex court while overruling Shafhi Mohammad’s case,  reaffirmed the law laid down in Anvar P.V. v. P.K. Basheer & Others that the certification requirement under Section 65B(4) is a condition precedent to the admissibility of electronic evidence. Based on this premise, the court concluded that the obligation placed by Section 65B(4) was mandatory, and not voluntary.

The Significance of Sundarrajan v State

The case, Sundarrajan v. The State, has finally established a clear framework for the admissibility of electronic evidence under Section 65B of the IEA, 1872. The decision provides clarity on the requirement for the production of certificates and their proper application. The Supreme Court of India categorises electronic evidence into two. The first category is the original document itself which consists of the original information as stored in the laptop computer, computer tablet, or even phone, or any device for that matter. A certificate, according to the apex court, is not required in the circumstance where the owner of such a device produces the same before the court. and demonstrates the information in its original form.  The court delineates thus:

….the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet, or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him.

This position defines when certificates are not required to be produced. To me, this is good law. It is superfluous to require a person who appears in court and demonstrates the originality of the information as contained in a device, to produce a certificate to authenticate it. The certificate authenticates nothing.

The decision of the Indian Supreme Court on this point is, peripherally, in consonance with that of the Supreme Court of Nigeria in A.G. Federation v. Princewill Anuebunwa, where the court held that Section 84 of the NEA, 2011 is inapplicable where the original official documents are involved:

‘‘The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage the same where the admissibility of an original affidavit is in issue.’’ (Per Ogunwumiju, JSC).

I use the adverb, “peripherally” here as the Supreme Court in Anuebunwa’s case focused on simple documents produced when the computer is used as a typewriter.

The second category of electronic evidence, as bifurcated by the Supreme Court of India in Sundarrajan’s case is “electronic record by way of secondary evidence”. The court identifies it as consisting of  “cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the court.” Items such as  CD, VCD, chip, etc., fall into this category. The Supreme Court of India clarifies that the means of authenticating the information contained in such secondary evidence of electronic record can only be in accordance with Section 65(B)(1), together with the requisite certificate under Section 65-B(4).

Conclusion

The summary of the decision of the Indian Supreme Court in Sunjarrjan’s case on electronic evidence is, that where the proponent of an electronic document can tender before the court, the information in its original form, as contained in the device that produced it, the production of a certificate to authenticate it is unnecessary. However, where the secondary evidence of electronic records such as CD, DVD VDVD chips, etc, is tendered, an authenticating certificate is mandatory and not optional.

The significance of the decision of the Supreme Court lies in its contribution to the fast-growing jurisprudence relating to the admissibility of electronic evidence. It establishes a clear framework for the admissibility of electronic evidence, which is essential in the digital age where electronic evidence has become increasingly prevalent in legal proceedings. The decision also clarifies and standardises the requirements for the admissibility of electronic documents to ensure that only reliable and authentic electronic evidence is admitted.