State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru

Facts

On 13 December 2001 five armed terrorists stormed Parliament House in New Delhi while it was in session, killing nine persons (including security personnel and a gardener) and injuring sixteen before all five attackers were eliminated in the ensuing gunfight. Four accused, including Mohd. Afzal, Shaukat Hussain Guru, S.A.R. Gilani and Navjot Sandhu (Afsan Guru), were prosecuted for conspiracy and related offences under the IPC, POTA and other statutes. Among the evidence relied upon by the prosecution were printouts of computerised cellular phone call records produced by the service providers, which were tendered without a certificate under Section 65B of the Evidence Act. The accused challenged the admissibility of these electronic records.

Issues

• Whether printouts of computerised cellular phone call records are admissible in evidence in the absence of a certificate under Section 65B(4) of the Indian Evidence Act, 1872.
• Whether the contents of such electronic records can be proved as secondary evidence under Sections 63 and 65 of the Evidence Act independently of Section 65B.

Arguments

The accused contended that the call-record printouts were electronic records whose admissibility was governed by Section 65B and, in the absence of the certificate required by Section 65B(4), they could not be received in evidence. The prosecution argued that the information was stored on large servers not easily movable, and that the printouts, being copies made by a mechanical process and certified by a responsible official of the service provider, were admissible as secondary evidence under Sections 63 and 65.

Held

The Supreme Court held that the call-record printouts were admissible. It reasoned that under Section 63 secondary evidence includes copies made from the original by mechanical processes that ensure accuracy, and Section 65 permits secondary evidence where the original is of a nature not easily movable, as with the service providers' huge servers. Such printouts, certified by a responsible official of the service-providing company, could be led in evidence through a witness who could identify the certifying officer's signature or speak to the facts from personal knowledge. The Court concluded that, irrespective of compliance with Section 65B, there was no bar to adducing secondary evidence under Sections 63 and 65, so the absence of a Section 65B(4) certificate did not render the records inadmissible.

Ratio decidendi

Even without a certificate under Section 65B(4) of the Evidence Act, the contents of electronic records such as computerised call-record printouts may be proved as secondary evidence under the general provisions of Sections 63 and 65, since Section 65B is not an exclusive bar to other modes of proof.

Significance

A landmark on the proof of electronic evidence: for nearly a decade it was the leading authority permitting electronic records to be proved as secondary evidence under Sections 63 and 65 without a Section 65B certificate. This ratio on Section 65B was expressly overruled by the three-Judge Bench in Anvar P.V. v P.K. Basheer (2014) 10 SCC 473, which held that Sections 65A and 65B form a complete code for electronic records and that the Section 65B certificate is mandatory, a position reaffirmed in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal (2020) 7 SCC 1. Under the new code, the proof of electronic records is now governed by Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (the successor to Section 65B), which similarly requires an accompanying certificate, so the Navjot Sandhu approach of bypassing the certificate via the general secondary-evidence provisions does not represent the current law.

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