• by MK

Electronic Evidence in Criminal Trials: Admissibility after Anvar P.V. v. P.K. Basheer

In the last decade, criminal trials in India have increasingly revolved around electronic evidence. From WhatsApp chats and emails to CCTV footage, call recordings, and data extracted from hard drives, digital material has become central to prosecution and defence strategies alike. However, the admissibility of such evidence is not as straightforward as producing a document in court. The law governing electronic evidence underwent a significant shift after the Supreme Court’s decision in Anvar P.V. v. P.K. Basheer (2014), which continues to shape criminal litigation today.

The Growing Importance of Electronic Evidence

Criminal activity today almost always leaves behind a digital trail. Financial fraud cases involve email chains and transaction logs. Domestic violence and matrimonial disputes frequently rely on WhatsApp chats and audio recordings. Murder trials often turn on CCTV footage or mobile location data. Even corruption cases are increasingly supported by digital surveillance material.

Unlike traditional documentary evidence, electronic records are highly susceptible to alteration, duplication, and manipulation. Recognising this vulnerability, the legislature introduced specific provisions under the Indian Evidence Act, 1872, particularly Section 65B, to regulate the admissibility of electronic records. However, for several years, courts applied these provisions inconsistently, leading to confusion about whether a certificate under Section 65B was mandatory.

The Turning Point: Anvar P.V. Judgment

The confusion was decisively addressed in the landmark judgment of Anvar P.V. v. P.K. Basheer. In this case, the Supreme Court clarified that electronic records, when produced in the form of secondary evidence such as CDs, pen drives, printouts, or copies, are admissible only if accompanied by a certificate under Section 65B(4) of the Evidence Act.

The Court rejected the earlier practice of admitting electronic records under the general provisions relating to secondary evidence. It held that Section 65B is a complete code in itself for the admissibility of electronic records. In simple terms, if a party seeks to rely on a copy of an electronic record, a valid Section 65B certificate is mandatory. Without it, the evidence cannot ordinarily be read in evidence.

This judgment fundamentally changed the evidentiary landscape in criminal trials. It shifted the focus from mere relevance of digital material to strict procedural compliance.

What Is a Section 65B Certificate?

A Section 65B certificate serves as a guarantee of authenticity. It must identify the electronic record, describe how it was produced, provide particulars of the device involved, and confirm that the record was generated in the ordinary course of use. Importantly, it must be signed by a person occupying a responsible position in relation to the operation of the device or management of the relevant activities.

For example, if CCTV footage from a commercial establishment is relied upon, the certificate must typically be issued by the person responsible for maintaining the CCTV system. Similarly, bank transaction records must be certified by an authorised bank official.

The purpose of this requirement is to ensure that the electronic record has not been tampered with and that it was generated by a reliable system operating in the ordinary course of business.

Reaffirmation and Clarification in Arjun Panditrao

The legal position was further clarified by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. This judgment reaffirmed the mandatory nature of the Section 65B certificate and resolved conflicting decisions that had emerged after Anvar.

The Court categorically held that oral evidence cannot substitute the certificate requirement. It also clarified that if the required certificate cannot be obtained despite genuine efforts, the court may permit the party to summon the concerned authority to produce it. This balanced the strict procedural requirement with practical realities faced during trials.

After Arjun Panditrao, there is little room for ambiguity. Compliance with Section 65B is not a procedural technicality; it is a substantive requirement for admissibility.

Practical Challenges in Criminal Trials

Despite clear judicial guidance, several practical issues arise in criminal proceedings. Investigating agencies sometimes seize electronic devices but fail to obtain the necessary certification at the appropriate stage. In other cases, objections to admissibility are not raised promptly, leading to disputes later in the trial.

Another important distinction concerns the production of the original device itself. If the original electronic device, such as a mobile phone or server, is produced before the court and examined directly, the requirement of a Section 65B certificate may not apply in the same way as it does for secondary copies. This distinction often becomes a contested issue during a trial.

For defence counsel, scrutinising the validity of the Section 65B certificate can be a crucial strategy. For the prosecution, ensuring procedural compliance from the outset can prevent serious setbacks later.

The Broader Impact on Criminal Litigation

The Anvar P.V. ruling strengthened safeguards against fabricated or manipulated digital evidence. It promotes authenticity and accountability in a time when electronic records can be easily edited or fabricated. At the same time, strict adherence to technical requirements has occasionally resulted in important evidence being excluded, raising concerns about balancing procedural rigour with substantive justice.

Nevertheless, the current legal position is clear. Courts across India consistently apply the principles laid down in Anvar and reaffirmed in Arjun Panditrao while assessing the admissibility of electronic evidence in criminal trials.

Conclusion

Electronic evidence is no longer supplementary in criminal litigation; it is often decisive. The decision in Anvar P.V. v. P.K. Basheer marked a watershed moment by making compliance with Section 65B mandatory for the admissibility of electronic records. The subsequent clarification in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal cemented this position.