ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO GORANTYAL AND ORS.

A 25. Sub-rules (13) and (14) were incorporated in Rule 902 under the amendment of the year 2017. Until then, a person seeking to produce electronic records had to fall back mostly upon Rule 901 (except in few cases covered by sub-rules (11) and (12) of Rule 902). It means that the benefit of self-authentication was not available until then [until the advent of sub-rules (13) and (14), except in cases covered by sub-rules (11) B and (12)]. Nevertheless, the introduction of sub-rules (13) and (14) in Rule 902 did not completely exclude the application of the general provisions of Rule 901.

26. Rule 901 applies to all evidence across the board. It is a general provision. But Rule 902 is a special provision dealing with evidence that C is self-authenticating. Records generated by an electronic process or system and data copied from an electronic device, storage medium or file, are included in sub-rules (13) and (14) of Rule 902 of the Federal Rules of Evidence.

27. But FRE 902 does not exclude the application of FRE 901. It D is only when a party seeks to invoke the benefit of self-authentication that Rule 902 applies. If a party chooses not to claim the benefit of self- authentication, he is free to come under Rule 901, even if the evidence sought to be adduced is of an electronically stored information (ESI).

28. In an article titled ‘E-Discovery: Authenticating Common Types of ESI Chart’, authored by Paul W. Grimm (the Judge who delivered E the verdict in Lorraine) and co-authored by Gregory P. Joseph and published by Thomson Reuters (2017), the learned authors have given a snapshot of the different methods of authentication of various types of ESI (electronically stored information). In a subsequent article (2018) titled ‘Admissibility of Electronic Evidence’ published under the caption ‘Grimm-Brady Chart’ (referring to Paul W. Grimm and Kevin F. Brady) F on the website “complexdiscovery.com”, a condensed chart is provided which throws light on the different methods of authentication of ESI. The chart is reproduced in the form of a table, with particular reference to the relevant sub-rules of Rules 901 and 902 of the Federal Rules of Evidence as follows: G S.No. Type of ESI Potential Authentication Methods

1. Email, Text Messages, and Witness with personal knowledge (901(b)(1)) Instant Messages Expert testimony or comparison with authenticated examples (901(b)(3)) Distinctive characteristics including circumstantial evidence (901(b)(4)) System or process capable of proving reliable and dependable result (901(b)(9)) H

p. 265 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

Trade inscriptions (902(7)) A Certified copies of business record (902(11)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14))

2. Chat Room Postings, Witness with personal knowledge (901(b)(1)) Blogs, Wikis, and Expert testimony or comparison with authenticated Other Soc ial Me dia examples (901(b)(3)) B Conversations Distinctive characteristics including circumstantial evidence (901(b)(4)) System or process capable of proving reliable and dependable result (901(b)(9)) Official publications (902(5)) Newspapers and periodicals (902(6)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14))

3. Socia l Media Site s Witness with personal knowledge (901(b)(1)) (Faceb ook, Linke dIn, Expert testimony or comparison with authenticated Twitter, examples (901(b)(3)) Instagram, and Snapchat) Distinctive characteristics including circumstantial evidence (901(b)(4)) Public records (901(b)(7)) System or process capable of proving reliable and dependable result (901(b)(9)) Official publications (902(5)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14))

4. Digitally Stored Data and Witness with personal knowledge (901(b)(1)) Internet of Things Expert testimony or comparison with authenticated examples (901(b)(3)) Distinctive characteristics including circumstantial evidence (901(b)(4)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14)) F

5. Computer Proce ss es, Witness with personal knowledge (901(b)(1)) Animations, Virtua l Expert testimony or comparison with authenticated Reality, and Simulations examples (901(b)(3)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or system (902(13)) G 6.. Digital Photographs Witness with personal knowledge (901(b)(1)) System or process capable of providing reliable and dependable result (901(b)(9)) Official publications (902(5)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14)) H

p. 266 Copy page pinpoint

A 29. It is interesting to note that while the Indian Evidence Act is of the year 1872, the Federal Rules of Evidence were adopted by the order of the Supreme Court of the United States exactly 100 years later, in 1972 and they were enacted with amendments made by the Congress to take effect on 01.07.1975. Yet, the Rules were found inadequate to deal with emerging situations and hence, several amendments were made, B including the one made in 2017 that incorporated specific provisions relating to electronic records under sub-rules (13) and (14) of FRE 902. After this amendment, a lot of options have been made available to litigants seeking to rely upon electronically stored information, one among them being the route provided by sub-rules (13) and (14) of FRE 902. C This development of law in the US demonstrates that, unlike in India, law has kept pace with technology to a great extent. POSITION IN UK

30. As pointed out in the main opinion, Section 65B, in its present form, is a poor reproduction of Section 5 of the UK Civil Evidence Act,

D 1968. The language employed in sub-sections (2), (3), (4) and (5) of Section 65B is almost in pari materia (with minor differences) with sub-sections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968. However, sub-section (1) of Section 65B is substantially different from sub-section (1) of Section 5 of the UK Civil Evidence Act, 1968. But it E also contains certain additional words in sub-section (1) namely “without further proof or production of the original”. For easy comparison and appreciation, sub-section (1) of Section 65B of the Indian Evidence Act and sub-section (1) of Section 5 of UK Civil Evidence Act, 1968 are presented in a tabular form as follows:

F Section 65B(1), Indian Evidence Act, Section 5(1), Civil Evidence Act, 1968 1872 [UK] Notwithstanding anything contained in this In any civil proceedings a statement Act, any information contained in an contained in a document produced by a electronic record which is printed on a computer shall, subject to rules of court, paper, stored, recorded or copied in optical be admissible as evidence of any fact or magnetic media produced by a computer (hereinafter referred to as the computer stated therein of which direct oral evidence would be admissible, if it is output) shall be deemed to be also a document, if the conditions mentioned in shown that the conditions mentioned in this section are satisfied in relation to the subsection (2) below are satisfied in information and computer in question and relation to the statement and computer in shall be admissible in any proceedings, question. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

p. 267 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

31. But the abovementioned Section 5 of the U.K. Act of 1968 A was repealed by the Civil Evidence Act, 1995. Section 15(2) of the Civil Evidence Act, 1995 repealed the enactments specified in Schedule II therein. Under Schedule II of the 1995 Act, Part I of the 1968 Act containing Sections 1-10 were repealed. The effect is that when Section 65B was incorporated in the Indian Evidence Act, by Act 21 of 2000, by B copying sub-sections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968, Section 5 itself was not there in the U.K. statute book, as a result of its repeal under the 1995 Act.

32. The repeal of Section 5 under the 1995 Act was a sequel to the recommendations made by the Law Commission in September 1993. C Part III of the Law Commission’s report titled ‘The Hearsay Rule in Civil Proceedings’ noted the problems with the 1968 Act, one of which concerned computer records. Paragraphs 3.14 to 3.21 in Part III of the Law Commission’s report read as follows: Computer records D 3.14 A fundamental mistrust and fear of the potential for error or mechanical failure can be detected in the elaborate precautions governing computer records in section 5 of the 1968 Act. The Law Reform Committee had not recommended special provisions for such records, and section 5 would appear to have been something of an afterthought with its many safeguards inserted in order to gain acceptance of what was then a novel form of evidence. Twenty-five years later, technology has developed to an extent where computers and computer-generated documents are relied on in every area of business and have long been accepted in banking and other important record-keeping fields. The conditions have been widely criticised, and it has been said that they are aimed at operations based on the type of mainframe operations common in the mid 1960s, which were primarily intended to process in batches thousands of similar transactions on a daily basis. 3.15 So far as the statutory conditions are concerned, there is a heavy reliance on the need to prove that the document has been produced in the normal course of business and in an uninterrupted course of activity. It is at least questionable whether these requirements provide any real safeguards in relation to the reliability of the hardware or software H

p. 268 Copy page pinpoint

A concerned. In addition, they are capable of operating to exclude wide categories of documents, particularly those which are produced as the result of an original or a “one off” piece of work. Furthermore, they provide no protection against the inaccurate inputting of data. B 3.16 We have already referred to the overlap between sections 4 and 5. If compliance with section 5 is a prerequisite, then computer-generated documents which pass the conditions setout in section 5(2) “shall” be admissible, notwithstanding the fact that they originated from a chain of human sources and that it has not been established that the persons in the chain acted under a duty. In other words, the record provisions of section 4, which exist to ensure the reliability of the core information, are capable of being disapplied. In the context of our proposed reforms, we do not consider that this apparent discrepancy is of any significance, save that it illustrates the fact that section 5 was something of an afterthought. 3.17 Computer-generated evidence falls into two categories. First, there is the situation envisaged by the 1968 Act, where the computer is used to file and store information provided to it by human beings. Second, there is the case where the record has itself been produced by the computer, sometimes entirely by itself but possibly with the involvement of some other machine. Examples of this situation are computers which are fed information by monitoring devices. A particular example is automatic stock control systems, which are now in common use and which allow for purchase orders to be automatically produced. Under such systems evidence of contract formation will lie solely in the electronic messages automatically generated by the seller’s and buyer’s computers. It is easy to see how uncertainty as to how the courts may deal with the proof and enforceability of such contracts is likely to stifle the full development and effective use of such technology. G Furthermore, uncertainty may deter parties from agreeing that contracts made in this way are to be governed by English law and litigated in the English courts. 3.18 It is interesting to compare the technical manner in which the admissibility of computer-generated records has H

p. 269 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

developed, compared with cases concerning other forms of sophisticated technologically produced evidence, for example radar records (See Sapporo Maru (Owners) v. Statue of Liberty (Owners) [1968] 1 W.L.R. 739). In the Statue of Liberty case radar records, produced without human involvement and reproduced in photographic form, were held to be admissible to establish how a collision of two ships had occurred. It was held that this was “real” evidence, no different in kind from a monitored tape recording of a conversation. Furthermore, in these cases, no extra tests of reliability need be met and the common law rebuttable presumption is applied, that the machine was in order at the material time. The same presumption has been applied to intoximeter printouts (Castle v. Cross [1984] 1 W.L.R. 1372). 3.19 There are a number of cases which establish the way in which courts have sought to distinguish between types of computer-generated evidence, by finding in appropriate cases that the special procedures are inapplicable because the evidence is original or direct evidence. As might be expected, case law on computer-generated evidence is more likely to be generated by criminal cases of theft or fraud, where the incidence of such evidence is high and the issue of admissibility is more likely to be crucial to the outcome and hence less liable to be agreed. For example, even in the first category of cases, where human involvement exists, a computer-generated document may not be considered to be hearsay if the computer has been used as a mere tool, to produce calculations from data fed to it by humans, no matter how complex the calculations, or how difficult it may be for humans to reproduce its work, provided the computer was not “contributing its own knowledge” (R v. Wood (1983) 76 Cr. App. R. 23). 3.20 There was no disagreement with the view that the provisions relating to computer records were outdated and that there was no good reason for distinguishing between different forms of record keeping or maintaining a different regime for the admission of computer-generated documents. This is the position in Scotland under the 1988 Act. H

p. 270 Copy page pinpoint

A Furthermore, we were informed of fears that uncertainty over the treatment of such records in civil litigation in the United Kingdom was a significant hindrance to commerce and needed reform. 3.21 Consultees considered that the real issue for concern B was authenticity that this was a matter which was best dealt with by a vigilant attitude that concentrated upon the weight to be attached to the evidence, in the circumstances of the individual case, rather than by reformulating complex and inflexible conditions as to admissibility. C (emphasis supplied)

33. In Part IV of the 1993 Report, titled ‘Recommendations for Reform’, Paragraph 4.43 dealt with the recommendations of the Law Commission in relation to computer records. Paragraph 4.43 of the Law Commission’s report along with Recommendation Nos. 13, 14 and 15 D are reproduced for easy reference: (b) Computerised records 4.43 In the light of the criticisms of the present provisions and the response on consultation, we have decided to recommend that no special provisions be made in respect of computerised records. This is the position in Scotland under the 1988 Act and reflects the overwhelming view of commentators, practitioners and others. That is not to say that we do not recognise that, as familiarity with and confidence in the inherent reliability of computers has grown, so has concern over the potential for misuse, through the capacity to hack, corrupt, or alter information, in manner which is undetectable. We do not underestimate these dangers. However the current provisions of section 5 do not afford any protection and it is not possible to legislate protectively. Nothing in our proposals will either encourage abuse, or prevent a proper challenge to the admissibility of computerised records, where abuse is suspected. Security and authentication are problems that experts in the field are constantly addressing and it is a fast evolving area. The responses from experts in this field, such as the C.B.I., stressed that, whilst computer- generated information should be treated similarly to other H

p. 271 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

records, such evidence should be weighed according to its A reliability, with parties being encouraged to provide information as to the security of their systems. We have proposed a wide definition for the word “document”. This will cover documents in any form and in particular will be wide enough to cover computer-generated information. B We therefore recommend that:

13. Documents, including those stored by computer, which form part of the records of a business or public authority should be admissible as hearsay evidence under clause 1 of our draft Bill and the ordinary notice and weighing provisions should apply.

14. The current provisions governing the manner of proof of business records should be replaced by a simpler regime which allows, unless the court otherwise directs, for a document to be taken to form part of the records of a business or public authority, if it is certified as such, and received in evidence without being spoken to in court. No special provisions should be made in respect of the manner of proof of computerized records.

15. The absence of an entry should be capable of being formally proved by affidavit of an officer of the business or authority to which the records belong. (emphasis in original)

34. The above recommendations of the Law Commission (U.K.) made in 1993, led to the repeal of Section 5 of the 1968 Act, under the F 1995 Act. The rules of evidence in civil cases, in so far as electronic records are concerned, thus got liberated in U.K. in 1995 with the repeal of Section 5 of the U.K. Civil Evidence Act,1968.

35. But there is a separate enactment in the U.K., containing the rules of evidence in criminal proceedings and that is the Police and G Criminal Evidence Act, 1984. Section 69 of the said Act laid down rules for determining when a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein. Section 69 of the said Act laid down three conditions (there are too many negatives in the language employed in Section 69). In simple terms, they require H

p. 272 Copy page pinpoint

A that it must be shown (i) that there are no reasonable grounds for believing that the statement is not inaccurate because of improper use of the computer; (ii) that at all material times the computer was operating properly and (iii) that the additional conditions specified in the rules made by the court are also satisfied.

B 36. The abovementioned Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. This repeal was also a sequel to the recommendations made by the Law Commission in June 1997 under its report titled “Evidence in Criminal Proceedings: Hearsay and Related Topics”. Part 13 of the Law Commission’s Report dealt with computer evidence in extenso. The problems with Section 69 of the 1984 Act, the response during the Consultative Process and the eventual recommendations of the U.K. Law Commission are contained in paragraphs 13.1 to 13.23. They are usefully extracted as follows: 13.1 In Minors ([1989] 1 WLR 441, 443D–E.) Steyn J summed up the major problem posed for the rules of evidence by computer output: Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer… If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the other hand, computers are not infallible. They do occasionally malfunction. Software systems often have “bugs”. …Realistically, F therefore, computers must be regarded as imperfect devices. 13.2 The legislature sought to deal with this dilemma by section 69 of PACE, which imposes important additional requirements that must be satisfied before computer evidence is adduced – whether it is hearsay or not (Shephard [1993] AC 380). G 13.3 In practice, a great deal of hearsay evidence is held on computer, and so section 69 warrants careful attention. It must be examined against the requirement that the use of computer evidence should not be unnecessarily impeded, while giving due weight to the fallibility of computers. H

p. 273 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

PACE, SECTION 69 A 13.4 In the consultation paper we dealt in detail with the requirements of section 69: in essence it provides that a document produced by a computer may not be adduced as evidence of any fact stated in the document unless it is shown that the computer was properly operating and was not being B improperly used. If there is any dispute as to whether the conditions in section 69 have been satisfied, the court must hold a trial within the trial to decide whether the party seeking to rely on the document has established the foundation requirements of section 69. C 13.5 In essence, the party relying on computer evidence must first prove that the computer is reliable – or, if the evidence was generated by more than one computer, that each of them is reliable (Cochrane [1993] Crim LR 48). This can be proved by tendering a written certificate, or by calling oral evidence. It is not possible for the party adducing the computer evidence D to rely on a presumption that the computer is working correctly (Shephard [1993] AC 380, 384E). It is also necessary for the computer records themselves to be produced to the court (Burr v DPP [1996] Crim LR 324). The problems with the present law E

13.6 In the consultation paper we came to the conclusion that the present law was unsatisfactory, for five reasons. 13.7 First, section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has F pointed out, “most computer error is either immediately detectable or results from error in the data entered into the machine”. 13.8 Secondly, advances in computer technology make it increasingly difficult to comply with section 69: it is becoming G “increasingly impractical to examine (and therefore certify) all the intricacies of computer operation”. These problems existed even before networking became common. 13.9 A third problem lies in the difficulties confronting the recipient of a computer-produced document who wishes to H

p. 274 Copy page pinpoint

A tender it in evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient’s opponent is better placed to do this. 13.10 Fourthly, it is illogical that section 69 applies where the document is tendered in evidence (Shephard [1993] AC 380), but not where it is used by an expert in arriving at his or her conclusions (Golizadeh [1995] Crim LR 232), nor where a witness uses it to refresh his or her memory (Sophocleous v Ringer [1988] RTR 52). If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to admit the output, it can hardly be safe for a witness to rely on it. 13.11 At the time of the publication of the consultation paper there was also a problem arising from the interpretation of section 69. It was held by the Divisional Court in McKeown v DPP ([1995] Crim LR 69) that computer evidence is inadmissible if it cannot be proved that the computer was functioning properly – even though the malfunctioning of the computer had no effect on the accuracy of the material produced. Thus, in that case, computer evidence could not be relied on because there was a malfunction in the clock part of an Intoximeter machine, although it had no effect on the accuracy of the material part of the printout (the alcohol reading). On appeal, this interpretation has now been rejected by the House of Lords: only malfunctions that affect the way in which a computer processes, stores or retrieves the information used to generate the statement are relevant to section 69 (DPP v McKeown; DPP v Jones [1997] 1 WLR 295). 13.12 In coming to our conclusion that the present law did not work satisfactorily, we noted that in Scotland, some Australian states, New Zealand, the United States and Canada, there is no separate scheme for computer evidence, and yet no problems appear to arise. Our provisional view was that section 69 fails to serve any useful purpose, and that other systems operate effectively and efficiently without it.

p. 275 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

13.13 We provisionally proposed that section 69 of PACE be repealed without replacement. Without section 69, a common law presumption comes into play (Phipson, para 23-14, approved by the Divisional Court in Castle v Cross [1984] 1 WLR 1372, 1377B): In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time. 13.14 Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been – in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defence). The principle has been applied to such devices as speedometers (Nicholas v Penny [1950] 2 KB 466) and traffic lights (Tingle Jacobs & D Co v Kennedy [1964] 1 WLR 638), and in the consultation paper we saw no reason why it should not apply to computers. The response on consultation 13.15 On consultation, the vast majority of those who dealt with this point agreed with us. A number of those in favour said that section 69 had caused much trouble with little benefit. 13.16 The most cogent contrary argument against our proposal came from David Ormerod. In his helpful response, he contended that the common law presumption of regularity may not extend to cases in which computer evidence is central. He cites the assertion of the Privy Council in Dillon v R ([1982] AC 484) that “it is well established that the courts will not presume the existence of facts which are central to an offence”. If this were literally true it would be of great importance in cases where computer evidence is central, such as Intoximeter cases (R v Medway Magistrates’ Court, ex p Goddard [1995] RTR 206). But such evidence has often been permitted to satisfy a central element of the prosecution case. Some of these cases were decided before section 69 was introduced (Castle v Cross [1984] 1 WLR 1372); others have H

p. 276 Copy page pinpoint

A been decided since its introduction, but on the assumption (now held to be mistaken) (Shephard [1993] AC 380) that it did not apply because the statement produced by the computer was not hearsay (Spiby (1990) 91 Cr App R 186; Neville [1991] Crim LR 288). The presumption must have been applicable; yet the argument successfully relied upon in Dillon B does not appear to have been raised. 13.17 It should also be noted that Dillon was concerned not with the presumption regarding machines but with the presumption of the regularity of official action. This latter presumption was the analogy on which the presumption for C machines was originally based; but it is not a particularly close analogy, and the two presumptions are now clearly distinct. 13.18 Even where the presumption applies, it ceases to have any effect once evidence of malfunction has been adduced. D The question is, what sort of evidence must the defence adduce, and how realistic is it to suppose that the defence will be able to adduce it without any knowledge of the working of the machine? On the one hand the concept of the evidential burden is a flexible one: a party cannot be required to produce more E by way of evidence than one in his or her position could be expected to produce. It could therefore take very little for the presumption to be rebutted, if the party against whom the evidence was adduced could not be expected to produce more. For example, in Cracknell v Willis ([1988] AC 450) the House of Lords held that a defendant is entitled to challenge an F Intoximeter reading, in the absence of any signs of malfunctioning in the machine itself, by testifying (or calling others to testify) about the amount of alcohol that he or she had drunk. 13.19 On the other hand it may be unrealistic to suppose that in such circumstances the presumption would not prevail. In Cracknell v Willis Lord Griffiths ([1988] AC 450 at p 468C– D) said: If Parliament wishes to provide that either there is to be an irrebuttable presumption that the breath testing machine is reliable or that the presumption can only be challenged by

p. 277 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

a particular type of evidence then Parliament must take A the responsibility of so deciding and spell out its intention in clear language. Until then I would hold that evidence which, if believed, provides material from which the inference can reasonably be drawn that the machine was unreliable is admissible. B But his Lordship went on: I am myself hopeful that the good sense of the magistrates and the realisation by the motoring public that approved breath testing machines are proving reliable will combine to ensure that few defendants will seek to challenge a C breath analysis by spurious evidence of their consumption of alcohol. The magistrates will remember that the presumption of law is that the machine is reliable and they will no doubt look with a critical eye on evidence such as was produced by Hughes v McConnell ([1985] RTR 244) before being persuaded that it is not safe to rely upon the D reading that it produces ([1988] AC 450, 468D–E). 13.20 Lord Goff did not share Lord Griffiths’ optimism that motorists would not seek to challenge the analysis by spurious evidence of their consumption of alcohol, but did share his confidence in E

the good sense of magistrates who, with their attention drawn to the safeguards for defendants built into the Act …, will no doubt give proper scrutiny to such defences, and will be fully aware of the strength of the evidence provided by a printout, taken from an approved device, of F a specimen of breath provided in accordance with the statutory procedure ([1988] AC 450 at p 472B–C). 13.21 These dicta may perhaps be read as implying that evidence which merely contradicts the reading, without directly casting doubt on the reliability of the device, may be G technically admissible but should rarely be permitted to succeed. However, it is significant that Lord Goff referred in the passage quoted to the safeguards for defendants which are built into the legislation creating the drink-driving offences. In the case of other kinds of computer evidence, H

p. 278 Copy page pinpoint

A where (apart from section 69) no such statutory safeguards exist, we think that the courts can be relied upon to apply the presumption in such a way as to recognise the difficulty faced by a defendant who seeks to challenge the prosecution’s evidence but is not in a position to do so directly. The presumption continues to apply to machines other than computers (and until recently was applied to non-hearsay statements by computers) without the safeguard of section 69; and we are not aware of any cases where it has caused injustice because the evidential burden cast on the defence was unduly onerous. Bearing in mind that it is a creature of the common law, and a comparatively modern one, we think it is unlikely that it would be permitted to work injustice. 13.22 Finally it should not be forgotten that section 69 applies equally to computer evidence adduced by the defence. A rule that prevents a defendant from adducing relevant and cogent evidence, merely because there is no positive evidence that it is reliable, is in our view unfair. Our recommendation 13.23 We are satisfied that section 69 serves no useful purpose. We are not aware of any difficulties encountered in those jurisdictions that have no equivalent. We are satisfied that the presumption of proper functioning would apply to computers, thus throwing an evidential burden on to the opposing party, but that that burden would be interpreted in such a way as to ensure that the presumption did not result in a conviction merely because the defence had failed to adduce evidence of malfunction which it was in no position to adduce. We believe, as did the vast majority of our respondents, that such a regime would work fairly. We recommend the repeal of section 69 of PACE. (Recommendation 50)

G (emphasis supplied)

37. Based on the above recommendations of the U.K. Law Commission, Section 69 of the PACE, 1984, was declared by Section 60 of the Youth Justice and Criminal Evidence Act, 1999, to have ceased to have effect. Section 60 of the 1999 Act reads as follows: H

p. 279 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

“Section 69 of the Police and Criminal Evidence Act, 1984 A (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect”

38. It will be clear from the above discussion that when our lawmakers passed the Information Technology Bill in the year 2000, B adopting the language of Section 5 of the UK Civil Evidence Act, 1968 to a great extent, the said provision had already been repealed by the UK Civil Evidence Act, 1995 and even the Police and Criminal Evidence Act, 1984 was revamped by the 1999 Act to permit hearsay evidence, by repealing Section 69 of PACE, 1984. C POSITION IN CANADA

39. Pursuant to a proposal mooted by the Canadian Bar Association hundred years ago, requesting all Provincial Governments to provide for the appointment of Commissioners to attend conferences organised for the purpose of promoting uniformity of legislation among the provinces, D a meeting of the Commissioners took place in Montreal in 1918. In the said meeting, a Conference of Commissioners on Uniformity of Laws throughout Canada was organised. In 1974, its name was changed to Uniform Law Conference of Canada. The objective of the Conference is primarily to achieve uniformity in subjects covered by existing legislations. The said Conference recommended a model law on Uniform Electronic Evidence in September 1998.

40. The above recommendations of the Uniform Law Conference later took shape in the form of amendments to the Canada Evidence Act, 1985. Section 31.1 of the said Act deals with authentication of electronic documents and it reads as follows: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

41. Section 31.2 deals with the application of ‘best evidence rule’ in relation to electronic documents and it reads as follows:

p. 280 Copy page pinpoint

A Application of best evidence rule — electronic documents 31.2(1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; B or (b) if an evidentiary presumption established under section 31.4 applies. Printouts C (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.

D 42. Section 31.3 indicates the method of proving the integrity of an electronic documents system, by or in which an electronic document is recorded or stored. Section 31.3 reads as follows: Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; G (b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or (c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of H

p. 281 Copy page pinpoint

GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

43. Section 31.5 is an interesting provision which permits evidence to be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored. This is for the purpose of determining under any rule of law whether an electronic document is admissible. Section 31.5 reads as follows: Standards may be considered 31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

44. Under Section 31.6(1), matters covered by Section 31.2(2), namely the printout of an electronic document, the matters covered by Section 31.3, namely the integrity of an electronic documents system, and matters covered by Section 31.5, namely evidence in respect of any standard, procedure, usage or practice, may be established by affidavit. Section 31.6 reads as follows: Proof by affidavit 31.6(1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit. Cross-examination (2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence (a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and (b) with leave of the court, in the case of any other deponent. H

p. 282 Copy page pinpoint

A 45. Though a combined reading of Sections 31.3 and 31.6(1) of the Canada Evidence Act, 1985, gives an impression as though a requirement similar to the one under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law, there is a very important distinction found in the Canadian law. Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon an electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it. IV. Conclusion

46. It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations. D Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu23 to Anvar P.V.24 to Tomaso Bruno25 to Sonu26 to Shafhi Mohammad.27

E 47. With the above note, I respectfully agree with conclusions reached by R. F. Nariman, J. that the appeals are to be dismissed with costs as proposed.

Divya Pandey Appeals dismissed. F

23 State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600 24 Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 25 Tomaso Bruno vs. State of UP, (2015) 7 SCC 178

26 Sonu vs. State of Haryana, (2017) 8 SCC 570

27 Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801 H