The Madras High Court has impressed upon the need for the Parliament to take a complete relook at laws relating to the presentation of electronic evidence before criminal courts and come up with appropriate legislation that could address the present day needs besides making procedures simpler to let in such evidence during trial.
A Division Bench of Justices M.S. Ramesh and N. Anand Venkatesh said the legislature ought to have introduced ‘electronic evidence’ as a separate chapter in the Evidence Act of 1872, considering its magnitude and growing importance in solving crimes, instead of having inserted it into Chapter V, which deals with documentary evidence.
“In the considered view of this court, this has really opened the pandora’s box for all the confusions with which the courts are dabbling these days,” the Bench remarked, lamenting how the prosecution’s failure to obtain a certificate under Section 65B of the Evidence Act could make the entire electronic evidence inadmissible during trial.
Tracing the origin of Section 65B to Section 5 of the Civil Evidence Act, 1968, of the United Kingdom, the Bench said, UK itself had repealed its law after realising that it had become outdated and that there was no need for formulating complex and inflexible conditions such as obtaining certificates from persons who were in-charge of such electronic evidence.
Obsolete by the UK in 1995
“It is rather unfortunate that provisions found to be obsolete by the UK in 1995 were readily acceptable by the Indian legislature in 1999. By virtue of the same, certification requirements conceived by the United Kingdom in 1960 are now applicable in India. There could be no better instance of fitting a square peg into a round hole,” the Bench rued.
Pointing out that most crimes in the present day get solved only with the assistance of electronic evidence such as closed circuit television camera (CCTV) footage, the judges hoped that the legislature would take note of the observations made by the court and come up with appropriate legislation on presentation and admissibility of such evidence.
Authoring the order, Justice Venkatesh wrote: “In mature democracies the legislative response to legislation that is found to be unworkable by the courts is swift and efficient. After all, if the provisions of a statute are found to be unworkable by the courts, it should seem imperative that the legislative branch should step in to resolve the impasse.”
He went on to state: “The courts’ power to innovate is limited given the fact that judicial legislation is a no-go zone. To use an oft quoted example, the court can only iron out the creases but it cannot alter the fabric even if the complaint is that its fibres are old and unworkable... Courts cannot be overly burdened with making unworkable legislation workable.”
‘Crucial pieces of evidence’
The observations were made by the Bench while upholding the life sentence (till death without any remission) imposed by a trial court on eight convicts in the Scheduled Caste youth V. Gokulraj murder case. CCTV footage of Tiruchengode Ardhanareeswarar Temple and some mobile phone recordings were crucial pieces of evidence in the case.
Though the counsel for the appellants attacked the admissibility of the electronic evidence on the ground that police had failed to obtain Section 65B certificate, the judges in the Division Bench rejected such defence on the ground that the question of admissibility ought to have been raised before the trial court and not before the appellate court.
The judges also suggested that the Tamil Nadu police could take a cue from the book ‘Electronic Evidence in the Court Room’ authored by Yuvraj P. Narvankar and follow the checklist provided by him for acquisition of CCTV footage. They wanted State Public Prosecutor Hasan Mohammed Jinnah to follow it up with the Director General of Police.
