The Supreme Court yesterday (July 14) directed telecom companies and internet service providers to maintain all data that they gather for stipulated periods of time, to satisfy the requirements of Section 39 of the Evidence Act. These records, said the top court, should be in a segregated and secure manner.
The court was delivering its judgment on the Arun Panditrao Khotkar vs Kailash Kushanrao Gorantyal and Ors case. The order of the SC was to maintain CDRs (all records of calls, plus text messages) and other relevant records for the concerned period.
The bench of Justices RF Nariman, S Ravindra Bhat and V. Ramasubramanian was dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872. This was referred by a two-judge bench of the court, in view of the conflict between the two cases Anvar P.V. vs P.K. Basheer & Ors. and Shafhi Mohammad vs State of Himachal Pradesh.
The bench clarified that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. , and incorrectly “clarified” in Shafhi Mohammed. Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
The bench further observed that the Department of Telecommunication’s license generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year.
Therefore, if the police or other individuals fail to secure those records – or secure the records but fail to secure the certificate – within that period, the production of a post-dated certificate would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event the accused wishes to challenge the genuineness of this certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45A of the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service provider) may be missing.
Hence, to obviate this, the bench passed the general direction “to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act”.
The Court further directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.
Read the Judgment Here;
39058_2017_34_1501_22897_Judgement_14-Jul-2020– India Legal Bureau