The Supreme Court on Wednesday directed cellular companies and internet service providers to maintain call data records (CDR) and other related records in a “segregate and secure” manner in cases where CDR record is seized during investigation of a criminal case.
The bench headed by Justice RF Nariman passed this direction in order to remove any difficulties which arise due to non-availability of CDR and other data during criminal trials.
The directive was passed in a detailed judgement of 144 pages passed on the issue whether certificate as per sections 65-B(4) of the Evidence Act is mandatory for production of electronic evidence?
Section 65B of Indian Evidence Act states that necessary certificates from the concerned authorities are required, if secondary evidence like CDs, VCDs, chips etc are sought to be produced as evidence.
The bench also comprising Justice S. Ravindra Bhat and V Ramasubramaniam held that a certificate from the relevant authority is a condition precedent for admissibility of electronic evidence. It said, “Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law”
The three judge bench held in its the judgement, “general directions are issued 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.”
The court also ordered that “This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses (under which mobile companies operate), or under Section 67C of the Information Technology Act (which mandate central government to issue such directions)”
The order also observed that the license conditions of Department of Telecommunication’s generally obliged the internet service providers to maintain and preserves electronic call/internet records for a limited duration of a year. However, the court said that in case the police fails to secure these records or certificates (the certificate validates its authenticity) then a postdated certificate would in all probability render the data unverifiable.
Hence, the court ruled that a general directions to mobile companies is necessary till Centre frames appropriate rules to resolve this issue.
The case pertains to the admissibility of the electronic evidence in an election petition challenging the election of Shiv Sena candidate Arjun Panditrao Khotkar to Maharashtra assembly from the Jalna constituency in 2014.
