Does 'PV Anwar' Judgment Mandating S.65B Evidence Act Certificate For Electronic Evidence Apply Retrospectively? Supreme Court To Decide

The Supreme Court has taken up the issue of whether the judgment in the case of Anwar PV v. PK Basheer & Ors., which clarified the law regarding the admissibility of electronic record as secondary evidence, should be applied retrospectively or only prospectively.

A bench of Justice Surya Kant, Justice Dipankar Datta and Justice Ujjal Bhuyan sought the assistance of Solicitor General Tushar Mehta to answer this question.

In Anwar PV, the Supreme Court held that electronic record by way of secondary evidence must be accompanied by a certificate under Section 65B of the Indian Evidence Act to be admissible in court. This certification must be obtained at the time the document is created, without which the electronic evidence cannot be considered.

“The issue for determination in this application is whether the Three Judge Bench Judgment of this Court in the case of “Anvar P.V. vs. P.K. Basheer & Ors. reported in 2015 (1) SCC 108 will apply prospectively or, following the settled principle that the declaration of law will relate back to the date when the law was enacted, the said judgment will have to be retrospective. Before we determine the short question, we deem it appropriate to seek the assistance of learned Solicitor General of India”, the court said.

The Supreme Court directed the Registry has been directed to issue a notice to Advocate MK Maroria, the Standing Counsel for the Union of India, along with a soft copy of the paper book of the application. Advocate Maroria has been instructed to brief the Solicitor General so that he can provide assistance to the Court on the next date of hearing on August 22, 2024.

In 2020, a three judge-bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal re-affirmed the view expressed in PV Anvar and said that the decision need not re-visited. The 2020 judgment also overruled the 2018 judgment in Shafhi Mohammed v. State of Himachal Pradesh which had held that mandate of S.65 can be relaxed in cases where the party was not in possession of the device.

In PV Anwar, the  Supreme Court overruled its earlier decision in the Navjot Sandhu case which held that Section 65B was not a mandatory requirement.

Case no. – Miscellaneous Application No. 1563/2017 in C.A. No. 4226/2012

Case Title – Anwar PV v. PK Basheer & Ors.