1

Shreya Singhal v. Union of India

Police arrested two women for posting allegedly offensive and objectionable
comments on Facebook about the propriety of shutting down the city of Mumbai
after the death of a political leader. The police made the arrests under Section 66A of
the Information Technology Act of 2000 (ITA), which punishes any person who
sends through a computer resource or communication device any information that is
grossly offensive, or with the knowledge of its falsity, the information is transmitted
for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred,
or ill will.
Although the police later released the women and dismissed their prosecution, the
incident invoked substantial media attention and criticism. The women then filed a
petition, challenging the constitutional validity of Section 66A on the ground that it
violates the right to freedom of expression.
The Supreme Court of India initially issued an interim measure in Singhal v. Union
of India, (2013) 12 S.C.C. 73, prohibiting any arrest pursuant to Section 66A unless
such arrest is approved by senior police officers.  In the case in hand, the Court
addressed the constitutionality of the provision. 

Vyakti Vikas Kendra, India Public

Charitable Trust Thr Trustee Mahesh
Gupta & Ors vs. Jitender Bagga & Anr.
The four plaintiffs in this case filed a suit against the defendants for
damages and permanent injunction, mainly on the ground that they are
aggrieved and hurt because of certain highly defamatory materials posted
on an internet website by the name http://www.blogger.com/ by one Mr
Jitender Bagga, the defendant No.1. The said website is owned by Google,
the defendant No.2. It is a Blog Publishing Service which allows people to
create and publish a “Blog”.

Defendant No.2 (D2) is an “intermediary” within the definition of

Section 2(1)(w) and Section 79 of the Information Technology Act, 2000.
Under Section 79(3)(b) of the IT Act, 2000, D2 is under an obligation to
remove unlawful content if it receives actual notice from the affected party
of any illegal content being circulated/published through its service.

D2 is also bound to comply with Information Technology (Intermediaries

Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2)
requires an intermediary to observe due diligence or publish any
information that is grossly harmful, defamatory, libellious, disparaging or
otherwise unlawful.
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 D2 was directed to remove all defamatory contents about the

plaintiffs posted by the defendant No.1 on its website
http://.blogger.com/ as well as all the links containing defamatory
content within 36 hours from the date of knowledge of the order
passed by this Court.
 Defendant No.1 was restrained from sending any such e-mails or
posting any material over the internet having a direct or indirect
reference to the plaintiffs or the Art of Living Foundation or any
member of the Art of Living Foundation, or His Holiness Sri Sri Ravi
Shankar.

 
Satyam Infoway Ltd. Vs Sifynet Solutions Pvt. Ltd
Satyam Infoway was Incorporated in 1955 and it registered various domain names using
the word ‘Sify’ in the year 1999 including Sifynet.com,Sifymall.com etc. Satyam Infoway
had registered the domain names with the Internet Corporation for Assigned Names and
Numbers (ICANN)[1]and the World Intellectual Property Organization (WIPO)[2]. The
word Sify was a combination of elements of its corporate name ‘Satyam Infoway’ which
had very wide goodwill and reputation in the market. On the other hand, Sifynet
Solutions (Respondent) started carrying it’s business activities under the same domain
name ‘Sify’ like http://www.siffynet.com  and http://www.siffynet since 5 June 2001,
which they claimed that they have registered with  ICANN on 5 June 2001 and 16 March
2002 respectively.  Meanwhile, Sifynet Solutions registered its domain
name http://www.siffynet.com which was identical to the Plaintiff’s domain
name http://www.sifynet.com which had a wide reputation in the market. When the
appellant got to know about the use of the same word ‘Siffy’ by the respondent they
served a notice to the respondent to either stop carrying their business activities under
their name or transfer the domain name to the appellant, but the respondent refused
both the options.

If an individual uses the same domain name which another person is using, it may lead to
the diversion of users as one consumer may get confused with the other similar name
which may offer different services. This may conclude to consumers’ misrepresentation
which leads to the loss of consumers.

The Supreme Court also stated that the use of similar domain names has all the similar
ingredients which passing off have like protection of Goodwill and reputation of the
business, safeguarding the public by not creating confusion in the minds of people,
misrepresentation done by the defendant, and lastly the loss. By looking at these factors
the Supreme Court held that domain name has the same characteristics as that of
trademark and thus, the domain name can be also filed for the action of Passing off.

On the basis of facts and merits, the Court ruled in favour of the Appellant.
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Banyan Tree Holding (P) Limited vs A. Murali Krishna Reddy

& Anr
The determination of the jurisdiction of the Court in cases of Trademark
Infringement poses a great difficulty. Jurisdiction is the first step involved in
deciding any dispute and in order to effectively decide a dispute, it is very
important to determine whether a court is competent to decide on a
particular matter or not. In civil cases the questions related to jurisdiction
are governed by Section 20, Code of Civil Procedure 1908,  the test is the
place where the defendant resides or cause of action arises.

The Delhi High Court, in this case,  decided the question of jurisdiction of the
Court under Section 20(c) of Code of Civil Procedure, 1908. The Division
Bench, in a well thought out judgment, laid down that in cases of passing off
or infringement, where the plaintiff is not carrying on his business within the
jurisdiction of the court and there is no long-arm statute, the question
whether this court has the jurisdiction to entertain the suit would be decided
if the plaintiff shows that the defendant has ‘Purposefully Availed’ the
jurisdiction of the forum court to himself. Further, in order to prove this, the
plaintiff will have to show real commercial transactions entered into by the
Defendant with an internet user residing within the jurisdiction of the forum
court. In addition to Section 20(c) CPC, the plaintiff also has an option of
approaching the Court under Sections 62(2) and 134(2) of Copyright Act,
1957 and the Trademark Act, 2002 respectively.

In Neogen Corp. v. Neo Gen Screening, Inc the Court of Appeals held that
the Purposeful Availment requirement is satisfied if the website is interactive
enough to a degree that it specifically intended interaction with the resident
state. 

Nasscom vs. Ajay Sood & Others

In a landmark judgment in the case of National Association of Software and Service Companies vs Ajay
Sood & Others, delivered in March, ‘05, the Delhi High Court declared `phishing’ on the internet to be an
illegal act, entailing an injunction and recovery of damages.

Elaborating on the concept of ‘phishing’, in order to lay down a precedent in India, the court stated that it
is a form of internet fraud where a person pretends to be a legitimate association, such as a bank or an
insurance company in order to extract personal data from a customer such as access codes, passwords, etc.
Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the
collecting party’s advantage. court also stated, by way of an example, that typical phishing scams involve
persons who pretend to represent online banks and siphon cash from e-banking accounts after conning
consumers into handing over confidential banking details.

The Delhi HC stated that even though there is no specific legislation in India to penalise phishing, it held
phishing to be an illegal act by defining it under Indian law as “amisrepresentation made in the course of
trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the
consumer but even to the person whose name, identity or password is misused.” The court held the act of
phishing as passing off and tarnishing the plaintiff’s image.
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The plaintiff in this case was the National Association of Software and Service Companies (Nasscom),
India’s premier software association.

The defendants were operating a placement agency involved in head-hunting and recruitment. In order to
obtain personal data, which they could use for purposes of head-hunting, the defendants composed and
sent e-mails to third parties in the name of Nasscom. The high court recognised the trademark rights of the
plaintiff and passed an ex-parte ad-interim injunction restraining the defendants from using the trade name
or any other name deceptively similar to Nasscom. The court further restrained the defendants from
holding themselves out as being associates or a part of Nasscom.

The court appointed a commission to conduct a search at the defendants’ premises. Two hard disks of the
computers from which the fraudulent e-mails were sent by the defendants to various parties were taken
into custody by the local commissioner appointed by the court. The offending e-mails were then
downloaded from the hard disks and presented as evidence in court.

During the progress of the case, it became clear that the defendants in whose names the offending e-mails
were sent were fictitious identities created by an employee on defendants’ instructions, to avoid
recognition and legal action. On discovery of this fraudulent act, the fictitious names were deleted from the
array of parties as defendants in the case. Subsequently, the defendants admitted their illegal acts and the
parties settled the matter through the recording of a compromise in the suit proceedings. According to the
terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for
violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the
defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks.

This case achieves clear milestones: It brings the act of “phishing” into the ambit of Indian laws even in
the absence of specific legislation; It clears the misconception that there is no “damages culture” in India
for violation of IP rights; This case reaffirms IP owners’ faith in the Indian judicial system’s ability and
willingness to protect intangible property rights and send a strong message to IP owners that they can do
business in India without sacrificing their IP rights.

State of Tamil Nadu Vs Suhas Katti

The Case of Suhas Katti is notable for the fact that the conviction was achieved successfully within a
relatively quick time of 7 months from the filing of the FIR. Considering that similar cases have been
pending in other states for a much longer time, the efficient handling of the case which happened to be the
first case of the Chennai Cyber Crime Cell going to trial deserves a special mention.

The case related to posting of obscene, defamatory and annoying message about a divorcee woman in the
yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a
false e-mail account opened by him in the name of the victim. The posting of the message resulted in
annoying phone calls to the lady in the belief that she was soliciting.

Based on a complaint made by the victim in February 2004, the Police traced the accused to Mumbai and
arrested him within the next few days. The accused was a known family friend of the victim and was
reportedly interested in marrying her. She however married another person. This marriage later ended in
divorce and the accused started contacting her once again. On her reluctance to marry him, the accused
took up the harassment through the Internet.

On 24-3-2004 Charge Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Hon’ble Addl.
CMM Egmore by citing 18 witnesses and 34 documents and material objects. The same was taken on file
in C.C.NO.4680/2004. On the prosecution side 12 witnesses were examined and entire documents were
marked as Exhibits.

The Defence argued that the offending mails would have been given either by ex-husband of the
complainant or the complainant her self to implicate the accused as accused alleged to have turned down
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the request of the complainant to marry her.

Further the Defence counsel argued that some of the documentary evidence was not sustainable under
Section 65 B of the Indian Evidence Act. However, the court relied upon the expert witnesses and other
evidence produced before it, including the witnesses of the Cyber Cafe owners and came to the conclusion
that the crime was conclusively proved.

Ld. Additional Chief Metropolitan Magistrate, Egmore, delivered the judgement on 5-11-04 as follows:

“ The accused is found guilty of offences under section 469, 509 IPC and 67 of IT Act 2000 and the
accused is convicted and is sentenced for the offence to undergo RI for 2 years under 469 IPC and to
pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment
and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to
pay fine of Rs.4000/- All sentences to run concurrently.”

The accused paid fine amount and he was lodged at Central Prison, Chennai. This is considered as the first
case convicted under section 67 of Information Technology Act 2000 in India.

CyberCrime: A critical analysis of Judicial Decisions in

India
 Introduction
 What Is Cyber Crime?
 Law Governing Cyber Crime
 Judicial Decisions in India
 Analysis
 Conclusion
Introduction
Almost a decade ago, nobody knew what cybercrimes were. But today, this term has become a
huge part of our daily parlance. We have come a long way in terms of development and standard
of living with development in technology and internet connectivity. Though, we are not the only
ones who can boast of basking in the advantageous glory of improved technology. The world has
also seen a rise in a new kind of category of crime referred to as cybercrime.

What Is Cyber Crime?

Cybercrime is not just one country’s problem. It is an issue that affects people worldwide. This
type of crime knows no borders[i] which makes it even more dangerous and harmful. A person in
India can be very easily targeted by someone in the USA and all it takes is a computer system and
a good internet connection.

Cybercrime takes within its ambit a lot of different kinds of crimes that involve the use of the
internet and a computer system. Hacking, identity theft, phishing, scamming, ransomware, theft,
online fraud are only some of the crimes that take place in cyberspace.

Due to the rapid development of technology, it is not possible to lay down a rigid definition of
cybercrime. As the internet progresses, so does the criminal making it impossible for
governments and other organizations to come up with a proper definition. In simple words,
however, cybercrime can be said to be a crime that takes place in cyberspace, involves the use of
the internet, computer system or computer technology[ii]. It is a crime that uses a computer
system or targets one using the internet.
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The Internet has not only given rise to a new category of crimes but has also enabled and evolved
the traditional forms of crime such as theft, fraud, illegal gambling by giving them an online
dimension[iii]. Certain offences have merely shifted their base from physical plane to the non-
physical and borderless cyberspace. But they stay very much the same criminal acts. Therefore, it
can be said that the new entrant cybercrime is the species whereas a conventional crime is its
genus.

Law Governing Cyber Crime

The United Nations Commission on International Trade Law adopted the Model Law on
Electronic Commerce in 1996. India was a signatory and had to revise existing laws as per the
Model Law. Along with its obligations as a signatory, the Indian government also felt the need
for laws facilitating e-commerce and e-governance[iv]. Consequently, the Information
Technology Act, 2000 was enacted.

Certain penalties and offences were defined under the IT Act while amendments were also made
in the existing statutes including the Indian Penal Code and the Indian Evidence Act among
others to cover offences known categorically as Cybercrimes.

Judicial Decisions in India

In 2015, the Hon’ble Supreme Court of India gave one of its landmark judgments in  Shreya
Singhal v Union of India[v]. In this case, the constitutional validity of sections 66A and 69A of
the IT Act was challenged. The apex Court held section 66A to be unconstitutional as it took
within its ambit all kinds of information. This section was held to be unconstitutionally vague and
outside the purview of reasonable restrictions as defined under Article 19(2) of the Constitution.
It was held to be violative of the fundamental right to freedom of speech.
The apex court has time and again expressed its concern over the rising menace of cybercrimes
and has also given a clear meaning to the words of the existing legislation.

1. Tampering with Computer source code

In Syed Asifuddin v the State of Andhra Pradesh[vi], the Andhra Pradesh High Court held that by
definition as well as by the definitions provided in the IT Act, a cell phone is a computer. Every
service provider has to maintain its own System Identification Code and also give a specific
number to each instrument to avail the services provided. Therefore, when the Electronic Serial
Number (ESN) is altered, the provisions of section 65 of the IT Act are attracted. On the other
hand, in Diebold Systems Pvt Ltd v The Commissioner of Commercial Taxes[vii], the court held
that ATMs are not computers but electronic devices connected to a computer system that
performs the tasks as required by the person using the said ATM.
In Sanjay Kumar v State of Haryana[viii], the accused was found guilty of dishonestly forging
the bank records to cause wrongful loss to the bank and wrongful gain to himself under sections
420, 467, 468, and 471 of the IPC. On the other hand, the accused had tampered with the
computer source code and altered the information that resided in the computer resource thereby
committing offences sections 65 and 66 of the IT Act.
2. Hacking
In State of Andhra Pradesh v Prabhakar Sampath[ix], the accused was found guilty under section
43(a) read with section 66 of the IT Act for hacking the company servers of the complainant
company. The guilt was proved beyond a reasonable doubt by the prosecution. The court held
that since the research reports are generated after a painstaking study by highly qualified people
by spending a lot of time and expense, the accused does not deserve a lenient view.
3. Identity Theft and Cheating by Personation
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NASSCOM v Ajay Sood[x] was a case of phishing where the defendant masqueraded as the
plaintiff in order to obtain personal data from various addresses. The Court recognized phishing
as a form of internet fraud and also as a security threat. The Court also observed that there were
no legislations in India on phishing. An act amounting to phishing under the Indian law would be
a misrepresentation made in the course of trade leading to confusion as to the source and origin of
the email. It would also be an act of passing off.
In the Nigerian email scam case[xi], the Court found that the accused persons cheated others by
dishonestly inducing them to win a lottery or get a job by sending e-mail/SMS on the internet and
on mobile. They dishonestly cheated by personation by means of e-mails and mobile and thereby
committed an offence under section 66D of the IT Act.

4. Obscenity and Pornography

In Aveek Sarkar v State of West Bengal[xii], the Hon’ble Supreme Court once again tackled the
question of what is obscene. The Court applied the Community Standard Test and held that the
photograph in question must be viewed in the background in which it was shown and the message
it has to convey to the public at large.
In Maqbool Fida Hussain v Raj Kumar Pandey[xiii], the court established that the test of
obscenity under both the Information Technology Act and the Indian Penal Code is the same. The
Court held that the nude depiction of Mother India might offend or disgust some people but that
is not enough ground to prosecute someone. The Court further held that apart from applying the
tests, the judge must also place himself in the shoes of the painter to decipher his theme and
thought process.
The Court also firmly established that the criminal justice system should not be used as a mere
tool in the hands of unscrupulous people for causing violations of rights of people, especially in
the artistic field. It is the obligatory duty of the courts to protect individual rights and freedoms.

On the other hand in the State of Tamil Nadu v Suhas Katti[xiv], the accused had posted obscene
messages in obscene Yahoo groups after creating a user id in the name of the complainant. He did
so with the intention of harming her reputation just because she had refused to marry him. The
charges were proved beyond reasonable doubt and the accused was found guilty of offences
under sections 469, 509 of IPC and under section 67 of the IT Act.
Similarly, in The State v Yogesh Pandurang Prabhu, the accused sent several vulgar emails to the
complainant after she had refused the former’s proposal for marriage. The court held that the
accused had intentionally and knowingly intervened in the privacy of the complainant and hence
the provisions of Section 66E of the IT Act were attracted. Since the material was posted only to
be viewed by the complainant and not any other person, provisions of section 67 and 67A of the
IT Act are not applicable here.
In Avinash Bajaj v State of Delhi[xv], the Delhi High Court granted bail to the CEO of the
website named bazee.com on which an obscene video was uploaded for sale. The Court held that
the actual clip could not be viewed on bazee.com and that the accused had no role in the sale.

5. Violation of Intellectual Property in Cyberspace

In Syed Asifuddin, the Court had also held that by the definitions provided under the Copyright
Act, a computer programme is protected under the said Act and altering of such a computer
programme by another person would amount to copyright infringement.

In My Space Inc. v Super Cassettes Industries Ltd[xvi], the Court held that sections 79 and 81 of
the IT Act and section 51(a)(ii) of the Copyright Act have to be read harmoniously. It was also
held that proviso to section 81 does not preclude the affirmative defence of safe harbour for an
intermediary in case of copyright actions. Actual knowledge is essential in the case of
intermediaries and not general awareness. Additionally, the conditions specified under section 79
of the IT Act must be fulfilled to impose liability on an intermediary.
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A petition was filed against Songs.pk and other similar websites that promote piracy in the
Calcutta High Court. The Court banned songs.pk and the other websites in India by DNS name
blocking, IP address blocking via routers and DPI based URL blocking[xvii].

6. Jurisdiction
In World Wrestling Entertainment, Inc. v M/s Reshma Collection[xviii], the territorial jurisdiction
of the Delhi High Court was challenged. The Court applied the principles of the Contract Act to
the transaction taking place over the internet. It was held that when through a software or browser
a transaction is confirmed and payment is made to the appellant through its website by a customer
in Delhi, the plaintiff is accepting the said offer by the said customer in Delhi. The acceptance is
instantaneously communicated through the internet to such customers. Therefore, part of the
cause of action would arise in Delhi.
In Maqbool Fida Hussain v Raj Kumar Pandey[xix], the question of jurisdiction arose as to
which court would be considered competent to try the case where the impugned painting is
accessible across the globe. The Court observed that the existing provisions talked of local
jurisdiction but none talked about jurisdiction in consonance with the advent of technological
developments.
Analysis
The Courts in our country—from district courts to the apex Court—have come face to face with
multiple cybercrime cases some of which even shocked the whole nation. It is true that due to
technological advances, the ambit of cybercrime keeps on expanding. The Courts have time and
again recognized and accepted such expansion.

Ongoing through the various judicial decisions in India in cases comprising of cybercrimes it can
be observed that the hands of the courts are tied. It is, no doubt, the responsibility as well as an
obligatory duty of the courts to ensure that the individual rights of people are not violated.
However, it is also true that the Court cannot take upon the role of the legislature. It can only give
decisions based on the existing laws and their applicability to the facts and circumstances of each
case.

In NASSCOM v Ajay Sood[xx] the court recognized the cybercrime of phishing but also found
the absence of the appropriate law. Similarly, when in the case of Maqbool Fida Hussain the
question of jurisdiction arose, the Court could only show its hope that the legislature will deal
with the lacunae. But on the other hand, the Court answered the question of jurisdiction in the
World Wrestling Entertainment case[xxi] based on the provisions of the Indian Contract Act.

In the case of Avinash Bajaj V State of Delhi[xxii], Mr Bajaj was made as an accused mainly
because at that time the provisions of section 79 of the IT Act did not exist.

Ritu Kohli case[xxiii] was the first cyberstalking case to be registered in India but there are no
separate provisions for it under the IT Act despite the act having happened in cyberspace. Even
though it is an offence of a serious nature, it has not been given due attention by the legislature. In
the absence of which, the Courts can try the matter only within the ambit of sections 354D and
509 of the IPC.

The Air Force Bal Bharti School case[xxiv] was the first where a 16-year-old boy was arrested
for violation of section 67 of the IT Act. The Courts have since then clarified in many cases that
the test of obscenity is the same in the IT Act as well as IPC. Similarly, other offences specified
in the IPC such as theft, fraud, and cheating among others, when done through an online medium
will have the same ingredients in the IPC as well as the IT Act.
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Judicial decisions in cybercrime cases have come a long way since the enactment of the
Information Technology Act, 2000. In Syed Asifuddin[xxv], the Court recognized cell phones as
computer systems as defined under the IT Act thereby protecting the copyright of the cell phone
makers on the source code used in the making of their cell phones. This decision was not only in
consonance with the provisions of the Act but also with the rapidly changing technology.

Shreya Singhal case[xxvi] was seen as a victory by many and rightly so. The Hon’ble Supreme
Court of India found section 66A of the IT Act to be unconstitutional. It made a stop to the
unnecessary harassment of people on the basis of their opinions/comments published online.

The Court has thus been fulfilling its duty as an interpreter and upholder of the law. As for the
implementation of its decision, the Court is not responsible for the same and depends on the
executive as well as the legislature.

Conclusion
Cybercrimes are a rapidly increasing issue that knows no borders and can potentially affect
almost everyone in the world. With every technological advance, a new crop of cybercrime can
be seen to be sprouting. In times when a new form of crime has developed along with the shifting
of the conventional crimes into cyberspace, it is the responsibility of the government as well as
the Courts to ensure that the criminal justice system is up to date to fight such crimes. The Courts
are bound by the word of law and cannot go beyond their role as defined by the Constitution of
India.

Supreme Court On Admissibility Of

Electronic Records As Secondary
Evidence
A two judge bench of the Supreme Court, comprising of Justice L. Nageswara Rao and Justice SA
Bobde, on 18.7.2017 in the case of Sonu v State of Haryana, (Criminal Appeal No. 1416/2013,
1653/2014, 1652/2014), upheld the conviction of the accused, Sonu, for the offence of Kidnapping
and Murdering under the IPC, thereby dismissing his criminal appeal. One of main grounds taken by
the accused during the appeal was that the CDRs 1 of the mobile phone of the accused, which was a
crucial part of the evidence, for proving the guilt of the accused beyond reasonable doubt and being
relied upon by the prosecution, should be eschewed/disregarded from consideration as they were
inadmissible, for non-compliance with the requirements under Section 65-B of the Indian Evidence
Act, 1872 ("Evidence Act") as admittedly they were not certified in accordance with sub-section (4)
of section 65-B. The accused placed strong reliance on the three judge bench decision of the
Supreme Court in Anvar P.V. v P.K. Basheer, (2014 10 SCC 473) by which the Supreme Court held in
unequivocal terms that an electronic record by way of secondary evidence shall not be admissible as
evidence unless the requirements of Section 65-B are satisfied.

Section 65-B of the Evidence Act and subsequent principle laid in Anvar
In 2002, the Evidence Act underwent major changes by introduction of the Information Technology
Act, 2000 ("IT" Act). Amendments were made in the Evidence Act, to make provisions for admitting
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evidence by way of electronic records. Explanation to Section 3 was added to incorporate all
electronic records in the definition of 'Documentary Evidence' under the Evidence Act. Further,
Section 65-A and Section 65-B were introduced with the amendments, as special provisions
pertaining to the admissibility of electronic evidence. Section 63 and Section 65 deal with the
manner and conditions for relying on secondary evidence.

Before the judgement in Anvar (supra), the law laid down in State of NCT Delhi v Navjyot
Singh (2005) 11 SCC 600 was being followed,  which held that irrespective of the compliance with
requirements of Section 65-B, there is no bar in adducing secondary evidence even for  electronic
records as per Sections 63 and Section 65. The court further held that even if a certificate containing
the details as stipulated by sub-section (4) of Section 65-B is not filed, it does not render the
evidence inadmissible as secondary evidence under Section 63 and Section 65 can still be adduced.

However, the Supreme Court in Anwar (supra) overruled the above position. The Court held that for
any electronic evidence to be admissible in its secondary form, it is necessary to meet the
mandatory requirements of Section 65-B, which includes giving a certificate as per terms of Section
65-B (4), at the time of proving the record and not anytime later, failing which the electronic record
will be considered inadmissible.

Supreme Court's decision in Sonu and the dilemma raised on the law laid down in Anvar
Despite the decision in Anwar, being rendered by a 3 judge bench, a division bench of the Supreme
Court in this  case rejected the reliance placed on Anvar by the accused, and thereby denied him an
opportunity to raise an objection with regard to inadmissibility of electronic evidence for the want of
certification as per section 65-B.

The Court after placing reliance on a few decisions of the Supreme Court, divided the objection with
regard to admissibility of a document into two categories- a) The first objection is when that the
document is per se inadmissible. b) The second is when the objection is directed not on the
admissibility of document in evidence, but towards the method or mode of proof of evidence. It
was held that the objection with regard to mode or method of proof has to be raised at the time of
marking the document as exhibit, and not later. Whereas, the issue of admissibility of a document
which is inherently inadmissible, for instance, statements under Section 161 Code of Criminal
Procedure 1973 (CrPC,) can be taken up at an appellate stage as well, as such an issue strikes at the
foundation of the document. The mode or method of proof is procedural in nature, and if such
objection is not taken at trial, it cannot taken at the appellate stage.

In laying down the above principle, the court relied on the decision in RVE Venkatachala Gounder,
(2003) 8 SCC 752, that the crucial test for the purpose of determining when an omission to object
becomes fatal is, whether the objection if taken at the appropriate stage, would have enabled the
party tendering the evidence to cure the defect and render a regular mode of proof.

Applying the above principle, the Supreme Court in Sonu held that the defect of relying on the CDRs
without the appropriate certificate, is a defect in the mode or method of proof, as CDRs are not per
se inadmissible. Hence, it held that such an objection cannot be allowed to be raised at the appellate
stage. This is because, had such an objection been taken at the trial stage, the court could have given
an opportunity to the prosecution to rectify the defect, which will be denied at this stage if the case
of the accused is accepted. 
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The Conundrum Caused by Sonu v State of Haryana

While a larger bench of the Supreme Court, clearly and unequivocally, stated in 2014, that any
electronic evidence in secondary form will be inadmissible, if filed without meeting the requirements
of Section 65 B(4), the two judge bench in Sonu, has expressed doubts over this principle

The Court in the last part of this judgement noted that the court in Anvar has not applied the
principle of prospective ruling. While noting this, the Court expressed concerns over the law laid
in Anvar being applied retrospectively on one hand, and on the other hand, it refrained from
answering whether the judgement in Anvar could be made prospective in nature and has left this
question open.

In such a situation, the Supreme Court's touching upon the issue of prospective nature of the
judgment in Anvar and leaving the issue open at the end has caused great dilemma and opened a
pandora's box. In this regard and owing to the confusion created, it remains to be seen if the
Supreme Court's decisions will be used to reopen or challenge admissibility of evidence in pending
trials where the requirements under Section 65B were not complied with.

Since the Court in the instant case has held the requirements of Section 65B to be the ones relating
to mode/method of proof (despite Anvar holding that non-compliance with 65B strikes at the very
admissibility of the evidence), it will be worthwhile to see the impact of this judgement on the
ongoing trials and proceedings.

hyderabad v prabhakar sampath

A court here has sentenced a Chennai-based software professional to two

years' rigorous imprisonment for hacking servers of a local firm and
stealing confidential data.

The court had on March 31 found Prabhakar Sampath guilty under Section
66 of Information Technology Act. Apart from the jail term, the court also
imposed a fine of Rs 10,000 on him.

Sampath was accused of hacking the servers of SIS Infotech Private

Limited, a city-based company, Superintendent of Police (CID-cyber
crimes) U Ramamohan said in a release today.

The company sells market research reports. Sampath, a B-Tech degree-

holder wokring with an IT firm in Chennai, hacked the server online and
downloaded confidential reports in 2008, the SP said.

"The accused was traced through technical investigation, and police seized
a pen drive, computers systems from his house and workplace containing
research reports," the release added.