No doubt, evidence can be produced before Hon’ble Court in both oral and documentary form. But sometimes, situations may arise where evidence stored in any electronic media is necessary to be produced in order to establish guilt or defence in any case. Therefore, for production of the same, certificate of its authenticity is required to be accompanied with. So, now the question comes whether the certificate provided under Section 65B(4) of Indian Evidence Act, 1872 along with electronic evidence is mandatory or not. Well, this question has been a subject of consideration in various cases wherein divergent views have been taken by Hon’ble Courts in respect to this matter of issue.
SECTION 65B OF INDIAN EVIDENCE AT, 1872
Section 65A and Section 65B of Indian Evidence Act, 1872 were inserted by way of amendment of the Indian Evidence Act in the year 2000. Section 65A of the Indian Evidence Act,1872 states that the contents of electronic evidence may be proved in accordance with the provisions laid down in Section 65B. Therefore, only if the conditions specified under Section 65B of Indian Evidence Act are satisfied, the electronic evidence can be admitted by the Hon’ble Courts.
According to Section 2(1)(t) of the Information Technology Act, 2000, “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer -generated micro fiche.
Section 65B of the Evidence Act, 1872 which deals with the admissibility of electronic evidence was introduced keeping concerns about the authenticity of electronic records while ensuring the overall adaptability to the use of electronic records in courtrooms.
Section 65B (1) of the Act states that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer which is also referred to as the computer output shall be deemed to be also a document and shall be admissible as evidence in proceedings without further proof of the original if conditions stated under Section 65B (4) are satisfied.
Section 65B (2) of the Act provides the following conditions that must be satisfied for the information to be referred as computer output:
- At the time of creation of electronic records, the computer that produced it must have been used regularly to store or process information.
- The information contained in the electronic record must have been regularly fed into the computer.
- The computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
- The information contained in the electronic record must be a reproduction of the information fed into the computer.
Section 65B(3) states that provision of Section 65b(2) still applies even if computer output is taken out by not a single computer but by different combinations of computers.
Section 65B(4) is an important provision which says that for production of any electronic record, certificate is necessary wherein the following contents are to be included such as:
- Statement identifying the electronic record;
- Details of Device involved in production of electronic record;
- Description of the manner in which it is generated; to the best of the knowledge and belief of the person stating it.
This certificate has to be signed by the person occupying a responsible position in relation to the operation of the relevant device.
Section 65(4) stipulates that for producing electronic record as secondary evidence, the certificate is to be adduced along with the evidence.
Section 65B (5) provides that:
- Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
- Whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
- A computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Judicial views on admissibility of electronic evidence
- State (N.C.T. Of Delhi) versus Navjot Sandhu@ Afsan Guru, (2005) 11 SCC 600
In this case, a two-Judge Bench of the Hon’ble Supreme Court had an occasion to consider an issue on production of electronic record as evidence while considering the printouts of the computerized records of the calls pertaining to the cellphones and held that:
“Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & Section 65 of the Indian Evidence Ac, 1872.”
Anvar P.V.vERSUS. P.K. Basheer & Ors, (2014) 10 SCC 473
In this case, Supreme Court overruled State (n.c.t. of Delhi) versus Navjot Sandhu@ Afsan Guru, and held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.
The Hon’ble Court also observed that:
“Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. The Hon’ble Court further held that if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.”
“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.”
In this case, the Hon’ble Supreme Court held that certificate must accompany the electronic record when the same is produced in evidence.
SHAFHI MOHAMMAD versus THE STATE OF HIMACHAL PRADESH, (2018) 2 SCC 801
One of the questions which arose in this case for consideration was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
In this case, the Hon’ble Supreme Court laid a different opinion fromAnvar P.V. versus. P.K. Basheer &Ors, (2014) 10 SCC 473 and held that:
A party who is not in possession of device from which the electronic document is produced, cannot be required to produce certificate under Section 65B (4) of the Evidence Act.
The Hon’ble Court also opined that:
“If the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”
Thus, requirement of certificate under Section 65B(h) is not always mandatory.
The Hon’ble Court further heldthat:
“Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
Tomaso Bruno & Anr vERSUs State Of U.P, (2015) 7 SCC 178
In this matter, a three-judge bench of Hon’ble Supreme Court held thatSecondary evidence of contents of document can also be led under Section 65 of the IndianEvidence Act.
In this judgment, Hon’ble Supreme Court did not make any reference to the judgment laid down in Anvar, and instead followed the law laid down in Navjot Sandhu which was overruled in Anvar p.v.versus. p.k. Basheer &Ors, (2014) 10 scc 473.
ARJUN PANDITRAO KHOTKAR versus KAILASH KUSHANRAO GORANTYAL AND ORS, CIVIL APPEAL NOS. 20825-20826 OF 2017
In this case, the Hon’ble Supreme Court has clarified the conflicting view s taken by the Hon’ble Supreme Court in State (N.C.T. of Delhi) versus Navjot Sandhu@ Afsan Guru, Anvar P.V. versus. P.K. Basheer &Ors, (2014) 10 SCC 473, Tomaso Bruno &Anr versus State Of U.P, (2015) 7 SCC 178 and Shafhi Mohammad versus The State of Himachal Pradesh,(2018) 2 SCC 801.
The Hon’ble Supreme Court has made the following observations with respect to the admissibility of electronic evidence and tried to resolve the confusion created byearlier decisions.
- The dictum in “Anvar PV versus PK Basheer” need not be revisited.
- The application can be made to the trial court to direct a person to produce the certificate under Section 65B(4) of Evidence Act on the refusal of such person to produce the same otherwise.
- 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.
- The certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
- The Hon’ble Supreme Court thus overruled Tomaso Bruno and Shafhi Mohammad Judgment.
Ravinder Singh @ Kaku versus State of Punjab, CrA 1307 OF 2019
The Hon’ble Supreme Court in this case heldthat the certificate under Section 65B(4) of Evidence Act is mandatory to produce electronic evidence and that the oral evidence in the place of such certificate cannot possibly suffice.
CONCLUSION
With the advancement of modern technology, use of digital media has increased which thus, enhances the possibility of production of electronic evidence before Hon’ble Courts if in case any wrong gets committed. For admissibility of electronic evidence, production of certificate by a person relying on such evidence, is mandatory in order to ensure its authenticity as provided under Anvar P.V. versus P.K. Basheer &Ors, (2014) 10 SCC 473.
However, the challenging aspect before Hon’ble Court is whether such electronic evidence is authentic or not because possibility of manipulation, alteration of electronic record is an easy task in today’s modern digital era. Therefore, the Hon’ble Court must ensure veracity of contents of electronic record in order to rely upon it and administer fair trial.
With the change of times and the development of technology, there is a need of the hour to relook at Section 65B of the Indian Evidence Act, 1872 which was introduced twenty years ago and has created a huge judicial turmoil swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Arjun Panditraokhotkarcase.