Admissibility of Electronic Evidence | Clear the Dilemma

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  • Post published:January 24, 2021
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The most important stage in any case, whether it be civil or criminal, is leading evidence during the trial by the parties in support of their case. The evidence adduced by the parties may be primary, secondary or in electronic form and the method of their admissibility is provided under the Indian Evidence Act.

According to the Indian Evidence Act, any information contained in an electronic record that is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document and shall be admissible in any proceedings on fulfilling the conditions mentioned in Section 65-B of the Evidence.

The aspect of admissibility of electronic evidence has always been quite confusing due to different interpretations given by the Apex Court and other High Courts from time to time.

To start with, let us analyze the judgment titled Anvar P.V vs P.K. Basheer & Ors. in which the Hon’ble Supreme Court observed that,

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. It may be noted that the Section starts with a non-obstante clause. Thus, notwithstanding anything contained in the Evidence Act, 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 shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called computer output, depends on the satisfaction of the four conditions under Section 65B(2).

Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, 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

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate that identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.

The case was set up on the basis of evidence in the shape of CDs (Compact Disk) having announcements and songs to prove the corrupt practices, however, the Court observed that the appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs and therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.

The Court further observed in this case that the speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied.

The Court also clarified that if an electronic record is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.

By this judgment, the Hon’ble Court overruled the legal position laid down in a case titled State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru and held that the legal position with regard to the admissibility of secondary evidence pertaining to electronic record does not hold good and required to be overruled.

The Court finally held that, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

The next case was Vikram Singh v. State of Punjab. Audiotapes recorded on magnetic media have relied upon without a certificate under Section 65-B and in the absence of the said certificate, could not have been deemed to be valid evidence.

A three judges Bench of Supreme Court in Vikarn Singh held that the tape-recorded conversation was not secondary evidence, which required a certificate under Section 65-B since it was the original cassette by which ransom call was tape-recorded. They were primary evidence and did not require a certificate under Section 65B.

The issue again came up for court’s consideration in Shafi Mohammad v. State of H.P., wherein the Supreme Court held that in view of Tomaso Bruno case, it can be safely held that electronic evidence is admissible and provisions under Sections 65-A and 65-B of the Evidence Act are by way of a clarification and are procedural provisions.

The Court further held that if electronic evidence is relevant, it can be admitted in evidence subject to the Court being satisfied with its authenticity. The procedure for its admissibility may depend on the facts, such as whether the person producing such evidence is in a position to furnish a certificate under Section 65-B(4).

The Hon’ble Supreme Court further observed that Sections 65-A and 65-B of the Evidence Act, 1872, cannot be held to be a complete code on the subject.

The Court placed reliance on Anvar (mentioned hereinabove) to clarify that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. The Apex Court (Division Bench) further observed that the applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate, being in control of the said device, and not of the opposite party.

Primary evidence is the document produced before the Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

The Court held that when electronic evidence is produced by a party who is not in possession of a device, the applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded.  If this is not so permitted, the Court held, it will be a denial of justice to the person who is in possession of authentic evidence/witness.

Thus, the requirement of a certificate under Section 65-B(4) is not always mandatory. The court went a step ahead to say that the necessity of the requirement of certificate being procedural can be relaxed by the court wherever the interest of justice so justifies.

A two Judges bench in Shaif Mohamed judgment took a view completely contrary to the ruling of the three judges bench in Anvar P V (supra) and Vikram Singh (supra) and reduced the mandatory provision of Section 65B to a discretionary provision and left everything to the wisdom of the Judge concerned.

In a significant judgment the Apex Court in case titled Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal clarified the legal position with regard to admissibility of electronic evidence.

In the instant case the Apex Court dealt with the interpretation of Section 65-B of the Indian Evidence Act in details.

The Court observed that the non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf – Sections 62 to 65 being irrelevant for this purpose.

However, Section 65B(1) clearly differentiates between the “original” document – which would be the original “electronic record” contained in the “computer” in which the original information is first stored – and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence, and the latter being secondary evidence.

The Court further observed that the requisite 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 Court also considered the stage of admitting electronic evidence, the relevant para is reproduced below;

  1. It is pertinent to recollect that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, which reads as follows, is mandatory. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial.

The Court also observed that So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence.

The Court importantly said 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 case

Judgments overruled:

Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801

Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178

Lastly, the Punjab and Haryana High Court, while hearing a bail petition titled as Rakesh Kumar Singla vs Union of India CRM-M 23220 of 2020 held that the WhatApp messages relied upon by the NCB could be of no use without the certificate as envisaged under Section 65-B of the Indian Evidence Act. The Court relied on the Judgment of the Supreme Court in the matter of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1 wherein it had held that a certificate Section 65B of the Indian Evidence Act is required when reliance is being placed upon electronic record. Therefore, the Court said that the WhatsApp messages would be of no evidentiary value as on date.

The instant bail petition was resisted by the NCB (respondent) on the basis of screenshots of WhatsApp messages which could connect the petitioner with the alleged contraband recovered by the NCB. However, when the Court asked NCB, whether a certificate under Section 65B of the Indian Evidence Act is available at the present moment to authenticate the said messages, the answer was in negative.

The Court while granting bail to the petitioner observed that the Narcotics Bureau would always be at liberty to rely upon the WhatsApp messages after due compliance of provisions of Section 65-B of the Indian Evidence.

Keeping in view the ratio laid down by the Supreme Court in various judgments, the Electronic Evidence can only be admissible in terms of Section 65-A and 65-B and on the satisfaction of the requirements provided therein.

Sources referred:

The Leaflet (www.leaflet.in)

High Court of Punjab and Haryana Web Service (www.phhc.gov.in/home)

Supreme Court of India Web Service (www.main.sci.gov.in)