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Electronic Records as Evidence

Electronic records are considered as documentary evidence. Section 65-A and 65-B have been added by Information Technology Act, 2000. Section 65-A of the Indian Evidence Act, 1872 speaks about, “Special provisions as to evidence relating to electronic record”. Electronic records are considered as documentary evidence. This section merely says that the contents of electronic records are to be proved in accordance with the provisions of Section 65-B.

Section 65-B of the Indian Evidence Act, 1872 speaks about, “Admissibility of electronic records”. Section 65-B lays down that for the purpose of evidence, a certificate identifying the electronic record containing the statement and describing the manner in which it is produced by a computer and satisfying the conditions mentioned above, and signed by an officer in charge of the operation or management of the related activities, shall be the evidence of any matter stated in the certificate; it shall be sufficient for a matter to be stated to the best of 'the knowledge and belief of the person stating it.

Subsection 1 of this section says that an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be a document.

Subsection 2 of this section gives us the conditions with regard to a computer output. The following conditions have to be satisfied in relation to a “computer output”:

  1. Information was produced during the regular course of activities by the person having lawful control over the computer’s use.
  2. Information has been regularly fed into the computer in the ordinary course of the said activities.
  3. Throughout the material part of the said period, the computer was operating properly, or the improper operation was not such as to affect the electronic record or the accuracy of its contents.
  4. Information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of activities.

Subsection 3 deals with cases where the concerned computer is more than one working together on in succession, then, in that case, all the computers will be regarded as constituting a single computer.

Subsection 4 of this section gives us certain things and says that a certificate has to be issued mentioning those things in case evidence is to be given under this section.

Subsection 5 of this section says 3 things:

  1. 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.
  2. 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;
  3. 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.

Electronic Evidence in Breach of Right to Privacy (Not inadmissible)

Deepti Kapur v. Kunal Julka, CM(M) 40/2019 On 30th June 2020 the Delhi High Court held that evidence collected in breach of the fundamental right to privacy alone would not make it inadmissible in court of law.

The CD in question purported to an audio-video recording of the wife supposedly speaking with her friend on phone and talking about the husband and his family in a derogatory manner. The wife had opposed the CD being brought on record on the ground that, the contents of the CD were not admissible in evidence since they were a recording of a 'private' conversation that the wife had had with a friend, which had been secretly recorded by the husband, without the knowledge or consent of the wife, in breach of her fundamental right to privacy. She relied on the right to privacy judgment- “Justice K. S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors1)”.

The observation has been made by Justice Anup Jairam Bhambhani while deciding an appeal preferred by the wife from the order of the Family Court, allowing the husband to bring on record the evidence comprised in a Compact Disk that allegedly violated her right to privacy. The court observed that

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial. It must be borne in mind that Family Courts have been established to deal with what are essentially sensitive, personal disputes relating to dissolution of marriage, restitution of conjugal rights, legitimacy of children, guardianship, custody, and access to minors; which matters, by the very nature of the relationship from which they arise, involve issues that are private, personal and involve intimacies. It is easily foreseeable therefore, that in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties. In egregious cases, the Family Court may initiate or direct initiation of legal action against a litigating party or other person, who may appear guilty of procuring evidence by illegal means. Any party aggrieved by the production of such evidence would also be at liberty to initiate appropriate proceedings, whether in civil or criminal law, against concerned parties for procuring evidence illegally, although the initiation or pendency of such proceeding shall not make the evidence so produced inadmissible before the Family Court.”

Use of Video Conferencing mode

Video conferencing as an evidence related to electronic record. A prayer was made for producing it by means of video conferencing. The court said that there was no bar on examination of a witness through video conferencing. This is natural part of electronic method therefore the prayer was therefore, allowed with usual safeguards.

The facility of recording evidence by video conferencing has been already accorded in criminal cases. The court said that there cannot be any seemingly objection to adopting the same procedure in civil cases also. But necessary precautions must be taken both as to identify witness and accuracy of the equipment used for the purposes.

For the purpose of recording evidence with utilization of video conferencing technology, discretion has been vested in the family court itself to record evidence through such process. By virtue of Section 10(3) of Family Court Act 1984, family courts are empowered to adopt their own procedure to arrive at a settlement or to get truth of the matter.

Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal 11

Recording the statements of a witness through video conferencing has been allowed in criminal cases and there should not be any objection to use it in civil cases too. In this case the court allowed recording the statements of the husband through video conferencing, while maintaining the usual safeguards. In this case, the court said that there was no problem for using an electronic method for recording the statements of a witness.

Tempering Electronic evidence

While allowing all forms of computer output to be admissible as primary evidence, the statute has overlooked the risk of manipulation. Tampering with electronic evidence is not very difficult and miscreants may find it easy to change records which are to be submitted in court.

However, technology itself has solutions for such problems. Computer forensics has developed enough to find ways of cross checking whether an electronic record has been tampered with, when and in what manner.

Requirement of 65-B Certificate

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

The Supreme Court made some exception on Section 65-B. In this case, the accused was convicted under various provisions of IPC and POTA. One of the main evidences produced in the court against the accused was the call records of the accused’s phone. The court, in that case, said that Cellular phone records are secondary evidence since the primary evidence will the records maintained by the telecom servers. However, the court said that although the provision for the requirement of certification under Section 65-B (4) is not complied with still it would not be a bar to produce the evidence which is otherwise admissible under Section 63 and 65 of the Indian evidence acts.

Anvar P v. P K Basheer (2014) 10 SCC 473

Because of the Supreme Court decision in “State (NCT of Delhi) v. Navjot Sandhu” many cases certification was not done. In this case, the Supreme Court made certification compulsory saying that section 65B is a special provision and thus it has to be complied with.

In this case, some obscene songs on religion was played at an election centre those songs were recorded by the public and then copied in the computers and then from the computer they were copied in the CDs. These CDs were produced in the court without any form of certification.

A Three-Judge bench of the Supreme Court decided in this case that secondary evidence is required to be compulsorily accompanied by a certificate as under Section 65-B of the Indian Evidence Act thus, overruling the judgment of “State (NCT of Delhi) v. Navjot Sandhu case (supra)”.

Shafhi Mohammad v. The State of Himachal Pradesh, SLP (Crl.) No. 2302/2017

On 30th January 2018, the Supreme Court overruled the 2014 judgment. In this case, a bench comprising of Justices AK Goel and UU Lalit came to the following observation and conclusions:

The decision was given in “Navjot Sandhu case (supra)” that secondary evidence of electronic record is covered under Section 63 & 65 of IEA, was incorrect. The said Section 64-B (4) will only apply to certain cases in which the electronic evidence is produced by a person in possession and control of the said device. Whereas, in a case where a party is not in the possession/ control of the device from which the document is produced, such party cannot be required to produce a certificate under Section 65B (4). Also, the applicability of Section 63 & 65 cannot be held to be excluded and the procedure can be invoked. Section 65-A and 65-B are clarificatory and procedural and are not a complete code on the subject.“

Thus, the requirement of a certificate under Section 65-B (4) is not always mandatory and can be dispensed with, in the interest of justice. It also depends upon the facts of each case.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors., Civil Appeal No. 20825-20826/2017 with Civil Appeal No. 2407/2018 and 3696/2018, SC

On 14th July 2020, The Supreme Court has held that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record.

A Three Judge Bench of the Supreme Court comprising Justices RF Nariman, S Ravindra Bhat and V Ramasubramanian delivered this judgment on a reference on the question “Is requirement of certificate u/s 65-B(4) Evidence Act mandatory for production of electronic evidence?” A two Judge Bench of Justices Ashok Bhushan and Navin Sinha had referred the question in view of the conflict between “Shafhi Mohammad v. State of Himachal Pradesh” and “Anvar P.V. v. P.K. Basheer”.

The bench headed by Justice RF Nariman has however clarified that that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. The court said that the judgment in “Anvar P.V. v. P.K. Basheer & Ors2).” need not be revisited, subject to the above clarifications.

Proof of Signature & Handwriting

Section 67 of the Indian Evidence Act, 1872 speaks about, “Proof of signature and handwriting of person alleged to have signed or written document produced”. Section 67 says that when it is alleged that a document has been signed or written wholly or partly by an individual then the handwriting of that individual for that part has to be proved.

The parties may refer to Sections 45 and 47 of the act i.e. the opinion of experts and the opinion persons acquainted to the handwriting of the concerned person needs to be taken. It is mandatory under this section that the handwriting is proved only by examining the person concerned in case the person is well and alive. In case it is not done then it would attract Section 114(g) of the Indian Evidence Act.

Proof of Digital Signature

Section 67-A of the Indian Evidence Act, 1872 speaks about, “Proof as to digital signature”. This section is the same as Section 67; the only difference is that it deals with an electronic signature. It says that when any electronic signature of any person is to be affixed with any electronic recording then the concerned electronic signature has to be proved to belong to that of the person concerned.

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  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
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1 (2017) 10 SCC 1
2014 10 SCC 473

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