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”.With the advancement of information technology, scientific temper at the individual and the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life, and as a result, the production of electronic evidence in cases, has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents stricto sensu are admitted as material evidence. Such evidence is of great help to the investigating agency and also to the prosecution.
The new section, namely section 65A, says that the contents of electronic records may be proved in accordance with the provisions of section 65B. 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”:
a) Information was produced during the regular course of activities by the person having lawful control over the computer’s use.
b) Information has been regularly fed into the computer in the ordinary course of the said activities.
c) 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.
d) 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:
a) 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.
b) 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;
c) 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.
An official accused of corruption filed a petition before the Karnataka High Court challenging the Trial Court order refusing to discharge him in a criminal case. Allowing the petition, the High Court held that in the absence of a certificate under Section 65B of the Evidence Act, secondary evidence of the electronic record based on the spy camera is inadmissible in evidence. It also observed that the prosecution is precluded from supplying any certification “at this point of time” since that would be an afterthought. It was further held that the case of the prosecution that apart from the electronic evidence, other evidence is available is 'on its face unconvincing'.
(1) the Supreme Court has held in State of Karnataka vs. M. R. Hiremath that failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed is not fatal to the prosecution,
(2) The bench comprising of Justice DY Chandrachud and Justice Hemant Gupta, on appeal filed by the state, observed that the High Court erred in concluding that the failure to produce a certificate under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. It said:
“The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.”
(3) Setting aside the High Court order, the court also reiterated that, at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.
|Case Title||State By Karnataka Lokayukta Police Station, Bengaluru Vs. M R Hiremath|
|Coram||Dr. Dhananjaya Y Chandrachud, J|
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 & Ors. (2014) 10 SCC 473” need not be revisited, subject to the above clarifications.The court further held that
Thus, it is clear that the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court reported as (2018) 5 SCC 311, in following the law incorrectly laid down in Shafhi Mohammed (supra), must also be, and is hereby, overruled.