INDIAN EVIDENCE ACT

PROJECT REPORT

TOPIC:

ADMISSIBILITY OF ELECTRONIC EVIDENCE

SUBMITTED TO: SUBMITTED BY:

Dr. Sabina Salim Shubhkarmanpreet Kaur

202/17

B.com l.l.b
 Section D.

ACKNOWLEDGEMENT

Success comes to those who strive for it. To achieve one’s goal, one puts in a lot of hard work
and efficiency. In this process, one takes all the encouraging and helping hands of the people.

I would like to convey my heart full thanks to Dr. Sabina Salim, my teacher and guide, who
guided me through this project and also gave valuable suggestions and guidance for completing
this project. She provided me with this opportunity and whose immaculate knowledge was a key
in completion of this project.

I owe my regards to the entire faculty of the Department of Legal Studies, from where I have
learnt the basics of Law and whose informal discussions, intellectual support and able guidance
was a beacon light for me in the entire duration of this work. So, with the concrete efforts and
utmost honest intentions, I hereby present this project.

Shubhkarmanpreet Kaur

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 TABLE OF CONTENT

Page no.

1. Table of Cases ……………………………………………………………….. 04

2. Introduction…………………………………………………………………… 05
3. Meaning of electronic evidence ……………………………………………... 07
4. What is electronic record ?...................................................................... 09
5. Relevance of electronic evidence…………………………………………….. 12
6. Electonic evidence and indian evidence act………………………………….. 13
7. Types of electronic evidence …………………………………………………. 15
8. Conditions of section 65B ……………………………………………………. 16
9. Amendments in evidence act and its objectives ……………………………… 17
10. Admissibility of electronic evidence …………………………………………. 19
11. Effects of considering electronic evidence as primary or direct evidence …… 27
12. Non application of special legal provision ………………………………….. 29
13. Result ………………………………………………………………………… 30
14. Leading case law on electronic evidence ……………………………………. 31
15. Conclusion……………………………………………………………………. 35
16. Bibliography …………………………………………………………………. 37

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 TABLE OF CASES

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

 Ankur Chawla v. CBI MANU/DE/2923/2014
 Amitabh Bagchi Vs. Ena Bagchi AIR 2005 Cal 11
 Abdul Rahaman Kunji v. State of West Bemgal WB/0828/2014
 Babu Ram Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors. 2013 IIAD (Delhi)
 Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986)3SCR866]
 Dharambir v Central Bureau of Investigation 148 (2008) DLT 289
 Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd AIR 2003 KANT 148
 Jagjit Singh v. State Of Haryana 2006) 11 SCC 1
 K.K. Velusamy Vs. N. Palanisamy 2011 SC 158
 Mohd Arif Ashfaq V. State of NCTC of Delhi (2011) 13 SCC 621
 Moninder Singh Pandher and Surendra Koli v State of U.P
 Omychund v Barker (1744) 125 ER 1310
 State of Maharashtra v. Praful Desai AIR 2003 SC2053
 Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke  SC/0040/2015
 State of Bihar v Sri Radha Krishna (1983) 2 SCR 808
 Suvarana Musale vs Rahul Musale 2015 (2) Mh.L.J. 801
 State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820
 Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported as AIR 1987 SC 1454.
 Omychund v Barker (1744) 125 ER 1310
 Utkal contractors & Joinery Pvt. Ltd. V. state of Orissa, AIR 1987 SC 1454.
 Union of India and Anr., v. G.M. Kokil and Ors. [(1984)SCR196].
 Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra and Others AIR 1975 SC
1788

4|LAW OF EVIDENCE
 INTRODUCTION

It is trite knowledge that world’s transactions are increasingly electronic in nature. One
inevitable outcome of this proliferation is that courts have been compelled to take cognizance of
electronic evidence, from CCTV footage to emails, making their contributions are crucial.
However, despite their evidentiary relevance, electronic records suffer from problems that their
physical counterparts do not. Electronic data is easy to create copy, alter, destroy, and transfer
from one medium to another. In short, by their very nature, electronic records can be easily
manipulated. Consequently, their accuracy and reliability is frequently suspected. This creates a
conflict between the relevancy and admissibility of electronic evidence, something that has been
recognized by jurisdictions across the world.

In 2000, 65B was inserted into the Indian Evidence Act, 1872 (‘Evidence Act’) 1 in an attempt to
modernize Indian evidentiary practices and help our courts deal with the advances in technology.
The provision deems computer output such as printouts, CDs, data on hard disks etc. to be
‘documents’ under the Evidence Act, thus making them admissible in court. It simultaneously
seeks to ensure the reliability and accuracy of such evidence by demanding that certain
conditions listed under 65B (2) be met.

Despite the good intentions behind this amendment, the provision has been controversial. 2 This is
primarily because High Courts in their treatment of electronic evidence under 65B have been
inconsistent and arbitrary. Due to different courts demanding different methods for the
fulfillment of the conditions laid down in 65B (2), there has been tremendous lack of uniformity.
This variation in practice not only inconveniencies litigants, it also creates possibilities for the
derailment of justice.
1
Information Technology Act, 2000, Schedule II, Entry 9.
2
See Apar Gupta, How to rely upon an email in court, , available at http:// www.iltb.net/2011/12/how-to-rely-
upon-an-email-in-court/ (Last visited on January 20, 2021);

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Recently, the Supreme Court sought to put to rest all these controversies in Anvar P.V. v. P.K.
Basheer (‘Anvar’). 3 To create uniformity in practice, the Court interpreted 65B as mandating
one specific authentication method: a certificate as described under 65B (4) as a necessary
precondition for admissibility of electronic evidence.

3
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.

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 I. MEANING OF ELECTRONIC EVIDENCE

The type of evidence that we are dealing with has been variously described as ‘electronic
evidence’, ‘digital evidence’ or ‘computer evidence’. The word digital is commonly used in
computing and electronics, especially where physical-world information is converted to binary
numeric form as in digital audio and digital photography.4 Definitions of digital evidence include
‘Information of probative value stored or transmitted in binary form; and ‘Information stored or
transmitted in binary form that may be relied on in court. While the term ‘digital’ is too wide, as
we have seen the use of ‘binary’ is too restrictive, because it only describes one form of data.
Electronic evidence: data (comprising the output of analogue devices or data in digital format)
that is manipulated, stored or communicated by any man-made device, computer or computer
system or transmitted over a communication system, that has the potential to make the factual
account of either party more probable or less probable than it would be without the evidence. 5
This definition has three elements. First, it is intended to include all forms of evidence that is
created, manipulated or stored in a product that can, in its widest meaning, be considered a
computer, excluding for the time being the human brain. Second, it aims to include the various
forms of devices by which data can be stored or transmitted, including analogue devices that
produce an output. Ideally, this definition will include any form of device, whether it is a
computer as we presently understand the meaning of a computer; telephone systems, wireless
telecommunications systems and networks, such as the Internet; and computer systems that are
embedded into a device, such as mobile telephones, smart cards and navigation systems. The
third element restricts the data to information that is relevant to the process by which a dispute,
whatever the nature of the disagreement, is decided by an adjudicator, whatever the form and
level the adjudication takes. This part of the definition includes one aspect of admissibility -
relevance only - but does not use ‘admissibility’ in itself as a defining criteria, because some
evidence will be admissible but excluded by the adjudicator within the remit of their authority, or
inadmissible for reasons that have nothing to do with the nature of the evidence - for instance
because of the way it was collected. The last criteria, however, restricts the definition of

4
Electronic Evidence and its Challenges by Dr. Swaroopa Dholam.
5
Ibid.

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electronic evidence to those items offered by the parties as part of the fact finding process. 6 Due
to enormous growth in e-governance throughout the Public & Private Sector and ecommerce
activities Electronic Evidence have involved into a fundamental pillar of communication,
processing and documentation. The government agencies are opening up to introduce various
governance policies electronically and periodical filings to regulate and control the industries are
done through electronic means. These various forms of Electronic Evidence/ Digital Evidence
are increasingly being used in the judicial proceedings. At the stage of trial, Judges are often
asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome
of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this
new electronic frontier as the unique nature of evidence, as well as the ease with which it can be
fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The
various categories of electronic evidence such as CD, DVD, hard disk/ memory card data,
website data, social network communication, email, instant chat messages, SMS/MMS and
computer generated documents poses unique problem and challenges for proper authentication
and subject to a different set of views.7

6
Burkhard Schafer and Stephen Mason, The characteristics of electronic evidence in digital format, in Electronic
Evidence, Edited by Stephen Mason, LexisNexis, 2013.
7
Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported as AIR 1987 SC 1454.

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 II. WHAT IS ELECTRONIC RECORD?

 Section 2(t) of the IT Act defines the term ‗electronic record‘ as ―data, record or data
generated, image or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche’;
 Section 6 of the IT Act provides that electronic records and electronic signatures can be used
in Government and its agency. Hence they are admissible in a court of law. So, whenever a
dispute regarding online contracts or e-crimes is to be adjudicated by a court, production of
admissible evidence becomes necessary to decide the merits of the case.
 Section 3 of the Evidence Act defines― “document” as follows: “Document" means 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.”
 “Evidence” in Section 3 is defined as follows: "Evidence" means and includes—
1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called
oral evidence;
2) all documents including electronic records produced for the inspection of the
Court; such documents are called documentary evidence.”
 Section 22-A of the Evidence Act, which deals with the relevance of oral admissions as to
contents of electronic records, reads as follows: 22A. when oral admissions as to contents of
electronic records are relevant. -- Oral admissions as to the contents of electronic records
are not relevant, unless the genuineness of the electronic record produced is in question.
 Section 59 of the Evidence Act speaks about proof of facts by oral evidence. Section 59
reads thus: 59. Proof of facts by oral evidence.-- All facts, except the contents of documents
or electronic records, may be proved by oral evidence.
 Section 45A of the Evidence Act is with regard to the opinion of the Examiner of Electronic
Evidence and it states thus: 45A. Opinion of Examiner of Electronic Evidence.-- When in a
proceeding, the court has to form an opinion on any matter relating to any information

9|LAW OF EVIDENCE
 transmitted or stored in any computer resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information
Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation.-- For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.

 Section 67A of the Evidence Act deals with proof as to digital signature. Section 67A reads
thus: “67-A. Proof as to digital signature. --- Except in the case of a secure electronic
signature, if the digital signature of any subscriber is alleged to have been affixed to an
electronic record the fact that such digital signature is the digital signature of the subscriber
must be proved.‖ It is necessary to prove it in the manner of proof of electronic record. As
such, Section 65B will be applicable.
 Section 73A of the Evidence Act deals with the Proof as to verification of digital signature. It
reads thus: ―73A. Proof as to verification of digital signature. – In order to ascertain
whether a digital signature is that of the person by whom it purports to have been affixed, the
Court may direct –
a) that person or the Controller or the Certifying Authority to produce the
Digital Signature Certificate;
b) any other person to apply the public key listed in the Digital Signature
Certificate and verify the digital signature purported to have been affixed by
that person.

For this purpose, the ―controller means the controller appointed under S.17(1) of the IT Act.

 Section 4 of the IT Act speaks about the legal recognition of the electronic records. It reads
thus:
s.4 Legal recognition of electronic records.-- Where any law provides that information or
any other matter shall be in writing or in the typewritten or printed form, then
notwithstanding anything contained in such law, such requirement shall be deemed to have
been satisfied if such information or matter is-
a. rendered or made available in an electronic form; and
b. accessible so as to be usable for a subsequent reference.

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 The rationale behind the second requirement is that electronic data is intangible and by its very
nature transient. Thus, it is expedient to require it to be available for future reference.

 Section 136 of the Evidence Act empowers a Judge to decide as to the admissibility of the
evidence. In order that the proof may be confined to relevant facts and may not travel beyond
the limits of the issue at trial, the Judge is empowered to ask in what manner the evidence
tendered is relevant. The judge must then decide its admissibility.
In State of Bihar v Sri Radha Krishna 8, the apex court observed that admissibility of a
document is one thing and its probative value is quite another and these two aspects cannot
be combined.

III. RELEVANCE OF ELECTRONIC EVIDENCE

8
State of Bihar v Sri Radha Krishna (1983) 2 SCR 808

11 | L A W O F E V I D E N C E
Increasing reliance on electronic means of communications, e-commerce and storage of
information in digital form has most certainly caused a need to transform the law relating to
information technology and rules of admissibility of electronic evidence both in civil and
criminal matters in India. This increased use of technology, however, poses challenges
accommodating and reflecting the new age developments in laws across jurisdictions, which in
turn has provided the much required impetus to the emergence and appreciation of digital
evidence. Keeping up with the times, requisite amendments were also made to Indian laws in the
year 2000 with introduction of the Information Technology Act, 2000 (‘IT Act’), which brought
in corresponding amendments to existing Indian statutes to make digital evidence admissible.
The IT Act, which is based on the UNCITRAL Model Law on Electronic Commerce, led to
amendments in the Indian Evidence Act, 1872 (‘Evidence Act’), the Indian Penal Code, 1860
(‘IPC’) and the Banker’s Book Evidence Act, 1891. With the change in law, Indian courts have
developed case law regarding reliance on electronic evidence. Judges have also demonstrated
perceptiveness towards the intrinsic ‘electronic’ nature of evidence, which includes insight
regarding the admissibility of such evidence, and the interpretation of the law in relation to the
manner in which electronic evidence can be brought and filed before the court. While the
admissibility of electronic evidence in legal proceedings is not new in India, with the passage of
time, the safeguards employed for enabling the production of documents have changed
substantially, especially since the storage and use of electronic information has increased and
become more complex. Recently, the Supreme Court of India in case of Anvar P. K. vs. P.K
Basheer & Ors.,9 overruled the earlier decision the case of the State (NCT of Delhi) v Navjot
Sandhu,10 also popularly known as the ‘Parliament Attacks’ case. The Supreme Court redefined
the evidentiary admissibility of electronic records to correctly reflect the provisions of the
Evidence Act by reinterpreting the application of sections 63, 65 and 65

IV. ELECTRONIC EVIDENCE AND THE INDIAN EVIDENCE ACT 1872

9
Supra note 3
10
(2005) 11 SCC 600.

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The definition of evidence as given in the Indian Evidence Act, 1872 covers a) the evidence of
witness i.e. oral evidence, and b) documentary evidence which includes electronic record
produced for the inspection of the court.11 Section 3 of the Act was amended and the phrase “All
documents produced for the inspection of the Court” was substituted by “All documents
including electronic records produced for the inspection of the Court”. 12 Regarding the
documentary evidence, in Section 59, for the words “Content of documents” the words “Content
of documents or electronic records” have been substituted and Section 65A & 65B were inserted
to incorporate the admissibility of electronic evidence. Traditionally, the fundamental rule of
evidence is that direct oral evidence may be adduced to prove all facts, except documents. The
hearsay rule suggests that any oral evidence that is not direct cannot be relied upon unless it is
saved by one of the exceptions as outlined in sections 59 and 60 of the Evidence Act dealing
with the hearsay rule. However, the hearsay rule is not as restrictive or as straightforward in the
case of documents as it is in the case of oral evidence. This is because it is settled law that oral
evidence cannot prove the contents of a document, and the document speaks for itself. Therefore,
where a document is absent, oral evidence cannot be given as to the accuracy of the document,
and it cannot be compared with the contents of the document. This is because it would disturb
the hearsay rule (since the document is absent, the truth or accuracy of the oral evidence cannot
be compared to the document). In order to prove the contents of a document, either primary or
secondary evidence must be offered.13

While primary evidence of the document is the document itself, 14 it was realized that there would
be situations in which primary evidence may not be available. Thus secondary evidence in the
form of certified copies of the document, copies made by mechanical processes and oral
accounts of someone who has seen the document, was permitted under section 63 of the
Evidence Act for the purposes of proving the contents of a document. Therefore, the provision
for allowing secondary evidence in a way dilutes the principles of the hearsay rule and is an
attempt to reconcile the difficulties of securing the production of documentary primary evidence
where the original is not available. Section 65 of the Evidence Act sets out the situations in
11
Section 3 of the Indian Evidence Act, 1872
12
The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000.
13
Anvar v. Basheer and the New (Old) Law of Electronic Evidence - The Centre for Internet and Society, available at
http://cisindia.org/ internetgovernance/blog/anvarvbasheernewoldlawofelectronicevidence last accessed on
22/01/2021.
14
Section 62 of the Indian Evidence Act, 1872

13 | L A W O F E V I D E N C E
which primary evidence of the document need not be produced, and secondary evidence - as
listed in section 63 of the Evidence Act - can be offered. This includes situations when the
original document

a) Is in hostile possession.
b) Or has been proved by the prejudiced party itself or any of its representatives.
c) Is lost or destroyed.
d) Cannot be easily moved, i.e. physically brought to the court.
e) Is a public document of the state.
f) Can be proved by certified copies when the law narrowly permits; and
g) Is a collection of several documents.15

V. TYPES OF ELECTRONIC EVIDENCE

15
3Manisha T. Karia and Tejas D. Karia, ‘India’ (Chapter 13) in Stephen Mason, ed, Electronic Evidence (3rd edn,
LexisNexis Butterworths, 2012).

14 | L A W O F E V I D E N C E
In India we follow best evidence rule which has its origins in the 18th century case Omychund v
Barker16. Wherein Lord Harwicke stated that no evidence was admissible unless it was "the best
that the nature of the case will allow.” The nature of electronic evidence is such that it might not
be possible to produce the original device in form of primary evidence because the original
device might be huge servers located at a distance far away from the jurisdiction of the court or
due to some other reasons, it is not feasible to bring device to court. In such cases, secondary
electronic evidence may be taken on record and given the status of best possible evidence.

Electronic Evidences can broadly be classified into two types – Primary Electronic Evidence and
Secondary Electronic Evidence. The classification is based on the source of evidence.

 Primary Electronic Evidence – This would mean the actual electronic device which has
recorded the video, photograph, document, or any other electronic record. For instance,
CCTV captures video of crime being committed in the premises of a building. This video
got stored in a DVR connected to the camera meant for storage purposes. Primary
evidence, in this case, would include DVR along with the CCTV camera which recorded
the video and stored it on DVR. This DVR along with CCTV camera can be seized by the
police during investigation.

 Secondary Electronic Evidence – Whenever a copy or transfer of any electronic record

is undertaken and that transferred or copied copy is produced thereof for the perusal of
the Court, such evidence is known as Secondary Electronic Evidence. For instance, an e-
mail is received by a person and he wishes to produce it before the Hon’ble Court. He
cannot simply get the servers in which such email is stored or give access to his email
account. In such a circumstance, he would have to print the email in a hard copy and
submit the same along with a certificate under Section 65B of Indian Evidence Act.

VI. CONDITIONS OF SECTION 65B

16
Omychund v Barker (1744) 125 ER 1310

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1. Information was produced during the regular course of activities by the person having a lawful
control over the computer’s use.

2. Information has been regularly fed into the computer in the ordinary course of said activities .

3. Throughout the material part of said period, the computer was operating properly or the
improper operation as not such as to affect the electronic record or the accuracy of its contents.

4. Information contained in the electronic records reproduces or is derived from such information
fed into the computer in the ordinary course of activities.

The primary purpose is to sanctify proof by secondary evidence. This facility of proof by
secondary evidence would apply to any computer output, such output being deemed as a
document. A computer output is a deemed document for the purpose of proof.

Where the information was processed or fed into the computer on inter linked computers or one
computer after the other in succession all the computers so used shall be treated as one single
computer.

Section 65B also lays down that for the purpose of evidence, a certificate identifying the
electronic records containing the statement and describing the manner in which it was produced
by a computer and satisfying the conditions mentioned above and signed by a 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 the matter to be stated to the best of the knowledge and
belief of the person stating .

Any information to be taken to be supplied to a computer, if it is done in any appropriate form

whether directly with or without human intervention by means of any appropriate equipment , or
any information is supplied by any official in the course of his activities with a view of storing or
processing it even if the computer is being operated outside those activities

VII. AMENDMENTS IN EVIDENCE ACT 1872 AND ITS OBJECTIVES

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In the ANVAR CASE,17 the Supreme Court noted that “there is a revolution in the way that
evidence is produced before the court. In India before 2000, electronically stored information
was treated as a document and secondary evidence of these electronic „documents‟ was adduced
through printed reproductions or transcripts, the authenticity of which was certified by a
competent signatory. The signatory would identify her signature in court and be open to cross
examination. This simple procedure met the conditions of both sections 63 and 65 of the
Evidence Act. In this manner, Indian courts simply adapted a law drafted over one century
earlier in Victorian England. However, as the pace and proliferation of technology expanded, and
as the creation and storage of electronic information grew more complex, the law had to change
more substantially. Under the provisions of Section 61 to 65 of the Indian Evidence Act, 1872,
the word “Document or content of documents” have not been replaced by the word “Electronic
documents or content of electronic documents”. Thus, the intention of the legislature is explicitly
clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the
cardinal principle of interpretation that if the legislature has omitted to use any word, the
presumption is that the omission is intentional. It is well settled that the Legislature does not use
any word unnecessarily.18

In this regard, the Apex Court in UTKAL CONTRACTORS & JOINERY PVT. LTD. V.
STATE OF ORISSA19 held that “...Parliament is also not expected to express itself
unnecessarily. Even as Parliament does not use any word without meaning something,
Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to
legislate for the sake of legislation; nor indulge in legislation merely to state what it is
unnecessary to state or to do what is already validly done. Parliament may not be assumed to
legislate unnecessarily.” The IT Act amended section 59 of the Evidence Act, 1872 to exclude
electronic records from the probative force of oral evidence in the same manner as it excluded
documents. This is the re-application of the documentary hearsay rule to electronic records. But,
instead of submitting electronic records to the test of secondary evidence - which, for documents,

17
(2014) 10 SCC 473
18
Vivek Dubey, “Admissibility of Electronic Evidence: An Indian Perspective”4, FRACIJ (2017).
19
Utkal contractors & Joinery Pvt. Ltd. V. state of Orissa, AIR 1987 SC 1454.

17 | L A W O F E V I D E N C E
is contained in sections 63 and 65, it inserted two new evidentiary rules for electronic records in
the Evidence Act: section 65A and section 65B. The intention of the legislature is to introduce
the specific provisions which has its origin to the technical nature of the evidence particularly as
the evidence in the electronic form cannot be produced in the court of law owing to the size of
computer/server, residing in the machine language and thus, requiring the interpreter to read the
same.20 Section 65A of the Evidence Act creates special law for electronic evidence - The
contents of electronic records may be proved in accordance with the provisions of section 65B.
This section performs the same function for electronic records that section 61 does for
documentary evidence: it creates a separate procedure, distinct from the simple procedure for
oral evidence, to ensure that the adduction of electronic records obeys the hearsay rule. It also
secures other interests, such as the authenticity of the technology and the sanctity of the
information retrieval procedure. But section 65A is further distinguished because it is a special
law that stands apart from the documentary evidence procedure in sections 63 and 65.

Section 65B of the Evidence Act details this special procedure for adducing electronic records in
evidence and makes the secondary copy in the form of computer output comprising of printout or
the data copied on electronic/magnetic media admissible.

VIII. ADMISSIBILITY OF ELECTRONIC EVIDENCE

20
Supra note 17.

18 | L A W O F E V I D E N C E
In exceptional cases, contents of electronic record may be proved if the compliance of section
65B is made. It means, contents of such document can be proved on the basis of mere certificate.
Now it is for the court to see which document can be proved on certifying it under section 65B of
Indian Evidence Act.

Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed
to be also a document, if the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any proceedings, without further
proof or production of the original, as evidence or any contents of the original or of any fact
stated therein of which direct evidence would be admissible. Court held that in view of sec 65A
and 65B of evidence Act it will held that recording of evidence. The electronic evidence and
technologies is acknowledged and recognized in judicial system.

 Sec. 65B(2):
The computer from which the record is generated was regularly used to store or process
information in respect of activity regularly carried on by a person having lawful control
over the period, and relates to the period over which the computer was regularly used;
Information was fed in computer in the ordinary course of the activities of the person
having lawful control over the computer; The computer was operating properly, and if
not, was not such as to affect the electronic record or its accuracy; Information
reproduced is such as is fed into computer in the ordinary course of activity. 21
 Sec.65 B(3):
The following computers shall constitute as single computer
a) By a combination of computers operating over that period; or
b) By different computers operating in succession over that period; or

21
Section 65 B (2) of the Indian Evidence Act, 1872 lists the technological conditions upon which a duplicate copy
(including a print-out) of an original electronic record may be used.

19 | L A W O F E V I D E N C E
 c) By different combinations of computers operating in succession over that period;
or
d) In any other manner involving the successive operation over that period, in
whatever order, of one or more
e) In any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers.
 Sec. 65B(4):
Regarding the person who can issue the certificate and contents of certificate, it provides
the certificate doing any of the following things: identifying the electronic record
containing the statement and describing the manner in which it was produced; giving the
particulars of device, dealing with any of the matters to which the conditions mentioned
in subsection (2) relate and purporting to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device or the management of
the relevant activities (whichever is appropriate) shall be evidence of any matter stated in
the certificate and for the purposes of this subsection it shall be sufficient for a matter to
be stated to the best of the knowledge and belief of the person stating it. 22 This contention
is further strengthened by the insertion words “Notwithstanding anything contained in
this Act” to Section 65A & 65B, which is a non obstante clause, further fortifies the fact
that the legislature has intended the production or exhibition of the electronic records by
Section 65A & 65B only. A non obstante clause is generally appended to a Section with a
view to give the enacting part of the Section, in case of conflict, an overriding effect over
the provision in the same or other act mentioned in the non obstante clause. It is
equivalent to saying that despite the provisions or act mentioned in the non obstante
clause, the provision following it will have its full operation or the provisions embraced
in the non obstante clause will not be an impediment for the operation of the enactment or
the provision in which the non obstante clause occurs. The aforesaid principles of
interpretation with respect to the non obstante clause in form of “Notwithstanding
22
Section 65B (4) of the Evidence Act lists additional non-technical qualifying conditions to establish the
authenticity of electronic evidence. This provision requires the production of a certificate by a senior person who
was responsible for the computer on which the electronic record was created, or is stored. The certificate must
uniquely identify the original electronic record, describe the manner of its creation, describe the device that
created it, and certify compliance with the technological conditions of sub-section (2) of section 65B.

20 | L A W O F E V I D E N C E
 anything contained in this Act” is further supported by the Hon’ble Apex Court in Union
of India and Anr., v. G.M. Kokil and Ors 23. observed “It is well known that a non
obstante clause is a legislative device which is usually employed to give overriding effect
to certain provisions over some contrary provisions that may be found either in the same
enactment or some other enactment, that is to say, to avoid the operation and effect of all
contrary provisions.” Further, the Hon’ble Apex Court in the case cited as
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, 24 explained the scope of non
obstante clause as “It is equivalent to saying that in spite of the provision of the Act or
any other Act mentioned in the non obstante clause or any contract or document
mentioned the enactment following it will have its full operation”.

HARD DISK

As to whether a hard disk of a computer can be considered as documentary evidence, the High
Court of Delhi in Dharambir v Central Bureau of Investigation25 has observed that: "While
there can be no doubt that a hard disc is an electronic device used for storing information, once a
blank hard disc is written upon it is subject to a change and to that extent it becomes an
electronic record. Even if the hard disc is restored to its original position of a blank hard disc by
erasing what was recorded on it, it would still retain information which indicates that some text
or file in any form was recorded on it at one time and subsequently removed. By use of software
programmes it is possible to find out the precise time when such changes occurred in the hard
disc. To that extent even a blank hard disc which has once been used in any manner, for any
purpose will contain some information and will therefore be an electronic record. So, once the
hard disc is subject to any change, then even if it restored to the original position, by reversing
that change, the information can be retrieved by using software designed for that purpose. Given
the wide definition of the words "document" and "evidence"' in the amended Section 3 Evidence
Act, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic record is a
document. Data copied from hard disk to CD Hyderabad Cyber Forensic Lab – confirmed that

23
Union of India and Anr., v. G.M. Kokil and Ors. [(1984)SCR196].
24
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986)3SCR866]
25
Dharambir v Central Bureau of Investigation 148 (2008) DLT 289

21 | L A W O F E V I D E N C E
the recorded data [call conversation] on CD as true copies of the originals + hard disk was in
working condition. Hard Disc is a storage devise. If written, then it becomes electronic record
under Evidence Act. Under section 65B it has to be proved that the computer during the relevant
period was in the lawful control of the person proving the email26.

CALL RECORDS

In the case of Rakesh Kumar and Ors. V State, the High Court of Delhi27, while appreciating
the reliance placed by the prosecution upon the call records, observed that 'computer generated
electronic records is evidence, admissible at a trial if proved in the manner specified by Section
65B of the Evidence Act. Video/Audio Tape Recordings- Indian courts had recognized the
contents of tape recording as admissible evidence for some time before the introduction of the IT
Act, subject to certain conditions being satisfied. The Supreme Court of India in the case of
Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra and Others 28 observed that
tape-recorded speeches are a 'document', as defined by S.3 of the Evidence Act, which stands on
no different footing than photographs, and they are admissible in evidence on satisfying certain
conditions. The subject matter recorded had to be shown to be relevant according to rules of
relevancy found in the Evidence Act. The determination of movement of a person on the basis of
mobile phone was discussed in Mohd Arif Ashfaq V. State of NCTC of Delhi29.

PROOF OF CONTENTS OF CD:

The person intending to prove C.D. is required to prove whether the disputed C.D. was prepared
by a combination of a computer operating therein or different computer operating in succession
over that period or of different combination of computers. It is not necessary to examine the
computer expert for the proof of C.D. in addition to the compliance of provisions of section 65B.
In Ankur Chawla v. CBI30. The Hon’ble High Court of Delhi, while deciding the charges
against accused in a corruption case observed that since audio and video CDs in question are

26
Babu Ram Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors. 2013 IIAD (Delhi) 441
27
Rakesh Kumar and Ors. V State, the High Court of Delhi Criminal Appeal No. 19/2007
decided on 27.08.2009
28
Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra and Others AIR 1975 SC 1788
29
Mohd Arif Ashfaq V. State of NCTC of Delhi (2011) 13 SCC 621
30
Ankur Chawla v. CBI MANU/DE/2923/2014
22 | L A W O F E V I D E N C E
clearly inadmissible in evidence, therefore trial court has erroneously relied upon them to
conclude that a strong suspicion arises regarding petitioners criminally conspiring with co –
accused to commit the offence in question. Thus, there is no material on the basis of which, it
can be reasonably said that there is strong suspicion of the complicity of the petitioners in
commission of the offence in question. Further in the case of JAGJIT SINGH Vs. STATE OF
HARYANA31 the speaker of the Legislative Assembly of the State of Haryana disqualified a
member for defection. When hearing the matter, the Supreme Court considered the digital
evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak
television channel and the Haryana News of Punjab Today television channel.

In K.K. Velusamy Vs. N. Palanisamy32, the Hon'ble Supreme Court considered the point of
electronic evidence such as – the amended definition in Section 3 of Evidence Act 1872 read
with the definition of electronic record in Section 2 clause (t) of the Information Technology Act,
2000. It includes a compact disk containing an electronic record of conversation. Section 8 of
Evidence Act provides that the conduct of any party or of any agent to any party, to any suit, in
reference to such a suit or in a reference to any fact in issue therein or relevant thereto, is relevant
if such conduct influences or influenced by any fact in issue or relevant fact and whether it was
previous or subsequent thereto.

VIDEO CONFERENCING

In State of Maharashtra v. Praful Desai 33 Examination via video-conferencing is permissible.

The question was involved whether a witness can be examined by means of a video conference.
The Supreme Court observed that video conferencing is an advancement of science and
technology which permits seeing, hearing and talking with someone who is not physically
present with the same facility and ease as if they were physically present. The legal requirement
for the presence of the witness does not mean actual physical presence. The court allowed the
examination of a witness through video conferencing and concluded that there is no reason why
the examination of a witness by video conferencing should not be an essential part of electronic

31
(2006) 11 SCC 1)
32
K.K. Velusamy Vs. N. Palanisamy 2011 SC 158
33
State of Maharashtra v. Praful Desai AIR 2003 SC2053
23 | L A W O F E V I D E N C E
evidence. Further in case of Amitabh Bagchi Vs. Ena Bagchi 34, Sections 65A and 65B of
Evidence Act, 1872 were analyzed. The court held that the physical presence of person in Court
may not be required for purpose of adducing evidence and the same can be done through
medium like video conferencing. Sections 65A and 65B provide provisions for evidences
relating to electronic records and admissibility of electronic records, and that definition of
electronic records includes video conferencing.

In an interesting case dealt by the High Court of Allahabad in the matter of Moninder Singh
Pandher and Surendra Koli v State of U.P 35.), the question arose as, to admissibility of the
confessional statement which was recorded in video, as there is no provision for video recording
of the confessional statement. The High Court observed that, in this connection, s 4 of the IT Act
provides that that information or any other matter should be in writing or in typewritten or
printed form, but the requirement is deemed to have been satisfied if the information or matter is
rendered or made available in an electronic form, and accessible so as to be useful for subsequent
reference. The High Court further relied on S 65B of the Evidence Act and held that the
confession was admissible

In Twentieth Century Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd 36.
certain conditions have been laid down for video recording of evidence:

1. The person who examines the witness on the screen is also to file an
affidavit/undertaking before examining the witness with a copy to the other side with
regard to identification.
2. The witness has to be examined during working hours of Indian Courts. Oath is to be
administered through the media.
3. The witness should not plead any inconvenience on account of time different between
India and USA.
4. Before examination of the witness, a set of plaint, written statement and other
documents must be sent to the witness so that the witness has acquaintance with the
documents and an acknowledgement is to be filed before the Court in this regard.
34
Amitabh Bagchi Vs. Ena Bagchi AIR 2005 Cal 11
35
Moninder Singh Pandher and Surendra Koli v State of U.P (Criminal (Capital) Appeal No.
1475 of 2009
36
Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd AIR 2003 KANT 148
24 | L A W O F E V I D E N C E
 5. Learned Judge is to record such remarks as is material regarding the demeanour of the
witness while on the screen.
6. Learned Judge must note the objections if raised during recording of witness and to
decide the same at the time of arguments.
7. After recording the evidence, the same is to be sent to the witness and his signature is to
be obtained in the presence of a Notary Public and thereafter it forms part of the record
of the suit proceedings.
8. The visual is to be recorded and the record would be at both ends. The witness also is to
be alone at the time of visual conference and notary is to certificate to this effect.
9. The learned Judge may also impose such other conditions as are necessary in a given
set of facts.
10. The expenses and the arrangements are to be borne by the applicant who wants this
facility.

In Suvarana Musale vs Rahul Musale 37, in view of section 65A and 65B of the Evidence Act it
was held that recording of evidence with help of electronic method and techniques is
acknowledged and recognized in judicial system. Petitioner wife was working in U.S. and has a
minor daughter aged 6 yrs, travelling to India for being present physically was expensive and she
may face difficulty in getting leave and hurdles in obtaining VISA . An application for recording
evidence through video conferencing was allowed.

MODE OF PROOF:

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. It requires:- Integrity of the data: That is the data as sent or recorded was intact and not
tampered with. Integrity of the hardware/software: The hardware and software used to reading,
downloading, interpreting, seeing or storing was functioning according to set standards and there
was no deviation or its corruption Security of the system: The system used to access such
electronic record was secured, and during the particular course of period it was not accessed by
any unauthorized person, so as to rule out the possibility of its tampering or malfunctioning.
37
Suvarana Musale vs Rahul Musale 2015 (2) Mh.L.J. 801
25 | L A W O F E V I D E N C E
IX. EFFECTS OF CONSIDERING ELECTRONIC EVIDENCE AS PRIMARY OR DIRECT
EVIDENCE

26 | L A W O F E V I D E N C E
Blurring the Difference between Primary and Secondary Evidence

By bringing all forms of computer evidence into the fold of primary evidence, the statute has
effectually blurred the difference between primary and secondary forms f evidence. While the
difference is still expected to apply with respect to other forms of documents, an exception has
been created with respect to computers. This, however, is essential, given the complicated nature
of computer evidence in terms of not being easily producible in tangible form. Thus, while it
may make for a good argument to say that if the word document is the original then a print out of
the same should be treated as secondary evidence, it should be considered that producing a word
document in court without the aid of print outs or CDs is not just difficult, but quite impossible.

Making Criminal Prosecution Easier

In light of the recent spate of terrorism in the world, involving terrorists using highly
sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to
produce electronic evidence as direct and primary evidence in court, as they prove the guilt of he
accused much better than having to look for traditional forms of evidence to substitute the
electronic records, which may not even exist.

Risk of Manipulation

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.

Opening potential floodgates

27 | L A W O F E V I D E N C E
Computers are the most widely used gadget today. A lot of other gadgets involve computer chips
in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going strictly
by the word of the law, any device involving a computer chip should be adducible in court as
evidence. However, practical considerations as well as ethics have to be borne in mind before
letting the ambit of these Sections flow that far. For instance, the Supreme Court has declared
test results of narco-analysis to be inadmissible evidence since they violate Article 20(3) of the
Constitution.

X. NON APPLICATION OF THE SPECIAL LEGAL PROVISIONS.

28 | L A W O F E V I D E N C E
No use was made of the rare statute and procedure provided for electronic proof under section
65A and 65B of the Proof Act. The explanation for this non-use disappointingly does not include
the regulation at all.38 India's lower legal executive, the third level of courts where preliminary
proceedings are being tried, is inconceivably uncouth and innovatively unhealthy. Despite
loopholes, preliminary judges don't really have the foggiest idea of the creativity that the IT Act
grasps. Continuing with electronically dismissing data as narrative evidence is simpler. In India,
the reasons behind that are basic and, I suppose, common to poor nations that produce them.
India's equity system is weak and financially inefficient. Whatever the length of time the legal
framework is not updated, India's preliminary judges may remain unaware of online proof and
procedures to ensure validity. Through bypassing the special legislation on electronic records,
Indian courts have proceeded to enforce the provisions set out in sections 63 and 65 of the
Evidence Act to electronically transmit evidence, which refer to papers. Areas 65A and 65B of
the Evidence Act were largely ignored by the courts. Inquisitively, this situation was honored by
the Supreme Court in Navjot Sandhu (the Parliament Attacks case) 39, that was a particularly
prominent early mystery from moral psychological deprivation. On the topic of the guard's check
of the genuineness and authenticity of certain call information records (CDRs) that relied on the
arraignment, which were identified as generations of the first records that were electronically
deleted, a Division Bench of Justice P. Venkatarama Reddi and Justice P. P. Naolekar held.

As mentioned in Section 63, secondary evidence methods and integrates, as well as other
elements, "duplicates created using the first by technological procedures which in themselves
guarantee the accuracy of the copy, and contrasted copies and such copies." Section 65
empowers secondary evidence of a report's content to be shown if the first is of such a nature as
not to be easily portable. It is not in doubt that the data contained in the call records are put away
in giant databases that can't be moved and generated successfully in litigation. That is the aspect
the High Court also saw at paragraph 276. Subsequently, printouts taken from the computers /
servers through mechanical method and checked by a cautious authority of the administration

38
Prior to 2000 in India, electronically stored information was dealt with as a document, and secondary evidence of
electronic records were adduced as ‘documents’ in accordance with section 63 of the Evidence Act.
39
(2005) 11 SCC 600

29 | L A W O F E V I D E N C E
supplying agency may be observed by an analyst who can identify the markings of the guarantor
or, in general, tackle the realities depending on his information.40

XI. RESULT

Many individuals who want posts, forums or online records in a civil or criminal preliminary are
currently required to comply with section 65B under steady eyes of the Indian courts. The Indian
Supreme Court has this task to ensure that electronic data reliability and accurate verification are
regarded as electronic records are more prone to alteration and adjustment.

The electronic record generated by the computer cannot be relied entirely on, provided that there
is a possibility that it will be hindered. In addition, the Indian Evidence Act could be modified to
prohibit some interference-in any case for the purposes behind believing at first sight the validity
of the electronic record evidence-by including a provision that the record was created in the
standard way by a person who was not involved in the procedures and that the record protector
did not control the record production Through ensuring that the record was documented by a
meeting that was antagonistic to the record supporter and that the record was used against the
adverse faction, the likelihood of record ownership would be substantially reduced.

The statute should also contend inventively with the need for the weight of the defender to
indicate with the author of a report whether the records were checked or updated or whether the
computer program that created them had reliable data, and whether they were finished or not.
The courts must also ensure the evidence is properly generated or modified, which is not covered
by Section 65B of the Evidence Act. For examples, the sender will modify the message while
transmitting an e-mail. These adjustments are often not noticed by the receiver, and in this way
an outside witness to the matter may not necessarily be a good condition for the record to match
the facts

40
1www.cidap.gov.in/.../State_(N.C.T._Of_Delhi)_vs_Navjot_ Sandhu@_Afsan_Guru, (Last accessed on
26/01/2021) Som Prakash vs. State Of Delhi AIR

30 | L A W O F E V I D E N C E
 XII. LEADING CASE LAWS OF ELECTRONIC EVIDENCE

1. Anvar P.V. v. P.K. Basheer And Others41

In this significant judgment, the Supreme Court has settled the controversies arising from the
various conflicting judgments as well as the practices being followed in the various High Courts
and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has
interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary
data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act.
It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by
oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to
make such electronic evidence admissible.

The judgment would have serious implications in all the cases where the prosecution relies on
the electronic data and particularly in the cases of anticorruption where the reliance is being
placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the
Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B
Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to
their genuineness cannot be looked into by the Court as evident from the Supreme Court
Judgment. It was further observed that all these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic records 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.

In the anticorruption cases launched by the CBI and anticorruption/Vigilance agencies of the
State, even the original recording which are recorded either in Digital Voice Recorders/mobile
phones are not been preserved and thus, once the original recording is destroyed, there cannot be
any question of issuing the certificate under Section 65B(4) of the Evidence Act. Therefore in

41
2014 10 SCC 473

31 | L A W O F E V I D E N C E
such cases, neither CD/DVD containing such recordings are admissible and cannot be exhibited
into evidence nor the oral testimony or expert opinion is admissible and as such, the
recording/data in the CD/DVD’s cannot become a sole basis for the conviction.

In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘not
obstante clause’ would override the general law on secondary evidence under Section 63 and 65
of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to
the secondary evidence of the electronic evidence and same shall be wholly governed by the
Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court
overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru42by the two judge Bench of the Supreme Court. The court specifically observed that the
Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of
electronic evidence pertaining to electronic record of this Court, does not lay down correct
position and required to be overruled.
The only options to prove the electronic record/evidence is by producing the original electronic
media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of
Evidence Act. Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence,
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.

2. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke 43

The Hon’ble High Court of Delhi, while deciding the charges against accused in a corruption
case observed that since audio and video CDs in question are clearly inadmissible in evidence,
therefore trial court has erroneously relied upon them to conclude that a strong suspicion arises
regarding petitioners criminally conspiring with co-accused to commit the offence in question.
Thus, there is no material on the basis of which, it can be reasonably said that there is strong
suspicion of the complicity of the petitioners in commission of the offence in question.

42
(2005) 11 SCC 600 
43
Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke  SC/0040/2015
32 | L A W O F E V I D E N C E
3. Jagjit Singh v. State Of Haryana44

The speaker of the Legislative Assembly of the State of Haryana disqualified a member for
defection. When hearing the matter, the Supreme Court considered the digital evidence in the
form of interview transcripts from the Zee News television channel, the Aaj Tak television
channel and the Haryana News of Punjab Today television channel. The court determined that
the electronic evidence placed on record was admissible and upheld the reliance placed by the
speaker on the recorded interview when reaching the conclusion that the voices recorded on the
CD were those of the persons taking action. The Supreme Court found no infirmity in the
speaker’s reliance on the digital evidence and the conclusions reached by him. The comments in
this case indicate a trend emerging in Indian courts: judges are beginning to recognize and
appreciate the importance of digital evidence in legal proceedings.

4. Abdul Rahaman Kunji v. State of West Bemgal45

The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email
downloaded and printed from the email account of the person can be proved by virtue of Section
65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure
to download and print the same is sufficient to prove the electronic communication

5. State (NCT of Delhi) v. Navjot Sandhu46

There was an appeal against conviction following the attack on Parliament on December 13
2001. This case dealt with the proof and admissibility of mobile telephone call records. While
considering the appeal against the accused for attacking Parliament, a submission was made on
behalf of the accused that no reliance could be placed on the mobile telephone call records,
because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of
the Evidence Act. The Supreme Court concluded that a cross-examination of the competent

44
Jagjit Singh v. State Of Haryana 2006) 11 SCC 1
45
Abdul Rahaman Kunji v. State of West Bemgal WB/0828/2014
46
State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820
33 | L A W O F E V I D E N C E
witness acquainted with the functioning of the computer during the relevant time and the manner
in which the printouts of the call records were taken was sufficient to prove the call records.

34 | L A W O F E V I D E N C E
 CONCLUSION

Strict compliance with section 65B is now mandatory for persons who intend to rely upon e-
mails, web sites or any electronic record in a civil or criminal trial before the courts in India. This
outlook of the Supreme Court of India is to ensure that the credibility and evidentiary value of
electronic evidence is provided for, since the electronic record is more susceptible to tampering
and alteration. In its judgment, Kurian J observed, that: ‘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.’ Therefore, the
computer generated electronic record cannot be solely relied upon, because there is a possibility
of it being hampered. The Indian Evidence Act could be further amended to rule out any
manipulation - at least for the purposes of presuming prima facie authenticity of the evidence of
the electronic record - by adding a condition that the record was created in the usual way by a
person who was not a party to the proceedings and the proponent of the record did not control the
making of the record. The law also needs to creatively address the requirement of the burden
being on the proponent to provide testimony as to the author of a document to determine whether
there was any manipulation or alteration after the records were created, the reliability of the
computer program that generated the records, 20 and whether the records are complete or not.
The courts also have to be mindful that data can be easily forged or altered, and section 65B of
the Evidence Act does not address these contingencies. For instance, when forwarding an e-mail,
the sender can edit the message. Such alterations are often not detectible by the recipient, and
therefore a certificate of a third party to the dispute may not always be a reliable condition to
provide for the authenticity of the document.

. The challenges with respect to the admissibility and appreciation of electronic evidence, India
still has a long way to go in keeping pace with the developments globally. Although the
amendments were introduced to reduce the burden of the proponent of records, they cannot be
said to be without limitations. It is clear that India has yet to devise a mechanism for ensuring
the veracity of contents of electronic records, which are open to manipulation by any party by
obtaining access to the server or space where it is stored.

35 | L A W O F E V I D E N C E
The admission of electronic evidence along with advantages can also be complex at the same
time. It is upon the courts to see that the whether the evidence fulfils the three essential legal
requirements of authenticity, reliability and integrity. After Anvars case decision by the Supreme
Court laying down the rules for admissibility of electronic evidence it can be expected that the
Indian courts will adopt a consistent approach, and will execute all possible safeguards for
accepting and appreciating electronic evidence

36 | L A W O F E V I D E N C E
 BIBLIOGRAPHY

BOOKS REFERRED:

 Burkhard Schafer and Stephen Mason, The characteristics of electronic evidence in digital
format, in Electronic Evidence, Edited by Stephen Mason, LexisNexis, 2013.
 3Manisha T. Karia and Tejas D. Karia, ‘India’ (Chapter 13) in Stephen Mason, ed, Electronic
Evidence (3rd edn, LexisNexis Butterworths, 2012).
 Vivek Dubey, “Admissibility of Electronic Evidence: An Indian Perspective”4, FRACIJ (2017).
 Electronic Evidence and its Challenges by Dr. Swaroopa Dholam.
 Batuk lal, The Law of Evidence, Central Law Agency, 22nd edition (2018)

WEBLIOGRAPHY:

 www.natlawreview.com
 thedailyguardian.com
 www.nja.nic.in
 www.srdlawnotes.com
 criminallawstudiesnluj.wordpress.com
 www.academia.edu
 www.latestlaws.com

37 | L A W O F E V I D E N C E