Call Data Records cannot be relied upon in the absence of certificate issued

under Section 65B of Indian Evidence Act, 1872:

In every judicial trial, evidence gathered will form the cornerstones upon which
serious decisions will be made. Computers provide large resources for the
discovery of evidence— resources that have been largely untapped by litigants.
Computers, and the various media in which computer-generated information is
stored, provide a unique window into company’s or individual’s correspondences,
data, statistics … and generate, sort and store huge amounts of information, while
providing a source of information that may not exist in paper form.
In accordance with the provisions of Section 65B of Evidence Act for the
abovesaid Electronic Evidence, there should be a certificate issued by the
competent person who was responsible for the computer on which the electronic
record was created, or is stored. Section 65B of the Evidence Act intended to avoid
by requiring an impartial certificate under sub-section (4) that also speaks to
compliance with the technical requirements of sub-section (2). The Evidence Act
mandates a special procedure for electronic records precisely because printed
copies of such information are vulnerable to manipulation and abuse.

Section 65A of the Evidence Act creates special law for electronic evidence:
65A. Special provisions as to evidence relating to electronic record. – The
contents of electronic records may be proved in accordance with the provisions of
section 65B.
Section 65A of the Evidence Act 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. Sub-section (2) lists the technological conditions
upon which a duplicate copy (including a print-out) of an original electronic record
may be used: (i) at the time of the creation of the electronic record, the computer
that produced it must have been in regular use; (ii) the kind of information
contained in the electronic record must have been regularly and ordinarily fed in to
the computer; (iii) the computer was operating properly; and, (iv) the duplicate
copy must be a reproduction of the original electronic record.
Sub-section (4) of section 65B 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.
Proof of electronic record is a special provision introduced by the IT Act amending
various provisions under the Evidence Act. The very caption of Section 65Aof the
Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special
provisions on evidence relating to electronic record shall be governed by the
procedure prescribed under Section 65B of the Evidence Act. That is a complete
code in itself. Being a special law, the general law under Sections 63 and 65 has to
yield. By doing so, it disqualified oral evidence offered to attest secondary
documentary evidence
The Evidence Act does not contemplate or permit the proof of an electronic record
by oral evidence if requirements under Section 65B of the Evidence Act are not
complied with, as the law now stands in India. Once electronic evidence is
properly adduced according to section 65B of the Evidence Act, along with the
certificate of sub-section (4), the other party may challenge the genuineness of the
original electronic record. If the original electronic record is challenged, section
22A of the Evidence Act permits oral evidence as to its genuineness only. In this
regard, relevant oral evidence as to the genuineness of the record can be offered by
the Examiner of Electronic Evidence, an expert witness under section 45A of the
Evidence Act who is appointed under section 79A of the IT Act.
If reference is made to another provision contained in Section 2(t) of Information
Technology Act 2000 electronic record means data, record or data generated,
image or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche. So, if the above mentioned definitions are referred
in the light of the provisions incorporated u/s 65-A & 65-B of evidence Act;
Electronic Evidence is one another type of documentary evidence which is if duly
proved in the manner provided in sec 65-B, can be considered as strong evidence.
Evidence Act has III parts. Part-I is for “RELEVANCY OF FACT”, Part-II is of
“ON PROOF” and Part-III is regarding “PRODUCTION AND EFFECT OF
EVIDENCE”. All evidence passes through above three stages. To consider any
matter or thing relevant it must be en suite in the frame of PART-I i.e. section 5 to
55. To appreciate evidence which is considered relevant there are provisions of
part-II. To make electronic evidence relevant and to establish the mode of its proof
there are certain provision at different stages in the evidence Act.
To consider RELEVANCY OF FACT of electronic evidence there is Section 22A.
That is similar to sec. 22 in which there is embargo on producing oral evidence so
as to consider the contents of document. Similarly Sec.22A declares that “oral
evidence as to the contents of electronic records are not relevant, unless the
genuineness of electronic record produced is in question.
In the PART-2 “ON PROOF” of the evidence Act following provisions has been
included to cover electronic evidence.
65A. Special provisions as to evidence relating to electronic record
65B. Admissibility of electronic records
(2) The conditions referred to in sub-section (1) of 65B in respect of a computer
output shall be the following, namely:—
(a) the computer output containing the information was produced by the
computer during the period over which the computer was used regularly to
store or process information for the purposes of any activities regularly
carried on over that period by the person having lawful control over the use
of the computer;
(b) during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived was
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, if not, then in respect of any period in which it was
not operating properly or was out of operation during that part of the period,
was not such as to affect the electronic record or the accuracy of its contents;
 and
(d) the information contained in the electronic record reproduces or is
derived from such information fed into the computer in the ordinary course
of the said activities.
(3) Where over any period, the function of storing or processing information for
the purposes of any activities regularly carried on over that period as mentioned in
clause (a) of sub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(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 computers and one or more combinations
of computers, all the computers used for that purpose during that period shall
be treated for the purposes of this section as constituting a single computer;
and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue
of this section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement and describing
the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in
sub-section (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 sub-section it shall be sufficient for a matter to be stated
to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,—
 (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.
This abovesaid process helps to make the evidence visible and explain its origin
and significance and it should accomplish several things. First, it should document
the content and state of the evidence in its totality. Such documentation allows all
parties to discover what is contained in the evidence. Included in this process is the
search for information that may be hidden or obscured. Once all the information is
visible, the process of data reduction can begin, thereby separating the “wheat”
from the “chaff.” Given the tremendous amount of information that can be stored
on electronic media, this part of the examination is critical.

The evidence relating to electronic record, as noted herein before, being a special
provision, the general law on secondary evidence under Section 63 read with
Section 65 of the Evidence Act shall yield to the same. Generalias pecialibus non
derogant, special law will always prevail over the general law. An electronic
record by way of secondary evidence shall not be admitted in evidence unless the
requirements under Section 65B are satisfied. Thus, in the case of printout of
CDRs, 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.
Since the computer systems in which this information is stored or generated cannot
be brought before the court, a printout is usually led in evidence in cases. Now
such a printout per se is not documentary evidence of the electronic record and is
inadmissible unless accompanied with a certificate u/s 65B of the Indian Evidence
Act. This certificate is normally given in the form of an affidavit by the person
who operates the computer in question and basically contains statements to the
effect that the computer was used by only authorised person and there has been no
tampering/manipulation of the information and the printout corresponds to the
electronic record and nothing has been added or subtracted therefrom.

The admissibility of the secondary electronic evidence has to be adjudged within

the parameters of Section 65B of Evidence Act and the proposition of the law
settled in the recent judgment of the Apex Court and various other High Courts as
discussed above. The proposition is clear and explicit that if the secondary
electronic evidence is without a certificate u/s 65B of Evidence Act, it is not
admissible and any opinion of the forensic expert and the deposition of the witness
in the court of law cannot be looked into by the court. However, there are few gaps
which are still unresolved as what would be the fate of the secondary electronic
evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act
cannot be taken and the accused persons cannot be made witness against
themselves as it would be violative of the Article 19 of the Constitution of India.

There are several traditional rules of evidence that may present problems for the
admission of computer records as evidence. To be admissible, evidence must be
relevant to an issue that is in dispute. For evidence to be relevant, it must be
authentic -- there must be proof of its source. A general rule of evidence is that the
party seeking to introduce evidence, must provide some evidence of authenticity
before it becomes admissible.