UNIVERSITY INSTITUTE OF LEGAL

STUDIES
PANJAB UNIVERSITY
CHANDIGARH

LAW OF EVIDENCE- 1
Project Report

Topic: “ADMISSIBILITY OF ELECTRONIC

EVIDENCE.”

Submitted To:- Submitted By:-

Dr. Sabina Salim Palika (76/18)

BA. LLB. (Hons.)

Sem:- 7
ACKNOWLEDGME
NT
History of all great works witness that no great work was ever
done without either active or passive support from a person
‘surrounding and from one’s close quarters. Thus, it is not
hard to conclude how active assistance from senior could
positively impact the execution of a project. I am highly
obliged to our faculty Dr. Sabina Salim for her active guidance
throughout the completion of this project.
Last but not the least, I would also like to extend my
appreciation to those who could not be mentioned here but
have well played their role to inspire me behind the certain.
Palika (76/18)
BA.LLB (Hons.)
Semester- 7
 Certificate of Originality

This is to certify that the Project Report studying

“Admissibility of Electronic Evidence” is an original work of
Palika Budhraja. The project report has not been submitted
earlier either to this University or Institution for the
fulfillment of the requirement of any course of study.

Palika (76/18)
BA.LLB (Hons.)
Semester- 7
Table of Content
S.No. Particulars Page No.
1. Introduction 06
What is Electronic
2. Evidence? 06
What is Electronic
3. Record? 07
4. Proof 10
Best Evidence Rule in
Proof of Contents of a
5. 11
Document
6. Mode of Proof of
Electronic Records 13
Case Law u/s 65B of the
7. Evidence Act 14
8. Other Case Laws 17
9. Presumptions 19
Opinion of Examiner of
10. Electronic Evidence 19
11. Conclusion 20
12. References 21
 Table of Cases
Case Page No.
Amitabh Bagchi v. Ena Bagchi (AIR 2005 Cal 11) 17
Anvar P.V. v. P.K. Basheer and Others [(2014) 10 SCC 473] 15
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors.
[2020 SCC OnLine SC 571] 15
Babu Ram Aggarwal & Anr. v. Krishan Kumar Bhatnagar & Ors. [2013,
IIAD (Delhi) 441] 13
Dharambir v. CBI [148 (2008) DLT 289] 12
Jagjit Singh v. State of Haryana [(2006) 11 SCC 1] 12
Kishan Chand v. Sita Ram AIR 2005 P&H 1568 20
Mohd Arif @ Ashfaq v. State of NCT of Delhi [(2011) 13 SCC 621] 13
Rakesh Kumar and Ors. v. State (Criminal appeal No. 19/2007
decided on 27.08.2007) 13
Shahfi Mohammad v. The State of Himachal Pradesh [(2018) 2 SCC
801] 15
Shreya Singhal v. Union of India [(2015) AIR (SC) 1553] 17
State of Bihar v. Sri Radha Krishna (1983) 2 SCR 808] 10
State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru [(2005) 11 SCC
600] 15
State of Karnataka v. M.R. Hiremath [(2019) 7 SCC 515] 17
Suvarna Musale v. Rahul Musale [(2015) 2 Mh.L.J. 801] 19
The State of Maharshtra v. Dr. Praful B. Desai [AIR 2003 SC 2053] 17
Tomaso Bruno & Anr. v. State of UP [(2015) 7 SCC 178] 15
Twentieth Century Fox Film Corporation v. NRI Production
Associates (P) Ltd. (AIR 2003 KANT 148) 18
Vikram Singh and Anr. v. State of Punjab and Anr. [(2017) 8 SCC 518] 15
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and
Others [AIR 1975 SC 1788 (1)] 11
 Introduction
The societal communication happens through the transfer of thoughts from
physical world to electronic world. The virtual world revolves around the use of
technological devices such as computers, mobile phones, printers, digital
cameras, etc. Unlike real world, the virtual world causes many opportunities for
the commission of offences, such as phishing, identity theft, child pornography,
hacking etc. Electronic information is often relevant in proving or disproving a fact
or fact at issue, the information that constitutes evidence before the court.
According to Black’s Law Dictionary, evidence is “something that tends to prove
or disprove the existence of an alleged fact.” ‘Electronic evidence’ can be said to
be a piece of evidence generated by some mechanical or electronic processes. It
includes, but not restricted to, e-mails, text documents, spreadsheets, images,
graphics, database files, deleted files, data back-ups, located on floppy disks, zip
disks, hard drives, tape drives, CD-ROMs, cellular phones, microfilms, pen drives,
faxes, etc. Till recently, the Indian Evidence Act, 1872 did not have specific
provisions recognizing admissibility and appreciation of digital evidence.
Substantially, it was not at par with modern technological development. Hence,
to recognize transactions that are carried out through electronic data interchange
and other means of electronic communication, law was required to be amended.
Accordingly, Information Technology Act, 2000 (Act 21 of 2000) came to be
enacted. The IT Act is based on the UNCITRAL Model Law on Electronic
Commerce. Apart from providing amendments to Indian Evidence Act, 1872
(Evidence Act), Indian Penal Code, 1860 and the Banker’s Book Evidence Act,
1891, the IT Act mainly recognizes the transactions that are carried out by means
of Electronic Data Interchange (means, communication between computer and
computer) and other means of communication.

What is Electronic Evidence?

As per the Explanation to Section 79A of the IT Act, ‘electronic form of evidence’
means any information of probative value that is either stored or transmitted in
electronic form and includes computer evidence, digital audio, digital video, cell
phones, digital fax machines. Courts can thus permit the use of digital evidence
such as e-mails, digital photographs, word processing documents, instant
message histories, spread sheets, internet browser histories, data bases, contents
of computer memory, computer backup, secured electronic records and secured
electronic signatures, Global Positional System tracks, Logs from a hotel’s
electronic door, Digital video or audio etc., during the course of trials of a civil or
criminal case.

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 the 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 content of electronic records, reads as follows:

“22A. When oral admission as to content 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
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 (Act 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:

“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.”

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 (1983) 2 SCR 808, 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.
 PROOF
Let us now see the relevant provisions in the Indian Evidence Act which deal with
Proof of contents of document. Chapter V deals with the said aspect. The normal
rule of leading documentary evidence is the production and proof of the original
documents itself. The said rule is embodied in Section 61, which says that
contents of documents may be proved either by primary or by secondary
evidence. Section 62 says that the primary evidence means the document itself
produced for inspection of the Court. Section 63 contains the various types of
secondary evidence. Section 65 enumerates the circumstances in which
secondary evidence can be adduced. Clause (d) of Section 65 says that secondary
evidence of the contents of a document can be led when the original is of such a
nature as not to be easily movable.

Computerized operating systems and support systems in industry cannot be

moved to the court. The information is stored in these computers on magnetic
tapes (hard disc). Electronic record produced therefrom has to be taken in form of
a print out. Sub-Section (1) of S.65B makes admissible without further proof, in
evidence, the print out of an electronic record contained on a magnetic media,
subject to the satisfaction of the conditions mentioned in Sub-section (2). Thus,
compliance with Sub-sections (1) and (2) of Section 65B is enough to make
admissible and prove the electronic records. This conclusion flows out, even from
the language of Sub-section (4). Sub-Section (4) of Section 65B allows the proof of
the conditions set out in Sub-section (2) by means of a Certificate issued by the
person described in Sub-section (4) and certifying the contents in the manner set
out in the Sub-section. The sub-section makes admissible an electronic record
when certified that the contents of a computer print out are generated by a
computer satisfying the conditions of Sub-section (1), the certificate being signed
by the person described therein. Thus, Sub-section (4) provides for an alternative
method to prove electronic record.
 Best Evidence Rule in proof of
contents of a Document
As we all know that the best evidence about the contents of a document is the
document itself and it is the production of the document that is required by
Section 91 of the Evidence Act in proof of its content. In a sense, the rule
enunciated by Section 91 can be said to be an exclusive rule as it excludes the
admission of oral evidence for proving the contents of the document, except in
cases where secondary evidence is allowed to be led. Section 65B is thus an
exception to the Best Evidence Rule. The language of Section 65B shows that it
has overcome all problems of Original vs. Copy, deeming electronic documents
(manifested in a particular type of output) to be sufficient for proof of what the
original could have legally proved (without actually requiring production or proof
of the “original”). Thus, through Section 65B, the problem of Primary vs.
Secondary evidence with regard to electronic records is solved. All that is required
is that the contents of the output must be authentic and there should be reason
to believe that they are authentic. A true copy can thus be captured in print or on
a digital media, duly certified by the observer.

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 Hon’ble Supreme Court in
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Others [AIR
1975 SC 1788 (1)] observed that tape-recorded speeches are a ‘document’, as
defined by Section 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.

In Jagjit Singh v. State of Haryana [(2006) 11 SCC 1], the speaker of the Legislative
Assembly of the State of Haryana disqualified a member for defection. While
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 while
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 that the Judges in India are beginning to
recognize and appreciate the importance of digital evidence in legal proceedings.

Hard Disk: As to whether a hard disk of a computer can be considered as a

documentary evidence, the High Court of Delhi in Dharambir v. CBI [148 (2008)
DLT 289] 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 programs 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 is restored to the
original position, by reversing that change, the information can be retrieved by
using the software designed for that purpose. Given the wide definition of the
words “document” and “evidence” in the amended Section 3 of the Evidence Act,
read with Sections 2(o) and (t) of the IT Act, there can be no doubt that an
‘electronic record’ is a ‘document’.

Data copied from Hard Disk to CD: Hard Disk is a storage device. If written, then it
becomes electronic record under the 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 email vide Babu Ram Aggarwal & Anr. vs. Krishan
Kumar Bhatnagar & Ors. [2013, IIAD (Delhi) 441].

Call Records: In Rakesh Kumar and Ors. v. State (Criminal Appeal No. 19/2007
decided on 27.08.2009), the High Court of Delhi 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.”

Digital Camera Photograph: As per Section 2(t) of the Information Technology

Act, 2000, a photograph taken from a digital camera is an electronic record and it
can be proved as per section 65B of the Indian Evidence Act.

ATM: Teller Machines (ATM) was held to be not computer by itself nor is it a
computer terminal. (2005 AIR Knt. HCR 9).

In Mohd Arif @ Ashfaq v. State of NCT of Delhi [(2011) 13 SCC 621], the
determination of movement of a person on the basis of mobile phone was
discussed.

Mode of Proof of Electronic Records

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 software/hardware: The software and hardware 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.
Proof of SMS & MMS: If someone challenges the accuracy of an electronic
evidence or e-record on the grounds of misuse of system or operating failure or
interpolation, then the person challenging it must prove the same beyond
reasonable doubt.

Proof of e-mail: E-mail is a computer output of electronic record and therefore, it

has to be proved in the manner prescribed in Section 65B of the Indian Evidence
Act, which requires a certificate to be given by a person occupying responsible
position in management of the computer.

Proof of Obscene SMS sent through Mobile Phone: As per Section 2(t) of the IT
Act, ‘Mobile’ is a computer and SMS in the mobile is an electronic record. So, it is
to be proved as per Section 65B of the Indian Evidence Act which requires a
certificate issued by a person, occupying responsible position in relation to
operation of that device or management of the relevant activities.

Proof of Contents of the 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.

Case law U/S. 65B OF THE

EVIDENCE ACT
A three-Judge Bench of the Hon’ble Supreme Court in Anvar P.V. v. P.K. Basheer
and Others [(2014) 10 SCC 473], decided on Sept., 18, 2014, it was held that the
Computer Output is not admissible without compliance of Section 65B. It
overruled the judgment in State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru
[(2005) 11 SCC 600) by the two-Judge Bench of the Supreme Court. The court
observed that “the Judgment of Navjot Sandhu, 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 is required to be overruled.”

Another three-Judge Bench of the Apex Court in Tomaso Bruno & Anr. v. State of
UP [(2015) 7 SCC 178] by Judgment dated 20.1.2015, dealt with the admissibility
of evidence in a criminal case. At paragraph No. 25 of the judgment, the Court
held that “the computer generated electronic records in evidence are admissible
at a trial if proved in the manner specified by Section 65B of Evidence Act. Sub-
Section (1) of Section 65B makes admissible as a document, paper print out of
electronic records stored in optical or magnetic media produced by a computer,
subject to the fulfillment of the conditions specified in sub-section (2) of Section
65B. Secondary evidence of contents of document can also be led under Section
65 of the Evidence Act.”

In Vikram Singh and Anr. v. State of Punjab and Anr. [(2017) 8 SCC 518], a three-
judge Bench of the Apex Court followed the law in Anvar P.V. (supra), clearly
stating that where primary evidence in electronic form has been produced, no
certificate under Section 65B would be necessary.

But, in a subsequent judgment rendered in Shahfi Mohammad v. The State of

Himachal Pradesh [(2018) 2 SCC 801] (decided on 30 th January, 2018), a two-
Judge Bench of the Hon’ble Supreme Court held that requirement of certificate
under Section 65B (4) is not always mandatory.

As there is dichotomy of decisions in between Anwar P.V.’s case and Shahfi

Mohammad’s case, in the year 2019, a two-Judge Bench of the Apex Court
referred the matter to an another three-Judge Bench for clarification on the point.
The matter was then decided recently by a Three-Judge Bench of the Hon’ble
Apex Court in ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL AND ORS. [2020 SCC OnLine SC 571] by Judgment dated July, 14,
2020, upheld the law laid in Anwar P.V.’s case. Paragraph No.72 contains the
relevant observations. They are extracted hereunder:

“(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this
Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra),
being per incuriam, does not lay down the law correctly. Also, the judgment in SLP
(Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment
dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly
and are therefore overruled.

(b) The clarification referred to above is that the required certificate under Section
65B (4) is unnecessary if the original document itself is produced. This can be done
by the owner of a laptop computer, computer tablet or even a mobile phone, by
stepping into the witness box and proving that the concerned device, on which the
original information is first stored, is owned and/or operated by him. In cases
where the “computer” happens to be a part of a “computer system” or “computer
network” and it becomes impossible to physically bring such system or network to
the Court, then the only means of providing information contained in such
electronic record can be in accordance with Section 65B (1), together with the
requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (supra)
which reads as ‘…if an electronic record as such is used as primary evidence under
Section 62 of the Evidence Act…” is thus clarified; it is to be read without the
words “under Section 62 of the Evidence Act,…” With this clarification, the law
stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.”

The above judgment has put to rest the controversies arising from the various
conflicting judgments and thereby provided a guideline regarding the practices
being followed in Trial courts as to the admissibility of the Electronic Evidences.
The legal interpretation by the Court of the following sections 22A, 45A, 59, 65A &
65B of the Evidence Act has confirmed that the stored data in CD/DVD/Pen Drive
is not admissible without a certificate u/s 65B (4) of the Evidence Act and further
clarified that in the absence of such a certificate, the oral evidence to prove the
existence of such electronic evidence and the expert view under Section 45A
Evidence Act cannot be availed to prove authenticity thereof.

In State of Karnataka v. M.R. Hiremath [(2019) 7 SCC 515], the Court emphasized
that non-production of a certificate under Section 65B on an earlier occasion is a
curable defect. It further held that “the High Court erred in coming to the
conclusion 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. 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.”

Other Case laws

 Section 66 of the IT Act: In Shreya Singhal v. Union of India [(2015) AIR (SC)
1553], the Hon’ble Apex Court declared Section 66A of the IT Act as
unconstitutional. It has also been held that the wider range of circulation
over the internet cannot restrict the content of the right under Article 19(1)
(a) nor can it justify its denial.
 VIDEO-CONFERENCING: In The State of Maharashtra v. Dr. Praful B. Desai
[AIR 2003 SC 2053], the question involved was whether a witness can be
examined by the 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 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 evidence.

In Amitabh Bagchi v. Ena Bagchi (AIR 2005 Cal 11), the Court held that the
physical presence of a person in Court may not be required for purpose of
adducing evidence and the same can be done through medium like video
conferencing.

In Twentieth Century Fox Film Corporation v. NRI Production Associates (P) Ltd.
(AIR 2003 KANT 148), certain conditions have been laid down for video recording
of evidence. They are as follows:
 1) The person who examines the witness on the screen shall 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 acknowledgment is to be
filed before the Court in this regard.
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 the 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 Suvarna Musale v. Rahul Musale [(2015) 2 Mh.L.J. 801], it was held that
recording of evidence with help of electronic method and techniques is
acknowledged and recognized in judicial system. In that case, the Petitioner-wife
was working in U.S. and has a minor daughter aged 6 years, 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 therefore allowed.
 Presumptions
Section 92 of the IT Act, 2000 made the amendments to the Indian Evidence Act,
1872 and inserted certain presumptions in regard to the electronic evidence. They
are from Section 81A, 85A to 85C, 88A and 90A.

Presumptions as to telegraphic messages: The Court may presume that a

message, forwarded from a telegraph office to the person to whom such message
purports to be addressed, corresponds with a message delivered for transmission
at the office from which the message purports to be sent; but the Court shall not
make any presumption as to the person by whom such message was delivered for
transmission.

Presumptions as to electronic messages: It includes emails, SMS, MMS, etc. of

messages sent via social networking sites like Whatsapp, Twitter, etc. Under
Section 88A of the IT Act, there is a presumption as to such messages, which
enables the Court to presume that an electronic message forwarded by the
originator through an electronic mail server to the addressee to whom the
message purports to be addressed corresponds with the message as fed into his
computer for transmission,; but the Court shall not make any presumption as to
the person by whom such message was sent.

Opinion of Examiner of Electronic

Evidence
When the Court has to form an opinion as to the electronic signature of any
person, the opinion of the Certifying Authority which has issued the Electronic
Signature Certificate is relevant u/s 47A of the Evidence Act. Further, in a
proceeding where the court has to form an opinion on any matter relating to any
information 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 IT Act is a relevant fact. However, when there is a
conflict of opinion between experts, then the court is competent to form its own
opinion with regard to signatures on a document. (vide Kishan Chand v. Sita Ram
AIR 2005 P&H 156).

Conclusion
Until a comprehensive review of legal framework dealing with electronic evidence
is undertaken, the decision of the Supreme Court in Arjun v. Kailash (supra) will
ensure that the compliance burden under Section 65B (4) is partially reduced,
with the Court holding that such certificate has to be produced only when
secondary copies of an electronic record are relied upon by the party.

Along with the practical difficulties, the recent leakage of electronic evidence (in
the form of Whatsapp chats) also highlights the need to devise safeguards to
preserve and retain electronic records. In a recent order, Punjab and Haryana
High Court had referred to Arjun v. Kailash (supra) to conclude that Whatsapp
chats shall have no evidentiary value until a certificate is produced under Section
65B (4).

While production of a certificate under Section 65B (4) maybe a necessary

safeguard to ensure authenticity, there is a need to formulate other safeguards as
well- to ensure that privacy and confidentiality of the information contained in
electronic records is protected. Justice Nariman, had, in his judgment, referred to
the Report submitted by a five-Judge Committee in November 2018, which had
framed Draft Rules dealing with the preservation, retrieval and authentication of
electronic records. While there is now clarity over the scope of Section 65B,
multiple steps are still needed to ensure the safety, retention and confidentiality
of information obtained in the form of electronic evidence.

References
1. https://corporate.cyrilamarchandblogs.com/2021/01/supreme-court-on-
the-admissibility-of-electronic-evidence-under-section-65b-of-the-
evidence-act/
2. https://blog.ipleaders.in/admissibility-evidentiary-value-electronic-records/
3. https://districts.ecourts.gov.in/sites/default/files/Webinar%20on
%20Admissibility%20of%20Electronic%20Evidence%20By%20Sri%20A
%20Venkateshwara%20Rao.pdf
4. https://www.mondaq.com/india/trials-appeals-compensation/968812/on-
admissibility-of-electronic-evidence-in-judicial-proceedings-the-current-
state-of-the-law