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WEBINOR

ADMISSIBILITY OF
ELECTRONIC
EVIDENCE

26-08-2020

Presented by :
A.VENKATESWARA RAO,
Principal Junior Civil Judge,
Jagtial.
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ADMISSIBILITY OF ELECTRONIC EVIDENCE

Presented by
A.Venkateswara Rao,
Principal Junior Civil Judge,
Jagtial.

Introduction :

The societal communication happens through the transfer of thoughts form

physical world to electronic world. The virtual world revolves around the use of
information and communication 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), the 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.
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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 Positioning 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 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
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admissions as to contents of electronic records, reads as follows:

―22A. When oral admission 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
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 --
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(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 document itself.
The said rule is embodied in Section 61, which says that contents of documents may be
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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 the 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 contents. 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
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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 Vs. 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 documentary

evidence, the High Court of Delhi in Dharambir Vs. 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
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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 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 Disc is a storage devise. 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. Vs. 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 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 Vs. State 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
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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.

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. Vs. 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
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position and is required to be overruled".

Another three Judge Bench of the apex court in Tomaso Bruno & Anr. Vs.
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 the 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 Shafhi Mohammad vs The

State Of Himachal Pradesh [(2018) 2 SCC 801] (decided on 30th 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 PV‘s case and Shafhi

Mohammad‘s case, in the year 2019, a two-Judge Bench of the apex court referred the
matter to a 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 Vs. KAILASH KUSHANRAO GORANTYAL AND
ORS. [2020 SCC OnLine SC 571] by Judgment dated July 14, 2020, upheld the law laid
in Anwar PV‘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
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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 65 B(4) of 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 65-B 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 65-B(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 66A of the IT Act: In Shreya Singhal Vs. Union Of India [(2015) 0
AIR (SC) 1553], the Hon'ble the 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
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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 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 evidence.

In Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11), 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.

In Twentieth Century Fox Film Corporation Vs. NRI Film 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 visual conference and notary is to
certificate to this effect.
9) The learned Judge may also impose such other conditions as are necessary
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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 [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 yrs, traveling 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 81-A, 85-A to 85-C, 88-A and 90-A.

Presumption 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.

Presumption 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.
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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 the experts, then the court is
competent to form its own opinion with regard to signatures on a document. (vide
Kishan Chand Vs. Sita Ram AIR 2005 P&H 156).

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