Electronic Evidence understanding through Case Laws

Author : Advocate (Dr.) Prashant Mali, Founder & President – Cyber Law Consulting (Advocates
& Attorneys) and Practicing Lawyer Bombay High Court
Journal Publication: Rostrums Law Review (UGC Approved), RLR Vol VI Issue I, 10/09/2021
https://journal.rostrumlegal.com/electronic-evidence-understanding-through-case-laws/

Abstract
Electronic devices are a part and parcel of our lives today. With the penetration of technology in
our lives, an increased dependency on gadgets, advancement in AI technologies, etc. the
electronic devices hold abundance sensitive data about the person who owns the device. This
makes them an essential piece of evidence, way more than any breathing witness, which helps
the law enforcement officials in solving several cases. However electronic devices and records at
the same time are sensitive evidences prone to tampering and manipulation which can
substantially change the course of investigation. Therefore, it becomes important to handle these
evidences prudently. Because of the same, the courts are hesitant in accepting and relying on
electronic evidences. The Indian statutes lay down certain guidelines on handling of electronic
evidences however these are not strictly adhered to. A dichotomy of opinion is observed in
approach of the same court in different case laws, let alone be courts of various states. Hence a
uniform practice could not be established to date even through judicial precedents. The paper
studies the progress of recognizing electronic devices and records as an indispensable piece of
evidence in a court of law in India through various case laws, the current attitude of court
towards different forms of electronic records, and the challenges that still need to be addressed.

Introduction
From walking and generating location logs with Google enabled devices to speaking on the
phone and generating Call Data Records, every human activity today generates an electronic
record whether you know it or not. Smartphones, fitness bands, smart watches and so many other
devices are living in such close proximity to our daily lives that they know much more of our
secrets than anybody else. With the increasing volume of this electronic data, more and more
cases are becoming reliant upon Electronic Evidence. In the middle ages, the strongest legal
evidence was oral testimony by honorable citizens, and accountability was socially constructed
and communally enforced, but it is no longer the case. (Piasecki, 1995)1 It took the modern legal
system years to accept paper records as primary evidence and now, electronic records pose
greater challenges.2 At the time of conception of electronic records as evidence globally, the

1
The American Archivist, Vol. 58, No. 1 (Winter, 1995), pp. 54-64
2
The American Archivist, Vol. 58, No. 1 (Winter, 1995), pp. 54-64

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thought was that electronic records would be much like paper-based records only because the
possibility of different mediums like audio and video was not very promising. (Sprehe, 1992)3
This creates an urgent need for an in-depth study of Electronic Evidence Law in India, relating to
its admissibility and validity.

Electronic Evidence is not inherently different from other traditional evidence. It iterates 5 Ws of
journalism which need to be answered in order to discover and use Electronic Evidence: Who,
What, Where, When and Why. (Harai, 2001)4 In essence, it talks about and proves the same
things that other type of evidence does.5 Law is not just limited to prosecution of cases. It begins
at the initial stage of locating the evidence and is existent through the entire chain of custody
procedures. The courts in India have through case laws talked about the various facets of
Electronic Evidence, its scopes and some mandates. Before divulging into the details of that, the
first question to be answered is the area it covers.

There are three sources of Electronic Evidence today, namely Physical, Electronic and External.
Physical sources comprise of Smartphones, IOT devices, Computers and PDAs etc. Electronic
include server logs, Emails and CDRs etc. while External comprise of Cloud and Social Media
Data. Even the most minutely significant details about data have held to be crucial information in
the Courts abroad. So much so that a Court rejected a proposal to preserve electronic
communications by printing them on paper. Because it could omit fundamental pieces of
information, for instance information carried in metadata.(Armstrong v. Executive Office of the
President)6 All of these components boil down to one essential component, Data or electronic
records as the law says.

What does the law say about Electronic Evidence? (A)

The prime statute which encompasses all types of Evidence in India is the Indian Evidence Act,
1872. After the introduction of the IT Act, 2000, the definition of the Evidence Act was also
amended to include under Section 3:

3
J. Timothy Sprehe, "The Significance of 'Admissibility of Electronically Filed Federal Records as Evidence,'"
Government Information Quarterly 9 (April 1992): 153.
4
Family Advocate, Vol. 24, No. 2 (Fall 2001), pp. 6-7
5
Family Advocate, Vol. 24, No. 2 (Fall 2001), pp. 6-7
6
1 F.3d 1274 (D.C. Cir.1993)

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 “All documents including electronic records produced for the inspection of the Court”

are also evidence under the meaning of the Act. In order to understand Electronic Evidence, one
must therefore refer to Electronic Records under Section 2(t) of the IT Act, 2000. It reads

‘data, record or data generated, image or sound stored, received or sent in an electronic
film or computer generated micro fiche’ is electronic record.

It can be then seen that the word data is a very wide umbrella which can cover anything cyber.
As per the IT Act, under Section 2(o):

"Data" means a representation of information, knowledge, facts, concepts or instructions

which are being prepared or have been prepared in a formalised manner, and is intended
to be processed, is being processed or has been processed in a computer system or
computer network, and may be in any form (including computer printouts magnetic or
optical storage media, punched cards, punched tapes) or stored internally in the memory
of the computer;

There is also a formal legal recognition to the use of Electronic Records under Section 4 of the
IT Act which mandates that when any law provides that some information should be in writing
or in the type written or typed form then such a requirement is said to be fulfilled when it is made
available in the electronic form or accessible so as to be usable for a subsequent reference. Oral
admissions under Section 22A of the Evidence Act are relevant only for genuineness of
electronic records not their content.

For the purpose of Section 79A of the IT Act which relates to providing expert opinion on
Electronic form evidence defines it as 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.7

As per Bankers’ Books Evidence Act, 1891,

“certified copy of any entry in a banker's book shall in all legal proceedings be received
as prima facie evidence of the original entry itself.”

7
Explanation to Section79A, Information Technology Act, 2000 (Amend. 2008)

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The Federal Rules of Evidence in the United State reflect that electronic evidence may be
evidence that originated in or is only presented in electronic form. Rule 1001 of the Federal
Rules of Evidence specifies that "'writings' and 'recordings' consist of letters, words, or numbers,
or their equivalent," that are "set down" in "magnetic impulse" and "electronic recording,"
among other forms. In other words, Rule 1001 reflects that evidence that originated in either
electronic or hard copy form can be translated into an electronic form for presentation.(Benner,
2008)8

Application of IT Act before other law (B)

In the recent past, Courts have opined and iterated the application of Generalia Specialibus Non
Derogant in cases where technology is involved as well. The principle states that whenever there
is a specific law on a legal point, then it must apply over a general law. It was recently opined by
the Supreme Court that in a case relating to sale of obscene material in the electronic form, if no
case was made out under Section 67 then the remedy under Section 292 IPC will also not be
available.(Sharat Babu Digumarti v. Govt. of NCT of Delhi)9. This might mean that in the future,
the prominence of the IT Act or the Cyber Law as it is referred to, will increase. Although the
word ‘document’ under Sections 61-65 of the Evidence Act, 1872 have not been replaced with
electronic documents but for all purposes, it is meant to include electronic records as well. The
importance of Electronic Evidence is such that a previous statement, made by a person and
recorded on tape, can be used not only to corroborate the evidence given by the witness in Court
but also to contradict the evidence given before the Court, as well as to test the veracity of the
witness and also to impeach his impartiality. (Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri) 10

Proving Electronic Evidence in Court (A)

In many cases, electronic evidence being produced before the court is not in the primary format
or on the primary source so as to be proved as per Section 62 of the Evidence Act. It has to be
then proved in accordance with Section 65A and 65B of the Act. Section 22A of the Evidence
Act mandates that electronic records’ content cannot be proved by oral testimony, hence the
certificate is mandatory. Sec 65-A is purely about how electronic records may be proved i.e. It is

8
Litigation, Vol. 34, No. 4, TRIALS, TACTICS, TOOLS (Summer 2008), pp. 3-4, 69-72
9
2016 SCC OnLine SC 1464
10
1971 AIR 1162

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to be in accordance with Sec 65-B and the conditions as laid out in the section. Sec 65B (1)
simply stipulates that any information (from the computer or device in question) which is printed
on a paper, stored, recorded or copied in optical or magnetic media shall be also called a
document. And this is admissible in any proceeding when a proof of the original or any fact
stated of which direct evidence would be admissible, meaning that such a document can also act
as an admissible evidence when it satisfies all the requisites under Section 65B. An example of
this could be validating print outs of certain records from a server like CDR logs. This section
states that these print outs are also called documents and can be validated under Section 65B

Now this is why, for investigators, proper evidence retention and preservation becomes highly
important. Sec 65B (2) talks about the prerequisites that need to be satisfied for the evidence to
be admissible. To summarize, these are:

1. It should be output of time during which device was being used regularly for regular
purposes by person exercising lawful control (reiterated as an essential in Babu Ram
Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors.) 11 over the device.
2. Such output should have been result of regular feeding of data in ordinary course of the
activity.
3. The device was working properly and even if it was not then it should not have affected
its accuracy.
4. That the information being produced is either the reproduction of or derived from such
information as fed into the device in ordinary course of activities.
A change has been observed in the attitude of courts who have recognized that even the most
ordinary cases today involve electronic devices and electronic records as vital sources of
evidence. A fine example of the same is the case of Subhendu Nath v. State of W.B.12 involving
the act of sharing sensitive photos of wife on various social media platforms by the husband
wherein the charges were not framed under appropriate provisions of IT Act, nor was
investigation carried out in accordance with Section 78 of the IT Act. The Division Bench while
hearing the anticipatory bail of the husband also passed necessary directions recognizing the
sensitivity of electronic evidence, emphasizing the need to handle it sensitively and training the

11
2013 II AD (Delhi) 441
12
2019 SCC OnLine Cal 242

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police officers in doing so. The court further stated that such evidence must also be supported by
a certificate under Section 65B of the IT Act.

Certificate under Section 65B (A)

Evidence adduced in the form of photographs on a CD are not admissible in court if they are not
filed with a Section 65B certificate. (Kailash H. Vs. Suresh Chandra)13 Under Section 65B (4), a
certificate to identify the electronic record has to be accompanied while giving a statement under
the section; it describes the manner in which the record was produced giving the particulars of
the device involved in the production of that record and deals with the conditions mentioned in
Section 65B (2) and is signed by a person occupying a responsible official position in relation to
the operation of the relevant device shall be evidence of any matter stated in the certificate.

There has been a lot of debate in the legal fraternity about the Section 65B certificate. In the case
of Pravata Kumar Tripathy vs. Union of India14, it was held that at the time of consideration of
bail application, it is not at all necessary to ask prosecution to first satisfy the fulfillment of all
the criteria laid down in the case of Anvar Vs P. K. Basheer15 (relating to production of
certificate) before taking into account Forensic Voice Examination Report as well as
transcription of CD. In the Parliament attacks case (State v Navjot Sandhu)16, by the Supreme
Court, copies of Call Detail Records were admitted without following procedures of Sections
65A and 65B but this position has been highly criticized and even overruled in the case of
Basheer17. The Supreme Court held that Sec 65A and 65B create some special provisions that
override the general law of documentary evidence. So now, all the conditions as listed under Sec
65B must be satisfied and a certificate be taken to make an evidence admissible. Email has also
been admitted as evidence in courts and as a principle of acknowledgement under Section 13 of
the IT Act, generally, the place of business is considered to be the place of acceptance, hence,
constituting the contract. In the case of M/S P. R. Transport Agency vs. Union of India18, it was
held that the acceptance of the tender, communicated by the respondents to the petitioner by e-

13
2011 LawSuit (MP) 598
14
19(2015) CLT177, 2014(II)OLR941
15
AIR 2015 SC 180
16
(2005) 11 SCC 600
17
Section 81A, Indian Evidence Act, 1872
18
AIR 2006 ALL 23

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mail, will be deemed to be received by the petitioner at Varanasi or Chandauli, which are the
only two places where the petitioner has his place of business.

In the infamous case of Anvar vs Basheer, the Court has interpreted the Sections 22A, 45A, 59,
65A & 65B of the Indian Evidence Act and held that: Secondary Data in CD/DVD/Pen Drive are
not admissible without a certificate Under Section 65B (4) of The Indian Evidence Act. It has
been elucidated that electronic evidence without certificate Under Section 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. Under the US law as well, in the case of
Lorraine v. Markel American Insurance Company19, It was held when electronically stored
information is offered as evidence, the following tests need to be affirmed for it to be admissible:

i. is the information relevant;

ii. is it authentic;
iii. is it hearsay;
iv. is it original or, if it is a duplicate, is there admissible secondary evidence to support it;
and
v. if its probative value survives the test of unfair prejudice.

More recently in the case of Rakesh Kumar Singla v. Union of India20 while hearing a bail
application, the Punjab and Haryana High Court refused to rely upon screenshots of Whatsapp
conversation which were not supported by a certificate under Section 65B of IT Act.

What does a certificate need to certify? (B)

In the above case of Anvar vs Basheer21 the Supreme Court further held,

“It is further clarified that the person needs only to state in the certificate that the same is to the
best of his knowledge and belief. Most importantly, such a certificate must accompany the
electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen
drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is

19
241 FRD 534 (D. Md. 2007)
20
CRM-M No.23220 of 2020 (O&M)
21
AIR 2015 SC 180

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produced in evidence. All these safeguards are taken to ensure the source and authenticity,
which are the two hallmarks pertaining to electronic record 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.”

It implies that in order to prove the document in question the source must also be authenticated.
Following this conclusion, a transcription of a recorded conversation was not admitted into
evidence because the original recording was not authenticated. (Sanjaysinh Ramrao Chavan Vs.
Dattatray Gulabrao Phalke )22

When is a Section 65B certificate not needed? (B)

One opinion that was taken by the Delhi High Court in the case of Raj Kumar v. State23 was that
when the original is itself produced, a certificate under Section 65B need not be adduced. It can
be owed to Section 62’s interpretation of the fact that when primary evidence is produced as it is,
no supporting documents are needed to prove it. A court is also bound to presume genuineness of
an electronic record which is part of the official gazette or if it has been directed to be kept by
any person and is kept by such person in proper custody. 24 There is also a requirement to
presume electronic records to be valid when they are agreements purported to have been digitally
signed25 and intention of the subscriber is presumed when digital signature is affixed.

In the controversial judgement of a Division Bench of the Supreme Court, Shafhi Mohammad v.
State of Himachal Pradesh26, it was wrongly held that the requirement of 65B certificate can be
done away with if the person producing document generated from an electronic device as an
evidence is not in possession of the electronic device. This was later overruled by a three-judge
bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal27. The
SC clarified that non possession of the electronic device from which documentary evidence is
generated is not a sufficient ground to do away with the mandate of certificate required under
Section 65B of IT Act. The person adducing the evidence in court can submit an application

22
CRIMINAL APPEAL NO. 97 OF 2015
23
CRL.A. 232/16,
24
Section 81A, Indian Evidence Act, 1872
25
Section 85A, Indian Evidence Act, 1872
26
(2018) 5 SCC 311
27
2020 SCC OnLine SC 571

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before the court to summon the person in whose possession the electronic device is to produce a
certificate just in case the person refuses to provide it in the first instance. The Bombay High
Court in SBI Cards & Payments Services Pvt Ltd. Versus Rohidas Jadhav28 also recognized
WhatsApp as an acceptable medium to serve notice and summon provided the delivery of
message and acknowledgement by the receiver of message is proved. The court for this purpose
considered “blue ticks” as synonymous to opening of the message by the receiver and sufficient
proof of acknowledgement.

Filing of 65B Certificate(B)

It can be filed at any stage of trial.(Paras Jain v. State of Rajasthan)29 The said certificate can be
produced when the electronic record is to be admitted and taken on record, i.e., when the
prosecution, defense or a party to the civil litigation wants the electronic record to be marked as
an exhibit and read in evidence.(Kundan Singh v State)30 In one recent case heard by the
Bombay High Court, it was held that there is nothing in the provision that specifies the stage of
production of the certificate. If at all anything, the indication therein is in fact otherwise. The
provision of Section 65-B is about admissibility of electronic record and not production of it and
opening words of Section 65-B(4) are "In any proceedings where it is desired to give statement
in evidence". This can only be the stage at which the record is tendered in evidence for being
considered its admissibility. This means that the certificate needs to be filed not at the time of
production of record or filing of charge sheet but when the record is tendered into evidence.
(Avadut Waman Kushe vs The State Of Maharashtra )31 The Supreme Court in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal32 stated that in a civil matter the 65B certificate be
produced at the time of production of evidence and in a criminal case before the beginning of
trial when prosecution submits the list of evidences he wishes to rely upon during the course of
trial. In all the cases where the police have not filed the certificate under Section 65B IEA, the
same can be filed by way of supplementary charge sheet under section 173(8) Cr.P.C. and this in
no way even stops the police to generate the same electronic record as fresh and file in the court
by way of charge sheet under section 173(8) Cr.P.C. If the certificate under Section 65B which

28
2018 SCC OnLine Bom 1262
29
MANU/RH/1150/2015
30
2015 SCC OnLine Del 13647
31
2016 SCC Online Bom 3256
32
2020 SCC OnLine SC 571

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was produced is rejected because of certain non-compliance, then a fresh certificate may be
produced. (Ignatius Topy Pereira Vs. Travel Corporation (India) Pvt. Ltd. And Ors )33

Non-Acceptance of certificate (B)

It can also be the case that certain requirements of Section 65B are not fulfilled, thereby causing
an impediment in the admissibility of the certificate. In P. Padmanabh v. Syndicate Bank Ltd.34,
the ATM transaction records were in question for lack of certificate under Section 65B. With
respect to this, the Karnataka High Court was of the opinion that when the ATM was
malfunctioning, it was incapable to produce output in the ordinary course which is a mandatory
requirement under Section 65B.

Further, if in any case, there has to be a challenge against a certificate on the ground of misuse or
operating failure of the system, then the challenger must prove beyond a doubt. Mere general
speculations are not enough. (State of Delhi v. Mohd. Afzal & ors )35 In addition to all the
statutory requirements mentioned, there are some more like the certificate must mention the
manner in which the electronic record was produced along with the details of the device used for
production of that record. (Rajesh Dhannalal Daware Vs. State of Maharashtra)36 In order to
adduce new evidence, the party seeking must satisfy the court that said documents were not
within the party’s knowledge or could not be produced even after due diligence. (Gold Rock
World Trade Ltd. v Veejay Lakshmi Engineering Works)37 Hence, a certificate provisioning
such admission is also not valid. (Preeti Arora v Aniket Subhash Kore)38

Appreciation of Electronic Evidence (A)

Email and Electronic Records as Evidence

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. (Abdul

33
2016 SCC Online Bom 97
34
2008 (2) Kar. L.J. 153
35
Family Advocate, Vol. 24, No. 2 (Fall 2001), pp. 6-7
36
CRIMINAL CONFIRMATION CASE NO. 1 OF 2016
37
2007 Indlaw DEL 812
38
2014 Indlaw DEL 322

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Rahaman Kunji Vs. The State of West Bengal )39 Also, that in absence of a certificate along with
an Email printout, it is not admissible. (Indian Micro Electronics (P) Ltd. Vs. Chandra Industries
and Ors.)40 The court also observed that with respect to the contents of the message, the court
can make an assumption about the message itself from the message at the Mail Server but court
shall not make any assumption as to the person by whom such message was sent.41

Electronic Messages sent via IM services and messengers are also electronic records within the
meaning of the Evidence Act. However, without the certificate compliance, such messages are
not admissible. (Neeraj Kumarpal Shah v Dinesh Shivanna and others )42 Electronic messages
being presented at the stage of bail hearing have also been held to be of relevance to either grant
or refuse bail to an accused. (Karan Mathur v State (NCT of Delhi))43

Tape Recorded Conversation

Relying on the test in R. Vs Eobeon44, tape recorded conversations should be at least adequate to
form fair and reliable assessment of the conversation. Tape recorded conversations have been
held to admissible provided the voice of the people can be recognized, the recording is relevant
to the case and the possibility of tampering is done away with.(R.M Malkani vs. State of
Maharastra ) 45 Interestingly enough, transcriptions of tape recorded conversation without the
original recording put to source and authentication test is not admissible.(Sanjaysinh Ramrao
Chavan vs Dattatray Gulabrao Phalke & Anr)46 but tape record if produced without transcription
and fulfilling criteria of proper seizure is also not admissible.(Lalji vs Jiyalal Chavan)47 Video
recordings of accused in custody can also be used as evidence to prove claims as per Section 27
of the Evidence Act, only relating to the discovery of certain facts.( Amulya Kumar Panda vs
State Of Orissa)48 Voice identification is an important process of adducing recorded
conversations into evidence, so much so that, even if a recording is sanctioned by the

39
MANU/WB/0828/2014
40
2015 VIAD (Delhi) 52
41
Section 88A, Indian Evidence Act, 1872
42
2017 Indlaw GUJ 1047
43
2017 Indlaw DEL 910
44
[1972] 2 All B.R. 699
45
AIR 1973 SC 157
46
CRIMINAL APPEAL NO. 97 OF 2015
47
2009 AIR(Bom) 1230
48
CriLJ 1672, 2008 (1) OLR 417

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government, it would be inadmissible without voice identification.(Nilesh Dinkar Paradkar Vs.
State of Maharashtra)49 Identification should be conducted via a due process like mixing of
samples and not telling the witness about them at all. When it appears to the court that voice
identification was just conducted for the sake of it and no necessary steps were taken, the court
can reject it also. 50

Appreciation of CCTV footage

Hon'ble S.C. in Tomso Bruno and anr. V. State of U.P.51 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. The court pointed CCTV footage in the case was the best
evidence and that non-admission of the footage at the trial stage was faulty. The court also
highlighted the importance of a certificate under Section 65B as crucial to often proving the guilt
of an accused The Delhi High Court has gone on to say that CCTV footage is recorded directly
by way of such programming onto a hard disk directly. This evidence is primary i.e. the hard
disk. As per Section 60 of the Evidence Act, when the CCTV clip is played, the court becomes
witness to the act although the crime was committed prior in time.( Kailash H. Vs. Suresh
Chandra )52 However, it was subject to integrity checks based on testimonies of experts but it
leads to the belief that CCTV footage produced directly on the Hard Disk that it is programmed
to store it on by properly numbering and serializing is primary evidence and does not require
Section 65B certificate. A cellphone has also been deemed to be a computer under the IT Act.
(Syed Asifuddin & Ors. Vs State of A.P)53 Hence, in all cases, printouts or documents so
produced by this computer are also electronic records.

IP Address as evidence

Judge Gary Brown in the United States District Court of the Eastern District of New
York adjudged below:

49
(2011) 4 SCC 143
50
(2011) 4 SCC 143
51
2015 Indlaw SC 37
52
2011 LawSuit (MP) 598
53
2005 CriLJ 4314

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The assumption that the person who pays for Internet access at a given location is the same
individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has
grown more so over time. An IP address provides only the location at which one of any number
of computer devices may be deployed, much like a telephone number can be used for any number
of telephones.

In practice as well, proving guilt by way of IP Address and internet connection mapping has not
been held to be good. IP Address can certainly be a proof of an incident origin but not as to a
person who committed an act.

Banks and Bankers’ Statements

An entry in a bankers’ book in the electronic form may be validated by means of a printout in
accordance with Section 2A of the Bankers’ Books Evidence Act. It requires that the printout be
accompanies with a certificate of validation of what the record is by the principal accountant or
branch manager. The person in charge of the computer system is also required to give a
certificate containing all details about the computer system which was used to create the said
record along with its safeguards and process of data storage.

A case in clear violation was brought before a court where it was held that a certificate under the
Bankers’ Books Evidence Act is compulsorily required. Any deference from the statute will
make admissions invalid.( State Bank of India vs. Rizvi Exports Ltd )54

CDR as evidence

CDRs are inadmissible without a Section 65B certificate. (Ibrahim Khan Vs. The State of
Maharashtra,) 55Investigation agencies get paralyzed when an accused doesn’t use Mobile phone
because most of the criminal investigation today is built around CDRs. Call Data Records do aid
in preliminary investigation but cannot be taken as conclusive evidence because of certain
problems like the handset being with someone else, CDR documents not being certified as per
Section 65B, SIM card being clones or mobile number being spoofed etc. In Bombay Bomb
Blast case, Sanjay Dutt’s CDR were admitted and the same were in Parliament Attack case but in
the later, the admission was overruled in the Anvar vs Basheer case because of lack of certificate

54
II (2003) BC 96
55
2015 SCC OnLine Bom 5842

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of 65B. CDRs have also been used as evidence to prove movement of people. (Mohd.Arif @
Ashfaq vs State Of Nct Of Delhi)56 Also, accused can be allowed to summon call record of
mobile numbers of police officers just to determine their location at the time of alleged arrest.
(Suresh kumar Vs. Union of india)57

In Jagdeo Singh V the State & Ors.58 High Court of Delhi, while dealing with the admissibility
of intercepted telephone call in a CD and CDR which were without a certificate under S65B
Evidence Act observed that the secondary electronic evidence without certificate under S65B is
inadmissible & cannot be looked into by the court for any purpose whatsoever.

Dealing with Electronic Evidence (A)

While seizing electronic evidence, the evidence collector should always take a backup and keep
it sealed because it is unlike a photograph of a crime scene. Date and time shown in the computer
must be recorded because if there is any inaccuracy, it will also be reflected. Version of the
operating system and any software installed should be recorded and the software used to examine
the computer should also be noted. (State vs Mohd. Afzal And Ors.)59 Hard disks, even if used
just once and then wiped clean will not be considered as electronic devices only, they will
become electronic records.(Dharambir vs CBI)60 While seizing of electronic evidence is a
mandate in criminal matters, in civil disputes, it is not the case.(Mrs. Havovi Kersi Sethna Vs.
Mr. Kersi Gustad Sethna)61

It is no doubt that the nature of electronic evidence is highly volatile which makes it important to
handle the evidence and cases that have electronic evidence involved, very carefully. Standard of
proof in electronic evidence should be more accurate and stringent when compared to other
documentary evidence.(Tukaram S. Dighole Vs Manikrao Shivaji Kokate)62But just the
possibility of tampering is not ground to ignore electronic evidence; it must be weighed against
all odds. (S.Pratap Singh Vs. The State of Punjab)63 It was in the infamous Twitter joke trial

56
(2011) 13 SCC 621
57
2015(3) Law Herald (SC) 2281
58
MANU/DE/0376/2015
59
2003 VIIAD Delhi 1
60
148 (2008) DLT 289
61
AIR 2011 Bom 283.
62
(2010) 4 SCC 329
63
AIR 1964 SC 72

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(Chamberlain v. DPP)64 that contextual writing also became a huge source of electronic
evidence. In this case, one person wrote on Twitter, “Crap! Robin Hood Airport is closed. You've
got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!” This
led to the criminal prosecution of Mr. Chambers for his "involvement in a bomb hoax.” (Paul,
2003)65

With the extensive use of mobile phones, data from such devices has become a crucial source for
forensic evidence. The Supreme Court has held IMEI records to be a proof of conclusive nature
while appreciating the fact that IMEI numbers are all different, no two can be the same.
Essentially, when one makes a call, along with the phone number, the IMEI is also recorded.
(Gajraj v. State (NCT of Delhi))66

Conclusion (A)
An extensive study of electronic evidence and its admissibility has been done with the help of
case law. The procedure has been established in the narrows but can only be understood by a
thorough analysis of case law. More recently a tilt in favor of Section 65B(4) certificate has been
observed in the attitude of court who have adopted a sterner approach and not hesitated to reject
an electronic evidence not supported with the certificate yet the practice is still not consistently
adopted by all courts across India. Hence, a clear statutory position with respect to electronic
evidence has not been reached in India. Even with the current level of clarity, there are certain
challenges in this area. One could be the fact that there is a possibility of self-incrimination under
Article 20(3) when Section 65B certificate can be given by the accused only. Another technical
challenge is a situation where international chat messengers are involved and there is no
possibility to get chats recovered with a 65B evidence from the owner or person in lawful control
of the server. In such cases the servers do not technically have that data needed, then in a chat
between two people, there is no clear distinction between whose certificate holds value.

Often, acquisition of evidence becomes a big problem for law enforcement. There are no contact
details for some websites and service providers located outside the country which creates trouble
for the law enforcement officers. All this has led to uncertainty in the field of electronic

64
[2012] EWHC 2157 (QB)
65
Paul, George L., Jurimetrics, Vol. 53, No. 4 (SUMMER 2013), pp. 467-481
66
(2011) 10 SCC 675

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evidence. From the study, it can also be concluded that admissibility of electronic evidence is
also based on its nature, type of case and the type of evidence being adduced.

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