This article is written by Kuberan a student at Dr. Global Ambedkar Law Institute, Tirupati Andhra Pradesh. This article talks about digital evidence, laws related to it and its admissibility in Indian Courts.

This article has been published by Sneha Mahawar.

Introduction

Evidence plays a major role in deciding every case. There are two kinds of evidence, oral and documentary. Documentary evidence is again divided into two types, primary evidence and secondary evidence. Sections 61 to 90A  of the Indian Evidence Act, 1872 deal with documentary evidence. All the documents presented as evidence in both civil and criminal proceedings are admitted as per the procedure mentioned in Sections 61 to 90A of the Indian Evidence Act. This particular Chapter of the Indian Evidence Act, 1872 along with the art of cross-examination and argument decides the case. 

What is Section 65 of the Indian Evidence Act, 1872

Section 65 provides for the circumstances in which secondary evidence may be given without filing primary evidence. However, the party cannot seek Court’s permission for admitting the secondary evidence without exhausting Section 65. In other words, the party should show the bonafide cause for filing the secondary evidence and it is the discretion of the Court to admit the same. Those circumstances are as follows:

  1. In cases where the original is with the opposite party or with a person who is out of reach or with a person who refused to give the original document after notice.
  2. In cases where the content of the original document has been admitted by the opposite party subsequently through another document.
  3. In cases where the original is lost or is a public document or the original cannot be moved easily. If a public document or any other document of which a certified copy can be obtained under law, then, that certified copy can be admitted as secondary evidence.
  4. When the original document consists of numerous accounts and high volume, then the portion of the document examined by a skilled person can be admitted as secondary evidence.

Difference between primary and secondary evidence

Primary evidence is the original document itself, whereas secondary evidence is the copy made from the primary evidence.

Original document

  • When a document is executed in several parts, each of the parts is considered as primary evidence. For example in a loan agreement, if the borrower has signed in all the pages, then each page is considered as primary evidence. 
  • If a document is executed in duplicate, then each of the copies is considered as primary evidence. For example, if a contract is made between two or more parties, then each of the contract agreements is considered as primary evidence.
  • If several documents are prepared by the same mechanical process, then one document of that mechanical process is considered as primary evidence of other documents prepared under the same mechanical process.
  •  Copies made from the above original shall be considered secondary evidence.

Section 65A of Indian Evidence Act, 1872

Section 65A and Section 65B of the Indian Evidence Act, 1872 were inserted through the Indian Evidence (Amendment) Act, 2000. the Main objective of Sections 65A and 65B is to clarify the admissibility of the electronic record as evidence. According to Section 65A, the content of electronic records can be proved by the procedure given under Section 65B.

Section 65B of Indian Evidence Act, 1872

Section 65B talks about the electronic device and the circumstances under which the evidence is recorded. It also talks about the conditions of electronic devices during the recording of evidence. Sub-Section 1 of Section 65B defines the computer output. While reading this Section with Section 2 of Information technology Act, 2000, it can be presumed that any electronic device such as a computer, mobile phone, tape recorder, or video recorder, which has the capacity to store, process and send information can be considered an electronic device. These devices are commonly called “computer output”.

Conditions for the admissibility of electronic evidence under Section 65B

If any information contained in an electronic record that is printed in paper, stored, recorded, or copied in optical or magnetic media, produced by a computer, shall be deemed as a document.

Such documents shall be admissible as evidence without further proof or production of the original if the owner or person responsible for the computer, who recorded the evidence gives a certificate under Section 65B(4) of Indian Evidence Act, 1872 stating

  1. The working condition of the computer during the recording of evidence.
  2. It’s lawful use by the owner or operator.
  3. A description of the regular use of computers.
  4. If the information is fed into another computer in the ordinary course of activity, a description about it.
  5. A description of the working condition of the computer during the entire period in which information is processed or created or transferred.
  6. If a group of computers is used to create or process the information, then a description about all the computers and further, all the computers can be construed as a single computer.

How to obtain a certificate under Section 65B of the Indian Evidence Act, 1872

The owner of the computer or the person operating the computer while the information is being created should certify the same about,

  1. stating the circumstances in which it was produced.
  2. the device involved in the production of the electronic record and details about ownership.
  3. the legality of the production of the record.
  4. other matter is given in Sub-Section 2 of Section 65B of the Indian Evidence Act,1872.

It is to be noted that the information created should be general and should not infringe the privacy of others. For example, if a husband records the call of his wife without her permission, then the record cannot be taken as evidence as it was taken without the permission of the wife.

What comes under the ambit of electronic evidence as per Section 65 of the Indian Evidence Act, 1872

  • Any information that is produced, recorded, and transferred from an electronic device, which can create, store and transfer such information or electronic record is admissible as evidence. 
  • The information that has been recorded in electronic form is considered a document. Few examples of electronic records and documents are cell phone, computer, ATM receipt email, SMS, IP address, internet browsing history, a file saved from computer programs, e-forms, gazette notification, debit cards, and credit cards transAction, CCTV footage, etc., comes under the ambit of electronic evidence.

How is Section 65 of the Indian Evidence Act, 1872 linked with the Information Technology Act, 2000

  • Due to rise of the digital transactions through schemes like Jan Dhan Yojana, Digital India mission, direct benefit transfer, mobile banking, various e-services by the government, and the accuracy of an electronic record, it is considered important to formulate laws related to electronic signature and other electronic records to regulate and stop the fraudulent usage of such electronic record.
  • While enacting the Information technology Act, 2000, Sections 65A and 65B were inserted in the Indian Evidence Act 1872, regarding the admissibility of electronic evidence. 
  • Definition of terms such as electronic record, computer and computer network can be taken from Section 2 of information technology Act, 2000.
  • Information technology Act, 2000, defines a computer system as a device or collection of devices, including input (keyboard, mouse), output (monitor, printer), and support devices and capable of being used in conjunction with the external files( format such as MP3, MP4, word, pdf ) which contain computer programs, electronic instructions, input data, and output data.
  • Any device that performs logic, arithmetic, data storage and retrieval, communication control, and other functions also comes under the definition of a computer. Sections 65A and 65B can be well interpreted with the help of the IT Act.

Evolution of admissibility of electronic records as evidence in India

During the 1950s, the electronic record was confined only to tape recording and videography. Electronic records had been admitted as evidence in 1960 in the State of Maharashtra v. Prakash Vishnurao Mane (1979). The Supreme Court laid rules regarding the admissibility of electronic records in this case. The rules include playing the record in the Courtroom, analyzing the voice with expert opinion, and crossing the person who recorded the incident and the person whose voice has been recorded.

Before 2000, the Courts did not accept the electronic record as evidence to a greater extent. However, after 2000, the Court admitted electronic evidence as per procedure mentioned in Section 65 of the Indian Evidence Act and made a certificate under Sub-section 4 of Section 65B of Indian Evidence Act, 1872 as optional (Archana Rastogi v. Vivek Rastogi (2007)).

Now, almost all types of electronic records are being admitted as electronic evidence such as CCTV footage, ATM receipt, bank statement, e-forms, Government orders, digital signatures, etc.

What was the position before the year 2000 

Before 2000, electronic evidence was admitted either as primary evidence or secondary evidence by applying Sections 61 to 65 of the Indian Evidence Act, 1872. If the original document itself was produced, then it was taken as primary evidence. In other cases, the procedure under Section 65 has to be followed to adduce the electronic evidence.

What was the position after the year 2000

After 2000, electronic evidence was admitted under Sections 65A and 65B of the Indian Evidence Act, 1872. However, conflicts regarding the production of certificates while adducing electronic evidence prevailed. In https://indiankanoon.org › doc

State (N.C.T. Of Delhi) vs Navjot [email protected] Afsan Guru 2005 the Supreme Court held that a certificate under Section 65B(4) is not necessary and electronic evidence can be adduced through Sections 63 and 65 of the Indian Evidence Act, 1872.

This view was overruled in Anvar P.V vs P.K.Basheer & Ors, (2014). where the Supreme Court held that Section 65A and 65B are code in itself and the procedure of those Sections should be followed to adduce the electronic evidence. Again, this view was overruled by the Supreme Court in Shafhi Mohammad vs The State Of Himachal Pradesh, (2018)., where it was held that the procedure under Sections 65A and 65B is only procedural and hence, it need not be followed in all the circumstances.

Finally, this confusion has been settled by a larger bench of the Supreme Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal,(2020). where it was held that the procedure under Sections 65A and 65B is a code in itself and overrules the general provisions regarding admissibility of electronic evidence. Therefore, provisions of 65A and 65B should be followed to adduce the electronic evidence.

Conclusion 

To sum up, while presenting electronic evidence, the procedure under Sections 65A and 65B of the Indian Evidence Act, 1872 should be followed. A certificate by the owner of the device or the lawful operator of the device is essential for the admissibility of the electronic evidence. Also, to file secondary evidence, the party should have the bonafide cause and try to produce primary evidence before filing the secondary evidence. Moreover, the party should mention the reason for filing the secondary evidence after exhausting the options given in Section 65 of the Indian Evidence Act. It is the discretion of the Court to admit the same as secondary evidence.

References

  1. Bare Act of the Indian Evidence Act  1872.
  2. Law of evidence by Ratanlal & Dhirajlal

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