Electronic Document: Admissibility And Relevancy, In The Light Of Section 65B Of Evidence Act, 1872

Vishal Garg Narwana, Advocate
Punjab & Haryana High Court, Chandigarh
Email Id : adv.narwana@gmail.com

Date : 22/06/2021 Location : House No. 2024, Sector 21-C, Chandigarh
📱 +91 9914420421

Electronic Document: Admissibility And Relevancy, In The Light Of Section 65B Of Evidence Act, 1872

The Indian Evidence Act, 1872, contains special provisions with regard to proving electronic evidence. These provisions have been inserted in the Indian Evidence Act, 1872 by the Act 21 of 2000 with effect from 17-10-2000 by way of sections 65-A and 65-B. Electronic evidence is admissible and is required to be proved only under these provisions. Section 65-B of Evidence Act, 1872 starts with a non obstante clause and appears to be a complete code in itself governing the proof of electronic evidence.

Generalia specialibus non derogant, special law will always prevail over general law. Sections 63 and 65 of Evidence Act, 1872 have no application in the case of leading secondary evidence for proving electronic record. The same is wholly governed by section 65-A & 65-B of Evidence Act, 1872. Any documentary evidence by way of an electronic record in view of sections 59 & 65-A of Evidence Act, 1872 can be proved only in accordance with the procedure prescribed under section 65B of Evidence Act, 1872. Section 65-B of Evidence Act, 1872 deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer[1*].

[1* Anwar P.V. v. P.K. Bashir, 2014 (10) SCC 473 and Vikram Singh v. State of Punjab, 2017 (8) SCC 518]

Electronic records are more susceptible to tempering, alteration, excision etc. To safeguard the right of the parties, the legislation has introduced Section 64-B in Evidence Act, 1872. The admissibility of electronic record, which is a computer output, depends upon the satisfaction of four conditions which are prescribed in section 65-B of Evidence Act. No doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.[2*]

[2* Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010 (4) SCC 329]

If an electronic record as such is used as primary evidence under Section 62 of Evidence Act, 1872, the same is admissible in evidence, without compliance with the conditions in Sections 65-B of Evidence Act, 1872.

Sections 63 and 65 of Evidence Act, 1872, have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B Evidence Act, 1872. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Sections 65-B Evidence Act, 1872 are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be accompanied by the certificate in terms of Section 65-B Evidence Act, 1872 obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

The non obstante clause in sub section (1) of section 65-B of Evidence Act, makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65-B Evidence Act, 1872, which is a special provision in this behalf. Sections 62 to 65 Evidence Act, 1872 are irrelevant for this purpose. However, Section 65-B(1) Evidence Act, 1872 clearly differentiates between the "original" document, which would be the original "electronic record" contained in the "computer" in which the original information is first stored and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65-B Evidence Act, 1872 differentiates between the original information contained in "computer itself and copies made there from, the former being primary evidence and latter being Secondary evidence.

If electronic evidence is authentic and relevant, the same can be certainly admitted subject to the court being satisfied about its authenticity and procedure for its admissibility may depends on the fact situation as to whether the person producing such evidence in a position to furnish certificate under Section 65-B(4) of the Evidence Act. Sections 65-A and 65-B of the Evidence Act cannot be held to be a complete code on the subject and its authenticity depends on the fact situation, such as whether person producing the aforesaid evidence is in a position to furnish the certificate under Section 65B(4) of Evidence Act. Requirement of production of certificate under Section 65B (4) of the Evidence Act is procedural in nature and can be relaxed by the court wherever interest of justice so requires[3*].

[3* Mohemmad Ajmal Amir Kasab v. State of Maharashtra, 2012 (9) SCC 1]

Information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The electronic document should be prepared in normal course of business. The computer was operating properly and that even if it was not operating properly some time, the break had not affected either the record or the accuracy of its contents. Subsection (4) to Section 65B of Evidence Act postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied it promotes and establishes the trustworthiness. In such cases presumption of facts regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.

Under Section 65-B(4) of the Evidence Act, if it desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the devices involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

The person need 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 produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records are 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.

The information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing the signature of the certifying officer or otherwise speak of the facts bases on his personal knowledge.

In Anwar P.V. the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage and genuineness, veracity and reliability of the evidence, which is seen by court subsequently. Thus the ratio and dictum in Anwar P.V. is based and predicated on the difference between admissibility and veracity or evidentiary value. Hon'ble Supreme Court deals with the aspect of admissibility in strict legal sense, not to be confused with evidentiary or correctness of contents. Of course when the conditions mentioned in section 65B are satisfied in terms of Section 114 of Evidence Act, the court may presume existence of certain facts[4*].

[4* Kundan Singh v. State, 2015 SCC Online Del 13647.]

Tape-records of speeches are "documents" as defined in Section 3 of the Evidence Act and stand on no different footing than photographs[5*].

[5* See Ziyauddin Burhanuddin Bukhari v. Briimohan Ramdass Mehra [(1976) 2 SCC 17]]

The emails can be proved by leading evidence to show that the emails were downloaded on a computer which was regularly in use by the originator/person and were then printed. The witness would have to testify that such a procedure was carried out. Merely sending email from a particular email address would not lead to a presumption that the particular email was sent by the originator, i.e. the person from whose email address an e-mail is sent. Hacking is not an unknown phenomenon in the world of electronic records. The statutory provision in law is that the presumption relating to the genuineness of and electronic message is rebuttable and the court cannot presume that the message has been sent by a particular person[6*].

[6* Abdul Rahaman Kunji v. State of WB : 2016 Cri.L.J. 1159.]

Source and authenticity are the two key factors for electronic evidence. If the audio conversation is not in audible condition and the same is not considered for spectrographic analysis, then there is no point to place reliance on the translated version/transcript[7*].

[7* Sanjay Singh Ramrao Chavan v. Dattatray Vulabrao Phalke and others, 2015 (3) SCC 123.]

Printouts taken from official website has sanctity and the trial court is expected to consider those printouts[8*].

[8* Sheetal Srishna Dhake v. Drishna Dagdu Dhake, 2018 (1) RCR(C) 884 (Bombay).]

Whatsapp messages are admissible as electronic record, if supported with the certificate under section 65B of Evidence Act. Otherwise whatsapp messages have no evidentiary value[9*].

[9* Rakesh Kumar Singla v. UOI, 2021 (1) RCR (Cri.) 704.]

In Ziyauddin Burhanuddin Bukhari [(1976) 2 SCC 17], relying on R. v. Magsud Ali [(1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA)], a Bench of three Judges of the apex Court held that the tape-records of speeches were admissible in evidence on satisfying the following conditions :

"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."

Similar conditions for admissibility of a tape-recorded statement were reiterated in Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611 and recently in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106.

It is necessary to provide certificate under section 65B at the stage of evidence and not at the stage of collecting evidence. The person issuing the certificate is not always required to be examined. It is only when the authenticity of the certificate was questioned that cross-examination was required[10*].

[10* Kundan Singh v. State, 2015 SCC online Del. 13647; Avadut Waman Kushe v. State of Maharashtra, 2016 SCC online Bom. 3236; K. Ramajayam v. Inspector of Police, 2016 SCC online Mad. 451]

Most of the electronic record is perishable and prone to deletion automatically. The electronic record can be preserved by the court by using the powers under section 91 Cr.P.C. The said record can later be used during the trial[11*].

[11* Sheru @ Surajnath v. State of Rajasthan, 2014 (4) Cri. C.C. 413 and Suresh Kalmadi Case, 2015 (8) RCR (Cri.) 387]

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