CERTIFICATE OF ELECTRONIC EVIDENCE

Sec 65B of Indian Evidence Act, 1872

In year 2012, Indian Evidence Act, 1872 was amended and certain sections regarding electronic evidence were included by Information Technology Act, 2000 i.e. Section 65A and 65B. Section 65A lays down the list of electronic records which can be admissible in the court according to the provisions laid in the Section 65B.

Section 65B Admissibility of electronic records: According to this section, any information contained in electronic records in question before the court, which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall also deemed to be a documentary evidence if the conditions mentioned in this section are satisfied. On satisfying the conditions provided, the evidence shall be admissible without any further documents or production of original copy of the same.

The documents produced in the court as evidence are the documentary evidence and there must primary or secondary evidence to prove the subject matter of the documents.

Electronic evidence is vindicating information stored or transmitted in a digital form that a party in a court proceeding may use as evidence at trial. Before accepting such digital evidence the court will check the relevancy, authentication of the evidence and to verify whether it is a hearsay evidence or not and will make sure that it is acceptable in this form or the original is needed.

Conditions for Certification Of Electronic Evidence

Under Section 65B (4), for the purpose of admissibility of the electronic evidence in the court proceeding, a certification of such electronic evidence is necessary. The certificate must include:

1. Identification the relevant electronic records and describing the manner in which the record has to be produced. 
2. Details of the device producing the electronic record.
3. Satisfy the conditions of Sec. 65B (2) i.e. the computer from which the record was produced was used regularly to process and store information during its regular course of activities and throughout the time period, the computer was operating properly.
4. The officer in-charge of such certification must state the details of the electronic record with best of his knowledge before signing it. 

Relevant judgments:

1. State (NCT of Delhi) v. Navjot Sandhu[1]: If the party is unable to produce the certification of the contents required under the Sec. 65B, they can submit the secondary evidence complying with Sec. 63 and 65.

• Anvar P.V v. P.K Basheer[2] : This case Overrules Navjot Sandhu case’s judgment.
• Court said that, unless the requirements of sec 65B are satisfied, electronic record with secondary evidence shall not to be admitted as evidence. Sec. 65A and 65B supersedes over general laws of Sections 63 and 65 (Generalia specialibus non derogant[3]).
• Court also observed that, an electronic record used as the secondary evidence under Sec.62 is admissible as evidence in court, even without the requirements of Sec. 65B, notwithstanding Sections 59, 65A and 65B of the Evidence Act.  Which Makes all of the conditions under Section 65B (4) imperative. (para 22)

• Sanjay sinha Ramrao Chavan v. Dattatray Gulabrao Phalke &Ors.[4]: Source and authenticity are the two key factors for electronic evidence. Without source there is no authenticity for the translation.

• Abdul Rahaman Kunji v. State of West Bengal[5]: High Court of Calcutta in this case observed that an email in a printed form which is downloaded from an email account of a person can be proved by Sec. 65B r/w Sec 88A.
• To prove the communication, the declaration of the person who carry out such procedure of downloading and printing the same, is sufficient.

• Vikram v. State of Punjab[6] : Certificate as required under Sec. 65B, of the tape recorded conversation in this case was held to be primary and not secondary evidence. The court refer to Anvar case and observed that, “If the electronic evidence is used as secondary evidence the same is admissible, without compliance with the conditions in Section 65 B”.

• Sonu v.  State of Haryana[7] : Court makes following observations-
• A CDR can’t be inherently inadmissible without any certification under Section 65B.
• The court said that certification regarding the means and mode of the evidence and objections related to such certification must be raised at the earliest stage of the court proceeding before the court. The objections regarding the same cannot be raised at an appellate stage.

• Shafhi Mohammad v. State of U.P.[8]
• Requirement of certificate is procedural in nature and can be eased at the discretion of the court wherever the interest of justice so requires.
• “Procedural requirement” under Section 65B (4) shall be made applicable only when the person who has evidence can produce such certificate of the electronic record.  
• The court observed that if authentic evidence is produced by the party and the court is not allowing the same, it will be injustice to the person who has authentic witness or evidence, even without the possession of the device.

Thus, in light of differing opinions of the Supreme Court, in the instant case, the Court referred the matter to a larger bench stating that in light of the 2014 Judgment, the verdict passed in 2018 deserves to be reconsidered.

• State of Karnataka v. M.R. Hiremath[9] 
• Certificate of electronic record can be submitted after the filling of chargesheet. This certificate is required at the trial stage when the electronic record is produced in the court.
• Supreme Court said that, “a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., related to which a statement is sought to be given as evidence. All these safeguards are provided to ensure the source and authenticity, which are the two hallmarks concerned with the electronic record sought to be used as evidence.”

Conclusion

In Anvar’s case the Supreme Court clarified that electronic record as primary evidence does not come under the jurisdiction of Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court as per Sec. 3, which can be utilized only for the purpose of storing the matter.                                                                                                                                                   

The Supreme Court while clarifying the legal status of admissibility of the electronic evidence, held that there is no need to produce certificate, if the device from which the document is produced is not in a possession of the party.

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[1] (2005) 11 SCC 600.

[2] (2014) 10 SCC 473.

[3] A Latin maxim which means general laws do not prevail over special laws.

[4] (2015) 3 SCC 123.

[5] 2016 CLRJ 1159.

[6] (2017) 8 SCC 518.

[7] (2017) 8 SCC 570.

[8] (2018) 1 SCC (Cri) 860.

[9] 2019 SCC OnLine SC 734.

By:- Sampada Sharma

       5^th year, BBA-LLB

       Vivekananda Institute of Professional Studies, Delhi.

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