The 21st century is the century of science and technology. It has seen a rapid advancement in technology making the use of computers extremely important and common. Though computers were officially introduced in the year 1956 in India it was not used in public life until the 1980s. People were progressively switching to computers for digital storage. This all leads to the digital revolution in India which further led to the introduction of the Information Technology Act, 2000. With the Information Technology Act, there was also insertion of Section 65A and Section 65B in the Indian Evidence Act, 1872. These sections deal with evidence related to electronic records and their admissibility.
For a better understanding of electronic evidence, we should first understand the evidence.
'Evidence' is defined under section 3 of The Evidence Act. According to which 'evidence' means and includes- (i) all statement permitted or required to be made before the Court by the witness, about facts under enquiry, such statements are called oral evidence; and (ii) all the documents which are produced before the court for inspection are known as documentary evidence.
From above we can divide Evidence into two types – (a) Oral, or Documentary; (b) Primary, or Secondary
Primary evidence is the documents that are produced before the Court for inspection, whereas Secondary evidence means and includes copies that are certified, copies made from the original document by a mechanical process, and oral accounts of the contents of a document given by the same person after verifying it.
Electronic Evidence: - Is it Primary or Secondary Evidence and is it admissible or not?
Electronic evidence means and includes any information that is stored or is transmitted by digital mode and it is considered as secondary evidence.
Section 65B (1) of the Indian Evidence Act, states that any information which is contained in an electric record, which is printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer is considered as a document, and if any such document can satisfy the conditions mentioned in Section 65B (2) which are as follows: -
It should be produced by a regularly used computer, and it should be used for regular activities carried on by the person having lawful control over the use of the computer,
The information so derived was fed into the computer during its ordinary course of activities
The computer was functioning properly
If such a document can satisfy the condition laid down in Section 65B (2) to (4), then it is admissible in any proceedings.
The Supreme Court in the judgment of Arjun Pandit Rao v. Kailash Kushanrao held that the certificate mentioned under Section 65B (4) of the Evidence Act is required for any electronic records to be admissible. The certificate inter alia identifies the electronic device which is presented before the court, and gives particulars about the device used for the production of the electronic record, it is signed by a person holding an official position concerning the operation of the relevant device, or the supervision of the relevant activities.
Prior judicial interpretation
Judicial interpretation of Section 65B is not very clear. Many courts in India have tried giving practical implications of Section 65B. The earliest decision related to the admissibility of electronic records is State (NCT of Delhi) v. Navjot Sandhu, in which the Supreme Court held that the certificate under Section 65B is not always required and there is no bar for adducing secondary evidence under Section 63 and Section 65 of the Evidence Act. This judgment later was overruled by the Supreme Court in the Anvar P.V. case.
In Anvar P.V. v. P.K. Basheer, the court discussed both the nature and the manner of admission of electronic records. The bench held that secondary devices cannot be adduced under Section 63 and Section 65 of the Evidence Act as electronic devices are fully governed under Sections 65A and 65B. Any electronic records which are produced as secondary device are not admissible until they satisfy all the requirements under Section 65B, including a written certificate under Section 65B.
Later, the Supreme Court in Shafhi Mohammed v. State of Himachal Pradesh held that a certificate under Section 65B (4) is procedural and is not always required. If a party is not in possession of the device which is produced then he is not required to produce the certificate under Section 65B (4).
The Supreme Court clarified as follows:
For the admissibility of electronic records as evidence, the certificate under Section 65B is mandatory.
But the requirement of a certificate is not necessary if the original document itself is produced by the owner of the device (laptop, computer, etc.) by stepping into the witness box. For example, if original information is on a phone or laptop then it can be produced directly before the court by the owner of the device without any certificate as it will be considered as a primary device. But if the original information is contained on any such system which can’t be brought in court, then any copies made of that evidence are secondary evidence and for admissibility of such evidence would require a certificate under Section 65B (4).
If a person has sought for the certificate, and the person or authority concerned denies or does not respond to such demand, then the party asking for such certificate can apply before the court for production of the certificate under Section 165 of the Evidence Act; Order XVI, Rule 6.7 and 10 of the Code of Civil Procedure,1908; and/or under Section 91 and 349 of Code of Civil Procedure, 1973. One such request is made the Court can further demand production of such certificate.
The Court also observed that under Section 65B there is no mention of when the certificate should be produced. In the Anvar case, the Court observed that the certificate should be produced with the electronic record. And if the certificate is not provided with the electronic record, then the Court can ask the concerned person for the certificate. In criminal cases, the required certificate can be produced any time while the trial is going on.
The Supreme Court also gave some general instructions to cellular companies and internet service providers to maintain CDRs and relevant records for a relevant period (mentioned under Section 39 of the Evidence Act) in a safe manner if a particular CDR or any other record is seized during the investigation. Concerned parties can produce such records as defense evidence or for cross-examination.
The decision of the Supreme Court in the case of Arjun Panditrao Khotakar clarifies the interpretation of Section 65B of the Evidence Act and also when and how the Certificate should be produced. The judgment gives abundant clarity about the admissibility of the electronic evidence and the mandatory requirement of a certificate relevant to the electronic evidence. The judgment further gives clarification of what should the party do who cannot produce the certificate, it discusses the option of such parties and also discusses the role of the Court in such situations.