ADMISSIBILITY OF ELECTRONIC EVIDENCE: IN TIMES OF DIGITAL ERA

By- Vikalp Sharma

The 21st century brought a technological revolution in the whole world and these courts even have started to use technology to wheel up the judiciary functions. In these unprecedented times, courts moved their functions virtually however one thing remains a common factor is the “Justice”. The use of computers or any other technologically advanced systems is not limited but available to every individual. Information Technology gave birth to cyberspace wherein the Internet provides the opportunity for every individual to access any data. Due to this, people are relying more on electronic communications, information, and even store this information digitally.

With the advent of the technologies, certainly, there was a need for rules and laws to govern such technology, therefore, in India, there are some legislations introduced in 2000 to govern, which are Information Technology Act, 2000 and the said legislation brought some Amendments in the Evidence Act,1872 to govern the admissibility of electronic evidence in both civil and criminal cases.

With changes in the law, Courts have developed the precedents regarding reliance on electronic evidence. According to Section 3 of the Indian Evidence Act, defines “Evidence” as

“Evidence”- “Evidence” means and includes-

  • All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
  • All documents “including electronic records” produced for the inspection of the Court; such documents are called documentary evidence.

According to Section 2(t) of Information Technology Act, 2000 “Electronic Records” means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated micro fiche;

Therefore, the Indian Evidence Act recognizes two types of evidence “oral evidence” and “documentary evidence” including electronic evidence. From section 59 to 60 deals with oral evidence and from section 61 to 90A deals with documentary evidence, however, Section 65A and 65B deals with electronic evidence.

In India, the first case of electronic evidence was in the form of “Tape recorded evidence” in Rup Chand AIR 1956 P H173 wherein Punjab High Court considered the aforesaid evidence as a novel concept and relied upon American and English courts with respect to the evidence for dispelling the clouds misgiving about the admissibility of tape-recorded evidence.

Admissibility of electronic evidence under Evidence Act, 1872

Under Section 65B clause 1, notwithstanding anything contained in the Evidence Act, any information contained in electronic evidence, which is printed, recorded, stored, or copied produced by a computer is deemed to be a document, provided if the condition mentioned in Section 65B clause 2 is satisfied.

Where a statement in evidence is sought to be given by a virtue of Section 65B, Section 65B clause 4 requires a certificate to be produced that inter alia identifies the electronic record containing the statement and describes the manner in which it is produced.

Anvar P.V vs P.K Basheer (2014) 10 SCC 473: Supreme Court sought “To create uniformity in practice, the Court interpreted Section 65B as mandating one specific authentication method; certificate as described under said section as a necessary pre-condition for admissibility of electronic evidence. 

In Tomaso Bruno vs the State of UP, (2015) 7 SCC 178: Supreme Court held that secondary evidence of the contents of a document can be led under Section 65B clause 4, however, while passing this judgment, Apex Court neither relied on condition of a certificate under Section 65B clause 4 nor on the law laid down in Anvar case, instead relied on Navjot Sandhu[1] case, which was overruled by Anvar.

In Shafhi Mohammad vs State of Himachal Pradesh (2018) 2 SCC 801, the Apex Court held that the requirement of producing a certificate is procedural not always mandatory. A party who is not in possession of the device from which the document is produced cannot be required to produce a certificate.

However, the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571, Supreme Court overruled the prior judicial decisions and held as follows:

  1. Certificate under Section 65B(4) is mandatory, and a condition precedent to the admissibility of evidence by way of electronic record.
  2. “If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act” is to be read without the word under Section 62 of the Evidence Act. Although, the law laid down in Anvar need not be revisited.
  3. The requirement under Section 65B(4) is unnecessary if the original document itself is produced.
  4. If the concerned authority refuses to give certificate or does not reply to the demand, the party can apply to the court for its production under Evidence Act (Section 165), Civil Procedure Code (Order XVI Rules 6,7 and 10) and Criminal Procedure Code (Section 91 and 349).
  5. The conditions under Section 65B(2) and 65B(4) must be satisfied cumulatively.

Before the decision of Arjun Panditrao Khotkar, there were seems to be confusion however, the said case has cleared the air in relation to the conditions for admitting electronic evidence.


[1]MANU/SC/0465/2005


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