By- Tanya Gupta


Background and Facts of the Case

Section 3 of the Evidence Act characterizes the expression “Proof”. Furthermore, it orders the proof into 2 classes, for example, Oral and Documentary Evidence.

The expression “Narrative Evidence”, according to the definition, would incorporate all reports including electronic records created for the assessment of the Court. It might be seen here that the definition itself has isolated narrative proof into archives and electronic records.

Part V manages arrangements of Documentary Evidence broadly. Section 61 gives that verification of substance of reports might be demonstrated either by essential or Secondary Evidence.

The expression “Essential Evidence” is characterized by Section 62 though Section 63 characterizes the expression “Optional Evidence”. Essential proof methods the archive itself delivered for the investigation of the court for example the first record.

Section 63 gives rundown of records which will be treated as Secondary Evidence. The minor heading of Section 65 is ‘Unique arrangements as to confirm identifying with electronic record’ and Section 65 B manages ‘Suitability of electronic records’.

The term Secondary electronic record/proof isn’t utilized anyplace in these 2 sections. Nonetheless, it can be seen that in a large portion of the conditions, the parties won’t be able to deliver the very gadget on which the data was recorded, created or taken care of and henceforth what is being created in the court is the duplicate of the first electronic record and not the first electronic record.

Section 65B (1) observes this reality and obviously prevail over the act. Despite anything contained in this Act, any data contained in an electronic record which is imprinted on a paper, put away, recorded or replicated in optical or attractive media delivered by a PC will be regarded to be additionally an archive, if the conditions referenced in this part are fulfilled according to the data and PC being referred to and will be permissible in any procedures, moving along without any more verification or creation of the first, as proof of any substance of the first or of any reality expressed in that of which direct proof would be allowable.

It is to be watched further Section 65B (1), as referenced above, begins with non-obstante statement which connotes that Section 65B will beat all the arrangements of the Act.

It might be inferred that uncommon sacredness has been agreed to the electronic proof and unique strategy has been contrived under Section 65 B which will be appropriate just on electronic proof.

Subsequently acceptability of Electronic proof or record is represented by Section 65A and 65B. Notwithstanding, it won’t be inaccurate to utilize the term Secondary Electronic Evidence as for archive delivered under Section 65 B.

The exceptional strategy mulled over by Section 65 B is by all accounts in consonance of current patterns. The utilization of electronic contraptions and gadgets is on rise which will additionally result into age of an ever increasing number of electronic records and electronic records are inclined to altering, modification, rendering, extraction, and so on.

Section 65B (4) makes obligatory the outfitting of authentication by the individual who depends upon the electronic proof and it is to be given by the individual who gives the duplicate of the substance of the electronic record from the gadget in his ownership or force wherein such substance was routinely taken care of and such PC gadget was working appropriately during when such data was recorded and duplicate of that was delivered.

The issue identifying with outfitting of Certificate under Section 65 B has come up under the steady gaze of the Supreme Court on a few events. Seeing the contention of assessment on this issue, it was alluded to the bigger Bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others (2020) 3 SCC 216 [Decided on 26th July, 2019], and this reference was replied by the Supreme Court and practically following a year the Judgment was conveyed on fourteenth July, 2020.

Legal issues occurring in this case

  • Is it mandatory for a party relying upon Secondary Electronic Evidence to produce the Certificate contemplated by Section 65 B (4)?
  • At which stage Certificate contemplated by Section 65 B (4) is to be produced?
  • What are the powers of the Court if Certificate is not produced?

The issue concerning creation and tolerability of electronic proof or record came up under the watchful eye of the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, didn’t recognize an ordinary archive and electronic record based on their inclination and drew a similarity with Section 63 and 65 and said that the exceptional method given by Section 65 B (2) & (4) need not be followed and if testament required by Section 65B(4) can’t be outfitted then the electronic record delivered without such consistence will at present be allowable as auxiliary proof.

Following perception was made by the Supreme Court in the moment case: As per Section 63 of Indian Evidence Act , “secondary evidence” signifies and incorporates, in addition to other things, ‘duplicates produced using the first by mechanical cycles which in themselves safeguard the exactness of the duplicate, and duplicates contrasted and such duplicates’.

Section 65 empowers optional proof of the substance of a record to be showed if the first is of such a nature as not to be effectively portable. It isn’t in debate that the data contained in the call records is put away in tremendous workers which can’t be effortlessly moved and created in the court.

That is the thing that the High Court has likewise watched [Ed.: Reference is to State v. Mohd. Afzal, (2003) 71 DRJ 178] at para 276.

Thus, printouts taken from the PCs/workers by mechanical cycle and guaranteed by a capable authority of the administration giving organization can be driven in proof through an observer who can recognize the marks of the confirming official or in any case discuss the realities dependent on his own insight.

Independent of the consistence with the necessities of Section 65-B, which is an arrangement managing tolerability of electronic proof or records, there is no bar to showing auxiliary proof under different arrangements of the Evidence Act, to be specific, Sections 63 and 65.

It might be that the endorsement containing the subtleties in sub-section (4) of Section 65-B isn’t documented in the at present case, yet that doesn’t imply that auxiliary proof can’t be given regardless of whether the law allows such proof to be given in the conditions referenced in the pertinent arrangements, to be specific, Sections 63 and 65.”

Key Points of the Judgment

  • It is mandatory for the party relying upon Electronic Evidence to produce the certificate required by Section 65 B (4).
  • If Certificate is not issued or refused, the Court may order the production of the Certificate by concerned Authority which will be bound to issue the same upon passing of such order.
  • The Certificate should have been produced at the time of filing of document. However, if it could not be produced at that stage, it may be permitted to be produced later. But such later production of certificate should not prejudice the rights of the accused.
  • Anvar P.V. v. P. K. Basheer is restored and Shafhi Mohammad is expressly overruled and all the judgments which followed Shafhi Mohammad and disregarded Anvar P.V. were held per in curium.
  • If record of electronic evidence is likely to be destroyed after lapse of a particular time period, the concerned authorities are bound to keep a record of the same in pursuance of Section 39 of the Evidence Act or Section 67C of the Information Technology Act, 2000 in order to substantiate the Certificate later at the stage of trial.

“The Court directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.”

[1] 2020 SCC OnLine SC 571.

Case Notes

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: