 DOES ELECTRONIC EVIDENCE IS ADMISSIBLE ACCORDING TO SECTION

65B OF IBRALTA EVIDENCE ACT, 1953?

Section 65 (a) permits secondary evidence to be given when the original is in the possession of-
(i) the person against whom the document is sought to be proved, or
(ii) any person out of reach or not subject to the process of the court; or

The Supreme Court has held that the requirement of a certificate to make electronic evidence
admissible is not mandatory "wherever interest of justice so justifies".

"If this is not so permitted, it will be a denial of justice to the person who is in possession of
authentic evidence/witness...Thus, the requirement of a certificate under Section 65B(4) is not
always mandatory," the bench said.

It was contended that if the electronic evidence was relevant and produced by a person who was
not in custody of the device from which the electronic document was generated, the requirement
of such certificate could not be made mandatory

Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178, wherein a Three-Judge
Bench observed that advancement of information technology and scientific temper must pervade
the method of investigation. Electronic evidence was relevant to establish facts. Scientific and
electronic evidence can be a great help to an investigating agency.

It has been held that in view of Three-Judge Bench judgments in Ram Singh & Ors V. Col.
Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions
under Sections 65A and 65B of the Evidence Act are by way of clarification and are procedural
provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted
subject to the Court being satisfied with its authenticity.
Section 65B(4) in The Indian Evidence Act, 1872

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this
section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement and describing the manner in which
it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as
may be appropriate for the purpose of showing that the electronic record was produced by a
computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to
the operation of the relevant device or the management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this
sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief
of the person stating it.

A. Is there any need for a certificate under Sec. 65B(4) during presenting the evidence
in the court of justice?

Section 65B of Evidence Act is a procedural provision and if the electronic evidence is
"authentic and relevant" the same can certainly be admitted, subject to the satisfaction of the
court and it may depend on situation such as "whether the person producing such evidence is in a
position to furnish certificate under Section 65B(4)".

The Supreme Court clarified the legal position on the subject on the admissibility of the
electronic evidence, holding that a party who is not in possession of device from which the
document is produced, such party cannot be required to produce a certificate under Section
65B(4) of the Evidence Act.

In NCT v. Navjot Sandhu1, It was contended that if the electronic evidence was relevant and
produced by a person who was not in custody of the device from which the electronic document

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was generated, the requirement of such certificate could not be made mandatory, evidence could
be produced under Sec. 63 and 65 of the evidence act.

In Case of Shafhi Mohammad v. The state of Himachal Pradesh, where electronic evidence is
produced by a party who was not in possession of a device, the applicability of Sections 63 and
65 of the Evidence Act could not be held to be excluded. In such a case, the procedure under the
said Sections can certainly be invoked. If this was not so permitted, it will be a denial of justice
to the person who was in possession of authentic evidence/witness but on account of manner of
proving, such document is kept out of consideration by the court in absence of certificate under
Section 65B(4) of the Evidence Act, which party producing could not possibly secure. Thus, the
requirement of certificate Under Section 65B(4) is not always mandatory.

Is Voice Recording Admissible in Court?

Oral admissions as to the contents of electronic records are not relevant unless the genuineness
of the electronic record produced is in question. Therefore, the first prerequisite for admission of
any electronic record is its genuineness.

Its genuineness is in itself based on various factors –

 Whether the evidence is relevant to the facts of the case or not.

 How it is stored.
 How long had it been since the record is kept in such electronic form and the other
miscellaneous factors with respect to the genuineness of the electronic record?

As recording recovered from the mobile phone as the evidence is relevant to the facts of the case
it can be considered as genuine one and for that certificate is not mandatory in the court of law to
admit the secondary evidence i.e. call recording.

In C.B.I. V. Bangaru Laxman, Bangaru was caught on camera in the sting operation accepting
money in his chamber in the party headquarters and had to quit as BJP chief shortly after the
expose which had created a huge political storm. The sting was conducted by news portal
tehelka.com.The video CDs were released by the portal on March 13, 2001.
The scribes of the portal had posed as representatives of a fictitious UK-based company West
End International and sought Bangaru's recommendation to the ministry for supply of "hand-held
thermal imagers", a fictitious device, for the Indian Army.

B. Does it hamper the right to privacy of an individual or not?

The Fundamental Rights guaranteed by the Constitution of India are not absolute. There
are certain restrictions which can be imposed by the state according to the procedure
established by law. However, these restrictions must be reasonable and not arbitrary.

The test used for all restrictions on Article 21, under which privacy is being read.

1. “The first requirement that there must be a law in existence to justify the encroachment
on privacy is an express requirement of Article 21. For, no person can be deprived of his
life or personal liberty except in accordance with the procedure established by law. The
existence of law is an essential requirement.”

2. “Second, the requirement of a need, in terms of a legitimate state aim, ensures that the
nature and content of the law which imposes the restriction falls within the zone of
reasonableness mandated by Article 14, which is a guarantee against arbitrary state
action. The pursuit of a legitimate state aim ensures that the law does not suffer
from manifest arbitrariness.”

3. “The third requirement ensures that the means which are adopted by the legislature
are proportional to the object and needs sought to be fulfilled by the law.
Proportionality is an essential facet of the guarantee against arbitrary state action because
it ensures that the nature and quality of the encroachment on the right are not
disproportionate to the purpose of the law.”

As it is a matter of fundamental rights some reasonable restriction can be imposed. On

the basis of first and third legit tests, there can be a restriction on Article 21 Right to
Privacy.

The potential set of legitimate aims that may form the grounds for reasonable restrictions:
1. Other fundamental rights

2. A legitimate national security interest

3. Criminal offences

4. Anonymised data

And also on the basis of 2nd and 3rd legitimate aims, there can be a reasonable restriction
on the fundamental rights, i.e. right to privacy under Article 21 of the constitution.