EVIDENCE PROJECT

REPORT ON

Relevancy and Admissibility

of Electronic Evidence

Submitted to: Submitted by:

DR. Sabina Aman Bajaj
237/15
Section D
Acknowledgement
I would like to express my special gratitude to my teacher Dr Sabina who gave
me the golden opportunity to do this wonderful project on the topic relevancy
and admissibility of electronic evidences, which also helped me in doing a lot
of Research and I came to know about so many new things.
Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.

AMAN BAJAJ
Introduction
On 18 September 2014, the Supreme Court of India delivered its judgment in
the case of Anvar v. P. K. Basheer 1 to declare new law in respect of the
evidentiary admissibility of the contents of electronic records. In doing so,
Justice Kurian Joseph, speaking for a bench that included Chief Justice
Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier
Supreme Court judgment in the 1995 case of State (NCT of Delhi) v. Navjot
Sandhu alias Afsan Guru2, popularly known as the Parliament Attacks case,
and re-interpreted the application of sections 63, 65, and 65B of the Indian
Evidence Act, 1872 (“Evidence Act”). To appreciate the implications of this
judgment, a little background may be required.

The hearsay rule

The Evidence Act was drafted to codify principles of evidence in the common
law. Traditionally, a fundamental rule of evidence is that oral evidence may be
adduced to prove all facts, except documents, provided always that the oral
evidence is direct. Oral evidence that is not direct is challenged by the hearsay
rule and, unless it is saved by one of the exceptions to the hearsay rule, is
inadmissible. In India, this principle is stated in sections 59 and 60 of the
Evidence Act.

The hearsay rule is both fundamental and complex; a proper examination would
require a lengthy excursus, but a simple explanation should suffice. In the

1
(Civil Appeal 4226 of 2012)
2
(2005) 11 SCC 600
landmark House of Lords decision in R v. Sharp 3 , Lord Havers – the
controversial prosecutor who went on to become the Lord Chancellor –
described hearsay as “Any assertion other than one made by a person while
giving oral evidence in the proceedings is inadmissible as evidence of any fact
or opinion asserted.” This definition was applied by courts across the common
law world. Section 114 of the United Kingdom’s (UK) Criminal Justice Act,
2003, which modernized British criminal procedure, uses simpler language: “a
statement not made in oral evidence in the proceedings.”

Hearsay evidence is anything said outside a court by a person absent from a

trial, but which is offered by a third person during the trial as evidence. The law
excludes hearsay evidence because it is difficult or impossible to determine its
truth and accuracy, which is usually achieved through cross examination. Since
the person who made the statement and the person to whom it was said cannot
be cross examined, a third person’s account of it is excluded. There are a few
exceptions to this rule which need no explanation here; they may be left to
another post.

Hearsay in documents
The hearsay rule is straightforward in relation to oral evidence but a little less so
in relation to documents. As mentioned earlier, oral evidence cannot prove the
contents of documents. This is because it would disturb the hearsay rule (since
the document is absent, the truth or accuracy of the oral evidence cannot be
compared to the document). In order to prove the contents of a document, either
primary or secondary evidence must be offered.

Primary evidence of the contents of a document is the document itself [section

62 of the Evidence Act]. The process of compelling the production of a

3
[1988] 1 All ER 65
document in court is called ‘discovery’. Upon discovery, a document speaks for
itself. Secondary evidence of the contents of a document is, amongst other
things, certified copies of that document, copies made by mechanical processes
that insure accuracy, and oral accounts of the contents by someone who has
seen that document. Section 63 of the Evidence Act lists the secondary evidence
that may prove the contents of a document.

Secondary evidence of documentary content is an attempt at reconciling the

hearsay rule with the difficulties of securing the discovery of documents. There
are many situations where the original document simply cannot be produced for
a variety of reasons. Section 65 of the Evidence Act lists the situations in which
the original document need not be produced; instead, the secondary evidence
listed in section 63 can be used to prove its content. These situations arise when
the original document (i) is in hostile possession; (ii) has been stipulated to by
the prejudiced party; (iii) is lost or destroyed; (iv) cannot be easily moved, i.e.
physically brought to the court; (v) is a public document of the state; (vi) can be
proved by certified copies when the law narrowly permits; and (vii) is a
collection of several documents.

Electronic documents
As documents came to be digitized, the hearsay rule faced several new
challenges. While the law had mostly anticipated primary evidence (i.e. the
original document itself) and had created special conditions for secondary
evidence, increasing digitization meant that more and more documents were
electronically stored. As a result, the abduction of secondary evidence of
documents increased. In the Anvar’s case, the Supreme Court noted that “there
is a revolution in the way that evidence is produced before the court”.
In India before 2000, electronically stored information was treated as a
document and secondary evidence of these electronic ‘documents’ was adduced
through printed reproductions or transcripts, the authenticity of which was
certified by a competent signatory. The signatory would identify her signature
in court and be open to cross examination. This simple procedure met the
conditions of both sections 63 and 65 of the Evidence Act. In this manner,
Indian courts simply adapted a law drafted over one century earlier in Victorian
England. However, as the pace and proliferation of technology expanded, and as
the creation and storage of electronic information grew more complex, the law
had to change more substantially.

New provisions for electronic records

To bridge the widening gap between law and technology, Parliament enacted
the Information Technology Act, 2000 (“IT Act”) [official pdf here] that,
amongst other things, created new definitions of “data”, “electronic record”, and
“computer”. According to section 2(1)(t) of the IT Act, an electronic record is
“data, record or data generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro fiche” (sic).

The IT Act amended section 59 of the Evidence Act to exclude electronic

records from the probative force of oral evidence in the same manner as it
excluded documents. This is the re-application of the documentary hearsay rule
to electronic records. But, instead of submitting electronic records to the test of
secondary evidence – which, for documents, is contained in sections 63 and 65,
it inserted two new evidentiary rules for electronic records in the Evidence
Act: section 65A and section 65B.

Section 65A of the Evidence Act creates special law for electronic evidence:

65A. Special provisions as to evidence relating to electronic record. – The

contents of electronic records may be proved in accordance with the provisions
of section 65B.

Section 65A of the Evidence Act performs the same function for electronic
records that section 61 does for documentary evidence: it creates a separate
procedure, distinct from the simple procedure for oral evidence, to ensure that
the adduction of electronic records obeys the hearsay rule. It also secures other
interests, such as the authenticity of the technology and the sanctity of the
information retrieval procedure. But section 65A is further distinguished
because it is a special law that stands apart from the documentary evidence
procedure in sections 63 and 65.

Section 65B of the Evidence Act details this special procedure for adducing
electronic records in evidence.

Sub-section (2) lists the technological conditions upon which a duplicate copy
(including a print-out) of an original electronic record may be used:

(i) at the time of the creation of the electronic record, the computer that
produced it must have been in regular use;
(ii) the kind of information contained in the electronic record must have
been regularly and ordinarily fed in to the computer;
(iii) the computer was operating properly; and, (iv) the duplicate copy
must be a reproduction of the original electronic record.

Sub-section (4) of section 65B of the Evidence Act lists additional non-
technical qualifying conditions to establish the authenticity of electronic
evidence. This provision requires the production of a certificate by a senior
person who was responsible for the computer on which the electronic record
was created, or is stored. The certificate must uniquely identify the original
electronic record, describe the manner of its creation, describe the device that
created it, and certify compliance with the technological conditions of sub-
section (2) of section 65B.

Non-use of the special provisions

However, the special law and procedure created by sections 65A and 65B of the
Evidence Act for electronic evidence were not used. Disappointingly, the cause
of this non-use does not involve the law at all. India’s lower judiciary – the third
tier of courts, where trials are undertaken – is vastly inept and technologically
unsound. With exceptions, trial judges simply do not know the technology the
IT Act comprehends. It is easier to carry on treating electronically stored
information as documentary evidence. The reasons for this are systemic in India
and, I suspect, endemic to poor developing countries. India’s justice system is
decrepit and poorly funded. As long as the judicial system is not modernized,
India’s trial judges will remain clueless about electronic evidence and the means
of ensuring its authenticity.

By bypassing the special law on electronic records, Indian courts have

continued to apply the provisions of sections 63 and 65 of the Evidence Act,
which pertain to documents, to electronically stored information. Simply put,
the courts have basically ignored sections 65A and 65B of the Evidence Act.
Curiously, this state of affairs was blessed by the Supreme Court in Navjot
Sandhu (the Parliament Attacks case), which was a particularly high-profile
appeal from an emotive terrorism trial. On the question of the defence’s
challenge to the authenticity and accuracy of certain call data records (CDRs)
that the prosecution relied on, which were purported to be reproductions of the
original electronically stored records, a Division Bench of Justice P.
Venkatarama Reddi and Justice P. P. Naolekar held:

According to Section 63, secondary evidence means and includes, among other
things, “copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with such
copies”. Section 65 enables secondary evidence of the contents of a document
to be adduced if the original is of such a nature as not to be easily movable. It is
not in dispute that the information contained in the call records is stored in
huge servers which cannot be easily moved and produced in the court. That is
what the High Court has also observed. Hence, printouts taken from the
computers/servers by mechanical process and certified by a responsible official
of the service-providing company can be led into evidence through a witness
who can identify the signatures of the certifying officer or otherwise speak to
the facts based on his personal knowledge.

Flawed justice and political expediency in

wiretap cases

The Supreme Court’s finding in Navjot Sandhu (quoted above) raised

uncomfortable questions about the integrity of prosecution evidence, especially
in trials related to national security or in high-profile cases of political
importance. The state’s investigation of the Parliament Attacks was shoddy with
respect to the interception of telephone calls.

The Evidence Act mandates a special procedure for electronic records precisely
because printed copies of such information are vulnerable to manipulation and
abuse. This is what the veteran defence counsel, Mr. Shanti Bhushan, pointed
out in Navjot Sandhu [see pr. 148] where there were discrepancies in the CDRs
led in evidence by the prosecution. Despite these infirmities, which should have
disqualified the evidence until the state demonstrated the absence of mala fide
conduct, the Supreme Court stepped in to certify the secondary evidence itself,
even though it is not competent to do so. The court did not compare the printed
CDRs to the original electronic record. Essentially, the court allowed hearsay
evidence. This is exactly the sort of situation that section 65B of the Evidence
Act intended to avoid by requiring an impartial certificate under sub-section (4)
that also speaks to compliance with the technical requirements of sub-section
(2).

When the lack of a proper certificate regarding the authenticity and integrity of
the evidence was pointed out, this is what the Supreme Court said in pr. 150:

Irrespective of the compliance of the requirements of Section 65B, which is a

provision dealing with admissibility of electronic records, there is no bar to
adducing secondary evidence under the other provisions of the Evidence Act,
namely, Sections 63 and 65. It may be that the certificate containing the details
in sub-section (4) of Section 65B is not filed in the instant case, but that does
not mean that secondary evidence cannot be given even if the law permits such
evidence to be given in the circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65.

In the years that followed, printed versions of CDRs were admitted in evidence
if they were certified by an officer of the telephone company under sections 63
and 65 of the Evidence Act. The special procedure of section 65B was ignored.
This has led to confusion and counter-claims. For instance, the 2011 case
of Amar Singh v. Union of India 4saw all the parties, including the state and
the telephone company, dispute the authenticity of the printed transcripts of the
CDRs, as well as the authorisation itself. Currently, in the case of Ratan Tata
v. Union of India Writ Petition (Civil) 398 of 2010, a compact disc (CD)
containing intercepted telephone calls was introduced in the Supreme Court
without following any of the procedure contained in the Evidence Act.

4
(2011) 7 SCC 69
In 2007, the United States District Court for Maryland handed down a landmark
decision in Lorraine v. Markel American Insurance Company5 that clarified
the rules regarding the discovery of electronically stored information. In
American federal courts, the law of evidence is set out in the Federal Rules of
Evidence. Lorraine held when electronically stored information is offered as
evidence, the following tests need to be affirmed for it to be admissible: (i) is
the information relevant; (ii) is it authentic; (iii) is it hearsay; (iv) is it original
or, if it is a duplicate, is there admissible secondary evidence to support it; and
(v) does its probative value survive the test of unfair prejudice?

In a small way, Anvar does for India what Lorraine did for US federal courts.
In Anvar, the Supreme Court unequivocally returned Indian electronic evidence
law to the special procedure created under section 65B of the Evidence Act. It
did this by applying the maxim generalia specialibus non derogant (“the
general does not detract from the specific”), which is a restatement of the
principle lex specialis derogat legi generali (“special law repeals general law”).
The Supreme Court held that the provisions of sections 65A and 65B of the
Evidence Act created special law that overrides the general law of documentary
evidence [see pr. 19]:

Proof of electronic record is a special provision introduced by the IT Act

amending various provisions under the Evidence Act. The very caption of
Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to
hold that the special provisions on evidence relating to electronic record shall
be governed by the procedure prescribed under Section 65B ofthe Evidence Act.
That is a complete code in itself. Being a special law, the general law under
Sections 63 and 65 has to yield.

5
241 FRD 534 (D. Md. 2007)
By doing so, it disqualified oral evidence offered to attest secondary
documentary evidence [see pr. 17]:

The Evidence Act does not contemplate or permit the proof of an electronic
record by oral evidence if requirements under Section 65B of the Evidence Act
are not complied with, as the law now stands in India.

The scope for oral evidence is offered later. Once electronic evidence is
properly adduced according to section 65B of the Evidence Act, along with the
certificate of sub-section (4), the other party may challenge the genuineness of
the original electronic record. If the original electronic record is
challenged, section 22A of the Evidence Act permits oral evidence as to its
genuineness only. Note that section 22A disqualifies oral evidence as to the
contents of the electronic record, only the genuineness of the record may be
discussed. In this regard, relevant oral evidence as to the genuineness of the
record can be offered by the Examiner of Electronic Evidence, an expert witness
under section 45A of the Evidence Act who is appointed under section 79A of
the IT Act.

While Anvar is welcome for straightening out the messy evidentiary practice
regarding electronically stored information that Navjot Sandhu had endorsed, it
will extract a price from transparency and open government. The portion
of Navjot Sandhu that was overruled dealt with wiretaps. In India, the wiretap
empowerment is contained in section 5(2)of the Indian Telegraph Act, 1885
(“Telegraph Act”). The Telegraph Act is an inherited colonial law. Section 5(2)
of the Telegraph Act was almost exactly duplicated thirteen years later
by section 26 of the Indian Post Office Act, 1898. When the latter was referred
to a Select Committee, P. Ananda Charlu – a prominent lawyer, Indian
nationalist leader, and one of the original founders of the Indian National
Congress in 1885 – criticised its lack of transparency, saying: “a strong and just
government must not shrink from daylight”.

Wiretap leaks have become an important means of discovering governmental

abuse of power, corruption, and illegality. For instance, the massive fraud
enacted by under-selling 2G spectrum by A. Raja, the former telecom minister,
supposedly India’s most expensive corruption scandal, caught the public’s
imagination only after taped wiretapped conversations were leaked. Some of
these conversations were recorded on to a CD and brought to the Supreme
Court’s attention. There is no way that a whistle blower, or a person in
possession of electronic evidence, can obtain the certification required by
section 65B(4) of the Evidence Act without the state coming to know about it
and, presumably, attempting to stop its publication.

Anvar neatly ties up electronic evidence, but it will probably discourage public
interest disclosure of inquity.

WHETHER CERTIFICATE u/65B CAN BE

SUBMITTED AT A STAGE SUBSEQUENT OF
FILING THE CHARGE SHEET i.e. DURING
PENDENCY OF TRIAL?
1. The judgment of Paras Jain v. State of Rajasthan6, came to the rescue
police and prosecution agency. The court has held that the certificate u/s
65B can be filed by the prosecution at any stage of trial. Replying to the
question that whether the documentary evidence which have not filed
with the charge sheet cannot be produce subsequently, the court held the

6
[MANU/RH/1150/2015]
 answer in negative and it can be filed at any stage to meet the goal of a
criminal trial which is to discover the truth.
The court observed that Section 91 Cr.P.C. empowers the court to call for any
document which is necessary or desirable for the purpose of trial and such
power can be exercised by the court at any stage of the proceeding and the court
can always issue the summon for production of any document which is required
for the proper disposal of the case irrespective of the fact that it has not been
filed with the charge sheet. Further, the court has also the power u/s 311 of
Cr.P.C. to examine any person though not summon as a witness and it is
permissible for the court even to order production of a document if it is an
essential for the just decision of the case.

The prosecution agency u/s 173(8) Cr.P.C. has the power to carry out further
investigation and collection of digital evidence even after filing of the charge
sheet which is a statutory right for which the prior permission of the magistrate
is not required and as such the police can file Section 65B certificate u/s 173(8)
particularly in the cases where such certificate has not been filed. Further, the
court observed that as per Section 231 Cr.P.C., the prosecution is entitled to
produce any person as a witness even though such person is not named in the
charge sheet. While concluding, the court observed that:-

“23. When legal position is that additional evidence, oral or documentary, can
be produced during the course of trial if in the opinion of the Court production
of it is essential for the proper disposal of the case, how it can be held that the
certificate as required under Section 65-B of the Evidence Act cannot be
produced subsequently in any circumstances if the same was not procured
alongwith the electronic record and not produced in the Court with the charge-
sheet. In my opinion it is only an irregularity not going to the root of the matter
and is curable. It is also pertinent to note that certificate was produced along
with the charge-sheet but it was not in a proper form but during the course of
hearing of these petitioners, it has been produced on the prescribed form.”

WHETHER CCTV FOOTAGES REQUIRE A

CERTIFICATE U/s.65B vis a vis IT’s
OPERATION IN THE COURT FOR
PURPORTING THE REQUISITE EVIDENCE?
[Kishan Tripathi @ Kishan Painter vs. The State7

The CCTV footage, which was directly and immediately stored in the hard
drive of the computer is the original media, that was self generated and created
without any human intervention. This CCTV footage is not secondary evidence
and does not require certification under Section 65B of the Evidence Act. This
issue is no longer res integral and is settled in the decision of the Supreme Court
in Anwar P.V. (S) vs P.K. Basir, , which hold:-
"24. The situation would have been different had the appellant adduced primary
evidence, by making available in evidence, the CDs used for announcement and
songs. Had those CDs used for objectionable songs or announcements been
duly got seized through the police or Election Commission and had the same
been used as primary evidence, the High Court could have played the same in
court to see whether the allegations were true. That is not the situation in this
case. The speeches, songs and announcements were recorded using other
instruments and by feeding them into a computer, CDs were made there from
which were produced in court, without due certification. Those CDs cannot be
admitted in evidence since the mandatory requirements of Section 65-B of the
Evidence Act are not satisfied. It is clarified that notwithstanding what we have
stated herein in the preceding paragraphs on the secondary evidence of

7
(Delhi HC 2016)]
electronic record with reference to Sections 59, 65-A and 65-B of the Evidence
Act, 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 65-B of the Evidence Act."
The aforesaid paragraph elucidates difference between primary and secondary
evidence. When primary or direct evidence in form of original data be it a CD,
hard drive or any other electronic record is produced, the same is admissible and
taken on record. This takes care of the contention of the appellant that the
CCTV footage should be discarded and not read in evidence in the absence of a
certificate under Section 65B of the Evidence Act.
The CCTV footage is captured by the cameras and can be stored in the
computer where files are created with serial numbers, date, time and
identification marks. These identification marks/ details are self generated and
recorded, as a result of pre-existing software commands. The capture of visual
images on the hard disc is automatic in the sense that the video images get
stored and recorded suo-moto when the CCTV camera is on and is properly
connected with the hard disc installed in the computer. It is apparent in the
present case from the evidence led that no one was watching the CCTV footage
when it was being stored and recorded. The recording was as a result of
commands or instructions, which had already been given and programmed. The
original hard disc, therefore, could be the primary and the direct evidence. Such
primary or direct evidence would enjoy a unique position for anyone who
watches the said evidence would be directly viewing the primary evidence.
Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with
reference to the fact which can be seen, it must be the evidence of the witness,
who had seen it, with reference to the fact, which could be heard, it must be
evidence of the witness, who had heard it and if it relates to the fact, which
could be perceived by any other sense or any other manner, then it must be the
evidence of the witness, who says who had perceived it by that sense or by that
manner. Read in this light, when we see the CCTV footage, we are in the same
position as that of a witness, who had seen the occurrence, though crime had not
occurred at that time when the recording was played, but earlier.
HG wells in his book "The Time Machine" had said "Now I want you clearly to
understand that this lever, being pressed over, sends the machine gliding into
the future, and this other reverses the motion. This saddle represents the seat of
a time traveler. Presently I am going to press the lever, and off the machine will
go. It will vanish, pass into future Time, and disappear. Have a good look at the
thing. Look at the table too, and satisfy yourselves there is no trickery." Time
machine is friction, albeit seeing the CCTV footage with your own eyes as a
judge gives you an insight into the real world in the past. In the present case, the
court has itself seen the CCTV footage, and has travelled back in time to the
time when the occurrence took place and thereby has seen the occurrence in the
same position as that of a witness, who would have seen the occurrence, if he
was present. There cannot be a more direct evidence. This video recording
which captures the occurrence, would be per se and mostly discerningly reliable
and compellingly conclusive evidence, unless its authenticity and genuineness is
in question.

Per force, we must rule out any possibility of manipulation, fabrication or

tampering. The hard-disk CCTV footage must pass the integrity test. It is a two
fold test, system integrity and record integrity. It is with this over cautious and
pensive approach, that we have proceeded and have bestowed our consideration.
We would accept the genuineness and authenticity of the CCTV footage played
before us, for good and sound reasons. System integrity test is satisfied by
ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and
police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18).
System was working and contemporaneously storing data. They had viewed the
data. On record integrity, i.e., contents of the record have remained unchanged,
we were anxious as it was noticed that the list of documents at Sr. No. 27, filed
with the charge-sheet, mentions compact disc (CD) indicative that the hard
drive had been examined and secondary evidence was created. Examination of
the police case file had revealed that the CD was created at the behest of the
public prosecutor, before the charge-sheet was filed. This was certainly a lapse
and the hard disc sealed and deposited in the malkhana should not have been
opened, even for the purpose of making copies of the video files. However, in
the facts of the present case, this transgression and deviation would not unsettle
and nullify the authenticity of the CCTV footage for there is no evidence or
even a suggestion that the appellant Kishan Tripathi was at any time under
compulsion or force, was asked to enact the crime at the place of occurrence.
Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh
Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S.
Rana (PW-18) and Ram Milan (PW-15) who had operated and played the
CCTV footage. We are satisfied that the recorded CCTV footage has not been
interpolated or tampered in the light of the original hard drive, which has been
played before us. The footage recorded consists of 405 files starting from 2:06
P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers.
Time and date are mentioned on the files and the video. These are not one, two
or three files, but more than 400 files, created over a span of several hours. This
"internal evidence" establishes its genuineness. Hard disk in the present case is
not only a physical object, but a document within the meaning of section 3 of
the Evidence Act

The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957
SC 857, has held that execution of a document can also be proved by the
"internal evidence" contained in the contents of the document. The
circumstantial evidence enforces our belief that the original document, i.e. hard
drive, is original and authentic.
Bibliography
 Singh avtar Dr., principles of the law of evidence, central law
publications, Allahabad, 21st edition
 Lal batuk, the law of evidence, central law agency, Allahabad, 21st
edition

Webliography
 www.keydifferences.com
 www.shareyouressays.com
 www.legalservicesindia.com
 www.shodh.inflibnet.ac.in