Electronic Evidence

- Ms. Shraddha Shukla

Assistant Professor, ICFAI Law School, The ICFAI University Dehradun
 Revision of Indian Evidence Act, 1872
• The purpose of the law of evidence is to find the truth of a fact.
• What do we prove in a case? – Facts in issue/ relevant facts
• How do we prove the facts in issue or relevant facts? – Documentary Evidence or Oral
Evidence.
• Who will prove the fact
• S. 5 of the Evidence Act is called the “corner stone of Evidence Act” which talks about
the admissibility of Evidence. It provides that evidence can only be given for a fact in
issue or relevant fact, and of no other fact.
 How will you prove a fact in issue or relevant fact?

Documentary Evidence Oral Evidence

Primary Evidence
(S. 62) > Secondary Evidence
(S. 63)
Proof of facts by oral
evidence (S. 59) & Oral
evidence must be direct
Examination
of witnesses
(S. 135 – 166)
(S. 60)

It is the original Allowed in

document certain cases S. 65

S. 61 – S. 66 of Evidence Act
 Impact of IT Act, 2000 on IEA, 1872
• When the IT Act of 2000 was passed, it had 4 more sections initially, i.e. S. 91-94. Later
on they were omitted by the amendment of 2008.
• S. 91 of IT Act, 2000 stated – The Indian Penal Code shall be amended in the manner
specified in the First Schedule to this Act.
• S. 92 of IT Act, 2000 – The Indian Evidence Act, 1872 shall be amended in the manner
specified in the Second Schedule to this Act.
• S. 93 of the IT Act, 2000 – The Bankers’ Books Evidence Act, 1891 shall be amended in
the manner specified in the Third Schedule to this Act.
• S. 94 of the IT Act, 2000 – The Reserve Bank of India Act, 1934 shall be amended in the
manner specified in the Fourth Schedule to this Act.
• As an effect of these sections in the IT Act, 2000, certain amendments were made in IPC,
IEA, The Bankers’ Books Evidence Act, and The Reserve Bank of India Act.
• What all sections were added to the IEA as a result of the enactment of IT Act in
India?
1. Definition of “evidence” u/s. 3 includes the words “electronic records”
2. S. 45A – Opinion of Examiner of Electronic Evidence

S. 79A of IT Act, 2000 – Central Government to notify Examiner of

Electronic Evidence

3. S. 47A – Opinion as to Electronic Signature when relevant

4. S. 65A and 65B – Admissibility of Electronic Evidence
5. S. 67A – Proof as to electronic signature
6. S. 73A – Proof as verification of digital signature
7. S. 81A – Presumption as to Gazette in Electronic forms
…etc.
 Is “electronic evidence” a “documentary
evidence”?
• According to S. 3 of Indian Evidence Act, 1872, “document” means any matter
expressed or described upon any substance by means of letters, figures or marks, or
by more than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
• As per S. 3 of Indian Evidence Act, 1872, “evidence” means and includes –
(1) 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.
(2) All documents including electronic records produced for the inspection of the Court, such
documents are called documentary evidence.

S. 2 (1) (t) of the IT Act, 2000 defines the term “electronic record”

Data Image Sound

Stored, received, or Sent in an Electronic Form

or
Microfilm
or
Computer generated microfiche
• Data – SMS, Email, Word File, WhatsApp message etc.

• Image – A Photograph, video

• Sound – Call recording, voice notes, music
• Data, Sound, and Image – Stored anywhere in mobile or laptop or hard-disk, pen-drive,
CCTV footage

Stored in an electronic form

 CCTV Footage stored in a Digital Video Recorder (DVRs)

Stored in an
Electronic Record electronic form
• Case: P. Gopalkrishnan @ Dileep v. State of Kerala & Anr. [2019 SCC Online SC 1532]
In this case, the question before the Court was whether the contents of a memory card or
pen-drive will fall under the definition of “electronic record” u/s. 2(1) (t) of IT Act, 2000
and thereby qualify as a “document” within the meaning of S. 3 of IEA & S. 29 of IPC?
If so, whether it is obligatory to furnish a cloned copy of such memory card or pen-drive
to the accused in terms of S. 207 CrPC.
It was held in this case, that the contents of memory card or pen-drive are “electronic
records” and they must be regarded as a “document”. If the prosecution is relying on the
same, ordinarily, the accused must be given a cloned copy thereof to enable the accused
to present an effective defence during the trial.
• So, we can say that “electronic records” are documentary evidences as per the definition of
“document” r/w the definition of “evidence” u/s. 3 of IEA, 1872.
• And to prove a “documentary evidence” the Rule of Best Evidence is applied as per S. 64
of Evidence Act, which says –
S. 64 – Proof of documents by primary evidence – Documents must be proved by primary evidence
except in the cases hereinafter mentioned.
Best Evidence Rule – Primary Evidence is
the best evidence

• What is “primary evidence”? According to S. 62 of the IEA, primary evidence means the
document itself produced for the inspection of the Court.

If we talk about electronic evidence, the
“document itself” will be the “electronic
record” and by definition electronic record
is a “data, image or sound” “stored,
received or sent” in an electronic form.
Does this mean, we have to produce the
electronic record in electronic form only?
Or In other words, do we have to produce
the device in the Court room on which it is
stored, or received or from where it was
sent?
• In many cases, the parties produce the electronic record in an electronic form itself.
However, it is not possible to produce primary evidence in all cases, example: an e-mail,
WhatsApp chat, Boarding Pass generated on computer, Railway Ticket etc., so in such
cases secondary evidence is allowed.
• What are the sections under Evidence Act which talk about the admissibility of electronic
evidence?
S. 65 A – Special provisions as to evidence relating to electronic record. – The contents of electronic
records may be proved in accordance with the provisions of section 65 B.

S. 65 A is an enabling provision – If there are electronic records, then these electronic records can
be given as electronic evidence in a Court room.

What all conditions must be proved, so that an electronic record may be given as evidence in the
Court room? These conditions are provided u/s. 65 B of the IT Act, 2000.
S. 65 B. Admissibility of electronic records. – (1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be
deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the
information and computer in question and shall be admissible in any proceedings, without further
proof or production of the original, as evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.

• “Notwithstanding” – Non-obstante clause (special provision) – Generalia Specialibus non

derogant – which means that for the purposes of interpretation of two statutes in apparent
conflict, the general law must yield to the special one.
• The “electronic record” & its print-out will be a document.
• “shall be admissible” – such document will be admissible as evidence.
• “without further proof or production of the original” – this means you can produce the print-out
of an electronic record and if the conditions of S. 65 B are satisfied then there is no need to
produce the original electronic record.
S. 65 B. Admissibility of electronic records. –
(1) …
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following,
namely:
(a) The computer output containing the information was produced by the computer during the period over which
the computer was used regularly to store or process information for the purposes of any activities regularly
carried on over that period by the person having lawful control over the use of the computer;
(b) During the said period, information of the kind contained in the electronic record or of the kind from which
the information so contained is derived was regularly fed into the computer in the ordinary course of the said
activities;
(c) Throughout the material part of the said period, the computer was operating properly or, if not, then in
respect, of any period in which it was not operating properly or was out of operation during that part of the
period, was not such as to effect the electronic record or the accuracy of it contents; and
(d) The information contained in the electronic record reproduces or is derived from such information fed into
the computer in the ordinary course of the said activities.
• S. 65 B (3) recognises that information or data is easily and frequently for convenience,
business or technical reasons transferred, copied, recorded or stored in different machines
or equipment simultaneously or in succession. In such cases, all computers used for the
purpose during the period in question from the beginning till the period where the output
is obtained, are treated and regarded as the single computer for the purpose of this section.
• S. 65 B (4) is talking about a “certificate”. What will the “certificate” consist of?
(a) Identify the electronic record – Data/ image/ sound
How that electronic record was produced? – Typing/ email/ picture clicked/ video recorded
(b) Give details about the device involved in the production of that electronic record – Laptop/ mobile/
digital camera/ audio recorder
(c) Certify that the conditions of sub-section (2) are met
• Who will sign the “certificate” of S. 65 B (4) ?
The certificate has to be signed by a person occupying a responsible official position in relation to the
operation of the relevant device
• S. 65 B (4) further clarifies that the person need only to state in the certificate that the
same is to the best of his knowledge and belief
• This is done to ensure the source & authenticity of the electronic record which is sought to
be used as evidence.
• For example: You took an image from Google – How can a person certify that the image
on Google is correct? – At the most you can certify that “ I have taken the image from
Google and to the best of my knowledge these are as it is images taken from Google”.
• The issue of S. 65 B (4) is that – Whether such “certificate” is mandatory or not?
• The requirement of Certificate under S. 65 B (4) has come into scrutiny over the years
with various judgements giving opposing views.

1. State (NCT of Delhi) v. Navjot Sandhu (2005 SC)

Bench: 2 judges
It was held that irrespective of the compliance with the requirements of S. 65 B (4), there is no bar to
adducing secondary evidence under other provisions of the IEA, namely S. 63 and S. 65.
The effect of this judgement was that it removed the question of necessity of Certificate while adducing
electronic evidence.
2. Anvar P.V. v. P.K. Basheer (2014 SC)
Bench: 3 judges
It was held that the very caption of S. 65 A of the IEA r/w S. 59 & S. 65B is sufficient to hold that the
special provisions on evidence relating to electronic record shall be governed by procedure established
under S. 65B that is a complete code in itself. Being a special law, the general law under S. 63 & S. 65 has
to yield.

So, this judgement strictly required the compliance of the requirements under S. 65 B (4).

3. Sonu v. State of Haryana (2016 SC)

Bench: 2 judges
In this case the Court refused to be bound by Anvar P.V. v. P.K. Basheer judgement. It did not say that the
requirement of Certificate need not be fulfilled but held that non-compliance cannot be brought up at the
Appellate stage.
The Court also spoke about the doctrine of prospective ruling according to which the decision of the
Court in a particular case does not apply retrospectively but applies only to future cases. However, in this
case the Court decided that it could not decide on prospective ruling & therefore left it open to be decided
by another larger bench.
4. Shafhi Mohammad v. State of Himachal Pradesh (2018 SC)
Bench: 2 judges
In this case the Court partly agreed with Anvar v. Basheer judgement & party deferred. It was held that the
applicability of Procedural requirement u/s. 65 B (4) of furnishing Certificate is to be applied only when
such electronic evidence is produced by a person who is in a position to produce such certificate being in
control of the said device and not of the opposite party. In case where electronic evidence is produced by a
party who is not in Possession of a device, applicability of S. 63 & S. 65 of IEA, cannot be excluded. In
such case, procedure u/s. 63 & S. 65 can certainly be invoked.

The division bench held that the requirement of a certificate under Section 65 B (4) is procedural and can
be waived in the interest of justice if a party does not have one

In Shafhi Mohd. again a confusion with respect to production of Certificate emerged. So, on 26th July
2019, in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, this matter was
referred to a larger bench for clarification.
5. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020 SC)
Bench: 3 judges (Hon’ble Mr. RF Nariman, Mr. S. Ravindra Bhat and Mr. V. Ramasubramanian, JJ)

The Supreme Court ruled that before electronic evidence can be accepted, a Certificate under Section 65B
is required, upholding the decision in Anvar P.V. and overruling the ‘clarification’ in Shafhi Mohammed.

The bench held that the certificate required under S. 65 B (4) is a condition precedent to the admissibility
of evidence by way of electronic record.

It further indicated that a certificate necessary under Section 65B is not always required. Section 65B (1),
according to the Supreme Court, distinguishes between the original electronic record contained in the
computer in which the original information is first stored, and (ii) the computer output containing such
information, which may then be treated as evidence of the contents of the ‘original document.’
The Supreme Court clarified that a certificate is not required if the ‘original document’ is produced (as
primary evidence). The owner of a laptop computer, computer tablet, or even a mobile phone might do so
by going into the witness box and establishing that the concerned device, on which the original
information is first saved, is owned and/or operated by him. In all other cases, where the “computer” is
part of a “computer system” or “computer network,” and physically bringing such a system or network to
the Court is impossible, the only way to provide information contained in such an electronic record is to
use Section 65B (1) in conjunction with the production of the required Certificate.

The Supreme Court confirmed the distinction between primary and secondary evidence in the case of
electronic documents.

Opinion/Criticism:
A bright-line rule may not work as effectively for electronic records as it does for paper ones. It is unclear
whether the legislature will revise Section 65B in its current session (Feb 2022).

What is your take?