Admissibility of Electronic Evidence: Court’s Perspective
The 21st century has been defined by application and advancement in Information Technology industry and becoming an integral part of our day to day lives. From creating a consensus, communication, processing, and documentation are digitalized now. But is Indian legal system really affected by it. Indian judicial system has always been dubious of the recent trends in information technology. Regardless of the developments in the IT sector and amendments in The Indian Evidence Act, 1872, admissibility of electronic evidence has always been a relevant issue.
NOW THE QUESTION ARISES AS TO WHAT FORMS A PART OF ELECTRONIC EVIDENCE?
Any alleged matter of fact, that needs to be investigated, in order to ascertain the truth at a judicial trial which is stored in any computer, CDs, DVDs, hard disks, digital cameras, phones, pagers, caller IDs or any other electronic device.
Prior to the amendment in The Indian Evidence Act, 1872, Section-3, electronic evidence was nowhere discussed, later upon the needs of the society and the legal system Section 65B was inserted merely to secure the interest of public and to remove the ambiguity within the system which reads as under-
Section-65B explains the conditions as to when and in what circumstances an electronic document be considered as “admissible in the court as a document”, and lays down a special procedure for adducing electronic records in evidence-
According to Section 65B (4) of the Evidence Act, it states that if a statement was given in evidence, a certificate was required in terms of the provision from a person occupying a responsible position in relation to the operation of the relevant device or the management of relevant activities. It was suggested 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 mere non-production of the certificate under Section 65B for such electronic evidence would not make it in-admissible in the interest of justice
The Courts have given a distinctive view over the years in respect of the admissibility of electronic evidence without the issuance of a certificate as prescribed under Section 65B of the Indian Evidence Act. A few of such important judgments and the Court’s opinion cited therein are stated as under:
1. STATE OF NCT OF DELHI vs NAVJOT SINGH SANDHU:
“Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 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 & 65.”
While in the abovementioned judgment a Division Bench of the Apex Court was pleased to allow Electronic Records to be produced on record despite non-compliance of Section 65B.In another case the Apex Court considered a contrary view wherein a Three-Judge Bench laid down, in the case of:
2. ANVAR P.V. vs P.K. BAHSEER:
“An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”
In the above-mentioned case the court gave a rather stringent interpretation to Section 65B and held that a certificate is mandatory to be obtained under the section in order for an electronic record to be admitted before the court, and in the absence of the same, such electronic evidence shall stand inadmissible.
In another judgment of the Supreme Court, a Single Judge Bench of the Apex Court took evidence of CDR on record despite non-compliance with Section 65B of the Indian Evidence Act and laid down a principle on Objection with regard to the admissibility of a document into categories of two, in the case of:
3. SONU vs STATE OF HARYANA:
“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to the admissibility of documents in evidence may be classified into two classes:
an objection that the document which is sought to be proved is itself inadmissible in evidence; and
where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit.”
The Apex Court, further, through a judgment of a Division Judge Bench, clarified the legal position on the subject of Admissibility of Electronic Evidence, in the case of:
4. SHAFHI MOHAMMAD vs THE STATE OF HIMACHAL PRADESH:
“(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act 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 a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such a case, the procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be a denial of justice to the person who is 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 cannot possibly secure. Thus, the requirement of the certificate under Section 65B (4) is not always mandatory.”
The aforementioned judgment elaborates on the principles laid down by the Apex Court in its previous judgments. The Court herein clarifies the position with respect to situations wherein a person who is producing such electronic evidence before the Court is not in actual possession of the device from which such evidence is procured, and therefore, in the interest of justice cannot be denied admissibility of such evidence due to lack of issuance of certificate. Since, the evidence may be authentic in nature, and would thereby defeat the very purpose of the entire Justice system.
After the amendment in The Evidence Act, 2000 it has been made very clear that the electronic evidence is admissible throughout the nation in all jurisdictions in several forms. Whereas, Indian Courts still struggle with certain issues regarding the admissibility and production of electronic evidence.
Recently, in one of the cases represented by Sapphire and Sage Law Offices at Patiala House Court, New Delhi, a question was brought up during the Examination-in-Chief that, whether an e-mail can be directly produced before the court by logging in into the respective e-mail account to prove its existence and authenticity in compliance with the requirements of Section 65B?
Through the aforementioned Judgments the Apex Court has laid down an unsettled legal position with respect to Admissibility of Electronic Evidence without compliance of Section 65B, but the legislature or the Hon’ble Supreme Court nowhere specifies such a scenario as the same is in the contravention with the Rules of Law, and whether the evidence is in compliance or in contravention depends upon the circumstances of the matter and lastly upon the discretion of the court.
Whereby, while the Court, in the case of Anvar P.V. vs Bahsheer, is of the considered opinion that the issuance of certificate as per terms of Section 65B of Indian Evidence Act is mandatory in nature, the same, in the case of Shafhi Mohammad vs State of Himachal Pradesh, has been made subject to whether a party is in possession of the device from which such evidence is procured or not. Therefore, certificate for electronic evidence has not been made mandatory for a person not in possession of the device from which such electronic evidence has been procured, in the interest of justice. But a person who has direct access to the electronic device in which the data is stored is required to produce the certification in compliance with the laws laid down by the Legislature. Indian Courts have been very procedural and practical while applying mind to such circumstances, it is the legislature that needs to come up front.
[This post has been authored by Snehal Kaila, fifth year law student of Guru Gobind Singh Indraprastha University during her course of internship at Sapphire and Sage Law Offices and Drishty Grover, Associate, Sapphire and Sage Law Offices]
 “Evidence” .— “ 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.
 Sec 2 (1) (t) of The Information Technology Act, 2000: "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche
 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.
(2005) 11 SCC 600
(2014) 10 SCC 473
(2017) 8 SCC 570
(2014) 10 SCC 473