Abstract:

The blog analyses the situation law related to Electronic evidence in India. The Blog focuses on the loopholes and lacunae of E-evidence and its legal system,

Due to the advancement of computer technology and the adoption of the current legislation on internet commerce by the United Nations Commission on International Trade Law (UNCITRAL)[1]in 1996, India, as a signatory, was required to amend the laws. Sections 65A and 65B of the Indian Evidence Act of 1872 were inserted after the Information Technology Act of 2000 was passed. "Proof" means and encompasses all papers, including electronic records, produced for the Court's examination, according to Section 3 of the Indian Evidence Act, and so documentary evidence is adduced for electronic records. 

However, this may not be feasible in all circumstances. The Indian Evidence Act, Section 65B (1), creates a legal fiction by elevating a computer output, such as printouts, pen drives, and the like, to the status of primary evidence by considering it as the original. However, the conditions of Section 65B (2) must be met in order to do so. The Indian Evidence Act does not define an electronic record, although it is specified in Section 2 (1) (t) of the Information Technology Act, 2000.

ELECTRONIC RECORD

Data, record, or data created, picture or sound, saved, received, or communicated in an electronic form or microfilm or computer-generated microfiche is defined as an electronic record under Section 2 (1) (t) of the Information Technology Act of 2000. As a result, any data, record, image, or sound stored in an electronic device is considered an electronic record. For instance, a conversation captured on a mobile phone, an email, or defamatory comments made on a live chat room, to name a few examples[2]. Documentary evidence, not oral evidence, must be presented in primary form for electronic recordkeeping.

So, if something is on the laptop, the document itself, i.e. the laptop, is the direct proof. However, submitting the laptop to the Court is not possible, and thus dealing with this scenario is impossible. There are sections 65A and 65B of the Indian Evidence Act.

INDIAN EVIDENCE ACT- SECTION 65A

The contents of electronic records must be proven in line with Section 65B.

SECTION 65B OF THE INDIAN EVIDENCE ACT

Information contained in an electronic record that can be printed on paper or stored, recorded, or copied in optical or magnetic media shall be considered a document, i.e., original itself, if the other conditions of Section 65B are met, particularly Section 65B (2), and shall be admissible in any proceeding without further proof or production of the original.

For example- If the prerequisites of Sec. 65B (2) are met, a printout of case law from SCC Online shall be considered original (primary evidence). The legislature is attempting to make secondary evidence as good as direct evidence by inventing the legal fiction in this provision. Sec. 65B (2)'s goal is to ensure the computer output's validity, and it assumes a circumstance in which the electronic record is or has been in the custody of the person presenting electronic evidence, and the requirements are as follows:

The computer output comprising the information was generated by a computer that was being used for that purpose on a regular basis by the person who had lawful control over the computer's use.

  1. During that time, information of the same type was routinely supplied to the computer as part of routine tasks.
  2. The computer was working correctly during that time, and if it was malfunctioning for a period of time, it did not affect the computer output.
  3. The information in the electronic record is derived from the data entered into the computer.

In light of Section 65A of the Indian Evidence Act, any documented evidence in the form of an electronic record can only be proved using the approach outlined in Section 65B. The admissibility of electronic records is addressed in Section 65B. These restrictions aim to protect secondary evidence created by a computer in electronic form. A non-obstante clause begins Section 65B. Thus, despite anything in the Indian Evidence Act, any information contained in an electronic record that is printed on paper, stored, recorded, or replicated in an optical or magnetic media produced by a computer is only deemed to be a document if the prerequisites of Sec.65B (2) are met.

 

  1. If these conditions are met, there is no need to produce the original for additional verification. The admissibility of such a document, i.e., an electronic record referred to as a "computer output," is contingent on the fulfillment of four conditions outlined in section 65B. (2).
  2. If a statement in any proceeding involving an electronic record is required, it is admissible if a Certificate containing any of the following is provided: 

 

  1. The certificate identifies the electronic record containing the statement.
  2. The certificate describes how the electronic form was created.
  3. The certificate describes the equipment used in the creation of the record.
  4. The certificate addresses the circumstances outlined in Section 65B. (2).
  5. A person in a responsible official position concerning the functioning of the relevant device must sign the certificate.

Section 65B (4) says that the person merely needs to mention in the certificate that the information is accurate to the best of his knowledge and belief. These precautions are used to ensure the origins and legitimacy of an electronic document intended to be used as evidence. However, there are several problems in Section 65B's interpretation (4).

IN REGARD TO THE REQUIREMENT OF A CERTIFICATE, JUDICIAL OPINIONS CONTRADICT 

In-State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru, it was held that producing secondary evidence under other provisions of the Indian Evidence Act, such as Sections 63 and 65, is not barred notwithstanding compliance with Section 65B's requirements. However, in the Anvar P. V. case, a three-judge Supreme Court bench overturned this decision. It was held that the caption of Section 65A Indian Evidence Act read with Section 59 read with Section 65B is adequate to hold that the specific provisions on evidence relating to electronic records shall be controlled by the method set forth in Section 65B.

It was also decided that Sections 65A and 65B make up a complete code. The particular provisions of Sections 65A and 65B will take precedence over the general requirements of Sections 65 and 63. If the prerequisites of Sec. 65B are not met, the Evidence Act does not allow or allow the proof of an electronic record by oral evidence. In circumstances where the electronic device owned a third party, the legal position taken in the Anvar P. V. case appeared to be wrong.

The Supreme Court relied on the Navjot Sandhu case and ignored the Anvar P. V. decision in Tomaso Bruno vs State of U. P[3]. As a result, this decision is now not regarded as sound.

The Supreme Court stated in Sonu Amar vs State of Haryana that a Certificate is required only at the trial stage, not at the appellate location; this decision was made on standard view.[4]


[2] Electronic records and their management have transformed how organizations collect, organize, and use a variety of information formats in any organization, not only pharmaceutical, biotechnology, and medical companies.

[4] https://www.scconline.com/blog/post/2017/07/21/objection-to-mode-or-method-of-electronic-proof-cannot-be-entertained-at-appellate-stage/


About the Author: This Legal Article is prepared by Nikhil Anand , Associate Advocate at Legacy Law Offices. He can be reached at nikhil.anand@legacylawoffices.com

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