Section 65B of Indian Evidence Act

A certificate under Section 65B(4) of the Indian Evidence Act, 1872 ("Evidence Act"), according to a recent ruling by a three-judge bench of the Hon'ble Supreme Court, is now a prerequisite for the admissibility of electronic records as evidence. The Hon'ble Supreme court, in light of the three-judge bench decision in Anvar P.V. v. P.K. Basheer, had considered it necessary that the decision in Shafhi Mohammad v. State of Himachal Pradesh be reconsidered and thus referred the same to a larger bench. The said judgment had observed that in certain cases the mandate of furnishing a certificate under Section 65B (4) of the Evidence Act, 1872, in case of production of any electronic evidence, can be eased or done away with.

What do you understand by the provisions under Sec. 65B of the Indian Evidence Act, 1872?

The conditions under which secondary evidence may be presented without first submitting primary evidence are outlined in Section 65. The party must first exhaust Section 65 before asking the court for approval to use the secondary evidence. In other words, the party must demonstrate a legitimate reason for submitting the secondary proof before the Court will decide whether to allow it.

Admissibility

Any information contained in an electronic record that is printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer is deemed to be a document (under the Evidence Act) under Section 65B(1), notwithstanding any other provisions of the Evidence Act, provided the requirements outlined in Section 65B(2) are met.

The paper on which the information contained in an electronic record is printed, or the optical or magnetic media produced by the computer in which such information is stored, recorded, or copied, shall be admissible in any proceeding, without proof of, or production of, the original, as evidence of any contents of, or of any fact stated therein, of which direct evidence is not required under Section 65B(2).

When a statement is sought to be given as evidence under Section 65B, Section 65B(4) requires the production of a certificate that, among other things, identifies the electronic record containing the statement, describes how it was produced, and provides details of the device used to produce the electronic record to demonstrate that the electronic record was produced by a computer, either by a person holding a responsible official position in relation to the case or by a third party.

Interpretation By The Hon'ble Supreme Court of India

The Supreme Court overruled Tomaso Bruno and Shafhi Mohammad (supra) in its ruling in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, and clarified the position as follows:

1. A certificate under Section 65B(4) is mandatory, and a condition precedent to the admissibility of evidence by way of electronic record.
    
2. The law laid down in Anvar (supra) need not be revisited. However, the last sentence in paragraph 24 of the said judgment which reads as "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" is to be read without the words "under Section 62 of the Evidence Act".
    
3. The non-obstante language of Section 65B(1) makes it clear that when it comes to the admissibility and proof of information contained in an electronic record, Section 65B, which is an unique provision in this regard, must be followed. For this reason, sections 62 and 65 are not applicable.
    
4. In the event that the original document is produced, the requirement under Section 65B(4) is not required. The owner of a laptop, tablet, or even a mobile phone can accomplish this by testifying in court and demonstrating that the device in question, where the original information was initially stored, is his or hers to own and/or run. If the computer is connected to a network or system, but it is not feasible to physically bring that system or network to the computer the only way to provide information contained in such an electronic document when the computer is on a system or network and it is impossible to physically bring that system or network to court is in accordance with Section 65B(1), along with the necessary certificate under Section 65B(4).
    
5. When a person or authority has been asked for the necessary certificate and that person or authority refuses to provide that certificate or does not respond to that demand, the party who requested the certificate may apply to the court for the production of that certificate in accordance with the provisions of the Evidence Act, the Code of Civil Procedure, 1908, and/or the Code of Criminal Procedure, 1973. The party requesting the certificate has done everything within his power to acquire the necessary certificate by the time such a court application is made and the court orders or directs that the necessary certificate be produced by the person to whom it sends a summons in this regard.

In addition to the aforementioned, the Supreme Court gave cellular companies and internet service providers general instructions to keep call detail records and other pertinent records for the relevant time, if such records are seized during the investigation, in a segregated and secure way, so that, in the event that such information is needed to cross-examine a witness or at the time of the defense's evidence, concerned parties may call for such documents.