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Electronic Evidence: Interpreting Section 65B of the Indian Evidence Act

In the era of globalization, the advent of Information and Technology has significantly reshaped our lives, with electronic transactions becoming routine. Consequently, as courts address various issues, they are compelled to adapt to the increasing reliance on technology and acknowledge the significance of electronic evidence.

However, a notable concern arises from the susceptibility of electronic data to manipulation, which casts doubt on its accuracy and reliability. This compels the courts to take a closer examination of the relevance and admissibility of electronic evidence, a topic that has sparked debates not only within India but also in legal systems worldwide.

Following the Information Technology amendment in 2000, the insertion of S. 65B of the Indian Evidence Act, 1872, recognized computer outputs such as printouts, CDs, and hard disks as documents under this statute, thus rendering them admissible in court. However, for such evidence to be deemed admissible and relevant, specific conditions outlined in S. 65B (2) must be satisfied. Despite this legal framework, judicial interpretations on this matter have been diverse, with courts adopting varying perspectives and criteria for admitting electronic evidence.

In a decision, a three-judge bench of the Apex Court sought to establish consistency regarding the admissibility of electronic evidence by overruling the precedent set in State v. Navjot Sandhu and reinterpreting s.61-65 of the Indian Evidence Act, 1872.

Anvar P. V v/s P.K. Basheer (2014) 10 Scc 473
An election petition was lodged pursuant to s.100(1)(b) of the Representation of the People Act, 1951, wherein appellant asserted that election campaigning in the form of songs, speeches, and proclamations amounted to defamation and constituted corrupt practices under the Act, warranting the annulment of the election on such grounds.

The electronic evidence at issue in Anvar's case comprised Video CDs containing election campaign announcements, interviews, and public gatherings purportedly conducted by the respondent's party, initially recorded on mobile phones.

The respondents contended that the CDs could not be admitted as evidence since they did not meet the requirements set forth in s. 65B. The High Court concurred with the respondents' argument and dismissed the petition, prompting an appeal to the Supreme Court.

Section 59 which forbids the utilization of oral testimony to establish the contents of documents, while s. 65A stipulates that electronic records can only be presented as evidence through s. 65B. Therefore, the legal issue at hand in the current appeal could be resolved by interpreting s. 65B of Evidence Act

Analysis Of The Judgement
In overturning the precedent set in Navjot Sandhu, the Supreme Court stated that the legal stance articulated in this case regarding the admissibility of secondary evidence related to electronic records does not accurately reflect the correct legal position. Therefore, it deemed it necessary to overturn this precedent. The Court asserted that secondary evidence of an electronic record cannot be admitted as evidence until the conditions outlined in s. 65B (2) are met.

Furthermore, the Court emphasized that the Appellant failed to produce any certificate as required by S. 65B in relation to the CDs. As a result, the CDs cannot be accepted as evidence. Examining the statutory interpretation rendered by the Supreme Court, it can be concluded that all the conditions outlined in s. 65B(2) are mandatory.

Additionally, apart from the four conditions delineated in s. 65B (2), a fifth condition from s. 65B (4) must also be satisfied before a statement under s. 65B can be issued. It is imperative to produce a certificate; otherwise, the electronic evidence will not be deemed admissible.

The Court's interpretation appears unconventional as it misinterprets and disregards the alternative provided within the statute.
Let's analyze each provision interpreted therein point by point:
  1. S. 65B (4) specifies that a certificate must fulfil any of the enumerated criteria, as delineated in clauses (a), (b), and (c). This specifies that compliance with any one of the clauses suffices, contrary to Court's interpretation, which mandates adherence to them as singular units.
  2. S. 65B(4)(c) allows the certificate to address any matters pertaining to the conditions outlined in subs. (2). However, the Court construed this to mean that all conditions must be specified in the certificate.
  3. The Court asserts that all "applicable" circumstances of s. 65B (2) should be mentioned in the certificate. Yet, the legislative provision does not utilize the term "applicability," and its introduction in subs. 4 is a product of interpretation.
  4. The Court overlooks the requirement under clause (b) of s. 65B (4), which necessitates demonstrating that the electronic record was generated by a computer.
  5. The individual tasked with signing the certificate must be associated with the operation or management of the device, yet the Court solely refers to operation.

These examples clearly illustrate the extent of flexibility with which the Court has construed the statutory provisions, contradicting the principles of statutory interpretation.

Furthermore, concerning the interpretation of s. 65(B), the court has ruled that in the case of CDs, DVDs, chips, and similar media, they must be accompanied by a certificate as per s. 65B obtained at the time of acquiring the document. The court held that since the certificate was not presented at the time the computer output was generated, it renders the evidence inadmissible. This condition levies an undue burden on parties who might not always be able to provide the certificate without facing prejudice, such as whistleblowers. S. 65B does not specify any timeframe within which the certificate must be furnished. The interpretation provided by the court clearly exceeds the limits of the statute.

In the case of Ankur Chawla v. CBI, the court applied the requirement for the certificate to be produced contemporaneously and consequently dismissed the electronic evidence.

According to the court's interpretation of s. 65B, only a certificate under s. 65B (4) is deemed sufficient to fulfil the conditions outlined in s. 65B (2). It is now precluded to employ any alternative method to satisfy these conditions. In a recent ruling in Jagdeo Singh v. State, oral evidence regarding electronic evidence was deemed inadmissible. However, the provision does not explicitly direct the submission of a certificate for the evidence to be admitted, nor does it prohibit the utilization of other alternative methods.

What other methods can be employed to render electronic evidence legally admissible under the Evidence Act? S. 3 of the Indian Evidence Act, 1872 permits two types of evidence: oral and documentary. As previously noted, a certificate is not obligatory under s. 65B (4). Consequently, alternative forms of documentary evidence can be utilized to admit electronic records. As for oral evidence, s. 22A of the Indian Evidence Act, 1872 expressly prohibits its use, yet it may be utilized to establish the authenticity of the record.

The 4 situations specified under s. 65B (2) address the necessity of verifying its genuineness. Thus, it can be reasonably argued that such conditions can be satisfied through oral evidence. The court contends that only if the electronic record is properly produced in accordance with s. 65B, would the question arise regarding its genuineness.

It must be noted that the underlying purpose of s. 65B, which pertains to permissibility, is to ensure the source and genuineness of documents, inherently linked to their genuineness. The court's assertion that reliability pertains to the weight of the evidence rather than its admissibility is erroneous.

Under the Evidence Act, the process of presenting evidence is not segmented into stages of admissibility, relevance, and weight. Moreover, in RM Malkani v. State of Maharashtra, the court ruled that the reliability of evidence must be established prior to its admission, particularly in light of new technologies susceptible to manipulation. Therefore, it should be permissible under the Evidence Act for a party to present oral evidence to satisfy the conditions of s. 65B (2) .

  • Instances arise where evidence is unlawfully acquired by whistleblowers or investigative agencies. Presently, the law mandates certification, rendering it nearly unattainable in such scenarios.
  • Authentication through certification is also susceptible to manipulation or deceit. Aside from the risk of perjury, there are no incentives for a party seeking such certificates.
  • The stipulations under s. 65B (2) lack provisions for safeguarding against tampering or alteration of information.
The aforementioned factors contribute to a significant lack of reliability in certificates. Placing exclusive trust in this authentication process is likely to elevate the incidence of false evidence being presented, consequently prolonging the already challenging trial proceedings.

Furthermore, the outright inadmissibility of electronic evidence due to non-production of certificates could lead to substantial miscarriages of justice, particularly in cases where uncovering clandestine activities or scams is imperative. While certificates should remain a requirement, exceptions should be considered for illegally obtained evidence in specific instances, and alternative authentication methods should be permissible.

The judgment in Anvar's case underscores the judiciary's concern regarding the reliability of electronic evidence. The court's new stance asserts that general laws pertaining to secondary evidence do not apply to electronic evidence. Given the susceptibility of electronic records to tampering and alteration, failure to comply with S. 65B's special provision may result in a miscarriage of justice.

Following the Anvar case, it is now mandatory to adhere to S. 65B of the Act for the presentation and admissibility of any electronic evidence, including computer data, CDs, VCDs, chips, or any other digital record.

Case Laws:
  • Anvar P. V Vs P.K. Basheer & Ors (2014) 10 Scc 473
  • State V. Navjot Sandhu (2005) 11 Scc 600
  • Ankur Chawla V. Cbi 2014 Scc Online Del 6461
  • Jagdeo Singh V. State 2015 Scc Online Del 7229
  • Rm Malkani V. State Of Maharashtra (1973) 1 Scc 471

  • The Indian Evidence Act, 1872
  • The Representation Of The People Act, 1951

Award Winning Article Is Written By: Mr.Kumar Ritwik
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Authentication No: FB405913470250-28-0224

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