Documentary evidence under Chapter V of the Evidence Act, 1872 is of great
importance during the course of trial as the same is the primary piece of
evidence. Sections 62 and 63 of the Indian Evidence Act, 1872 deals with the
admissibility of primary and secondary evidence respectively, during the
proceedings before a court. There exists a perpetual dilemma as to the mode
and manner of admissibility of electronic evidence or records during the
course of trial.
The Supreme Court has often, through means of various
judicial pronouncements, tried to resolve this procedural dichotomy.
However, recent developments have shown the contrary intention of the Apex
In 2005 ruling of the Supreme Court of India in the State NCT of Delhi v.
Navjot Sandhu alias Afsan Guru
, which stood as an authority for more than
nine years on the admissibility of secondary evidence pertaining to
electronic record stands overruled by the decision of the Division Bench of
the Supreme Court of India in Ansar P.V. v. P.K. Basheer and others.
Advancement in technology and its application across various dimensions has
resulted in creation and storage of information in electronic form
necessitating a substantial change in the law regarding electronic evidence.
In order to bridge the widening gap between law and technology, the
Parliament enacted the Information Technology Act, 2000 (IT Act). Amongst
other things, the IT Act defined terminologies such as that of data, electronic record, computer, computer output
etc. Apart from
introducing new concepts, the said legislation also brought an amendment to
the Evidence Act, 1872 providing special provisions for adducing electronic
evidence in Courts.
The said amendments to the Evidence Act, 1872 brought about following
- Section 59 was modified in order to exclude proving of contents of
documents (including electronic records) by oral evidence. By inserting
Sec 22A, it was provided that oral evidence with respect to contents of
electronic records is relevant only when genuineness of the record is in
- Section 45A was inserted in the Evidence Act, which provides that
opinion of Examiner of Electronic Evidence will be relevant fact when
the Court has to form an opinion on any matter relating to information
in electronic form. Who can be the Electronic Evidence Examiner for the
purpose of this Section is mentioned in Sec 79A of the Information
The highlight of the amendment was insertion of Section 65A & 65B which
deals with admissibility of electronic record. Section 65A, in a way similar
to section 61, provides for introduction and applicability of the special
provisions (section 65B) for evidence relating to electronic record.
Section 65B of the Evidence Act entails special procedure for adducing
electronic records as evidence in a Court of law. Section 65B provides for
technical and non-technical conditions and the manner for adducing
In spite of having a special procedure for adducing electronic evidence,
Indian Courts have shown reluctance against getting in terms with this
advancement and have continued to apply the general provisions set in
sections 63 and 65 of the Evidence Act for adducing electronic evidence. The
same came to be highlighted, when the Division bench of the Supreme Court
in Navjot Sandhu's case
raised uncomfortable questions about the integrity
of prosecution evidence. It was observed by the Supreme Court that the
interception of telephone calls for collecting the said evidence violated
privacy laws in several ways.
The question of non compliance to Section 65B
of the Evidence Act also came up. In spite of the said infirmities in the
evidence put forth, which should have disqualified the evidence, the Supreme
Court allowed admission of the Evidence under Section 63 and 65 by holding
irrespective of the compliance of the requirements of Section 65B which is a
provision dealing with admissibility of electronic records, there is no bar
to adducing secondary evidence under the other provisions of the Evidence
Act, namely Sections 63 and 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 and 65
Similar set of principles also came to be applied in the case of Ratan Tata
v. Union of India
, where the Apex Court did not take in consideration the
provisions relating to electronic records in Evidence Act. The above
decisions of the Supreme Court created a lot of confusion in the lower
Courts of the country, leading to counter claims.
The case of Amar Singh v.
Union of India,
(2011) 7 SCC 69, wherein all the parties, including the
state and the telephone company, disputed the authenticity of the printed
transcripts of the CDRs, as well as the authorisation itself, clearly
depicts the spread out notion in the Country.
It is worth noting that ascertaining all these factors only led to the
introduction of the special provisions into the Evidence Act. For instance,
as to authorisation, requirement of an impartial certificate under
sub-section (4) which in-turn complies with the technical requirements of
sub-section (2) was brought in establish the authenticity.
On account of the prevalent conflicting views, as can be seen from the
above, the decision in Anvar's case
becomes all the more important as it
clarifies about the procedure for adducing evidence in conformity of the
The facts of this case pertain to the general election to the Kerala Legislative Assembly held on 13.04.2011, wherein the first respondent
was declared elected and the appellant stood second in terms of votes. The
Appellant sought to set aside the election under Section 100(1)(b) read with
Section 123(2)(ii) and (4) of The Representation of the People Act, 1951
(hereinafter referred to as the RP Act), which provides for the grounds
for declaring the election void.
The High Court held that the election
cannot be set aside under Section 100(1) (b) of the RP Act as the corrupt
practices pleaded in the petition are not proved. Subsequently the Appellant
moved to the Supreme Court. Comprehending from the existing set of
contradictory precedents, the Supreme Court in para 14 of the judgment
observed the following in respect of the amendments brought to the Evidence:
In fact, there is a revolution in the way the evidence is produced before
the court. Properly guided, it makes the systems function faster and more
effective. The guidance relevant to the issue before us is reflected in the
statutory provisions ….
The Supreme Court after considering the evidence in the instant case
classified the same into three forms:
- electronic records,
- documentary evidence other than electronic records, and
- oral evidence.
The Supreme Court after in-depth analysis of adducing electronic record
as evidence observed that:
Any documentary evidence by way of an electronic record under the Evidence
Act, in view of Sections 59 and 65A, can be proved only in accordance with
the procedure prescribed under Section 65B.
Thereby, overruling the contrary views made in earlier Judgment by the Apex
Court which disregarded the existing provisions of the Evidence Act. The
Supreme Court after considering the electronic record put forth by the
Appellant rendered them as inadmissible as the Appellant had failed to
produce the certificate required in terms of Section 65B in respect of the
CDs provided as electronic records.
The Court analyzing the admissibility of electronic record in light of
the judgment pronounced in Navjot Sandhu's case observed that:
….It appears, the court omitted to take note of Sections 59 and 65A, while
dealing with the admissibility of electronic record in that case. Sections
63 and 65 have no application in the case of secondary evidence by way of
electronic record; the same is wholly governed by Sections 65A and 65B.
To that extent, the statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in Navjot Sandhu
case, does not lay down the correct legal position. It requires being
overruled and we do so…
The Apex Court relied on the maxim Generalia specialibus nonderogant
i.e., special law will always prevail over the general law. In light of the
said maxim, the court through Anvar's case has tried to give certainty to
the existing laws with respect to admissibility of the electronic evidence,
which for more than a decade have had very little or no certainty.
At the time when need to go to a court relating to a case we produce
information to the judge called evidence and the judge will decide our case.
In case we are not hiring an attorney we should gather the right and
relevant information that is shreds of evidence to the court in a right way.
The judges reach to the decisions depends upon the information that we
provide. The information must not be a gossip or guesswork. The text
messages, screenshots, or audio messages as proof or evidence in the court.
Under Evidence Act, the screenshots as the evidence in court, because it is
part of the electronic evidence. By submitting the screenshot as evidence,
the details of phone and the date in which it is taken also given in Court.