21st Century is the often categorized as the century of innovation and modernity. Invention and genesis of computer and other tech devices is one of the most contributing factors to such modernization. This concept of digitalization has spread all over the world, including our own nation, India. In the recent past, the Government of India has started the scheme 'Digital India' targeting the spreading and use of digitalization in the daily life. This wave of digitalization can be observed in other field like commerce, communication, governance, etc.

Electronic media and means has benefitted human in various ways and add great value to our life. The legal framework in India has undergone complete transformation with the advent of digital era. Almost every person in this world is exposed to digital means so there is high probability of tracing digital footprints and conduct of criminals through these digital records. Like the rest of the world, Indian law has recognized the importance of digital evidence in the present time. Indian Judiciary is not behind in appreciation of value added by electronic means, which is evident from the use of electronic records as evidence under the provisions of Indian Evidence Act, 1872.

The digitalization in evidence law is mainly signified by a shift from traditional physical documents and oral statements to a much more advanced and complicated electronic records. On one hand, electronic records are convenient but on the other half, they also create distinct problems and difficulties with respect of authenticity. With the rapid advancement in positive use and misuse of cyberspace, danger of injustice lie with the use of electronic records, which often cause problems for investigating agencies and the judiciary. Evidences are the deciding factor during the trial stage, so it is necessary to deal with electronic records with care and caution as they are also a type of evidence.

Admissibility and Proof of Electronic Records:

Evidence is the main basis for determination of a legal proceeding. Traditional form of evidence consisted of oral statements, physical documents and tangible items. This form changed with the introduction of electronic and digital records causing a stark transition from the older version. This transition is not only subjective and technical but also cultural. It poses a challenge to the everlasting legal principles, like the best evidence rule, which relates to the preference to original document secondary copies.

The term 'Digital evidence' embodies wide set of electronic means, such as text messages, emails, photographs, social media posts, etc. The wide spread network of digital devices are sources for both opportunities and various challenges. While digital evidence is easy to store, propagate and prove, it also poses issues related to privacy, authenticity, and technicality. With the recognition of digital evidence, the distinction between original and secondary copy is usually very thin, thus casting a responsibility on courts to clear such lines.

Initially, in India, there was no legal framework regarding the use and admissibility of electronic evidence. Gradually, this framework came into existence via Amendment Act of 2000 to the Indian Evidence Act which recognized the significance of electronic records in legal arena. This amendment mainly introduced Section 65A and 65B, which exclusively dealt with the electronic records.

As per the legislated provisions, Section 65A deals with a special provision of consideration of electronic records as evidence and Section 65B relates to the admissibility of such records. The ultimate purpose of these special provisions was to facilitate the use of electronic evidence in legal context. These amendments are exception to the best evidence rule, which generally requires the production of the original document as primary evidence.

Criteria for Admissibility in India:

Admissibility of electronic records and digital records in Indian legal system is generally governed by the principles of relevance, authenticity, and reliability.

1. Relevance: This is the most fundamental rule for admissibility of every kind of evidence. Testimonies, documents or electronic evidences can be produced as evidence only when they are relevant to the matter in issue.
2. Authenticity: In the special case of electronic evidence, it has to be first ensured that the evidence is proved authentic. There should not be any misinformation, tempering in the evidence which could diminish its chances for admissibility.
3. Reliability: This reflects the quality and consistency of the evidence. For electronic records, manner of collection, storage and transmission should be such which preserves its reliability.

The term Electronic form evidence, defined under Section 79A of Information Technology Act, 2008 includes data in electronic form which could be stored or transmitted by such digital means. Several examples of electronic records include CD, pen drives, e-mails, hard drives, pictures, video recordings, sound recordings, etc.

Section 65 A stipulates that the contents embodied in electronic records have to be proved as evidence as per the provisions detailed in Section 65B.

Section 65B(1) provides that any information contained in any electronic record, which is stored, recorded or copied as an output by computer, shall be deemed as a 'document' and shall be admissible as evidence without any requirement of further proof or production of the original records, if the conditions mentioned are fulfilled. Section 65B (2) provides for the criteria which must be satisfied for the information to be categorized as a computer output.

Section 65B (1) clearly makes distinction between the 'original' electronic record, which is stored in the computer in which it was firstly made or stored and the 'secondary' copies which are made from such primary electronic record. It provides that if the information embedded in an electronic record produced has been copied or transmitted to optical or magnetic device then such copied electronic record shall also be deemed to be an evidence provided that the conditions under Section 65B(2) are complied with.

As per Section 65B (2), essentials for considering the electronic records as evidence are following:

• Produced computer output should belong to a time period during which the mentioned computer was used regularly for storing or processing information.
• During such time period, information or data was often embedded into such computer in the general course of daily activities.
• The use of computer was done by the person having lawful control over the computer.
• In course of such period, the said computer was working correctly, and if not, then in a manner that electronic records and its content are not affected.
   

Additionally, Section 65B (4) provides that a certificate in certain cases has to be given, which includes:

1. A statement for identification of the electronic record.
2. A statement showing the description of manner of production of such record.
3. Particulars of the device from which the electronic record was produced.
4. Statements stating the complied essentials provided under Section 65B (2) of the Indian Evidence Act, 1872.
5. A statement providing declaration about that subject matter of certificate to be best of the knowledge of the person making it.
6. Such certificate should be signed by a person who occupies the official position with respect to such device or management of device.

Judicial Interpretations:

The ever-evolving interpretation of Section 65B of Indian Evidence Act has gradually changed with the landmark judgements pronounced by the higher judiciary.

1. State vs Navjot Sandhu (2005)
   
   In this landmark case, the Supreme Court held that electronic records, specifically the mobile phone records, can be admitted as evidence even without a certificate mandated under Section 65B. In this instant case, the court allowed the printouts of phone records to be used as admissible evidence without any certificate. This judgment was instrumental in recognition of importance and utility of electronic evidence in the present legal proceedings.
    

2. Anvar P.V. vs P.K Basheer(2014)

   In this case, the Supreme Court changed its earlier stance from Navjot Sandhu Case. The court emphasized that Section 65B is a complete code in itself, and Indian Evidence Act does not permit proof of electronic record by oral means. Section 65A and 65B are 'special' provisions so they will be given preference over other general provisions. It was stated that a certificate under Section 65B (4) is a compulsory requirement for the admissibility of an electronic record as secondary evidence.
   
   Without the credibility of the source there is no authenticity for the secondary record. Source and authenticity are the main elements for admissibility of electronic records. This judgment brought a strict approach towards electronic evidences, siding more with the statutory interpretation than the need of the present era.
    

3. Shafhi Mohammad vs State of HP (2018)

   This case further reevaluated the procedural requirement of a certificate and clarified the intricacies of Section 65B. The Apex Court slightly relaxed the essential requirement of a certificate under Section 65B (4) with respect to certain cases. The mandatory condition of certificate could be relaxed by the trial court in the interest of justice. Court concluded that such certificates are only a 'mode of proof' thus, non-production of certificate can be held as a curable mistake.
   
   It held that in the cases where an electronic record is produced by a person who does not have the possession of the device from which the electronic record was created or stored, the requirement of a certificate is not always mandatory. Certificate can be mandatory in circumstances where such record is produced by a person who is competent to produce such certificate as the said device belongs to him.
    

4. Arjun Panditrao Khotkar vs Kailash Gorantyal (2020)

   In this latest case, the court finally decided the position of Section 65 B (4). It was clarified that the certificate requirement under Section 65B (4) is a 'must' for the admissibility of any electronic record. Although, court gave due consideration to the challenges involved in obtaining such certificates, it also acknowledged the significance of attached procedural safeguard which is necessary for ensuring the reliability of such evidence.
   
   It was reiterated that if the original electronic record itself is produced, then there is no necessity for certification and oral testimony cannot substitute the provision for certificate. Also, the Section 65 B is not considered a complete code in itself. This ruling offers a consistent approach which was clear in respect of legislative intent and statutory procedure.

In Indian legal system, the issue of electronic evidence has always been a hot topic. Although, Indian courts have strived for clarity over this issue but still, there were various grey areas lying attached to electronic records. Over the years, various cases such as State vs Navjot Sandhu, Anvar P.V. vs P.K Basheer, and Shafhi Mohammad vs State of HP have attempted to address the ambiguity surrounding these provisions. However, owing to distinct circumstances and relevant factors in each case, there could not be a unified principle on this issue. This ambiguous position changed with the judgement in case of Arjun Panditrao v. Kailash Kishanrao which was comprehensive and definitive.

Conclusion:
As the world is heading towards a virtual world, every human activity will create an electronic record. In the present era, electronic or digital records are the most crucial piece of evidence in every kind of offence. With the advancement in technology, Indian legal system must be flexible, adaptive and responsive, to incorporate electronic evidence altogether while upholding the principles of reliability, fairness and justice in the legal proceedings. Thus, the position relating to the admissibility and proof of this kind of evidence should be free from any kind of ambiguity.

From time to time, the Indian courts have taken an active role in clarification of this position have clarified this position. In conclusion, it can be held that that original electronic record, and output from computer, can be produced before the court as evidence but in the case of production of secondary copies of such record, mandatory certificate has to be produced therewith. While there is total clarity over the scope of provisions of Section 65B, multiple efforts and steps are still required to ensure the safety, reliability and confidentiality of the record or information stored in the form of electronic evidence.

End Notes:

1. 2005 11 SCC 600
2. 2014 10 SCC 473
3. SLP(Crl.) No. 2302 of 2017
4. AIR 2020 Supreme Court 4908

Also Read:

• The Admissibility And Challenges Digital Evidence In Court
• The Section 65b Dichotomy: The Trends In Electronic Evidence Authentication
• Admissibility of Electronic Records: Understanding Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
• Admissibility And Authentication Requirements For Audio And Video Recordings As Evidence