Not only primary piece of evidence (under Chapter V of the Evidence
Act, 1872) is of great importance, but also court gives an equal importance to
Documentary evidence during the course of trial. Section 62 and Section 63 of
The Indian Evidence Act, 1872 deals with the admissibility of primary and
secondary evidence respectively. In the course of proceedings before a court,
there prevail a ceaseless plight as to the mode and aspect of admissibility of
electronic evidence or records during the course of trial.
The Supreme Court has repeatedly, over means of various judicial pronouncements,
staunched to resolve this procedural duality. However, recent augmentations have
shown the paradoxical intention of the Apex Court.
In case of Anvar P.V. v. P.K. Basheer and others
.Supreme Court contradicted
its decision of NCT of Delhi v. Navjot Sandhu alias Afsan Guru
it) which stood as an authority for more than nine years on the admissibility of
secondary evidence pertaining to electronic record.
Amelioration in technology and its operation across assorted dimensions has
culminated in constitution and storage of information in electronic form
constraining a hefty change in the law regarding electronic evidence. In order
to arch the widening rift between law and technology, the Parliament enacted the
Information Technology Act, 2000 (IT Act). Amidst other things, the IT Act
defined terminologies such as that of data, electronic record, computer,
computer output etc. Aloof from harbingering new concepts, the said legislation
also brought an amendment to the Evidence Act, 1872 providing special provisions
for illustrating electronic evidence in Courts.
The forenamed amendments to the Evidence Act, 1872 fetched about following
- Section 59 was refitted in order to debar proving of contents of
documents (including electronic records) by oral evidence. By embedding Sec
22A, it was catered that oral evidence with respect to contents of
electronic records is relevant only when genuineness of the record is in
- Section 45A was refitted in the Evidence Act, which caters that opinion
of Examiner of Electronic Evidence will be relevant fact when the Court has
to compose an opinion on any matter revealing to information in electronic
form. Who can be the Electronic Evidence Examiner for the purpose of this
Section is cited in Sec 79A of the Information Technology Act.
The focal point of the amendment was embedment of Section 65A & 65B which deals
with admissibility of electronic record. Section 65A, in a way analogous to
section 61, caters for introduction and applicability of the special provisions
(section 65B) for evidence relating to electronic record.
Section 65B of the Evidence Act necessitates special procedure for illustrating
electronic records as evidence in a Court of law. Section 65B caters for
technical and non-technical positions and the manner for illustrating electronic
Indeed having a special procedure for illustrating electronic evidence, Indian
Courts have delineated hesitation against getting in terms with this
amelioration and have endured to apply the general provisions set in Sections 63
and 65 of the Evidence Act for illustrating electronic evidence. The same came
to be focused, when the Division bench of the Supreme Court in Navjot Sandhu's
case raised distressing questions about the probity of prosecution evidence. It
was espied by the Supreme Court that the interception of telephone calls for
collecting the said evidence disrupted privacy laws in distinct ways.
The question of non assent to Section 65 B of the Evidence Act also came up. In
spite of the said frailties in the evidence put ahead, which should have
invalidated the evidence, the Supreme Court conceded admission of the Evidence
under Section 63 and 65 by clasping that:
irrespective of the concurrence of the essential of Section 65B which is a
provision pacting with admissibility of electronic records, there is no bar to
illustrating secondary evidence under the other provisions of the Evidence Act,
specifically Sections 63 and 65. It may be that the certificate accommodating
the details in sub-Section (4) of Section 65B is not filed in the immediate
case, but that does not mean that secondary evidence cannot be given even if the
law charted such evidence to be given in the circumstances mentioned in the
germane provisions, namely Sections 63 and 65
Akin set of principles also came to be enforced in the case of Ratan Tata v.
Union of India
, where the Apex Court did not take in cogitation the
provisions imparting to electronic records in Evidence Act. The above decisions
of the Supreme Court conceived a lot of abashment in the lower Courts of the
country, dominant to counter claims.
The case of Amar Singh v. Union of India
, wherein all the parties, counting
the state and the telephone company, wrangled the legitimacy of the printed
transcripts of the CDRs, as well as the authorization itself, clearly interprets
the escalated out notion in the Country.
It is worth perceiving that discovering all these components only coerced to the
introduction of the special provisions into the Evidence Act. For instance, as
to authorization, exaction of an impartial certificate under sub-section (4)
which in-turn deferred with the technical exaction of sub-section (2) was
brought in establish the legitimacy.
On account of the extensive antagonistic views, as can be seen from the above,
the decision in Anvar's case becomes all the more paramount as it formulates
about the agenda for illustrating evidence in conformity of the standing law.
The facts of this case befit to the general election to the Kerala Legislative
Assembly held on 13.04.2011, wherein the first respondent was stated elected and
the appellant erected second in terms of votes. The Appellant sought to set afar
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 caters for the grounds for stating the election as void.
The High Court held that the election cannot be set afar under Section 100(1)
(b) of the RP Act as the corrupt tradition pleaded in the petition are not
proved. Finally the Appellant conveyed to the Supreme Court.
the alive set of antithetical precedents, the Supreme Court in Para 14 of the
judgment observed the subsequent in respect of the amendments lead to the
In fact, there is turmoil in the way the evidence is originated before the
court. Suitably guided, it accomplishes the systems function nimble and more
effective. The supervision relevant to the issue before us is echoed in the
The Apex Court after seeing the evidence in the immediate case allocated the
same into three forms:
- Electronic records,
- Documentary evidence other than electronic records, and
- Oral evidence.
The Supreme Court after exhaustive scrutiny of illustrating electronic record as
evidence observed that:
Any documentary evidence by way of an electronic record under the Evidence Act,
in glimpse of Sections 59 and 65 A, can be proved only in congruence with the
agenda prescribed under Section 65B.
Thereby, overruling the paradoxical glimpse made in earlier Judgment by the
Supreme Court which despised the real provisions of the Evidence Act. The
Supreme Court after considering the electronic record put alee by the Appellant
affected them as inadmissible as the Appellant had aborted to produce the
certificate required in terms of Section 65B in respect of the CDs catered as
The Court inspecting the admissibility of electronic record in light of the
judgment articulated in Navjot Sandhu's case observed that:
It emerged, the court expunged 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 operation in the case of secondary evidence by way of electronic
record; the same is wholly inclined by Sections 65A and 65B.
To that scope, the statement of law on admissibility of secondary evidence
relevant to electronic record, as declared by this court in Navjot Sandhu case,
does not settle down the correct legal position. It craves being overruled which
was did by the court in Anvar�s Case.
The Supreme Court reckoned on the maxim Generalia specialibus nonderogant
special law will always domineer over the general law. Highlighting the said
maxim, the court through Anvar's case
has approved to give certitude to the
alive laws with respect to admissibility of the electronic evidence, which for
more than a decade have had very bit or no certitude.
According to Section 85 B of Indian Evidence Act, 1872 It is Presumed by the
court that secure electronic has not been altered since the specific point of
time to which the secures status relates.
But Screenshots may be corroborated with a series of evidences because as per
the opinion of courts, these types of evidences can easily be created through
several photos editing software. Also it is a better option to have the cell
phone with you as evidence in the court and also if possible, original message
should not be deleted from the cell phone and original backup of the messages in
the PC�s or laptops should be kept. The judges reach to the decisions rely upon
the information that is administered to them. But it is the necessity that the
information must not be a blab or guesswork, and then only the text messages,
screenshots, or audio messages as are admissible evidence in the court.
In State of Delhi v. Mohd. Afzal & Others
, it was held by the Delhi High
Court that electronic records are admissible as evidence. But if someone demur
the veracity of computer evidence or electronic record on the grounds of misuse
of the system or operating failure or influx, then the person demurring it must
prove the same beyond a modest doubt. The court observed that trivial
theoretical and general apprehensions cannot make clear evidence defective and
Under Evidence Act, the Screenshots as the evidence in court are Admissible,
because it is chunk of the electronic evidence. By acknowledging the screenshot
as evidence, the details of phone and the date in which it was taken is also
given in Court
- Anvar P.V. v. P.K. Basheer and others 2014 10 SCC 473
- NCT of Delhi v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600
- Ratan Tata v. Union of India (2014) 1 SCC 93
- Amar Singh v. Union of India(2011) 7 SCC 69
- State v. Mohd. Afzal 107 (2003) DLT 285
- Utkarsh Anand and
- Prinshu Yadav