ADMISIBILITY OF ELECTRONIC EVIDENCE IN INDIA: AN OVERVIEW

LAW OF EVIDENCE

Under the supervision of

PROF. MAMATHA R

SUBMITTED BY - NAMAN JAIN (0029)

SAI SRINIVAS REDDY (0063)

COURSE - BBALLB

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ABSTRACT

The law of evidence has changed dramatically in recent years, with different types of evidence now deemed
admissible by a court. This change has also come to India with various changes to the existing legislation.
Pursuant to India's obligation to the United Nations Commission on International Trade Law (UNCITRAL),
the Information Technology Act 2000 (hereinafter the Information Technology Act) entered into force. This
act legitimized and encouraged electronic commerce in the global marketplace and amended the Indian
Evidence Act of 1872 (referred to here as the Evidence Act) to include provisions on electronic evidence.
The Evidence Law requires that primary evidence be proven under section 64, while secondary evidence
must be proven under section 65. Primary evidence is the type of evidence that is considered to have the
highest factual certainty in question. Any evidence excluded from this category is considered secondary
evidence. The burden of proof to demonstrate the admissibility of secondary evidence rests with the party
presenting the evidence. Section 65A of the Evidence Act requires that electronic evidence be proven in
accordance with the provisions of Section 65B. Section 65B was added to the Evidence Act by virtue of
Schedule II of the TI Act. It is a provision regarding the admissibility of electronic evidence. It establishes
that any information contained in an electronic document is considered a document admissible as evidence
and original, provided that it meets the conditions established in sections 65B (2) to 65B (5). Therefore, each
piece of electronic evidence must be accompanied by a certificate issued after the checklist provided for in
section 65B has been completed.

Keywords

Evidence Act, IT Act, evidence, electronic evidence, digital evidence

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RESEARCH PROBLEM

In modern times, crime also has a digital dimension or proved to use digital equipment or crime information
is in electronic form the crimes committed with information and communication technologies; such as
computers, networks, mobile phones and other electronic media, such as tools or the targets are called
cybercrime. Information related to each crime, both stored and transmitted in digital form, on the other hand,
is called electronic evidence. Furthermore, evidence is often found and collected in the context of a trial or
criminal proceeding in digital form from digital communication services and / or digital storage media.
Evidence in electronic form serves the same purpose as traditional evidence, but conveys along with certain
concerns and agreements, especially during their collection, proving validity and making the same
admissible in the court of law. The problem arises not just due to the nature of electronic evidence, but it
increases when it comes to regulation on the admissibility of e-evidence. The problem will be analysed on
the basis of the relevant regulations of Indian Evidence Act, IT Act and the statues on Cybercrime.

RESEARCH QUESTION

Q.1Whether an electronic document used as primary evidence under section 62 of the Evidence Act is
admissible as evidence without meeting the conditions of section 65-B of the Evidence Act

OBJECTIVES

This research aims to provide some guidance for answering the above mentioned question with an ephemeral
review on meaning of e-evidence, regulation on the admissibility of e-evidence in the court, judicial view on
admissibility of e-evidence and analysis of SC held landmark cases.

HYPOTHESIS

Section 65B of the Evidence Act is a "not obstante clause" that overrides the general law on secondary
evidence given under sections 63 and 65 of the Evidence Act. The section 63 and 65 of the Evidence Act do
not apply to secondary evidence of electronic evidence and electronic evidence is fully governed by Sections
65-A and 65 B of the Evidence Act. The only option to prove the electronic record / evidence is to produce
the original electronic medium as primary evidence u/s 62 or its copy using secondary evidence u / s 65A /
65 B of the law of evidence.

RESEARCH METHODOLOGY

This research is, in general followed by Descriptive and Exploratory method, additionally, relevant reference
from landmark case-law are cited in order to shed light on the problems arising in regulation on the
admissibility of e-evidence in Indian courts.

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LITERATURE REVIEW

1. Anvar v. Basheer and the amended Law of Electronic Evidence - The Centre for
Internet and Society

Author has discussed the brief history of the law of evidence and the underlying principles of the test which
will help the reader to understand and appreciate the true meaning and the implications of the Supreme Court
rulings, which are true spirit and it also talks about how digital recordings can be presented as evidence in
Indian courts.

2. J. Hofman, Electronic Evidence in Criminal Cases, 19(3) SACJ 257, 258 (2006)

The author has prominently discussed two questions in his work, first, whether there is a requirement of
section 65A and 65B. Second, whether the ambit of section 61 to 65 is extensive enough and equally capable
of dealing with e-evidence. Further it discusses the conflict between relevancy and admissibility of
electronic evidence.

3. Ratanlal and Dhirajlal, Law of Evidence (27th ed., 2019)

The author has talked about the, only perceivable purpose of sec.65A is to refer to sec. 65B, which then
sumptuously describes the method of authenticating and proving electronic evidence. Thus, the crux of the
debate on electronic evidence lies squarely in the domain of sec.65B (1) of the provision opens with a
declaration that any information contained in electronic records that is transferred on to any media such as a
CD or a USB device (referred to as „computer output‟) will be admissible in court as evidence of the
electronic record. That is, parties are not obligated to produce the original record, which may be present on a
desktop computer or a remote server, and which is difficult (if not impossible) to bring to court. This
assisting provision provides an concession to the common law evidentiary principle that where an original
document is available, no secondary document may be produced.

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 TABLE OF CONTENTS

1. Introduction……………………………………………………………………….…06

2. Electronic evidence: Meaning………………………………………………………07

3. Electronic evidence and the Indian evidence act 1872………………………….…08

4. Electronic Record/Document……………………………………………………….09

5. Legal recognition of Electronic Record u/s 4 of the IT Act…………………….…09

6. Admissions in Electronic format……………………………………………………09

7. Admissibility of Electronic Evidence……………………………………………….09

8. Mode to prove the electronic record under Section 65A……………………….…10

9. Conditions for the Admissibility of Electronic Evidence under Section

65B……………………………………………………………………………………10

9.1. Section 65B (1) ………………………………………………………………...…11

9.2. Section 65B (2) ………………………………………………………………...…11

9.3. Section 65B (4) …………………………………………………………………...11

10.Judicial Interpretation on admissibility of e-evidence…………………………….12

11.Conclusion……………………………………………………………………………16

12.Bibliography………………………………………………………………………….17

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INTRODUCTION

Electronic evidence is fundamentally different to hard copy, such that the rules of evidence surrounding
documentary evidence need to be re-examined. Indeed, a computer disc is different from a filing cabinet in
which hard copy documents are stored because the information is actually embedded in the storage
medium1. The 21st century has seen an exciting technological revolution not just in India, but all over the
world. The use of computers is not restricted for established organizations or institutions, but accessible to
all individually with the swipe of a finger. Information technology has relaxed of almost all humanized
actions. In the age of a cyber - world like the application of computers became more popular and expansion
came in the growth of technology. The evolution of information technology (IT) gave rise to the cyberspace
in which the Internet offers opportunities for all people to access all information, data storage, analyse, etc.
using advanced technology. This growing dependence on electronic means of communication, electronic
commerce and warehousing Information in digital form has certainly created the need for transform
information technology laws and regulations the admissibility of electronic evidence, both in civil and
criminal matters business in India. The proliferation of computers and the influence of information
technology on society as a whole, linked to the capacity everything was necessary to store and collect
information in digital form changes in Indian law to provisions on evaluation of digital evidence. The
information technology law, 2000 and its amendment are based on the United Nations Commission on
International Trade Law (UNCITRAL). The amendment made in Information Technology (IT) Act 2000
made the admissibility of digital evidence viable in India2. A change of the Indian Evidence Act of 1872, the
Indian Criminal Act of 1860 and the Banker's Book Evidence Act of 1891 provides the legal framework for
transactions in the electronic world. With the change of law, the Indian courts have developed a case Law of
Use of Electronic Evidence. The judges too demonstrated knowledge of its intrinsic "electronic" nature
evidence, including understanding of admissibility of e-evidence, and the interpretation of the law regarding
how electronic evidence can be submitted in the court of law.

1
Innovative Health Group Inc. v Calgary Health Region 2008 ABCA 219 (CanLII) (Madam Justice Conrad)
2
Wani, M. Afzal. Journal of the Indian Law Institute 53, no. 3 (2011): 530-33. Accessed, March 22, 2021. doi:10.2307/45148573.
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Electronic evidence: Meaning

Electronic evidence also referred as "digital evidence" or "computer evidence “. The word digital is often
used in computers and electronics, especially where information from the physical world becomes in binary
digital form as in digital audio and digital photography. Definitions of digital evidence include "Evidence
information of value stored or sent in binary form, stored information or sent in binary format that can be
trusted in the court of law. While the term "digital" is too broad, because we have seen that "binary" is used
too restrictive because it only describes one form of data. Electronically test: data (consisting of the output of
analog devices or data digital format) that is manipulated stored or communicated by an artificial device,
computer or computer system or transmitted a communication system that has the potential to make it
feasible account of one of the parties more likely or less likely than it would be no evidence. This definition
has three elements. First of all, it is intended to include all forms of evidence created, manipulated or stored
in a product that, in the broadest sense, can be considered a computer, excluding the human brain for the
moment. Second, Consider the different forms of devices with which data can be recorded, stored or
transmitted, including analog devices an exit. Ideally, this definition includes any type of device, if it is a
computer, since we currently understand the meaning of a computer; telephone systems, wireless
telecommunications systems and networks, such as the Internet; and the computer systems that are integrated
into a device, such as mobile phones, smart cards and navigation systems. The third element limits data to
information that is relevant to the process leading to a dispute, regardless of the nature of the disagreement is
decided by an arbitrator, regardless of the form and level of the assessment. This part of the definition
includes an aspect of receptivity, only relevance, but does not use it, the "admissibility" itself as the
determining criterion, because there is evidence will be admissible, but excluded by the mission referee of its
authority, or inadmissible for independent reasons with the nature of the evidence, for example, because of
the way it is it was collected.

Government agencies are open to submit electronically and periodically various administrative policies with
the regulation and control of industries are carried out by electronic means. These are different forms of
electronic evidence / digital evidence increasingly used in legal proceedings. Judges are often asked to rule
on the admissibility of electronic documents as evidence and this significantly affects the outcome of civil
proceedings or conviction / acquittal of the accused. The court keeps fighting with this new electronic
frontier as the unique nature of evidence, such as well as the ease with which it can be manufactured or
counterfeited barrier to admissibility that other evidence does not face. The differences electronic evidence
categories such as CD, DVD, hard drive / memory map data, website data, social media communication,
email, snapshot chat messages, SMS / MMS and computer generated document poses Unique issue and
challenges for proper theme and authentication to various set of views.

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Electronic evidence and the Indian evidence act 1872

The definition of evidence given in the Indian Evidence Act, 1872 includes3

a) Testimony, i.e. oral evidence, and

b) Documentary evidence, including electronic records prepared for judicial inspection.

Section 3 of the law has been modified and the phrase "All documents prepared for examination by the
Court" was replaced by "All documents, including electronic records produced available for inspection of
the Court”4. As for the documentary evidence, in section 59, of the words "Content of documents" of words
"Content of electronic documents or records" superseded and sections 65A and 65B inserted to include
admissibility of electronic evidence. Traditionally the basic rule of thumb is that direct oral evidence can be
used to prove it all the facts except the documents. The heresay rule suggests that all Evidence that is not
direct can only be reliable if it is recorded by one of the exceptions provided for in sections 59 and 60 of the
test Act on the heresay rule.

However, the rule of heresay5 is not as restrictive or as simple in the case of documents as it is in the case of
the oral test. It is because it is an established right that it is oral evidence cannot prove the content of a
document and the document Speak for itself. Therefore, when a document is missing, the oral test cannot
and cannot be given as to the accuracy of the document in relation to the content of the document. It's
because i should disturb the rule of heresay (since the document is absent, the truth or the accuracy of the
oral test cannot be compared to the document). Within to test the content of a document, primary or
secondary Evidence must be provided, although the main evidence of the document is the document itself6,
the realized that there would be situations where the primary evidence may not be available. So secondary
evidence in certificate form copies of the document, copies made by mechanical means and Oral reports
from anyone viewing the document were allowed under section 63 of the Evidence Act for the purpose of
testing the content of a document. Therefore, the provision is to allow the secondary evidence somewhat
undermines the beginnings of the heresay rule and is an attempt to overcome difficulties in obtaining the
production of primary documentary evidence where original not available. Section 65 of the Evidence Act
describes the situations what main evidence of the document is not necessary to provide Secondary evidence
- as set forth in Section 63 of the Evidence Act – may be referred.

3
Section 3 of the Indian Evidence Act, 1872
4
The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000.
5
The heresay evidence is everything a person absent from trial says outside of court trial, but presented as evidence by a third
party during the trial. The law exclude hearsay evidence because it is difficult or impossible to establish truth and precision, which
is generally obtained by cross-examination. As the person who made the statement and the person to whom it was told cannot be
cross-examined, a third party‟s virtue is excluded.
6
Section 62 of the Indian Evidence Act, 1872
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This includes situations where the original document7

1. It is in hostile possession.

2. Either it has been proven by the injured party himself or one of them representatives.

3. It has been lost or destroyed.

4. You cannot move easily, that is, physically take you to court.

5. It is a public document of the State.

6. Can be proven with true certified copies when the law is limited and

7. It is a collection of various documents.

Electronic Record/Document

Electronic record Complies with section 2 (t) of the Information Technology Act, 2000, of a broader
connotation is given to an electronic document. Section 2 (t) defines `` electronic record '' in the sense of ``
data, record or generated data, image or it‟s stored, received or transmitted in electronic or microfilm format
or computer generated microfilm8”.

Legal recognition of Electronic Record u/s 4 of the IT Act

When a law provides this information or any other question written, typed or printed, and then nothing
against nothing contained in said law, it is considered that this requirement has been Please, when such
information or elements:

(a) Are displayed or available in an electronic form; and

(b) Accessible for use by another reference.

Admissions in Electronic format

The definition of admission u/s 17 of the Evidence Law has modified to include an oral, written, or
electronic suggesting an inference to a fact in issue or a relevant fact to the case.

Admissibility of Electronic Evidence

65A and 65B of the Evidence Law are inserted to include the admissibility of electronic evidence in the
evidence law under the second annex of the IT Act of 2000. Sec 5 of the Evidence statue provided that

7
Paul, George L. “CANVASSING THE EMERGING LAW OF DIGITAL INFORMATION: STEPHEN MASON'S „ELECTRONIC
EVIDENCE.‟” Jurimetrics, vol. 53, no. 4, 2013, pp. 467–481. JSTOR, www.jstor.org/stable/24395659 Accessed 23 Mar. 2021
8
https://ujala.uk.gov.in/files/15.pdf
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evidence can be given related to only facts that are at issue or relevant facts. Section 65B of the Evidence
Act establishes that despite everything included in the law of evidence, any information stored in an
electronic record, is considered to be a document and is admissible as evidence without any additional proof
of production of the original, provided all conditions are met in accordance with section 65B of IEA 9.

Mode to prove the electronic record under Section 65A

Section 65A of the Indian Evidence Act is a special provision providing mode of proving and making e-
evidence admissible in court. It says, “Contents of electronic records may be proved in accordance with the
provisions of section 65B10.” In general words, electronic record may be proved, if compliance of section
65B is made. In exceptional cases, the content of electronic records can be tested. Section 65B has been
complied with this means that the content of that document can be tested on the basis of a simple certificate.
Now it's up to the court to see what document can be proved during certification according to section 65B of
the Indian Evidence Act. For Example: System log-in data record. It may be proved by certification under
section 65B of the IEA. Term may be used, so it is not obligatory. It depends on the circumstances, the court
may request for better evidence. Section 65A of the Evidence Act creates Electronic evidence law: the
content of electronic documents may be tested in accordance with the provisions of section 65B.20 The
section performs the same function for electronic records as the section 61 done for supporting documents:
create a separate procedure, distinguishes itself from the simple oral testimony procedure.

Conditions for the Admissibility of Electronic Evidence under Section 65B

In the landmark case of State vs Mohd Afzal11 the test for admissibility of e-evidence under section 65B was
considered for the first time, wherein the Division Bench of the High court of Delhi was called to determine
if the call tapes were included in the evidence in accordance with section 65B. The defendant argued that the
CDRs (details of call record) were inadmissible because the certificate for subsection 65B (4) was not
submitted by appellant. This allegation was refuted by the party on the grounds that the conditions set forth
in subsection 65B (2) had been met by oral testimony. Delhi bench accepted the argument of the prosecution
and stated that, "the certificate under subsection 65B (4) it was just another form of proof and compliance
with sub-sec (1) and (2) of the section 65B is sufficient for the electronic records to be admissible and to
prove it. Comparing computer output under Section 65B to secondary documentary evidence under Section
65 (d), the Court considered that the oral testimony was also sufficient and that the absence of a certificate
was not automatic bar for inadmissibility12.

9
http://mja.gov.in/Site/Upload/GR/Title%20NO.190(As%20Per%20Workshop%20List%20title%20no190%20pdf)
10
THE INDIAN EVIDENCE ACT, 1872
11
State vs. Mohd Afzal (2003) 107 DLT 385
12
Ibid.
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Section 65B (1)

The section states that any information in an electronic record produced from a computer (known as
computer output) copied onto an optical or magnetic medium, then such electronic recording copied "is also
considered a document" subject to the conditions u/s 65B(2) are fulfilled13. Both with regard to the
information and the computer it contains question such document '' is authorized in any procedure when
additional proof or production of the original as proof of any content of the original or of any fact expressed
in it, whose direct evidence would be allowed.

Section 65B (2)

Section 65B of the Evidence Act elaborates special process to bring forward electronic records as evidence.
Sub-section (2) lists the technological aspects and circumstances upon which a duplicate copy (including a
print-out) of an original electronic record may be used14:

a) The computer output containing the information was produced by the computer during the period in
which the computer was regularly used to store or process information for the purpose of activities
carried out regularly during that period by the legally controlled person on the use of the computer ;
b) During said period, information of the type contained in the electronic record or the type from which
it is derived has been regularly entered into the computer in the normal course of said activities;
c) Throughout the material/physical part of said period the computer was functioning correctly or, if
not, with respect to a period during which it did not function properly or was inoperative during that
part of the period, it was not with respect to electronic filing or accuracy of its content; and
d) The information contained in the electronic file is reproduced or derived from said information
entered in the computer during the normal performance of said activities.

Section 65B (4)

Regarding the person who can issue the certificate and the content of the certificate, issue the certificate by
performing one of the following operations things: identification of the electronic file with the declaration
and a description of how it came about; Give details device, addressing one of the problems associated with
the mentioned in paragraph ﴾2 ﴿are related to and are intended to be signed by a person holding an official
position responsible for the operation of the device in question or the management of activities ﴾what is

13
Section 65B(1) The Indian Evidence Act, 1872
14
Section 65 B (2) of the Indian Evidence Act, 1872 lists the technological conditions upon which a duplicate copy (including a
print-out) of an original electronic record may be used.
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applied is the test of each problem indicated in the certificate and for the application of this subsection
enough to explain a question to the best of our knowledge and belief and belief of the person who says it.15

Regarding the person who can issue the certificate and the content of the certificate, issue the certificate by
performing one of the following operations things:

a) Identification of the electronic file that contains the declaration;

b) Describe how the electronic record was made.
c) Provide details of the device involved in the production of this album.
d) Manage the applicable terms and conditions listed in the section 65B (2) of the Evidence Act; and
e) Signed by a person holding an official position related to the operation of the device in question.

Referring to the above definitions in light of the provisions of section 65A and 65B of the Evidence Law,
Electronic evidence is now another type of documentary evidence, namely If it is duly proven in the manner
provided in Sec 65-B, it may take as strong evidence.

Judicial Interpretation on admissibility of e-evidence

In a reference related to the interpretation of Section 65B of the Electronic Records Admissibility under
Evidence Act of 1872, RF Nariman's three-judge court, S. Ravindra Bhat and V. Ramasubramanian, held
that the certificate required under section 65B (4) is a prerequisite for the admissibility of evidence by means
of an electronic file, as rightly judged by the three-judge tribunal in Anvar PV v. PK Basheer, (2014) 10
SCC 473, and incorrectly `` clarified '' by a divisional bench in Shafhi Mohammad v. State of Himachal
Pradesh, (2018) 2 SCC 801. The court further clarified that the certificate required under Section 65B (4) is
not necessary if the original document is self-produced or primary in nature qualifying condition mention
u/s62.

The Court heard the remission of the order of July 26, 2019, in which, after citing Anvar PV v PK Basheer,
(2014) 10 SCC 473 (decision of this court with three judges), it was determined that a sentence of the
additional bench in Shafhi Mohammad v. Himachal Pradesh state, (2018) 2 SCC 801 may need to be
reconsidered by larger bench of judges. The divisional bench had clarified in the Shafhi Mohammad
judgment that the requirement of a certificate under Section 64B (4), being procedural, can be relaxed by the
Court when the interests of justice justify it, and a circumstance in which the interest of justice would be for
the electronic device to be produced by a party that does not own that device, which would prevent that party
from obtaining the required certificate.
15
Section 65B (4) of the Evidence Act contains additional non-technical qualifications the conditions for establishing the
authenticity of electronic evidence. This provision requires presentation of a certificate by a senior manager for the computer on
which the electronic file was created or stored. The certificate must uniquely identify and describe the original electronic
document how it was made, describe the device that made it and certify it compliance with the technological conditions of u/ss (2)
of the section 65B of IEA.

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 16
Anvar P.V. vs. P.K. Basheer & Ors

Notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of
electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act, 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 Act17.”

The court also cleared up the confusion surrounding the earlier judgment in the Anvar PV case and ruled that
the last sentence in the Anvar PV case that reads: "if an electronic record as such is used as primary evidence
u/s 62 of the Law of Evidence ... "must be read without the words" by virtue of section 62 of the Evidence
Act18.” These observations are clearly contrary to the provisions of Section 65B, which does not distinguish
between "primary" and "secondary" evidence. In doing so, the Court added virtual words to section 65-B to
say that the certificate is necessary for secondary tests and not for primary tests. It was also inappropriate to
rely on section 62 to reach this conclusion.

Sections 65A and 65B are complete codes, as evidenced by the no-obstruction clause. In addition, Sections
61 to 65 deals with conventional docs i.e. documents that are not generated on an electronic device, while
Sections 65-A and B deal with electrical evidence to the repletion of Sections 61 to 65. But the court later
said that secondary evidence for the content of the document could also be based on section 65 of the
Evidence Act. This statement is manifestly incorrect and contrary to the provisions of section 65B.

Two Supreme Court decisions depart from the position in Anvar (supra). In Tomaso Bruno held by Supreme
Court bench of three judges ruled that secondary evidence of the content of a document can be invoked u/s
65. In that judgment, however, the Supreme Court has not invoked section 65B (4), nor of the law
established in Anvar case. Instead, the Supreme Court relied on Navjot Sandhu19, which was specifically
annulled in Anvar

NCT of Delhi v. Navjot Sandhu

Subsequently, in Shafhi Mohammad, the Supreme Court ruled that the requirement to present a certificate
under section 65B (4) was procedural and not always mandatory. A party not in possession of the device
from which the document was produced cannot be required to submit a certificate under section 65B,
paragraph 4, which will apply only when a device provides electronic evidence and therefore can provide
such a certificate. However, if the person is not in possession of the device, sections 63 and 65 cannot be
excluded.

16
Anvar P.V. vs..P.K. Basheer & Ors, (2014) 10 SCC 473
17
Barnali Baishya vs State Of U.P. And Anr
18
Ibid.
19
(2005) 11 SCC 600
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The Supreme Court overruled the judgement held in the case of Tomaso Brun20o and Shafhi Mohammad
in order to clarify the position of law on admissibility of e-evidence as follows:

 A certificate under section 65B (4) is mandatory and a prerequisite for the admissibility of evidence
by means of electronic records.
 There is no need to reconsider the law enshrined in Anvar. The last sentence of paragraph 24 of said
judgment, which reads: "if an electronic document as such is used as primary evidence under section
62 of the Evidence Law, it is identical to evidence, without meeting the conditions of section 65) .B
of the Evidence Act ”should be read without the words“ as per section 62 of the Evidence Act ”.
 The non-obstructive wording of section 65B, paragraph 1, makes it clear that when it comes to
information contained in an electronic document, its admissibility and evidence must follow the
exercise of section 65B, which is a special provision in this regard and sections 62 and 65 are
irrelevant in this regard.
 The requirement of subsection 65B (4) is not necessary if the original document is submitted under
sec 62. This can be done by the owner of a laptop, tablet or even a cell phone by going to the witness
stand and proving that the device in question, on which the original information was first stored, is
owned and / or controlled. for him. . If the computer is on a system or network and it is not possible
to physically bring said system or network to court, the only way to provide information in said
electronic record is in accordance with Section 65B (1), with the certificate required under the
subsection 65B (4).
 Oral evidence cannot be sufficient in lieu of a certificate under Section 65B (4) and a person
responsible for a computing device cannot provide evidence, in lieu of the certificate required under
section 65B (4).21
 If the required certificate has been requested from the interested person or authority and the
interested person or authority refuses to issue said certificate or does not respond to said request, the
party requesting said certificate may request the court to 'obtain the certificate' in accordance with the
provisions of the Evidence Law22, of the Code of Civil Procedure, 190823 and / or of the Code of
Criminal Procedure, 197324. Once the request has been submitted to the court and In court orders or
orders while the required certificate must be presented by the person to whom you send a subpoena
in this regard, the party requesting the certificate has made every effort to obtain the required
certificate. the required certificate.
 The court observes that Section 65B does not refer to the stage at which such act must be provided to
the court. In Anvar (supra), the Court indicated that said certificate must accompany the electronic

20
(2015) 7 SCC 178
21
The Court overruled the Madras High Court‟s decision in K. Ramajyam v. Inspector of Police (2016) Crl. LJ 1542
22
Section 165 of the Indian Evidence Act,1872
23
Order XVI Rules 6, 7 and 10 of the Code of Civil Procedure, 1908
24
Section 91 and 349 of the Code of Criminal Procedure, 1973
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 file when it is presented as evidence. This requirement applies in cases where the person who wishes
to rely on the electronic record can obtain said certificate. In cases where a defective certificate is
issued or when such a certificate is required and has not been issued by the person concerned, the
court will summon the person mentioned in section 65 B, paragraph 4, and require said person to
issue the certificate. . (s). This should be done when the electronic record is presented to the court
without the required certificate as evidence. In criminal cases, the court can have the required
certificate produced at any stage, as long as the trial is not over. Although these observations were
made in the context of criminal cases, the Court indicated that the foregoing is subject to the exercise
of adequate discretion in civil matters.
 Since the certificate can be issued pursuant to section 65B (4) long after the computer has actually
produced the electronic record, it is sufficient that the certificate is to the best of the transmitter's
knowledge.
 The conditions of sections 65B (2) and 65B (4) must be fulfilled collectively.

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 Conclusion

Digital evidence or electronic recording is permitted in India, if it meets the conditions provided under
Section 65B. Therefore, the law on the admissibility of digital evidence is very well crystallized. However,
one of the concerns that still arise is when, if a secondary electronic record is confiscated from the
defendant, obviously the certificate cannot be obtained under 65B (4). Furthermore a question arose, when
an electronic document used as primary evidence under section 62 of the Evidence Act is admissible as
evidence without meeting the conditions of section 65-B of the Evidence Act? After analysing the provisions
and judgements held by apex court it can be thus conclude that the admissibility of the secondary electronic
evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of
the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above.
The intention is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of
Evidence Act, it is not admissible and any opinion of the forensic expert and the testimony of the witness in
the court of law cannot be looked into by the Indian court. However when an electronic document used as
primary evidence under section 62 of the Evidence Act is admissible as evidence without meeting the
conditions of section 65-B of the Evidence Act held by supreme court in its various judgements.

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 Bibliography

Books & Journals

1. Anvar v. Basheer and the New (Old) Law of Electronic Evidence - The Centre for Internet and
Society http://cisindia.org/internetgovernance/blog/anvarvbasheernewoldlawofelectronicevidence,
accessed on 31/03/2020.
2. http://mja.gov.in/Site/Upload/GR/Title%20NO.190(As%20Per%20Workshop%20List%20title%20n
o190%20pdf)
3. https://ujala.uk.gov.in/files/15.pdf
4. Paul, George L. “CANVASSING THE EMERGING LAW OF DIGITAL INFORMATION: STEPHEN
MASON'S „ELECTRONIC EVIDENCE.‟” Jurimetrics, vol. 53, no. 4, 2013, pp. 467–481. JSTOR,
www.jstor.org/stable/24395659 Accessed 23 Mar. 2021
5. Schafer, Burkhard, and Stephen Mason. “The Characteristics of Electronic Evidence.” Electronic
Evidence, edited by Stephen Mason and Daniel Seng, University of London Press, 2017, pp. 18–
35. JSTOR, www.jstor.org/stable/j.ctv512x65.9. Accessed 23 Mar. 2021
6. TejasKaria. et al,The Supreme Court of India re-defines admissibility of electronic evidence in India,
12 DEESLR. 33, 36 (2015). Accessed on March 31, 2021.
7. Wani, M. Afzal. Journal of the Indian Law Institute 53, no. 3 (2011): 530-33. Accessed, March 22, 2021.
doi:10.2307/45148573.

Cases Referred

1. Anvar P.V. vs..P.K. Basheer & Ors, (2014) 10 SCC 473

2. K. Ramajyam v. Inspector of Police (2016) Crl. LJ 1542
3. State (NCTof Delhi) v. NavjotSandhu Afsan GAIR 2005 SC 3820
4. State vs. Mohd Afzal (2003) 107 DLT 385
5. Tomaso Bruno and Anr. v. State of Uttar Pradesh
6. Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801
7. Barnali Baishya vs State Of U.P. And Anr

Statues

1. Code of Civil Procedure, 1908

2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872
4. Information Technology Act, 2000.

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