Admissibility & Evidentiary Value of Electronic Records

By

Vijay Pal Dalmia, Advocate

Supreme Court of India & Delhi High Court
Email Id: [email protected]
Mobile No.: +91 9810081079
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Twitter: @vpdalmia

AND

Udit Tewari
Vivekananda Institute of Professional Studies
[email protected]

Technology has changed and evolved rapidly over a period. Hence it becomes the need of the hour
to adapt and change according to the change in technology. This need to change has been very
well recognized by the courts as well as the legislature in India.

Electronic records as Evidence

Electronic record has been recognized and explained under the IT Act 20081. As per the Act,
electronic records include data, sound, image generated or recorded and sent or received in
electronic form. Indian Evidence Act permits the admissibility of electronic records2.

Primary and Secondary Evidence

It is a well-recognized principle of law that where Primary Evidence is available, it is given priority
over the Secondary Evidence. Sometimes the data relating to Primary Evidence which is in
electronic form is stored on virtual platforms like cloud, Google drives, big servers, etc. and also
on hard drives, CPU, etc., which makes it practically impossible to present all these resources in
court, every time a dispute arises. Hence, now it has become a standard procedure 3 (M/S ASHOKA
CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD))) to allow Secondary
Evidence, in cases where Primary Evidence which is in electronic form could not be produced.

1
Section 2(t) IT Act 2000
2
Section 65A IE Act 1872
3
http://lobis.nic.in/ddir/dhc/RKG/judgement/27-02-2018/RKG19022018CMM1932018.pdf M/S ASHOKA CHEMICALS
(INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD) CM(M) 193/2018 & CM Nos.6332-
6334/2018(HIGH COURT OF DELHI)
Secondary Evidence could be printed on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer4. These computer outputs will only be admissible after satisfying
conditions under section 65(B). These conditions are only to be complied with in case of Secondary
Evidence, which is in electronic form, and not in case of Primary Evidence 5( Anvar P.V Versus P.K.
Basheer and others.).

Different types of electronic records and their admissibility

Electronic records as per the definition under IT Act 2008 cover a wide range of formats in which
data or media can be presented. Some of which are CD, DVD, pen drives, hard drives, telephonic
recordings, video recordings, sound recordings, e-mails, pictures, etc. Each of such electronic
records deals with different conditions relating to their admissibility in a court of law.

1. CD, DVD, chip, Hard-Drive, Memory Chip, Pen Drive. – These kind of electronic
records are admissible as Primary Evidence 6( State Of Gujarat vs. Shailendra Kamalkishor Pande) as
well as Secondary Evidence. For example, if the CD in question is Primary Evidence, then
it is admissible without a doubt. For a CD/DVD/Hard-Drive/Memory Chip/Pen Drive to
be Primary Evidence, it is necessary that the data, picture, video or anything which is to be
presented to the court for Evidence is generated or recorded in that CD/DVD/ Hard-
Drive/Memory Chip/ Pen Drive at the source. In other words, original media should be
stored or recorded directly in that CD/DVD/hard drive/Hard-Drive/Memory Chip/ Pen
Drive that was self-generated and created without any human intervention7(Kishan Tripathi @
Kishan Painter vs. The State). Whereas if a CD is a Secondary Evidence, i.e., if it is a copy of the
original and is a duplicated version, then it has to pass the test of authenticity, by complying
with the conditions under section 65(B)8( Anvar P.V Versus P.K. Basheer and others). These
conditions help to ensure the computer output is authentic, reliable, accurate, and exclusion
of the possibility of tempering the Evidence. A certificate under section 65B(4) was held
mandatory to be issued. Otherwise, the Secondary Evidence in electronic form will not be
considered by the court as valid Evidence9( Sharadendu Tiwari vs. Ajay Arjun Singh and Ors).

4
Section 65(B) IE Act 1872
5
https://www.sci.gov.in/jonew/judis/41931.pdf Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF 2012
(Supreme Court of India)

6
2008 CriLJ 953 State Of Gujarat vs Shailendra Kamalkishor Pande:Gujrat High Court CNR No : GJHC240426142007
http://gujarathc-casestatus.nic.in/gujarathc/ 2007 SCC OnLine Guj 255 : 2008 Cri LJ 953 : (2008) 3 All LJ (NOC 574) 178
Cri. Revn. Appln. No. 228 of 2007 Decided on June 29, 2007
7 2016 SCC OnLine Del 1136 : (2016) 230 DLT (CN) 3 (DB) : 2016 Cri LJ (NOC 274) 106 : (2016) 2 DLT (Cri) 666(HIGH
COURT OF DELHI)
8 https://www.sci.gov.in/jonew/judis/41931.pdf Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF
2012 (Supreme Court of India)
9 Sharadendu Tiwari vs. Ajay Arjun Singh and Ors. (16.01.2018 - SC Order) : MANU/SCOR/03864/2018, EP-1-2014
https://mphc.gov.in/judgement-orders EP 1/2014 (Madhya Pradesh High Court)
 In the case of CCTV footage, the virtual platforms like Cloud, Servers, or the storage device
present in the computer recording and storing it will be considered as Primary Evidence.
When a video is transferred to a CD/DVD/Hard-Drive/Memory Chip/ Pen Drive with the
help of a computer which was originally recorded through a video camera or any other
medium, then the memory card of that video camera will be considered as Primary
Evidence and the CD/DVD/Hard-Drive/Memory Chip/ Pen Drive in which it was
transferred, later on, will be admissible as Secondary Evidence.

Hence, it is pretty clear that in cases where the data is self-generated/created/directly

recorded in a CD, DVD, Hard-Drive, Memory Chip, and Pen Drive without any human
intervention, the same will be considered as Primary Evidence. However, when any such
data is transferred or copied to another electronic device such as CD, DVD, Hard-Drive,
Memory Chip, Pen Drive etc., with some human intervention leading to even an iota of
possibility of someone tampering with the data, in such scenario such Evidence copied or
retransferred on a different CD, DVD, chip, memory card, etc., will be considered and
admissible as Secondary Evidence, requiring stringent proof to make the same admissible
as Evidence.

2. Audio and Video Recordings – Original audio and video recordings are accepted as a
valid source of Evidence. Tape recordings are recognized as res gestae, meaning they are
considered relevant to the case and also as admissible Evidence 10(Shri N. Sri Rama Reddy Etc vs.
Shri V. V. Giri). Admissibility of tape recording is settled long before in multiple case laws,
and these are taken as “documents” under section 3 of the Indian Evidence Act
187211(Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra AND ORS).

As audio tapes could be altered, erased and re-recorded, hence, while accepting them as
Evidence, there are various factors to be considered 12(Ram Singh & Ors vs Col. Ram Singh). These
factors involve establishing the voice of the speaker, its accuracy, relevancy, exclusion of
the possibility of tempering or manipulation, appropriate custody, and clarity of the audio
in question. If a tape recording is good enough to pass all these tests then, there remains no
grey area pertaining to its admissibility. Some of the cases, which considered audio tape
recording as valid Evidence, are:

10 1971 AIR 1162, 1971 SCR (1) 399http://jajharkhand.in/wp/wp-

content/judicial_updates_files/13_Evidence_Act/27_tape_recorded_conversation/Shri_N._Sri_Rama_Reddy_Etc_vs_Shri_V._V.
_Giri_on_27_April,_1970.PDF(Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri)(Supreme Court of India)
11 1975 SCR 453 https://www.sci.gov.in/jonew/judis/5980.pdf (ZIYAUDDIN BURHANUDDIN BUKHARI Vs.
BRIJMOHAN(Supreme Court of India) RAMDASS MEHRA & ORS)
12 1986 AIR, 3 1985 SCR Supl. (2) 399https://www.sci.gov.in/jonew/judis/9228.pdf (Supreme Court of India) Ram Singh & Ors
vs Col. Ram Slngh(Supreme Court of India)
 a) Rup Chand vs. Mahabir Parshad And Anr. on 15 May 195613
b) Dr. Partap Singh Vs. The State Of Punjab on 4 April 196214
c) Yusufalli Esmail Nagree vs. The State Of Maharashtra on 19 April 1967
15

d) R. M. Malkani vs. State Of Maharashtra on 22 September 197216

As much as video recordings are concerned, they hold the same evidentiary value17 as that
of an audio recording18( Alagaapuram R. Mohanraj & Others Versus Tamil Nadu Legislative Assembly Rep. by
its Secretary & Another). Video recording could be in the form of a media file generated by a
Handycam or it could be in the form of CCTV footage, but there is no doubt pertaining to
its admissibility. When a video recording is to be submitted in a court of law, it can be
submitted as Primary Evidence19(Sidhartha Vashisht @ Manu Sharma Versus State (NCT of Delhi)), if the
Memory-Chip/ CD/DVD/Hard-Drive along with the video camera through which the file
was generated, are tendered in Evidence20( K. Ramajayam alias Appu v. Inspector of Police ). In cases
where Primary Evidence is not available or not practically possible to be submitted in court,
a copy of such video recording created through a computer program is admissible as
Secondary Evidence subject to conditions mentioned under section 65(B).

➢ Evidence admissible through video conferencing – Judiciary over time with an

aim to dispense justice and speed up the process allowed taking Evidence by way
of video conferencing 21( V. Rama Naidu And Another vs Smt. V.Ramadevi). Judiciary gave
an opinion to adapt a pragmatic view while accepting Evidence through video
conferencing 22( International Planned Parenthood Federation (IPPF) v/Madhu Bala Nath ). There
are certain conditions which are to be followed while accepting video
conferencing, which are highlighted in the case of In Twentieth Century Fox Film

13 AIR 1956 P H 173(Punjab and Haryana High Court) 1956 SCC OnLine P&H 82 : ILR (1956) 1 P&H 1351 : PLR (1956)
58 P&H 441 : AIR 1956 P&H 173 Civil Revision Application No. 400-D of 1955 Decided on May 15, 1956 Rup Chand vs
Mahabir Parshad And Anr
14 AIR 1963 P H 298 1962 SCC OnLine P&H 96 : ILR (1962) 2 P&H 642 : AIR 1963 P&H 298(Punjab and Haryana High
Court)

15 1968 AIR 147, 1967 SCR (3) 72 https://www.sci.gov.in/jonew/judis/2376.pdf (Supreme Court of India)
16 1973 AIR 157, 1973 SCR (2) 417 https://www.sci.gov.in/jonew/judis/6708.pdf(Supreme Court of India)
17 In Halsbury's Laws of England, Fifth Edition, Vol. 11, at page 723
18 (2016) 6 SCC 82 : 2016 SCC OnLine SC 134, W.P.(C) No.-000455-000455 – 2015
https://www.sci.gov.in/jonew/judis/43393.pdf
19 , Crl.A. No.-000179-000179 - 2007 https://www.sci.gov.in/jonew/judis/36237.pdf (Supreme Court of India) (Sidhartha
Vashisht @ Manu Sharma Versus State (NCT of Delhi))(Delhi High Court)
20 K. Ramajayam alias Appu v. Inspector of Police 2016 Cri. L.J. 1542
https://hcservices.ecourts.gov.in/hcservices/cases/display_pdf.php?filename=oVz058q2ZLjDVEITM0Vw1EFEwX
GzAWF8VVN1fUzLICt2cQLkXismJaz1M3Foo51f&caseno=RT/1/2015&cCode=1&appFlag= (Madras High Court)
21 V. Rama Naidu And Another vs Smt. V.Ramadevi on 31 January, 2018: CIVIL REVISION PETITION No.6089 of 2016
http://hc.ap.nic.in/
22 International Planned Parenthood Federation (IPPF) v/sMadhu Bala Nath FAO(OS) No. 416 of 2015 & CM No. 13475 of
2015 http://lobis.nic.in/ddir/dhc/SAS/judgement/08-01-2016/SAS07012016FAOOS4162015.pdf (Delhi High Court)
 Corporation Vs. NRI Film Production Associates (P) Ltd23. These conditions ensure
that the procedure laid out in relevant laws regarding admissibility of Evidence is
followed properly, ensuring a fair trial.

3. Evidence in the form of emails, media, and calls generated through mobile phone-
There is a presumption under section 88-A Evidence Act which the court follows while
taking emails as Evidence. This presumption is only pertaining to the data fed into the
computer and not in relation to the originator of the e-mail. Emails are very well recognized
as a valid source of Evidence 24(Abdul Rahaman Kunji vs. The State Of West Bengal). E-mails are
generally submitted by way of print outs along with the certification under section 65B(4)25
(Ark Shipping Co. Ltd. vs. GRT Shipmanagement Pvt. Ltd).

Mobile phones can be a very useful resource when it comes to evidentiary value. Mobile
phones can be used for tracing location 26(Omprakash vs. State Of M.P), call records, submitting
media like pictures and videos. If media files which are generated through mobile phones
are to be submitted in court as Evidence, then in those cases that mobile phone along with
the memory card if any which was used to store those files is to be submitted in court 27
(State (Nct Of Delhi) vs. Firoz Khan & Anr). Media generated through mobile phones can also be
submitted like other Secondary Evidence, which is by transferring data to a CD/DVD/
Hard-Drive, Memory Chip, Pen Drive etc., with the help of a computer and submitting it
with a certificate in accordance with section 65B(4)28 ( Kamal Patel vs Ram Kishore Dogne).

Conclusion
Electronic records are admissible in Primary as well as in Secondary form of Evidence, subject to
the fact that they are accurate, exclusion of the possibility of tempering or manipulation, appropriate
custody, are relevant and reliable. An important condition which cannot be over looked is the

23 AIR 2003 Kant 148 AIR 2003 Kant 148, 2003 (5) KarLJ 98 (Twentieth Century Fox Film ... vs Nri Film Production
Associates)http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/344354/1/CRP4636-02-09-01-2003.pdf
(Karnataka High Court)
24http://odishapolicecidcb.gov.in/sites/default/files/Abdul%20Rahaman%20Kunji_vs_TheState%20Of%20West%20Bengall_on
_14_November%2C_2014-E-MAIL.PDF (Abdul Rahaman Kunji vs The State Of West Bengal) (Kolkata High Court)
25 2008 (1) ARBLR 317 Bom MANU/MH/0510/2007 (Bombay High Court)
(Ark Shipping Co. Ltd. vs. GRT Shipmanagement Pvt. Ltd). (26.07.2007 - BOMHC) : MANU/MH/0510/2007
26 CRR 879/2013https://mphc.gov.in/upload/gwalior/MPHCGWL/2013/CRR/879/CRR_879_2013_Judgement_18-
Nov-2014.pdf(Madhya Pradesh High Court)( Omprakash vs State Of M.P)
27 State (Nct Of Delhi) vs Firoz Khan & Anr. on 12 January, 2016 CRL. L. P. 23/2016
http://lobis.nic.in/ddir/dhc/SDS/judgement/08-02-2016/SDS12012016CRLMP232016.pdf (Delhi High Court)
28 Kamal Patel vs Ram Kishore Dogne on 4 January EP-24-2014 https://mphc.gov.in/
https://mphc.gov.in/upload/jabalpur/MPHCJB/2014/EP/24/EP_24_2014_Order_04-Jan-2016.pdf(Madhya Pradesh
High Court)
certificate under section 65B(4), without which an electronic record in the form of Secondary
Evidence is not admissible.