INFORMATION TECHNOLOGY LAWS

PROJECT REPORT

“LEGAL RECOGNITION OF ELECTRONIC

EVIDENCE”

SUBMITTED TO: SUBMITTED BY:

DR. AMITA VERMA PRATHAM. S. CHAHAL
PROFESSOR B.A. LL.B.
UILS SEMESTER: 10TH-B
PANJAB UNIVERSITY ROLL NO.: 90/20
CHANDIGARH
ACKNOWLEDGEMENT

I want to express my heartiest gratitude to Dr. Amita Verma, my mentor and guide, for giving
me this golden opportunity to make a project report on the topic “Legal Recognition of Electronic
Evidence.” I am very grateful to her for always encouraging me to perform to the best of my
ability and create wonders in my deeds.
I am also very thankful to my family and friends, who have always been there for me through thick
and thin and have always supported me! My parents have always supported me in all my
endeavours. Without their immense support, this project would not have been possible!
At last, I am extremely grateful to Almighty, for blessing me, with such a wonderful & blissful life!

2
 CONTENTS

S.NO. TOPIC PAGE

NO.
1. Introduction 4-5

2. Electronic Evidence- Legal Recognition 6-12

Meaning 6

The Information Technology Act, 2000 7

The Indian Evidence Act, 1872 8-11

Judicial Response 11-12

3. Conclusion 13

4. References 14

3
 1. INTRODUCTION

The 21st century ushered in a digital revolution not just in India, but all over the world. The use
of computers is not restricted to established organisations or institutions, but accessible to all
individuals with the swipe of a finger. In the age of the cyber world, the application of computers
became more popular and expansion came in the growth of technology.
This growing dependence on electronic means of communication, electronic commerce and
warehousing information in digital form has certainly created the need for transforming
information technology laws and regulations and 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 of everything necessary to
store and collect information in digital form changes in Indian law to provisions on evaluation of
digital evidence1.
Perhaps nothing symbolizes the start of the Indian digital revolution better than the introduction
of the Information Technology Act, 2000. The Information Technology Act inserted Section 65A
& Section 65B in the Indian Evidence Act, 1872. These sections deal with electronic evidence
and its admissibility. Before discussing electronic evidence it is necessary to first understand the
definition of evidence.2
DEFINITION OF EVIDENCE UNDER BHARATIYA SAKSHYA ADHINIYAM, 2023

 According to the Bharatiya Sakshya Adhiniyam, 2023, section 2(e) defines evidence as:-

“all statements including statements given electronically which the Court permits or requires to be made
before it by witnesses in relation to matters of fact under inquiry and such statements are called oral
evidence;
all documents including electronic or digital records produced for the inspection of the Court and such
documents are called documentary evidence.”
The new law retains the essence of the definition from the Indian Evidence Act 1872 while
incorporating modern digital advancements.
 Evidence under the Act includes:
Oral Evidence – Statements made by witnesses under oath before the court.
Documentary Evidence – All documents, including electronic records, submitted for court review. This
definition expands the scope of digital and electronic evidence, ensuring that emails, text messages,
social media communications, and other electronic records are legally recognized in judicial
proceedings.

4
 Moreover, evidence can be divided into the following types:

EVIDENCE

ORAL/ PRIMARY/
DOCUMENTARY SECONDARY

add definitions of all 4

Primary evidence means the document itself produced for the inspection of the Court whereas
Secondary evidence means and includes certified copies, copies made from the original by
mechanical processes, copies made from or compared with the originals, counterparts of
documents as against the parties who did not execute them and oral accounts of the contents of a
document given by some person who has himself seen it.

Coming to the current topic at hand, naturally, the question arises whether electronic evidence is
primary or secondary.

Electronic evidence is secondary evidence as electronic evidence or digital evidence is any

information that is stored or transmitted digitally.

5
 2. ELECTRONIC EVIDENCE

2.1. MEANING

Electronic evidence, also known as digital evidence, refers to any information or data stored or
transmitted in digital form that is presented in legal proceedings. It includes a wide range of
digital records such as emails, text messages, call recordings, social media posts, CCTV footage,
server logs, and documents stored on computers or cloud platforms.

Key Characteristics of Electronic Evidence:

1. Intangible Nature – Exists in digital format and requires electronic devices for access.

2. Easily Alterable – Can be modified, deleted, or tampered with, requiring authentication

procedures.

3. Metadata Importance – Contains background details such as timestamps, location, and source
of data.

4. Legal Admissibility – Subject to specific legal requirements, including certification under

Section 65 of the Bharatiya Sakshya Adhiniyam, 2023.

Electronic evidence plays a crucial role in modern judicial proceedings, particularly in

cybercrimes, financial frauds, and contractual disputes, where digital records serve as primary
proof.

E-evidence is any information that is stored or transmitted in digital form which a party to a case
may use at trial. Digital Evidence is “information of probative value that is stored or transmitted
in the binary form”. Before accepting digital evidence, its relevance, veracity and authenticity
must be ascertained by the court. E-evidence not only includes evidence found in computers but
6
may also extend to include evidence on digital evidences such as telecommunication or
electronic multimedia devices. It can be found in e-mails, digital photographs, ATM transaction
logs, word processing, documents, instant message histories, spreadsheets, internet browser
histories databases, computer backups, logs from a hotel‟s electronic door logs etc.
Computer Forensics is the technique which is used to find e-evidence in criminal law. It is the
application of investigation and analysis techniques to gather and preserve evidence from a
particular computer device in a way that is suitable for presentation in a court of law.

7
 2.2.THE INFORMATION TECHNOLOGY ACT, 2000

The IT Act, 2000, played a crucial role in recognizing electronic records and digital evidence in India.

Section.2(t) of the Information Technology Act,2000 (hereinafter referred to as „IT Act‟)

defines E-record as data, record or data generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro fiche. This e-record can be used as e-
evidence.
So, the Act gives a very wide meaning to electronic record and it includes electronic data in any
form such as videos or voice messages, SMS, MMS or other information or data in any
electronic forms. This implies that data stored in a communication device such as cell phone can
also be used as an e-evidence.

Further, Section 2(ha) of the IT Act has recognised various forms of communication devices.
Therefore, any e-evidence whether stored in any device such as a computer, digital camera or
communication devices etc. is covered under the IT Act. In India, legal validity of e-record is
provided under Section.4 of the IT Act.

Section.4 : Legal recognition of electronic records

Section 4 of the IT Act grants legal recognition to e-records and e-evidence submitted in the
form of e-records. Where any law provides that information or any other matter shall be in
writing or in the typewritten or printed form, then, notwithstanding anything contained in such
law, such requirement shall be deemed to have been satisfied if such information or matter is:

 rendered or made available in an electronic form

 accessible so as to be usable for a subsequent reference.

It means whenever the law requires documentary evidence, e-evidence can be given as it has the
same validity as that of documentary evidence. However, e-evidence authentication by affixing
digital signatures of e-signature is important.

8
 2.3.INDIAN EVIDENCE ACT,1872

It is noteworthy that the IT Act 2000 has made various consequential amendments to the
Evidence Act, of 1872 to confer validity on e-evidence. Sections 3 & 17 are amended whereas
various new Sections were incorporated, i.e. 22A, 65A, 65B, 85A, 85B, 88A, 90A and 85C.
Let‟s briefly understand these sections :

SECTION 3: EVIDENCE

Section 3 of the Evidence Act 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”. It means e-records are at par with the
conventional form of documents and have the same evidentiary value.
SECTION 17: ADMISSION

Then, another important change was made in the definition of „admission‟ given under Section
17 of the Evidence Act which was amended to include a statement in oral, documentary or
electronic form which suggests an inference to any fact at issue or of relevance.
SECTION 22-A: WHEN ORAL ADMISSION AS TO CONTENTS OF ELECTRONIC
RECORDS ARE RELEVANT

A new Section.22-A has been inserted to provide for the relevancy of oral evidence regarding the
contents of electronic records. It states that oral admissions as to the contents of electronic records
are not relevant unless the genuineness of the electronic record produced is in question. The definition
of „documentary evidence‟ has been amended to include all documents, including electronic records
produced for inspection by the court.

SECTION.59 : PROOF OF FACTS BY ORAL EVIDENCE

As for the documentary evidence, in Section 59 of the Evidence Act, the words "Content of
documents" are replaced by the words "Content of electronic documents or records".

9
SECTIONS 65A & 65B

Sections 65A and 65B inserted to include admissibility of electronic evidence. Section.65A
provides for special provisions as to evidence relating to electronic record which states that the
contents of electronic records may be proved in accordance with the provisions of section 65B.

Section.65B talks about the admissibility of electronic records. It says that any information
contained in an electronic record which is printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a computer shall be deemed to be also a document and
shall be admissible in any proceedings, without further proof or production of the original if the
conditions mentioned below are satisfied :

 The computer output containing the information was produced by the computer during
the period over which the computer was used regularly to store or process information for
the purposes of any activities regularly carried on over that period by the person having
lawful control over the use of the computer.
 The information of the kind contained in the electronic should have been regularly fed
into the computer in the ordinary course of activities.
 The computer was operating properly during that period and, if not, then it would not
have affected the electronic record or the accuracy of its contents.
 The information contained in the electronic record reproduces or is derived from such
information fed into the computer in the ordinary course of the said activities.

SECTION 85A : VALIDITY OF E-CONTRACT

Section.85A has been added to ensure the validity of e-contracts. It provides that every electronic
record of the nature of an agreement is concluded as soon as an electronic signature is affixed to
the record.

10
SECTION 85B : PRESUMPTION AS TO NO ALTERATION IN SECURE E-RECORD

Here, the presumption is regarding no change or alteration in secure e-record. It provides that the
court shall presume the fact that the secure e-record in the question has not been put to any kind
of any alteration unless the contrary has not been proved. This section cannot be misread to
create any presumption relating to the integrity or authenticity of the electronic record or
electronic signature in question.

SECTION 85C : PRESUMPTION REGARDING THE CORRECTION OF ELECTRONIC

SIGNATURE CERTIFICATE

The court shall presume that the information listed in the certificate is true and correct. The
words “shall presume” means this section excludes the discretionary power of the court.

SECTION 88A : PRESUMPTION REGARDING MESSAGE SENT BY THE ORIGINATOR

It provides that the Court may presume that an electronic message forwarded by the originator
through an electronic mail server to the addressee to whom the message purports to be addressed
corresponds with the message as fed into his computer for transmission, but the court shall not
make any presumption as to the person by whom such message was sent. So here the
presumption is about the contents and not about the sender.

SECTION 90A : PRESUMPTION AS TO ELECTRONIC RECORDS FIVE YEARS

It states that where an electronic record is 5 years old and is proved to be in proper custody then
the court may presume that the digital signature was affixed to authenticate the validity of that
agreement. Proper custody here means they are in the custody of the person with whom they
naturally are.

11
 2.4. THE BHARATIYA SHAKSHYA ADHINIYAM,2023

The Bharatiya Sakshya Adhiniyam 2023(BSA) includes "electronic and digital records" in the definition of
"Document". This definition now covers a diverse range of electronic records, including emails, server logs,
files stored on computers, laptops, or smartphones, text messages, website content, location data, voice mails,
and messages stored on digital devices.

Let's understand the changes introduced on the admissibility of electronic or digital evidence under BSA: -

1. Treating Electronic Evidence at par with Primary Evidence: Section 61 of BSA states that,
“Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the
evidence on the ground that it is an electronic or digital record and such record shall, subject to section
63, have the same legal effect, validity and enforceability as other document.”

This Section treats electronic records at par with documentary evidence, as already treated under the
Indian Evidence Act, of 1872 as amended by the Information Technology Act, of 2000.

The BSA under Section 57 defines “primary evidence” and carries four other explanations named 4, 5, 6
and 7, in addition to the three explanations mentioned in IEA. According to the BSA provisions,
electronic or digital records would be treated as primary evidence in the following four circumstances: -

a. Explanation 4 states that “Where an electronic or digital record is created or stored, and such storage
occurs simultaneously or sequentially in multiple files, each such file is primary evidence.”

b. Explanation 5 states that “Where an electronic or digital record is produced from proper custody,
such electronic and digital record is primary evidence unless it is disputed.”

c. Explanation 6 states that “Where a video recording is simultaneously stored in electronic form and
transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”

d. Explanation 7 states that “Where an electronic or digital record is stored in multiple storage spaces in
a computer resource, each such automated storage, including temporary files, is primary evidence.”

2. Addition to the Definition of “Document” and “Evidence”: BSA now defines document as
“document means any matter expressed or described or otherwise recorded upon any substance by
12
 means of letters, figures or marks or any other means or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording that matter and includes electronic and digital
records.” Thus, the new law considers electronic and digital records under the definition of document,
which was not a part under IEA. Further, new illustration (vi) added to the definition of documents to
account for electronic records – “An electronic record on emails, server logs, documents on computers,
laptop, or smartphone, messages, websites, locational evidence and voice mail messages stored on
digital devices are documents.”
Similarly, BSA made an addition to the definition of evidence which shall include 'information given
electronically´ within oral evidence and 'or digital records' within documentary evidence, as not
provided under the IEA.
3. Expanding the reach of “electronic evidence”: The BSB introduces significant modifications in the
realm of electronic evidence, bringing about substantive changes alongside primary/secondary evidence
considerations. Section 63 of BSA expands its reach to electronic records in semiconductor memories, in
addition to those on paper and stored/recorded/copied in optical or magnetic media. Furthermore, the
provision extends its applicability to encompass 'any communication device,' broadening its scope.
Subsection (3) of the provision refines the definition of a computer or a communication device,
providing it with a more comprehensive interpretation.
4. Condition of Mandatory Production of Certificate Retained but requires an approval from an
expert too: It is important to note that the sub-section (4) of the BSA Section 63 maintains the
mandatory requirement of a certificate as specified under Section 65B (4) of the IEA but specifies that
the certificate must be submitted along with the electronic record each time electronic evidence is
presented before a court. Additionally, the revised provision clarifies that the certificate can be provided
by any person 'in charge of the computer or communication device and an expert (whichever is
appropriate),' replacing the previous requirement for a person 'occupying a responsible official position.'

5. Introduction of Format of Production of Certificate for production of electronic or digital records:

While the IEA did not specify the form of the certificate to be produced for the proof of the secondary
evidence, and is often presented as an affidavit in practice, however, the Section 63(4)(c) of BSA.

Introduces a Schedule A and B for this purpose. Part A needs to be filled by the Party producing the
electronic record/output of the digital record, and Part B needs to be filled by an expert to submit that the
HASH value/s of the electronic/digital record/ is produced from the given algorithms in the form itself.

13
Comparison between Indian Evidence Act, 1872 (IEA) and Bhartiya Sakshya Adhiniyam, 2023 (BSA)

Section 63 of Bhartiya Sakshya

Section 65B of Indian Evidence Act, 1872
Adhiniyam, 2023
(1) Notwithstanding anything contained
(1) Notwithstanding anything contained
in this Adhiniyam, any information
in this Act, any information contained in
contained in an electronic record which
an electronic record which is printed on
is printed on paper, stored, recorded or
a paper, stored, recorded or copied in
copied in optical or magnetic media or
optical or magnetic media produced by a
semiconductor memory which is
computer (hereinafter referred to as the
produced by a computer or any
computer output) shall be deemed to be
communication device or otherwise
also a document, if the conditions
stored, recorded or copied in any
mentioned in this section are satisfied in
electronic form (hereinafter referred to
relation to the information and computer
as the computer output) shall be
in question and shall be admissible in
deemed to be also a document, if the
any proceedings, without further proof
conditions mentioned in this section are
or production of the original, as evidence
satisfied in relation to the information
or any contents of the original or of any
and computer in question and shall be
fact
admissible in any
proceedings, without further proof or
production of the original, as evidence or
stated therein of which direct evidence
any contents of the original or of any
would be admissible.
fact stated therein of which direct
evidence would be admissible.
Clause (2) is same
(3) Where over any period, the function (3) Where over any period, the function
of storing or processing information for of creating, storing or processing
the purposes of any activities regularly information for the purposes of any
carried on over that period as mentioned activity regularly carried on over that
in clause (a) of sub-section (2) was period as mentioned in clause (a) of sub-
regularly performed by computers, section (2) was regularly performed by
whether–– means of one or more computers or
communication device, whether—
(a) by a combination of computers
operating over that period; or (a) in standalone mode; or
(b) by different computers operating in (b) on a computer system; or
succession over that period; or (c) by (c) on a computer network; or
different combinations of computers (d) on a computer
operating in succession over that period; resource enabling information creation

14
or
or providing information processing and
(d) in any other manner involving the storage; or
successive operation over that period, in (e) through an intermediary, all the
whatever order, of one or more computers or communication devices
computers and one or more used for that purpose during that period
combinations of computers, all the shall be treated for the purposes of this
computers used for that purpose during section as constituting a single computer
that period shall be treated for the or communication device; and
purposes of this section as constituting a references in this section to a computer
single computer; and references in this or communication device shall be
section to a computer shall be construed construed accordingly.
accordingly.
(4) In any proceedings where it is
desired to give a statement in evidence (4) In any proceeding where it is desired
by virtue of this section, a certificate to give a statement in evidence by virtue
doing any of the following things, that is of this section, a certificate doing any of
to say, –– the following things shall be submitted
along with the electronic record at each
(a) identifying the electronic record instance where it is being submitted
containing the statement and
describing the manner in which it was for admission, namely:—
produced; (a) identifying the electronic record
(b) giving such particulars of any device containing the statement and describing
involved in the production of that the manner in which it was produced;
electronic record as may be appropriate (b) giving such particulars of any device
for the purpose of showing that the involved in the production of that
electronic record was produced by a electronic record as may be appropriate
computer; for the purpose of showing that the
electronic record was produced by a
(c) dealing with any of the matters to computer or
which the conditions mentioned in sub- a communication device referred to in
section (2) relate, and purporting to be clauses (a) to (e) of sub- section (3);
signed by a person occupying a (c) dealing with any of the matters to
responsible official position in relation which the conditions mentioned in sub-
to the operation of the relevant device section (2) relate, and purporting to be
or the management of the relevant signed by a person in charge of the
activities (whichever is appropriate) computer or communication device or the
shall be evidence of any matter stated management of the relevant activities
in the certificate; and for the purposes (whichever is appropriate) and an expert
of this subsection it shall be sufficient shall be evidence of any matter stated in
for a matter to be stated to the best of the certificate; and for the purposes of
15
 this sub-section it shall be sufficient for a
matter to be stated to the best of the
knowledge and belief of the person
the knowledge and belief of the person
stating it in
stating it.
the certificate specified in
the Schedule.

Major Changes Introduced by the BSA

 The BSA has increased the ambit of the definition of the term ‘document’ and provided that “electronic and
digital records’ shall fall within the ambit of the term document. (Section 2(d) of BSA)

 The BSA also made an addition to the definition of evidence which shall include ‘information given
electronically’ within oral evidence and ‘or digital records’ within documentary evidence.

 Section 57 of BSA defines “primary evidence” and carries four other explanations namely Explanation 4,5,6
and 7.

  Explanation 4 provides that “Where an electronic or digital record is created or stored, and such
storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.”

  Explanation 5 provides that “Where an electronic or digital record is produced from proper custody,
such electronic and digital record is primary evidence unless it is disputed.”

  Explanation 6 provides that “Where a video recording is simultaneously stored in electronic form and
transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”

  Explanation 7 provides that “Where an electronic or digital record is stored in multiple storage spaces
in a computer resource, each such automated storage, including temporary files, is primary evidence.”

 The BSA has introduced Section 61 which provides that nothing in this Act shall be used to deny the
admissibility of an electronic or digital record as evidence on the basis that it is an electronic or digital record.
Such records, subject to Section 63, shall have the same legal effect, validity, and enforceability as other
documents.

o This Section treats electronic records at par with documentary evidence as already treated under the IEA as
amended by the Information Technology Act, 2000 (IT).

 Section 63 of BSA expands its reach to electronic records in semiconductor memories, in addition to those on
16
paper and stored/recorded/copied in optical or magnetic media.

o Furthermore, the provision extends its applicability to encompass 'any communication device,' broadening its
scope.

o Subsection (3) of the provision refines the definition of a computer or a communication device, providing it
with a more comprehensive interpretation.

Section 63(4) of BSA mandates a certification process similar to Section 65B (4) of IEA with added safeguards
like producing the electronic record with the certificate

17
 2.4. JUDICIAL RESPONSE

A trend has emerged in Indian courts where the judges started recognizing and appreciating the
importance of digital evidence in legal proceedings. There are various cases in which the courts
in India have accepted e-evidence and given guidelines in this regard.

In Amitabh Bagchi v Ena Bagchi4, the Calcutta HC analysed Sections. 65A and 65B of the
Indian Evidence Act, 1872 and upheld that the physical presence of a person in court may not be
required for purpose of adducing evidence and the same can be done through e-medium like
video conferencing.

In State of Delhi v. Mohd. Afzal5, it was held that electronic records are admissible as evidence.
If someone challenges the accuracy of the computer evidence or electronic record on the grounds
of the misuse of the system or operating failure, then the person challenging it must prove the
same beyond a reasonable doubt.

In State (NCT of Delhi) v. Navjot Sandhu 6, there was an appeal against the convictionfollowing
the attack on Parliament in December 2001. This case dealt with the proof and
18
admissibility of mobile telephone call records. It was submitted on behalf of the accused that no
4
AIR 2005 Cal 11.
5
2003 (3) JCC 1669.
6
AIR 2005 SC 3820.

19
reliance could be placed on the mobile telephone call records, because the prosecution had failed
to produce the relevant certificate under Section.64B(4) of the Evidence Act. The apex court
while examining the provisions of newly added Section. 65B, held that in a given case, where the
certificate containing the detains in Section.65B(4) is not filed, that does not mean that secondary
evidence cannot be given.

It was held by the apex court that the cross-examination of the competent witness acquainted
with the functioning of the computer during the relevant time and how the printouts of the call
records were taken are sufficient to prove the call records. Therefore, the certificate as mentioned
in Section.65B is not required.

The latest judgement was delivered by the apex court in Anvar P.V. v. P.K. Basheer7, which
overruled the judgement laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afzal
Guru. The hon‟ble SC held that Computer Output is not admissible without compliance of
Section.65B i.e. the certification as mentioned in Section.65B is a must. In the judgement, the
Apex Court has held that Section.65B of the Evidence Act is a „non- obstante clause‟ would
override the general law on secondary evidence under Sections 63 and 65 of the Evidence Act
and the same shall be wholly governed by the Section.65A and 65B of the Evidence Act. The
only alternative to prove the electronic record/evidence is by producing the original electronic
media as Primary Evidence to the court.

Here, the decision of the Supreme Court in Anvar P.V case is not against the principles of natural
justice, in fact if anything it sought to advance the cause of justice. It is common understanding
that information stored digitally is more vulnerable to manipulation and/or tampering. In light of
the existence of such circumstances, the requirement of the procedure laid down under Section
65B becomes necessary. The object of the procedure laid down in Section 65B is to legitimize
electronic evidence.

7
AIR 2015 SC 180.

20
 CASE: SHAFHI MOHAMMAD V. THE STATE OF HIMACHAL PRADESH1
On 30th January 2018, the Supreme Court overruled the 2014 judgment. In this case, a bench
comprising of Justices AK Goel and UU Lalit came to the following observation and
conclusions:
"The decision was given in "Navjot Sandhu case (supra)" that secondary evidence of
electronic record is covered under Section 63 & 65 of IEA, was Incorrect.

The said Section 64-8 (4) will only apply to certain cases in which the electronic evidence is
produced by a person In possession and control of the said device. Whereas, In a case where
a party is not in the possession/ control of the device from which the document is produced,
such party cannot be required to produce a certificate under Section 65B (4). Also, the
applicability of Section 63 & 65 cannot be held to be excluded and the procedure can be
invoked.

Section 65-A and 65-8 are clarificatory and procedural and are not a complete code on the
subject.”

Thus, the requirement of a certificate under Section 65-B (4) is not always mandatory and can
be dispensed with, in the interest of Justice. It also depends upon the facts of each case.

CASE: ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO

GORANTYAL & ORS2
On 14th July 2020, The Supreme Court has held that the certificate required under Section 65-
B (4) is a condition precedent to the admissibility of evidence by way of electronic record.

A Three Judge Bench of the Supreme Court comprising Justices RF Nariman, S Ravindra Bhat
and V Ramasubramanian delivered this judgment on a reference on the question "Is
requirement of certificate u/s 65-B(4) Evidence Act mandatory for production of electronic
evidence?" A two Judge Bench of Justices Ashok Bhushan and Navin Sinha had referred the
question in view of the conflict between "Shafni Mohammad v. State of Himachal Pradesh"
and "Anvar P.V. v. P.K. Basheer".

1
SLP (Cr.) No. 2302/2017
2
Civil Appeal No. 20825-20826/2017 with Civil Appeal No. 2407/2018 and 3696/2018, SC
21
 The bench headed by Justice RF Nariman has however clarified that that the required certificate
under Section 65-B(4) is unnecessary if the original document itself is produced. The court said
that the judgment in "Anvar P.V. v. P.K. Basheer & Ors. 3" need not be revisited, subject to the
above clarifications.

The Supreme Court also stated that Section 65B (1) differentiates between:

(i) 'original document' - which is the original electronic record contained in the computer in which
the original information is first stored; and
(ii) the computer output containing such information, which then may be treated as evidence of the
contents of the 'original document'.

The Supreme Court clarified that Certificate is not necessary if the 'original document' itself is
produced (as a primary evidence). This can be done by the owner of a laptop computer, computer
tablet or even a mobile phone, by stepping into the witness box and proving that the concerned
device, on which the original information is first stored, is owned and/or operated by him.
However, in all other cases, proof of such electronic record can be through in accordance with
Section 65B (1) together with production of the requisite Certificate under Section 65B (4) of the
Act.

The judgment authored by Justice RF Nariman stated:

"Section 65B(1) clearly differentiates between the "original" document - which would be the
original "electronic record” contained in the "computer" in which the original information is
first stored -and the computer output containing such information, which then may be treated
as evidence of the contents of the "original" document. All this necessarily shows that Section
65B differentiates between the original information contained in the "computer" itself and
copies made therefrom –the former being primary evidence, and the latter being secondary
evidence.

Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original
document itself is produced. This can be done by the owner of a laptop computer, a computer
tablet or even a mobile phone, by stepping into the witness box and proving that the concerned

3
(2014) 10 SCC 473
22
device, on which the original information is first stored, is owned and/or operated by him. In
cases where "the computer", as defined, happens to be a part of a "computer system" or
"computer network" (as defined in the Information Technology Act, 2000) and it becomes
impossible to physically bring such network or system to the Court, then the only means of
proving information contained in such electronic record can be in accordance with Section
65B(1), together with the requisite certificate under Section 65B(4).This being the case, it is
necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V.
(supra) which reads as "...if an electronic record as such is used as primary evidence under
Section 62 of the Evidence Act...". This may more appropriately be read without the words
"under Section 62 of the Evidence Act,...".

23
3. CONCLUSION

To conclude, we can say that the Information Technology Act, 2000, based upon the
UNCITRAL Model Law, has brought tremendous changes and has led to the emergence of
various new concepts like computer forensic. The IT Act,2000 and the consequential
amendments in the Evidence Act has permitted the admissibility of the digital evidence stored in
various devices such as a computer, communication device the digital voice recorder, digital
cameras etc. Judiciary has played a commendable role regarding the admissibility of e-evidence
in India and the current scenario is that 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.

At last, we can say that there is a dire need of providing proper training to law enforcement
agencies in handling cyber-related evidence and correct application of procedure and sections of
Evidence Law while presenting such evidence in court. There is a need to spread awareness that
while submitting evidence to police or courts, it is mandatory to submit it with a certificate under
Section.65B(4) of the Evidence Act so that the court takes cognizance and reads it as primary
evidence.

24
4. REFERENCES
1. https://www.lexology.com/library/detail.aspx?g=adb8484a-3b50-4452-8453-

36536f5a5a35.

2. https://indiankanoon.org.

3. https://poseidon01.ssrn.com/delivery.php.

4. Rattan Jyoti, Cyber Laws & Information Technology, Bharat Law House, New Delhi (8th

edn, 2020).

25