When is electronic evidence relevant

Admissibility of Electronic Records Section 65A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act. Technical conditions and non-technical grounds Section 65B of the Evidence Act provides for both technical conditions and non-technical grounds for admissibility of electronic evidence.

These are: a At the time of the creation of the electronic record, the computer that produced it must have been in regular use; b The kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer; c The computer was operating properly; and d The duplicate copy must be a reproduction of the original electronic record. Certificate of Authenticity Section 65B 4 of the Evidence Act provides for the non-technical conditions being the requirement of a certificate of authenticity.

Mandatory requirement of certificate A pertinent question that arises in this context is whether a certificate under Section 65B of the Evidence Act is mandatory? Relevance, genuineness, veracity and reliability of electronic records While relevance of electronic records is specific to the facts and circumstances of each case, the genuineness, veracity and reliability of digital evidence is one of the biggest challenges that courts have to deal with while adjudicating upon the admissibility of the electronic evidence.

E-mail Electronic mail or e-mail is one of the most commonly utilized electronic media for transmission of information. Hard-disk A hard disk of a computer is the fundamental source of all information. Tape Recordings Often parties record conversations with others, in order to utilise the same as evidence in trials.

Photographs In most of the cases, the digital camera itself is not produced before the court and a party either takes recourse to a printout or some other storage media such as CDs, USB Drives, etc. Use of electronic Media in other judicial proceedings In addition to electronic records being led in evidence, there has also been an increase in reliance on electronic media for other purposes in judicial proceedings.

Conclusion With the enactment of the IT Act and the subsequent Amendments in the Evidence Act, the use of electronics records in judicial proceedings has gone a long way. Footnotes 1. Supra 6. Ajay Bhargava. Aseem Chaturvedi. Karan Gupta. Shivank Diddi. This compilation seeks to identify the significant developments in arbitration law by the courts of India after the advent of the COVID pandemic.

It also reaffirmed that the legislative intent of the Arbitration Act is party autonomy and minimal judicial interference in the arbitration process. The jurisdiction of and is vast and has to be exercised sparingly. Disputes arising out of a contract containing an arbitration clause, unless specified otherwise, are referred to arbitration. In a recent case, the question before the Supreme Court was whether interest could be levied during the pendency of a litigation Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email.

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News Alert. Login to Mondaq. Not registered? Confusion arose over the scope and ambit of Section 65B as inconsistent views had been taken in three earlier decisions of the Supreme Court — in Anvar P. Before examining these decisions and the conflict that has now been resolved in Arjun v.

Kailash , let us first refer to the legal framework for admissibility of electronic evidence under Section 65B. Under Section 65A of the Evidence Act, the contents of electronic records have to be proved as evidence in accordance with the requirements of Section 65B. In Anvar v. Basheer , it was clarified that as Section 65B begins with a non-obstante clause, if forms a complete code for the admissibility of electronic evidence.

What gave rise to conflicting interpretations is the provision in Section 65B 4 , which states that if the electronic evidence is to be used in any judicial proceeding, a certificate shall have to be produced which identifies the electronic record, and gives particulars of the device involved in the production of the electronic record.

This certificate shall have to be signed by a person occupying a responsible official position in relation to the operation of the relevant device, or from a person who is in the management of the relevant activities involved. This signature shall be evidence of the authenticity of the certificate.

After divergent views were taken in the three earlier Supreme Court decisions referred above, confusion had arisen as to whether a certificate under Section 65B 4 would have to be obtained even when an original copy of the electronic record is produced as evidence.

Another issue that arose was whether it was mandatory to comply with the provisions of Section 65B 4 or can the requirement to obtain a certificate be dispensed with. At this juncture, it is also important to refer to Section 62 and Section 63 of the Evidence Act. Under Section 63, secondary evidence includes copies made from the original, certified copies, oral accounts of the contents of a document etc.

In Arjun v. Kailash , the Court had to adjudicate on an election petition which challenged the election of Mr. This is exactly the sort of situation that section 65B of the Evidence Act intended to avoid by requiring an impartial certificate under sub-section 4 that also speaks to compliance with the technical requirements of sub-section 2. It may be that the certificate containing the details in sub-section 4 of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and In the years that followed, printed versions of CDRs were admitted in evidence if they were certified by an officer of the telephone company under sections 63 and 65 of the Evidence Act.

The special procedure of section 65B was ignored. This has led to confusion and counter-claims. For instance, the case of Amar Singh v. Union of India 38 saw all the parties, including the state and the telephone company, dispute the authenticity of the printed transcripts of the CDRs, as well as the authorisation itself. Currently, in the case of Ratan Tata v. Union of India, 39 a compact disc CD containing intercepted telephone calls was introduced in the Supreme Court without following any of the procedure contained in the Evidence Act.

In Avnish Bajaj vs. State, 40 the question as to what kind of distinction do we draw between Internet Service Provider and Content Provider was raised.

The burden rests on the accused that he was the Service Provider and not the Content Provider. It also raises a lot of issues regarding how the police should handle the cyber crime cases and a lot of education is required.

The trend of ignoring the special procedure prescribed for adducing electronic records as evidence was seen even in subsequent cases. For example the case of Ratan Tata v. Union of India 41 was another case where a CD containing intercepted telephone calls was introduced in the Supreme Court without following the procedure laid down under section 65B of the Evidence Act.

In Anvar vs. Basheer, 42 the court held that Section 65B of the Evidence Act has been inserted by way of an amendment by the Information Technology Act, In as much it is a special provision which governs digital evidence and will override the general provisions with respect to adducing secondary evidence under the Evidence Act.

In American federal courts, the law of evidence is set out in the Federal Rules of Evidence. Lorraine held when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible:. In Anvar, the Supreme Court unequivocally returned Indian electronic evidence law to the special procedure created under section 65B of the Evidence Act. The Supreme Court held that the provisions of sections 65A and 65B of the Evidence Act created special law that overrides the general law of documentary evidence.

Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

By doing so, it disqualified oral evidence offered to attest secondary documentary evidence. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. The scope for oral evidence is offered later.

Once electronic evidence is properly adduced according to section 65B of the Evidence Act, along with the certificate of sub-section 4 , the other party may challenge the genuineness of the original electronic record. If the original electronic record is challenged, section 22A of the Evidence Act permits oral evidence as to its genuineness only.

Note that section 22A disqualifies oral evidence as to the contents of the electronic record, only the genuineness of the record may be discussed. In this regard, relevant oral evidence as to the genuineness of the record can be offered by the Examiner of Electronic Evidence, an expert witness under section 45A of the Evidence Act who is appointed under section 79A of the IT Act. In Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke. Without source, there is no authenticity for the translation.

Source and authenticity are the two key factors for electronic evidence. In the recent judgment, Jagdeo Singh vs. Union of India 7 SCC Union of India Writ Petition Civil of State Bazee. The State and Ors. Strict compliance with section 65B is now mandatory for persons who intend to rely upon e-mails, web sites or any electronic record in a civil or criminal trial before the courts in India.

This outlook of the Supreme Court of India is to ensure that the credibility and evidentiary value of electronic evidence is provided for, since the electronic record is more susceptible to tampering and alteration. The High Court held that examination and cross-examination of the concerned officer, purportedly in charge of the CCTV cameras and footage, and who was the person who should have issued the certificate, when signed as a statement before the Court by this officer amounted to substantial compliance of the requirements of S.

The 3-judge bench of the Apex Court while answering the reference in the matter, held that the certificate under S. The Court however noted that despite all attempts made by the Respondent he could not procure the certificate from the concerned authorities —the Court thereby exempted the Respondent from the mandatory requirement of S.

Further, the Court noted that apart from the evidence in the form of electronic record, other evidence too was relied upon by the High Court to arrive at the same conclusion. Accordingly, the Court dismissed the appeals and upheld the order of the High Court declaring the election of the Petitioner to be void.

It is noteworthy that the reasoning of the High Court pertaining to substantial compliance of the requirements of S. The judgment in Shafhi Mohammad relied upon a 3-judge bench judgment of the Apex Court in Tomaso Bruno 4 to hold that the requirement of a certificate under S. The judgment in Tomaso Bruno had held that even in the absence of a certificate under S.

The Court has thus clarified the law and provided a detailed description of how it is intended to be worked —it is interesting though to note that in doing so it has declared the judgment of another co-ordinate 3-judge bench in Tomaso Bruno to be per incuriam.

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Your LinkedIn Connections with the authors. To print this article, all you need is to be registered or login on Mondaq. Production of the original electronic record primary evidence : The Court held that where the original electronic record itself can be produced, a certificate under S. Production of computer-output of the contents of the electronic record secondary evidence : The Court held that in cases where the 'computer' happens to be part of a 'computer system' or 'computer network' and it becomes impossible to physically bring such a system or network to the Court, then the only means of providing information contained in such electronic record would be to produce the computer-output printout, CD, DVD, USB-drive etc.

The stage at which the certificate under S. Directions to Internet Service providers ISPs and providers of mobile telephony Cellular Companies : The Court noted that the present relevant licensing terms oblige ISPs and Cellular Companies to preserve logs of internet usage and call records of users for a limited period of one year; and that this may lead to difficulties in situations where a certificate under S.