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Admissibility of Electronic Evidence

1. To admit an electronic document as evidence, a certificate as described in Section 65B(4) of the Indian Evidence Act is mandatory. This certificate identifies the electronic record and describes how it was produced, and is needed to prove the document was generated by a computer. 2. Without this certificate, simply asking a witness about an electronic document or playing it in court is impermissible. The document must be properly admitted into evidence first by following the procedure in Section 65B, including obtaining the certificate. 3. A party cannot directly seek to introduce a new piece of electronic evidence, like a CD, during an opponent's cross-examination without first examining their own witness about the document and obtaining the necessary certificate

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106 views3 pages

Admissibility of Electronic Evidence

1. To admit an electronic document as evidence, a certificate as described in Section 65B(4) of the Indian Evidence Act is mandatory. This certificate identifies the electronic record and describes how it was produced, and is needed to prove the document was generated by a computer. 2. Without this certificate, simply asking a witness about an electronic document or playing it in court is impermissible. The document must be properly admitted into evidence first by following the procedure in Section 65B, including obtaining the certificate. 3. A party cannot directly seek to introduce a new piece of electronic evidence, like a CD, during an opponent's cross-examination without first examining their own witness about the document and obtaining the necessary certificate

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Chaudharybana
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© © All Rights Reserved
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Points to Ponder:

1. Primary & Secondary Electronic Evidence and it’s Admissibility?


Ans. The Hon’ble S.C. in ‘Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal’ [(2020) 7 SCC 1] stated, Sections 65A and 65B
occur in Chapter V of the Evidence Act which is entitled “Of
Documentary Evidence”. Section 61 of the Evidence Act deals with the
proof of contents of documents, and states that the contents of documents
may be proved either by primary or by secondary evidence.
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 Section 65B 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
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).

2. Proving of Electronic Document?


Ans. Section 65B(1) opens with a non-obstante clause, and makes it
clear that any information that is 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 a
document, and shall be admissible in any proceedings without
further proof of production of the original, as evidence of the
contents of the original or of any facts stated therein of which direct
evidence would be admissible.
However, because of retaining primary and secondary evidence
distinction for electronic evidence, the Supreme Court has required
production of original electronic document in form of pen drive, mobile
phone, etc. through the owner of such device stepping into the witness
box. When it is impossible to bring “computer” being part of a computer
system or computer network then the certificate under Section 65-B(4) is
to be produced.
Under Sub-section (4), a certificate is to be produced that identifies
the electronic record containing the statement and describes the
manner in which it is produced, or gives particulars of the device
involved in the production of the electronic record to show that the
electronic record was produced by a computer, by either a person
occupying a responsible official position in relation to the operation
of the relevant device; or a person who is in the management of
“relevant activities” – whichever is appropriate.

3. Compliance of Section 65B of Evidence Act- Mandatory or Not?


Ans. The hon’ble S.C. in ‘Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal’ [(2020) 7 SCC 1] had held that, Two Latin
maxims become important to determine this, the
first being lex non cogit ad impossibilia i.e. the law does not demand
the impossible, and impotentia excusat legem i.e. when there is a
disability that makes it impossible to obey the law, the alleged
disobedience of the law is excused.
Thus, on an application of the aforesaid maxims, it becomes clear
that Section 65B(4) is mandatory and Oral evidence in the place of
such certificate cannot possibly suffice as Section 65B(4) is a
mandatory requirement of the law.

4. Procedure to be followed for cross-examination?


Ans. CD cannot be opened as such by indirectly asking the court to cross-examine
the opponent’s witness without him being first examined in chief on the basis of
alleged CD, as petitioner is claiming to be and also asking to play the alleged CD
in the court without first proving it by producing a certificate under Section
65B(4) of the evidence act. The petitioner has neither earlier tried to examine the
opponents witness as to the CD nor had made an Application to Re-open the
examination for examining the said witness.

5. Stage for taking CD as evidence?


Ans. The hon’ble S.C. in ‘Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal’ [(2020) 7 SCC 1] had held that, the certificate required under
Section 65B (4) is a condition precedent to the admissibility of evidence by
way of electronic record, as correctly held in Anvar P.V. Case. Thus, in the
present case as the proceedings have proceeded beyond the stage of petitioner’s
evidence and presently at the opponent’s evidence stage, therefore the petitioner
cannot directly ask for taking the CD as evidence while the cross-examination of
witness ‘Sahayak Nirvachan Adhikari’ is going on.

6. Procedure to be followed for Admissibility of CD as evidence (Procedure to play


CD)?
Ans. The petitioner first needed to produce a certificate for proving CD under
Section 65B(4) of the evidence act and then only it can be taken as evidence for
further examination.

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