Article On 65B of Evidence Act
Article On 65B of Evidence Act
1. In cases where the original is with the opposite party or with a person who is out
of reach or with a person who refused to give the original document after notice.
2. In cases where the content of the original document has been admitted by the
opposite party subsequently through another document.
3. In cases where the original is lost or is a public document or the original cannot be
moved easily. If a public document or any other document of which a certified
copy can be obtained under law, then, that certified copy can be admitted as
secondary evidence.
4. When the original document consists of numerous accounts and high volume, then
the portion of the document examined by a skilled person can be admitted as
secondary evidence.
Original document
Such documents shall be admissible as evidence without further proof or production of the
original if the owner or person responsible for the computer, who recorded the evidence gives
a certificate under Section 65B (4) of Indian Evidence Act, 1872 stating
What comes under the ambit of electronic evidence as per Section 65 of the
Indian Evidence Act, 1872?
Before 2000, the Courts did not accept the electronic record as evidence to a greater extent.
However, after 2000, the Court admitted electronic evidence as per procedure mentioned in
Section 65 of the Indian Evidence Act and made a certificate under Sub-section 4 of Section
65B of Indian Evidence Act, 1872 as optional (Archana Rastogi v. Vivek Rastogi (2007)).
Now, almost all types of electronic records are being admitted as electronic evidence such as
CCTV footage, ATM receipt, bank statement, e-forms, Government orders, digital signatures,
etc.
What was the position before the year 2000?
Before 2000, electronic evidence was admitted either as primary evidence or secondary
evidence by applying Sections 61 to 65 of the Indian Evidence Act, 1872. If the original
document itself was produced, then it was taken as primary evidence. In other cases, the
procedure under Section 65 has to be followed to adduce the electronic evidence.
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru 2005 the Supreme Court held that a
certificate under Section 65B(4) is not necessary and electronic evidence can be adduced
through Sections 63 and 65 of the Indian Evidence Act, 1872.
This view was overruled in Anvar P. V vs P.K. Basheer & Ors, (2014). where the Supreme
Court held that Section 65A and 65B are code in itself and the procedure of those Sections
should be followed to adduce the electronic evidence. Again, this view was overruled by the
Supreme Court in Shafhi Mohammad vs The State Of Himachal Pradesh, (2018)., where it
was held that the procedure under Sections 65A and 65B is only procedural and hence, it
need not be followed in all the circumstances.
Finally, this confusion has been settled by a larger bench of the Supreme Court in Arjun
Panditrao Khotkar vs Kailash Kushanrao Gorantyal, (2020). where it was held that the
procedure under Sections 65A and 65B is a code in itself and overrules the general provisions
regarding admissibility of electronic evidence. Therefore, provisions of 65A and 65B should
be followed to adduce the electronic evidence.
In case of Anvar vs. P.K Basheer, wherein a three-judge bench re-examined the decision and
amended the fallacy made in the Navjot Sandhu case by stating that Section 65B is a special
provision that overrides Section 65, which is a general provision
Notwithstanding Sections 59, 65A and 65B of the Evidence Act, an electronic record used as
primary evidence under Section 62 is admissible in evidence, without complying Section 65B
of the Evidence Act.
Sanjay Singh Ram Road Chavan Vs. Dattatray Gulab Rao Phalke&Ors. (2015)3SCC
123:
Without source there is no authenticity for the translation. Source and authenticity are the two
key factors for electronic evidence.
When such a device is not in a control of the party, applicability of Section 63 and 65 of the
Evidence Act cannot be held to be precluded i.e., it is the discretion of the party to present a
computer output as secondary evidence.
The Court, while pronouncing the decision in the Shafhi Mohammad case, disregarded the
fact that the law set out in the Navjot Sandhu case was not a good precedence and had been
clearly set aside in the full bench judgment of the Anvar PV case. Therefore, the judicial
pronouncement in the Shafhi Mohammad v. State of Himachal Pradesh calls for serious
reconsideration by a larger bench of the Supreme Court of India.
SUPREME COURT WITH ITS RECENT JUDGMENT ENDED THE
DECADES CONFLICT
The Apex Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and
Ors. ended the conundrum with respect to the interpretation of Section 65B of Indian
Evidence Act, 1872 ("Evidence Act"). The dilemma exists between division bench judgment
in the case of Shafhi Mohammad v. State of Himachal Pradesh and Anvar P.V. v. P.K.
Basheer.
The facts of the case are such that the petitioners relied upon an essential piece of evidence
i.e., video recording from a CCTV camera placed outside the office of the Returning Officer
before the High Court in challenging this election, which was produced pursuant to the
direction of the High Court. The same was produced without the certificate which is a
requisite under Section 65B (4), which the High Court accepted in evidence while saying that
there was “substantive compliance” of the requirement under Section 65B (4) by way of oral
evidence in cross-examination. The High Court further held that oral evidence on the contents
of an electronic record in place of written certificate u/s Section 65B (4) of Evidence Act, is
not barred by the Evidence Act.
The appellant challenged the High Court’s judgment and order before the Supreme Court on
the ground that without certification under section 65B (4) of Indian Evidence Act, 1872,
electronic record i.e., CDs could not have been admitted.
The Supreme Court while answering this important issue has finally settled all the dilemmas,
while sustaining the law laid down in Anvar’s case and held that requirement of a certificate
is essential to the admissibility of evidence by way of electronic record under Section 65B of
the Act. Electronic evidence will be considered as an inadmissible in the court under section
65B of the act, if any of the parties produce it without a requisite certificate.
1. Certificate u/s 65B (4) of the Evidence Act is a condition precedent to the
admissibility of evidence by way of electronic record;
2. Oral evidence in place of such certificate cannot satisfy Section 65B (4);
3. So long as the hearing in a trial is not over, the certificate can be directed to be
produced;
4. Subject to 5 below, the certificate is not necessary if the original document itself is
produced, which can be done by the owner of a computer in the witness box and
proving that the computer is owned and/or operated by him; and
5. If the electronic record is on a network, then the only way it can only be provided is
as per S. 65B (1) and 65B (4).
Thus, with the above judgment it is very much clear that in order to produce any electronic
record as evidence, it is important that the party needs to accompany it with a certificate as
mentioned under section 65B of the Act.