By Ashna Gaur on 25-02-23

65 B of Evidence Act: Electronic Evidence

Evidence plays a major role in deciding every case. There are two kinds of evidence, oral and
documentary. Documentary evidence is again divided into two types, primary evidence and
secondary evidence. Sections 61 to 90A of the Indian Evidence Act, 1872 deal with
documentary evidence. All the documents presented as evidence in both civil and criminal
proceedings are admitted as per the procedure mentioned in Sections 61 to 90A of the Indian
Evidence Act. This particular Chapter of the Indian Evidence Act, 1872 along with the art of
cross-examination and argument decides the case. 

What is Section 65 of the Indian Evidence Act, 1872

Section 65 provides for the circumstances in which secondary evidence may be given without
filing primary evidence. However, the party cannot seek Court’s permission for admitting the
secondary evidence without exhausting Section 65. In other words, the party should show the
bonafide cause for filing the secondary evidence and it is the discretion of the Court to admit
the same. Those circumstances are as follows:

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.

Difference between primary and secondary evidence

Primary evidence is the original document itself, whereas secondary evidence is the copy
made from the primary evidence.

Original document

 When a document is executed in several parts, each of the parts is considered as

primary evidence. For example, in a loan agreement, if the borrower has signed in
all the pages, then each page is considered as primary evidence. 
  If a document is executed in duplicate, then each of the copies is considered as
primary evidence. For example, if a contract is made between two or more parties,
then each of the contract agreements is considered as primary evidence.
 If several documents are prepared by the same mechanical process, then one
document of that mechanical process is considered as primary evidence of other
documents prepared under the same mechanical process.
  Copies made from the above original shall be considered secondary evidence.

Section 65B of Indian Evidence Act, 1872

Section 65B talks about the electronic device and the circumstances under which the
evidence is recorded. It also talks about the conditions of electronic devices during the
recording of evidence. Sub-Section 1 of Section 65B defines the computer output. While
reading this Section with Section 2 of Information technology Act, 2000, it can be presumed
that any electronic device such as a computer, mobile phone, tape recorder, or video recorder,
which has the capacity to store, process and send information can be considered an electronic
device. These devices are commonly called “computer output”.

Conditions for the admissibility of electronic evidence under Section 65B

If any information contained in an electronic record that is printed in paper, stored, recorded,
or copied in optical or magnetic media, produced by a computer, shall be deemed as a
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

1. The working condition of the computer during the recording of evidence.

2. It’s lawful use by the owner or operator.
3. A description of the regular use of computers.
4. If the information is fed into another computer in the ordinary course of activity, a
description about it.
5. A description of the working condition of the computer during the entire period in
which information is processed or created or transferred.
6. If a group of computers is used to create or process the information, then a
description about all the computers and further, all the computers can be construed
as a single computer.
How to obtain a certificate under Section 65B of the Indian Evidence Act, 1872
The owner of the computer or the person operating the computer while the information is
being created should certify the same about,

1. stating the circumstances in which it was produced.

2. the device involved in the production of the electronic record and details about
ownership.
3. the legality of the production of the record.
4. other matter is given in Sub-Section 2 of Section 65B of the Indian Evidence
Act,1872.
It is to be noted that the information created should be general and should not infringe the
privacy of others. For example, if a husband records the call of his wife without her
permission, then the record cannot be taken as evidence as it was taken without the
permission of the wife.

What comes under the ambit of electronic evidence as per Section 65 of the
Indian Evidence Act, 1872?

 Any information that is produced, recorded, and transferred from an electronic

device, which can create, store and transfer such information or electronic record
is admissible as evidence. 
 The information that has been recorded in electronic form is considered a
document. Few examples of electronic records and documents are cell phone,
computer, ATM receipt email, SMS, IP address, internet browsing history, a file
saved from computer programs, e-forms, gazette notification, debit cards, and
credit cards transaction, CCTV footage, etc., comes under the ambit of electronic
evidence.

Evolution of admissibility of electronic records as evidence in India

During the 1950s, the electronic record was confined only to tape recording and videography.
Electronic records had been admitted as evidence in 1960 in the State of Maharashtra v.
Prakash Vishnurao Mane (1979). The Supreme Court laid rules regarding the admissibility
of electronic records in this case. The rules include playing the record in the Courtroom,
analysing the voice with expert opinion, and crossing the person who recorded the incident
and the person whose voice has been recorded.

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.

What was the position after the year 2000?

After 2000, electronic evidence was admitted under Sections 65A and 65B of the Indian
Evidence Act, 1872. However, conflicts regarding the production of certificates while
adducing electronic evidence prevailed.

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.

JUDICIAL INTERPRETATION OF SECTION 65B OVER THE YEARS

Supreme Court earlier gave a significant pronouncement in respect to the admissibility of
electronic records in State (NCT of Delhi) v. Navjot Sandhu, wherein it was stated that there
stands no impediment to present the secondary evidence under section 63 and 65 of an
electronic record, whether or not the parties have complied with the conditions laid down in
section 65B. With this decision and with a wide elucidation of section 65B given by the Apex
Court, its prima facie showed the main legislative idea behind the enactment of section 65B
has been vanquished by the Court of Law.

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

Anvar P.V vs. P.K Basheer

In this case the Supreme Court held that the preconditions laid down in section 65 B needs to
be met, if an electronic record by way of secondary evidences is presented before the court.
Since 65A and 65B are special provisions they will be given precedence over general laws in
Sections 63 and 65.Further, the Court also emphasized that any secondary evidence by way
of an electronic record shall be proved only when the same is followed by a certificate as
directed under Section 65B (4). Absence of such certificate will render the secondary
evidence of electronic records/computer output as inadmissible in evidence.

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.

Tomaso Bruno v. State of UP

The three-judge bench of the Apex court in the case of Tomaso Bruno came to the conclusion
that that secondary evidence of the contents of a document can be led under Section 65.
However, in this judgment, the Supreme Court neither relied on Section 65B (4) nor on the
law laid down in Anvar’s case. Instead, the Supreme Court relied on Navjot Sandhu case,
which was specifically overruled in Anvar.

SonuVs. State of Haryana

The Court although backed its judgment while relying its decision in Anvar’s case, but it held
that Section 65A and 65B do not relates to its admissibility but it relates to mode of proof of
the electronic record. According to Section 65B, a CDR is not prima facie inadmissible, if
presented without any certification. It was held that the prerequisite of certificate is just a
procedural defect which can be rectified when an objection is raised by a party when the
document was adduced as evidence during the course of trial and not at any other stage. Such
objections, if any needs to be raised and rectified at the initial stage of the trial. In the event
of failure objection cannot be raised at main appellate stage.

Comments on necessity of prospective overruling and leaves the question of retrospective

application of Anvar open for an appropriate bench as Anvar was a larger bench.

Shafhi Mohammad Vs. State of U.P

As decided by the judges in the case of Sonu vs. state of Haryana that the absence of
certificate will just be consider as a procedural defect and can be relaxed by the court
wherever the interest of justice so justifies. According to section 65B(4), the requirement to
produce ceritifcate is just a procedural requisite which is not even mandatory, this
requirement needs to be fulfilled when an electronic evidence is presented by a person who is
in a position to produce such certificate being in control of the said device.

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.

The principal features of the decision are as follows:

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.