We would start with the reference to the legal position and what is admissible and need to be proved by the prosecution.
We begin by examining the statutory provisions. Section 3 of the Evidence Act in sub-section (2) stipulates that documentary evidence means and includes all documents including “electronic records” produced for the inspection of the Court. By way of amendment to the Evidence Act, incorporated by Act, No. 21 of 2000, the following was inserted:
“The expression “Certifying Authority”, “Digital Signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic records”, “secured digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.”
Section 2(c) of the Information Technology Act, 2000 reads-
“electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro record.”
“Section 22-A of the Evidence Act reads as follows:
“22-A. When oral admission as to contents of electronic records are relevant.–Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”
Section 45-A of the Evidence Act reads as follows:
“45-A. Opinion of Examiner of Electronic Evidence.–When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79-A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
Explanation.–For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.”
Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
“59. Proof of facts by oral evidence.–All facts, except the contents of documents or electronic records, may be proved by oral evidence.”
Section 65-A reads as follows:
“65-A. Special provisions as to evidence relating to electronic record.–The contents of electronic records may be proved in accordance with the provisions of Section 65-B.”
Section 65-B reads as follows:
“65-B. Admissibility of electronic records.– (1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as “the computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely–
(a) 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;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) 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.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say–
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section–
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.–For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”
31- Section 22-A of the Evidence Act is the part of fasciculus of Sections from 17 to 31 under the heading „Admissions‟. It specifically deals with relevancy of oral admissions as to the contents of an electronic document and was inserted w.e.f. 17.10.2000 by the Information Technology Act, 2000. Oral admissions as to the contents of electronic record are relevant when genuineness of the electronic record is in question. The expression “unless the genuineness … is in question”, elucidates the ambit and relevance of the Section. Use of word “relevant”, viz. “admissibility” is also of significance, though these terms are interlaced and connected. The object of providing said provision recognizes that the evidence relating to genuineness or “reliability” of electronic record is of consequence, in-spite of the certificate under Section 65B of the Evidence Act. Thus, Section 22A specifically provides that when genuineness of an electronic record is in question, oral admissions are relevant and could be examined. As noticed below, it states and records the obvious.
32- Section 65-B of the Evidence Act, consists of four sub-sections. Sub-section (1) begins with non-obstante clause and gives primacy and overriding effect to the said provision. A dissection of that sub-section would reveal that it consists of distinct parts. The first part stipulates that any information contained in the electronic record in the form of paper print output or optical or magnetic media output, i.e. the electronic record copied, stored or recorded on an optical or magnetic media from another source, shall be deemed to be a document. The first part, therefore, deals with the paper printout or optical or magnetic media on which the electronic record has been copied, stored or recorded as distinct from the original media on which the data or information is created, or recorded, stored or copied. Media and paper print outs are tangible articles. Paper print outs can be seen and read. Media can also be seen and read, when viewed with an appropriate equipment and paper printouts taken. Noticeably and pertinently, the paper printout output or the optical or magnetic media output, on satisfaction of the conditions stipulated in Section 65B is treated as a document by itself. The conditions would relate to the information and the computer from which the printout on paper or optical or magnetic media has been produced by copying, recording or storing the files. The following part, states that when the conditions mentioned in the section in relation to (a) information (b) computers are satisfied, the document i.e. the printed paper or the optical or magnetic media on which the files have been copied, stored and recorded, shall be admissible in evidence, without further proof or production of the original. In such circumstances, production of the original computer or equipment from which the paper print out or media was produced by copying, recording or storing the files is not required to be produced. Once the requirements are satisfied, the printed document or the optical or magnetic media would be evidence of the contents as to what was stored in the computer from which the print out, or media was created by way of copying, recording or storing files. The last part therefore deals with the effect, when the requirements stated in Section 65B are satisfied.
33- The computer output – when provisions of section 65-B are satisfied is treated as evidence of the contents of the original or facts therein of which direct evidence is admissible. The secondary evidence in the form of a paper print out or media output produced by copying, recording or storing files is treated as a document and are admissible and bear the same status as “direct evidence” on the question of admissibility. The provision, therefore, negates and does not require production of the original computer/equipment/media, on which the data was stored and from which computer output be it in the form of printed paper or optical or magnetic media data has been obtained. The expression “direct evidence” as strictly understood in the Evidence Act, has been explained below.
34. Sub-section 2 to Section 65B explains and elucidates the term „computer output‟ and in a manner expounds and expands what is meant by the original device or computer from which output is obtained. As per sub-clause (a) to sub-section 2 computer output can consist of information produced by the computer during the period the computer was regularly used to store or process the information for the purpose of any activity regularly carried on over “that period” by a person, having lawful control over the use of the computer. Clause (b) states that information contained in the electronic record or derived from should be regularly fed into the computer in ordinary course of the said activities. Clause (c) postulates that the computer during the relevant period should have operated properly and if it had not operated properly or was out of operation for a part of the period, such failure should not affect the electronic record or the accuracy of its contents. Lastly, sub-clause (d) recognizes that electronic record could consist of data or information collected or fed into the computer. The word “derived” used in Sub-section 2 of Section 65B finds its meaning and exposition in the explanation. The said expression for the purpose of section 65B would mean, derived as a result of calculation, operation or any other process. The word derive, therefore, has been given a specific and affirmative meaning for Section 65B.
35. Sub-section (3) to Section 65B elucidates and explains sub-section (2) and provides that the output produced could be of data stored or information processed by combination of computers operating simultaneously during that period or different computers in succession over the period in question or even multiple computers operating in succession over the period. Sub-section acknowledges and accepts that the computer, i.e., device from which “computer output” is obtained, may be one in the combination of computers used or even one operating in succession. The provisions recognises that information or data is easily and frequently for convenience, business or technical reasons transferred, copied, recorded or stored in different machines/equipment simultaneously or in succession. The importance and relevancy of information could arise subsequently and long after it is created. Back- up or archives are maintained to store specific and important information. In such cases, all computers used for the purpose during the period in question from the beginning till the period where the output is obtained, are treated and regarded as the single computer for the purpose of the Section.
36. Before we advert to sub-section (4), it may be advisable to first expound sub-section (5) for the said Section is relevant for interpreting sub-sections (1), (2) and (3). As per sub-clause (a) to sub-section (5), information is taken to have been supplied to a computer when it is supplied in any appropriate form and whether it is done directly, i.e. as in the case of call record data which gets recorded in the computer/server without any interference, or with human intervention, as where a data entry operator gives commands or uses a key board to feed the data or when the sales man punches in details of the sales made. Importantly, the information or data could be supplied to the computer from which the computer output is taken, by means of an appropriate equipment. This transfer can be with or without human intervention. For example, data or information stored in one computer can be transferred to another computer as a result of pre-fixed or standard commands after particular period of time or as a result of specific commands given as a result of human interference. Sub-clause
(a) to sub-section (5) recognises that data or information can be created and then transferred, copied and stored to the computer from which output is obtained by different modes and ways. Transfer of information or data in form of files after they are first created are frequent and a common occurrence. The impact of sub-clause (a) to sub-section (5) is to be noticed and given effect to when we interpret and apply sub-sections (2) and (3) of Section 65B to a factual matrix of a given case. Sub-clause (c) to sub-section (5) is clarificatory in nature and states that computer output can be produced directly as it can happen when data or information stored in the computer is printed as a result of pre-existing commands. It can happen also when a command to take print out or to copy, store or record is given with human intervention. The computer output may be a result of appropriate equipment attached to the computer.
37. Sub-clause (b) to sub-section (5) is rather ambiguously uses the expression “any official” without explaining what is meant by the said term. However, when we read sub-section (4) to Section 65B, the meaning to be given to the expression “any official” emerges. Sub- clause (b) applies when information is supplied to “any official” in the course of activities carried on by him, i.e., in the course of “official” activities with a view that the said information shall be stored and processed for the purpose of the activities carried on by that officer or official. It is also elucidated that the information could be beyond or otherwise in the course of the said activities. Even in such cases the information is treated as supplied in the course of the activities of the official. We clarify that the word “official”, as used in clause (b) of sub-section (5) of Section 65B, is not intended to mean or be restricted to a person holding an office or employed in public capacity. It connotes, as exemplified by the use of the same expression (albeit in its adjective form) in sub-section (4), a person primarily responsible for the management or the use, upkeep or operations of such device. It would, thus, cover a computer device containing electronic records in the hands or control of a private individual or entity.
38- The certificate under sub-section (4) to Section 65B must state the following:
(a) Identify the electronic record by identifying the statement, i.e., “computer output” in form of paper print out or copied, recorded or stored optical or magnetic media.
(b) Particulars of the device involved in the production of that electronic record to show that the electronic record was produced by the computer; and
(c) State that the computer output contains information, which was stored or fed into the computer over the stated period when computer was regularly used to store or process information, and that the computer output consists of information or data or is derived from information regularly fed into the computer in ordinary course of such activities.
(d) The certificate should also state as required by sub-clause (c) to sub-section (2) that the computer was during the relevant periods was operating properly and if it was not operating properly during the period or a part of the said period, it had not affected the electronic record or accuracy thereof.
39. Controversy has arisen whether a certificate under sub-section (4) to Section 65B must be issued simultaneously with the production of the computer output or a certificate under Section 65B can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court or as in the present case by the official when he was recalled to give evidence.
In Anwar P.V. (S) versus P.K. Basheer and Others, the Supreme Court has held as under
The evidence consisted of three parts – (i) electronic records, (ii) documentary evidence other than electronic records, and (iii) oral evidence. As the major thrust in the arguments was on electronic records, we shall first deal with the same.
Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as ‘IT Act’)]. Corresponding amendments were also introduced in The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc. Section 22A of the Evidence Act reads as follows:
“22A. When oral admission as to contents of electronic records are relevant.- Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.” Section 45A of the Evidence Act reads as follows:
“45A. Opinion of Examiner of Electronic Evidence.-When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.–For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.” Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
“59. Proof of facts by oral evidence.—All facts, except the contents of documents or electronic records, may be proved by oral evidence.” Section 65A reads as follows:
“65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B.” Section 65B reads as follows:
“65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –
(a) 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;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) 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.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether –
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, –
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer-operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.” These are the provisions under the Evidence Act relevant to the issue under discussion.
In the Statement of Objects and Reasons to the IT Act, it is stated thus:
“New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business.” In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, 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 a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic 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.
It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.
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 65A of 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.
In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, a two-Judge Bench of Supreme Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph-150 as follows:
“150. According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub- section (4) of Section 65-B 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 65.” It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act”.
It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
On the questions of importance of electronic evidence in investigation and increasing impact of technology in everyday life, in Tomaso Bruno versus State of U.P., (2015) 7 SCC 178, it has been observed:
“25. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.
26- Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Mohammad Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1, wherein production of transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused. Similarly, in the case ofState (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers.”
Emails are downloaded and computer output, in the form of paper prints, are taken every day. These emails may become relevant and important electronic evidence, subsequently. It is difficult to conceive and accept that the emails would be inadmissible, if the official i.e. the person who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65B.
Section 65B is a part of Chapter V of the Evidence Act, which relates to documentary evidence. Documentary evidence can be primary as defined in Section 62, which means the document itself, or secondary which refers to certified copies or copies made from original and even oral accounts of the contents of documents by a person, who has seen the same. Section 64 states that documents must be proved by primary evidence, except when secondary evidence is permitted and allowed. Section 65 states that secondary evidence may be given of the existence, condition or contents of a document when any of the sub- clauses (a) to (g) apply. In case of sub-clauses (a), (c) and (d), secondary evidence can be given even of the contents and the same is admissible. As noticed above, electronic record is by deeming fiction treated as a document for the purpose of Evidence Act.
Section 65A states that contents of electronic record may be proved in accordance with the provisions of Section 65B. We have already interpreted and referred to Section 65B. The importance of the said Section is that it does away with the requirement to produce the original computer or the original media on which data or information was stored and allows the secondary evidence in the form of computer output to be produced and admitted in evidence, subject to the condition that when evidence of computer output is produced and tendered, certificate of a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities as prescribed by Section 65B of the Evidence Act is produced. In this manner, Section 65B authorises production and admission, in evidence, all computer output without production of the original, i.e., it permits leading of secondary evidence without the original being produced. It is in this context that in Anwar P.V. (supra), the Supreme Court in paragraph 24 had stated and held as under:-
“24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.”
The aforesaid paragraph clearly states that when electronic record is produced as primary evidence, i.e., the original recording itself is produced, the requirement or satisfaction of condition of Section 65B is not required.
Sub-section (1) to Section 65B states that when electronic record is produced in terms of the said Section, there is no need for further proof or production of the original as evidence of any of the contents of the original or facts stated therein of which “direct evidence” would be admissible. The term “direct evidence” is opposite of second-hand or hearsay evidence. Section 60 of the Evidence Act states that oral evidence must in all cases be direct, that is to say, it refers to a fact which could be seen be the evidence of a witness who has seen the occurrence, or if it refers to the fact which could be heard the witness should have heard the said words, or if it refers to a fact which could be perceived by any other sense or any other manner it must have been perceived by the witness by that sense or in that manner.
The term “hearsay” applies to both spoken or oral evidence and also has reference to what is written. Hearsay evidence is rejected on the principle that the best evidence obtainable should be produced as it is relatively trustworthy, whereas hearsay evidence poses difficulties for it derives value not from the witness himself, but on the veracity and competence of some other person whose version is not tested in the cross-examination.
For principle of hearsay to apply and reject an evidence, it must be shown that it was made by some other declarant other than the one testifying at the trial of hearing and the statement is being offered in evidence to prove the truth of the matter asserted. Therefore, even if the evidence is an assertion made by the declarant, it will not be hearsay until it is offered to prove the truth of what is asserted.
A statement which is not assertion, i.e., to state the truth declared and maintained, but only a statement of fact is not hearsay. A hearsay declarants non-verbal conduct may qualify as a “statement” for purpose of exclusion under the hearsay rule, if the conduct of the person intended by him as a substitute for oral or written verbal expression.(see, Matter of Cherl H., 2 Dist. 153 CA 3d 1098). Pertinently, in case of self-generated data or information there is no declarant as such who is asserting a fact.
Evidence may be offered for different purposes. The same evidence can be treated as hearsay and non-hearsay depending upon its relevance, i.e., whether it is relevant for a substantive truth or for some other purpose. For example, when person A meets person B and speaks to him about an occurrence, testimony of person B to the said effect would not be hearsay, but may become hearsay if a party seeks to rely upon facts stated by person A implicating a third person. Thus, we must notice and record the difference between a “factum of statement” and “truth of a statement”. The said distinction has been recognised and accepted in several pronouncements in J.D. Jain versus State Bank of India, AIR 1982 SC 673, Manilal Navavati versus Sushila Mahendra Nanavati, AIR 1965 SC 364 and S.R. Ramaraj versus Special Court, Bombay, (2003) 7 SCC 175. Thus, electronic record produced as a statement as a tangible in form of a CD, print out on paper, etc. as a fact in itself, must be distinguished from electronic record, which is produced to prove truth of the matter it asserts or correctness of contents for the latter postulates adjudication of veracity and credibility of the information by the person who has made a statement offering or producing the document for its truth.
In view of the aforesaid discussion, information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The document should be prepared in normal course of business must have been at or near the time of events it records and should have been made in normal course of business activities or events. Sub-section (4) to Section 65B postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied, it promotes and establishes the trustworthiness. In such cases, presumption of fact regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.
In Anwar P.V. (supra) in paragraph itself the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage; and genuineness, veracity and reliability of the evidence, which is seen by the court subsequently. Thus, the ratio and dictum in Anwar P.V. (supra) is based and predicated on the difference between admissibility and veracity or evidentiary value. The Supreme Court dealt with the aspect of admissibility in strict legal sense, not to be confused with evidentiary value or correctness of contents. Of course, when the conditions mentioned in Section 65B are satisfied, in terms of Section 114 of the Evidence Act, the court may presume existence of certain facts for the computer output would have data and information collected or derived in common course of human conduct and in public and private business.
In terms of sub-section (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of “electronic records” and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65B is produced the Court may presume or form a prima facie opinion, which is rebuttable and may not be accepted.
Electronically generated record is entirely a product of functioning of a computer system or computer process, like call record details or a report generated on a fax, which shows the number from and to which the fax were sent, time, etc. is generated electronically. It does not contain any assertion. Therefore, as noticed above it is not hearsay. These are not writings made by a person (see United States versus Khorozian, 333 F. 3d 498, 506). Normally non-assertive conduct is more reliable, provided there has been no fraud and interpolation in the preparation of the record. Computer generated telephone records are not similar to a statement by a human declarant and, therefore, cannot be treated as hearsay and the credibility and evidentiary value is determined on the reliability and accuracy of the process involved. Ergo, in these cases when conditions of Section 65B are satisfied, the probative value or weight can be substantial of course, subject to verification as to the credibility and integrity of the contents.
We have already referred to the distinction between factum of a statement and truth of a statement and the concept of presumption of memorandum or records maintained in normal course of business and the credibility or trustworthiness of electronic records. However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand versus Yelamarti Satyam, AIR 1971 SC 1865, Narbada Devi Gupta versus Birendra Kumar Jaiswal, (2003) 8 SCC 745 and Mohd. Yusuf versus D. and Another, AIR 1968 Bombay 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challenged or otherwise, the possibility of tampering, interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the out-put as stipulated under sub-section (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts.
In Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ SC CIVIL APPEAL NOS. 20825-20826 OF 2017] a thre Judges bench clarified the latest position of La as below:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. 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. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in 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…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.
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