ADMISSIBLITY OF ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT,

1982

Under criminal law jurisprudence, a person cannot be convicted until and unless he is proved
guilty beyond a reasonable doubt that is why the degree of proof via producing pieces of
evidence in criminal cases are very high. Suppose, a bag containing a headless body of a woman
found in your vicinity and the only piece of evidence to find the accused was a CCTV camera
showing a man carrying a big bag(near the crime scene) which might or might not contain that
woman's body. Whether the court will admit this piece of evidence in order to prove the guilt of
the accused because there are chances that such a camera might be broken or fabricated?1
Admissibility of this electronic evidence has been a debatable issue because it involves both
hearsay as well as secondary evidence which contradict the “rule of best evidence”. Eg. Photo of
the alleged accused generated from CCTV camera footing will be considered as hearsay
evidence as there is an intervention of human being.

Admissibility means acceptable mode and manner of submitting the evidence in the court of law.
As per 1872 act, there are 2 acceptable mode of producing the evidence i.e. oral evidence and
documentary evidence. Documentary evidence further divided into documentary evidence via
electronic records sand documentary evidence other than electronic records (hereinafter refer as
ER)

Documentary Evidence constitutes ER

Since, the definition of “document” which is exhaustive in nature2 does not expressly constitute
the term “ER3”, but by virtue of definition of “evidence” under Section 3 of evidence act makes
it clear that electronic evidence will be consider as documentary evidences and “document”
includes ER . It is important to mention that court is not concern with the mere admission of
document itself until the content of that document have probative value.4 There are 2 sources of
proving content of the document i.e. i) Primary evidence and, ii) Secondary Evidence. Primary
evidence is the original document being itself produced for inspection by the court. Copies of
such original document are considered as secondary evidence. In all cases primary evidence
sought to be given. Secondary evidence will be considered as a last resort pertaining to
conditions given under Section 65. Prior to 2000, admission of ERs was same as regular
document meaning thereby converting it into tangible document in accordance with Section 63
and it further certified by appropriate authority(generally who was in control of original

1
Ofcourse court will also consider the relevant fact that appearance of both bag( bag in which body was found and
bag in camera) is same
2
§3, Document- “…by means of letter, figure or mark”
3
As per §2(1)(t) of IT Act, 2000, Electronic record will constitute data, record or data generated( eg. Sms, Email Or
Any Communication Via Computer Or Electronic Device), image or sound stored, received( eg. photo, video, sound
recorder etc)
4
H. Siddiqui (Dead) By L.Rs. v. A. Ramalingam MANU/SC/0174/2011, ¶13, ¶14
device),further that person was open to cross examination for the test of authenticity. But,
considering the expansion and complexity of cyber space, two special provisions were added
Sec. 65A and 65B for the admissibility of ERs.

Statutory provision for admissibility of ERs

 Admission of ER as secondary evidence

Section 65A is similar to Section 61 providing that ERs will be admissible in court, if it
successfully complies with the conditions stipulated under Sections 65B. This section lays down
both substantive law and procedural law inasmuch as laying down the conditions under which a
copy of an original ER may be adduced and also procedural requirement of certification from the
person holding “responsible official position”, in order to pass the test of authenticity.

Section 65B(1) presenting non-obstante clause is not subjected to the conditions given under
section 65 meaning thereby admission of secondary evidence under this section will not depend
upon the non-availability of primary evidence. It allows the secondary copy in the form of
computer output comprising of printout or the data copied on electronic/magnetic media e.g- Pen
drive, CD, cassette etc. This section also imposes presumption as to the genuineness of electronic
records once it fulfills all the conditions given under other clauses of the said section as it says
that “…no further proof or production of original is required.”

Section 65B (2) lays down the eligibility conditions for computers before adducing their output
in the court of law. These are, (a) at the time of the production of the ER, the computer used to
create it must be in regular use by its lawful user (b) the data contained in the ERs must have
been regularly fed into the computer over the ordinary course of activities; (c) the computer must
be operating properly, and if not, such mal-operation must not affect the accuracy and nature of
the information; and, (d) the electronic must be a reproduction of the original information fed
into the computer.

Section 65B(3) recognizes the technicalities of cyber space and considers combination of
computers as single computer. This section will cover those computers connected through Local
area, Metropolitan area or World wide area Networks.

Section 65B(4) imposes procedural requirement in order to ensure the authenticity of such
computer output. It is mandatory to submit computer output along with a certificate mentioning
the statement as to identification of electronic record, manner in which it was generated,
particulars of any device used for the production of that electronic record. Such certificate must
be accompanied by the signature of an appropriate person testifying the truthfulness of the
mentioned statements in the certificate.
Section 65B(5) statutorily allowed submission of electronic evidence as hearsay evidence as it
provides that all computer output shall be considered as being produced by the computer itself,
whether it was produced directly or indirectly, whether with human intervention or without.

 Oral Admission Of Electronic Records

Section 59 specifically prohibits the proof of the content of ER via oral admission. ERs are
also presumed to be true by virtue of Section 65B(1) once all the conditions are fulfilled, but
when the genuineness of the record is in question then other evidences would be admissible.
Sec. 22A allows the oral admission of the content of such record. Question of genuineness
will come into picture only when conditions of Section 65B have been successfully complied
with.5 But the question is will this section still come into picture if ERs produced in court
under Section 62 or 63 &65? DHC explained the object of Sec.22A and held that the object
of providing said provision recognizes that the evidence relating to genuineness or
"reliability" of ER is of consequence, in-spite of the certificate under Section 65B of the
Evidence Act6 So admission of oral evidence under Sec. 22A might not subjected to Sec.
65B only, if court is satisfied with the relevancy of ER.

 Admission of ER as Primary Evidence

Supreme Court has clarified in Anvar P. K. vs. P.K Basheer &Ors7 that strict compliance of
Section 65B is required only when ER is submitted as secondary evidence but same will not
be applicable in case ER is adduced as primary evidence and then Section 61 will come into
picture. So in that case, “certificate of authenticity” will not be required. In case, ER is
submitted as Secondary evidence but failed to produce “certificate of authenticity” along
with that ER, it can still be admissible if able to satisfy the court that party is in possession of
primary evidence( device from which secondary evidence is generated) and produce the same
at the time of trial.8

 Dilution Of Procedural Requirement Under Sec. 64B(4)

In order to serve complete justice, Supreme Court relaxed the procedural requirement of
producing “certificate of authenticity” under sec. 65B(4) in case where party is not in
possession of device from which secondary document is produced and such ER will be
admissible by virtue of Sec. 63 and Sec. 65.9 However, it will increase the threshold of the
safeguards adopted by the court while testing the authenticity of such document

5
Anvar P. K. vs. P.K Basheer &Ors. (2014) 10 SCC 473, ¶17
6
Kundan Singh vs. The State (24.11.2015 - DELHC) : MANU/DE/3674/2015, ¶31
7
Anvar P. K. vs. P.K Basheer &Ors. (2014) 10 SCC 473, ¶24;
8
Barnali Baishya vs. State of U.P. and Ors. (27.11.2018 - ALLHC) : MANU/UP/4570/2018, ¶23
9
Shafhi Mohammad vs. The State of Himachal Pradesh (30.01.2018 - SC) : MANU/SC/0058/2018, ¶14, ¶15
It is the foremost duty of the court to find the truth by all means and if court is satisfied with
the relevancy of the electronic evidence then strict compliance of procedural requirement
under 65B(4) can be relaxed in case if not doing so will lead to miscarriage of justice.