Electronic Evidence u/s 65B of Evidence Act

Section 65B certificate mandatory

The requirement of the certificate, under Section 65B (4) of the Indian Evidence Act, 1872 (IEA), is mandatory for admissibility of electronic record in evidence, says the Supreme Court (SC) in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal case delivered on 14th July 2020.

The judgment arose from a reference by a Division Bench of the SC, which found that the Division Bench judgment in Shafhi Mohammad v State of Himachal Pradesh [(2018) 2 SCC 801] required reconsideration in view of the three-judge bench judgment in Anvar PV v P K Basheer [(2014) 10 SCC 473]. The Supreme Court (SC) overruled the former and upheld the latter.

The court was answering reference on the question whether the requirement of certificate U/s 65-B (4) Evidence Act mandatory for production of electronic evidence.

Electronic evidence comes in, in the year 2000

There were only two forms of evidence till the year 2000: oral and document.

In the year 2000, the Indian Evidence Act (IEA) was amended to make the contents of electronic records admissible in evidence. The emergence of concepts and legal terms such as electronic record, electronic signature, electronic certificates, electronic forms, electronic commerce, electronic book, electronic agreements, and electronic messages, substantially expanded the scope of admissibility of electronic evidence.

Provisions relating to electronic records in IEA

The provisions relating to “electronic records‟ under Indian Evidence Act are Sections 17, 22A, 34,35, 39, 45A, 47A, 59, 65A, 65B, 67A, 73A, 81A, 85A, 85B, 85C, 88A, 90A and 131.

The Section 17 of the act amended the definition of admission which now includes a statement in oral, documentary and electronic forms. The Section 22A provides for the relevancy of oral evidence relating to the contents of electronic records. It states oral admission as to contents of the electronic record is not relevant normally. But oral admission is relevant and admissible when the issue is relating to the genuineness of the electronic record.

The Section 34 states that an entry in an electronic book of account is relevant in a court proceeding. Similarly the Section 35 states that an entry in a public record is relevant. The Section 39 states that when any statement is part of an electronic record the evidence of the electronic record must be given as the court considers it necessary in that particular case so to understand fully the nature and effect of the statement and the circumstances under which it was made.

The Section 45A says the expert opinion of an Examiner of Electronic Evidence is relevant when the court has to form an opinion on electronically transmitted information. The Section 47A says the opinion of a certifying authority who issued Digital Signature Certificate is relevant to the court. The Section 59 says oral evidence is not good enough to prove the contents of electronic record as well, except for the purpose specified in Section 22A. The Sections 65A & 65B of the act set out the rules relating to admissibility of electronic records as evidence and are the most important provisions relating to electronic records.

The Section 67A states that if the electronic signature is not a secure one it needs to be proved that the signature is that of the subscriber. The Section 73A states that the court can ask the concerned party to produce Digital Signature Certificate so as to verify the digital signature.

The Section 81A of the act stipulates a presumption as to genuineness of every electronic record purporting to be the Official Gazette. The Section 85A creates a presumption that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties. The Section 85B also creates a presumption of authenticity of secured digital signatures unless proven otherwise. The Section 85C provides a presumption of authenticity of information listed in an Electronic Signature Certificate unless proven otherwise.

The Section 88A also creates a presumption as to the contents of electronic messages, but not the originator of the electronic messages. The Section 90A of the act creates a presumption as to the authenticity of signature in a five year’s old electronic record, which is produced from a proper custody. The Section 131 says no one should be compelled to produce an electronic document in his possession, if any other person would be entitled to refuse its production if it were in his possession.

Electronic record becomes a form of evidence

The Section 3 of IEA was amended to add the term the expression documentary evidence includes the term electronic records.

However, the term document does not include the term electronic record in its definition making it clear that document and electronic record are distinct terms. Therefore, the expression Document continues to have the conventional meaning and it seems to be a conscious omission.

Therefore, as of now, there are three forms of evidence: document, oral evidence & electronic records.

Electronic record was earlier treated as document

Till the year 2000, the courts decided the admissibility of electronic records based on Sections 61 to 65 of the act, by considering electronic record as a document and proving the contents of such documents either as primary evidence or as secondary evidence.

When the original document itself is produced, it was treated as primary evidence as per Section 62 of IEA. On the contrary if the original document is not available, then it is treated as secondary evidence under Section 63 & 65 of the act.

Any electronic records cannot be proved through oral evidence, as the Section 59 of the IEA prohibits to do so.

Electronic Record differs from its printout

The Section 3 of the Evidence Act states that terms electronic form, electronic records, information, etc shall have the same meaning as assigned by the Information Technology Act, 2000 (IT Act).

The Section 2(i) of the IT Act defines computer means any electronic, magnetic, optical or other highspeed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network.

The Section 2 (r) of the IT Act defines electronic form with reference to information as any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated micro fiche or similar devices. Thus, any piece of information stored in any of the electronic devices as mentioned in Section 2 (r), is referred to as electronic form. It does not include printouts.

The Section 2(t) of the IT Act defines electronic record which means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilms or computer-generated microfiche. The electronic records are those which require a machine to read. They include computer-generated records, information stored on visual and aural media such as voicemail systems, DVDs, and microforms such as microfiche and microfilm etc.

That means an Electronic Record includes any combination of text, graphics, data, audio, pictorial, or other information representation in digital form that is created, modified, maintained, archived, retrieved, or distributed by a computer system.

A computer output is a deemed document

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 is a computer output. The computer output is considered to be a deemed document, under the Section 65B of IEA.

Sections 65A & B refer to electronic record

The Sections 65A & 65B of the IEA provides a methodology or procedure for the parties in a case to prove electronic record as evidence in court proceedings. The purpose of these provisions is to give sanctity to evidence in the form of computer output as paper print out, or other copies of electronic media.

Section 65 A prescribes a certificate

The Section 65A provides that the contents of electronic records may be proved in accordance with Section 65B.

The Section 65A differentiates between the original information contained in the computer itself and copies made as computer output therefrom – the former being original evidence and the latter being deemed document relating to contents of electronic records.

That means, if computer device like computer or mobile phone or DVD or electronic camera is produced it original electronic record and then not certificate is required.

Section 65 terms computer output as deemed document

What the Section 65B says is that the paper on which the information contained in an electronic record is printed, or the optical or magnetic media produced by the computer in which such information is stored, recorded or copied, shall be deemed to be a document.

If the computer output or deemed document satisfies the conditions laid down in sub-section 65B (2), such a print out or computer output derived from electronic record shall be admissible in any proceeding without any further proof, if it in includes a certificate as per Section 65B (4).

The Section 65B, deals with the print-outs or computer outputs of the electronic records but not about the electronic records as such, in its original form in an electronic device.

And the computer output satisfies the four conditions in 65(2) a to d, and includes a certificate pertaining to a to c, under Section 65(4) of IEA.

Section 65B certificate

In order to make the information contained in an electronic record produced as computer output in print form or other computer copy to be admissible in evidence it must be accompanied by a certificate duly signed by an authorised person.

The admissibility of such a deemed document depends on the satisfaction of the four conditions under Section 65B (2) and the three conditions specified under Section 65 B (4) so as to ensure the source and authenticity of electronic record being used as evidence.

Four conditions the 65(2) Certificate must satisfy

The 65(2) says that the computer output of the electronic record should satisfy the following four conditions:

  1. The computer output was produced when the computer was used regularly to store or process information for regular activities when the person has control over its use
  2. During the period the information was derived was regularly fed into the computer in the ordinary course of activities
  3. Throughout the period the computer was operating properly or when it was not improper operation it was not to affect the accuracy of the contents of electronic record.
  4. The information in the electronic record is derived from the information fed in the ordinary course of activities

The things that the 65 B (4) must satisfy

The things that the Section 65 B (4) certificate must satisfy are:

  1. identify the electronic record containing the statement & must describe the manner in which the electronic record was produced;
  2. furnish the particulars of the device involved in the production of that record;
  3. deal with the applicable conditions mentioned under Section 65B (2) of the Evidence Act; and
  4. contain the sign of a person occupying a responsible position in relation to the operation of the relevant device, as to the best of his knowledge and belief.

The purpose of the Certificate

In short, the purpose of the certificate is to prove that the information in the computer output was produced by a properly operating computer which was used regularly to store or process information and that the information so derived was regularly fed into the computer in the ordinary course of the said activities by the person responsible for managing the computer.

Certificate not needed for original electronic record

The certificate in Section 65B (4) is not at all necessary if the original electronic record itself is produced.

The owner of a laptop, a computer tablet or even a mobile phone, can step into the witness box and prove that the concerned device, on which the original information is stored, is owned and/or operated by him.

The Section 65B of IEA which starts with a non-obstante clause, notwithstanding anything contained, overrides other Sections in the manner of proving information contained in an electronic document.

Since the enactment of 65B, even though the Sections 61 to 65 refer to documents, none of those Sections can be referred to or invoked to prove the contents of an electronic record copied or derived in the form of a computer output or print out.

The Section 65B purports to deal exclusively with computer output and print out of electronic record.

In fact, when a print-out of an electronic record is taken, the print out is not an electronic record but it is only a deemed document.

What the Section 65 B (5) states

The Section 65B (5) states that the information provided by any equipment without any human intervention can be treated as fed to the computer.

Any information stored in a computer along with its regular course of activities for other purposes shall be treated as information supplied to computer during the course of its regular activities.

A computer output can be produced by the computer directly or other appropriate equipment with or without human intervention.

Judgements on 65 B till Arjun Punditrao

The Section 65B has created a huge judicial turmoil because of its poor drafting when it was enacted and subsequent improper interpretation of it in successive judgements.

The law is swinging from one extreme to the other in the past two decades from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad to Arjun Punditrao cases.

In Navjot Sandhu v NCT Delhi, a two-judge Bench of the SC held that even if a certificate is not produced as per the requirement mentioned under Section 65B (4) of the Act, computer output of an electronic evidence is not held to be per se inadmissible. But such a can still be proved as per Section 63 with Section 65 of the IEA as secondary evidence.

But in Anvar P V v P K Basheer, a three-judge Bench of the Supreme Court after overruling Navjot Sandhu v NCT Delhi [(2005) 11 SCC 600] case held that Section 65B is a special provision that overrides Section 65, which is a general provision. Therefore, any computer output relating to an electronic record shall be proved only when accompanied by a certificate under Section 65B (4) of IEA. The judgement states, “An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied”.  It further adds that 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 Act.

In Shafhi Mohammed case, a two-judge Bench took a view contrary to Anvar’s case and held that requirement of certificate under Section 65B (4) is a procedural one and can be relaxed by the court in the interest of justice. One major premise of Shafhi Mohammad case was that 65B certificate cannot be secured by persons who are not in possession of an electronic device.

The Shafhi Mohammed judgment relied on ar three-judge bench judgment in Tomaso Bruno case [(2015) 7 SCC 178] which stressed the use of technological advancements increasingly in investigation or prosecution and the need to focus more on substantive issues of evidence than on its procedural formalities.

A three-judge Bench of the SC in Tomaso Bruno v State of UP, (2015) 7 SCC 178, held that if electronic evidence is authentic and relevant it can be admitted subject to the satisfaction of the court about its authenticity and whether a person is in a position to produce the Certificate under Section 65B(4) or not.

The SC in Sonu v State of Haryana, (2017) 8 SCC 570, held that electronic evidence marked without the 65B certificate is a curable defect and could be rectified. The court also held that this being a method or mode of proof where the objection if not taken at the stage of the trial, then such objection cannot be taken at the appellate stage.

What the Arjun Panditrao case states

In Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal case the three-judge bench categorically overruled the three-judge bench judgment in Tomaso Bruno case and the two-judge bench judgement in Shafhi Mohammad case, and declared that the judgement in Anvar P V case as correct law. A three-judge bench cannot overrule the judgement of another three-judge bench but that happens here.

The judgement, while upholding the judgement in Anvar P V case, removed its reference to Section 62 of the IEA on primary evidence. The judgement seeks to keep away the distinctive classification of primary evidence and secondary evidence in regard to a document, as referred to in Sections 62 and 63 of IEA, as those sections do not apply to electronic evidence but only to a document.

However, the judgment holds that the Section 65B differentiates between the original information contained in the computer in electronic form as the primary evidence and the copy made therefrom in the form of computer output (print outs & digital copies) as secondary evidence. This interpretation extends the meaning of secondary evidence reflected in Sections 63 and 65 of the act.

The Arjun Panditrao judgement reaffirmed that the certificate under Section 65B (4) of the IEA, is mandatory when considering computer output as evidence.

When a person refuses to issue a certificate?

When a person refuses to issue a certificate, the court must by summons order its production. A person can apply to the trial court to direct a person to produce Section 65 B certificate if he refuses to produce it. If the certificate is defective the court can summon the person and require him to give such certificate.

The judgement states the court may allow the prosecution to produce such a certificate at a later state. The prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. The exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 of the CrPC or Section 165 of the Evidence Act.

In Anvar P V case, it was held that such certificate must accompany the electronic record when the same is produced in evidence. That remains overruled by Arjun Panditrao judgement.

Directions to cellular companies as to CDRs

The SC in Arjun Panditrao judgement issued general directions to cellular companies and internet service providers to maintain Call Data Records (CDRs) and other relevant records for the concerned period in a segregated and secure manner.

The court adds that concerned parties can then summon such records, under Section 39 of IEA, at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act.

The judgement requires simplification

In fact, the Section 65B of IEA requires a simplified interpretation in a practical manner so as to make it easy for the parties to produce a computer output (such as a flight boarding passes or a super market bill) where a certificate is not normally obtainable for a party when the computer system where the electronic record is kept is maintained by the adverse party.

The question of copy as it is normally understood for a physical document may not be applicable for electronic record.

While retrieving the data from a huge Server it would suffice if certification under Section 65B is obtained from the person, who is in charge of the Server. After so obtaining the information in a USB drive or CD or any other gadget, one can feed the data into his computer and take printouts in physical or print form with his certification stating as to how he had collected the data from the Server and fed them into his computer and produced the outputs.

Proving an electronic record differs from proving its print out

The electronic record can be proved by taking its computer printout and filing it along with the certificate under Section 65 B of IEA.

But there are instances in which such a certificate is not normally obtainable. Then proving a computer output of an electronic record would be quite difficult.

SC framing guidelines on receiving electronic evidence

The judgement in Arjun Panditrao case points out that on 23 April 2016, the conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India, resolved to create a uniform platform and guidelines governing the reception of electronic evidence.

The Chief Justices of Punjab and Haryana and Delhi were required to constitute a committee to “frame Draft Rules to serve as model for adoption by High Courts”. Consequently, a five-Judge Committee was constituted on 28 July, 2018. The Committee, after extensive deliberations, and meetings, finalised its report in November 2018.

The report suggests comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. It contains Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records and these Draft Rules should be examined for giving them statutory force.

Judgements for additional reading

  1. Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal on 14 July, 2020 at https://indiankanoon.org/doc/172105947/
  2. State (N.C.T. Of Delhi) v Navjot Sandhu@ Afsan Guru on 4 August, 2005 at https://indiankanoon.org/doc/1769219/
  3. Shafhi Mohammad v State of Himachal Pradesh [(2018) 2 SCC 801]
  4. Anvar P.V v K.Basheer & Ors on 18 September, 2014 at https://indiankanoon.org/doc/187283766/
  5. Sonu @ Amar v State Of Haryana on 18 July, 2017 at https://indiankanoon.org/doc/25220929/
  6. Tomaso Bruno v State of UP, (2015) 7 SCC 178, at https://indiankanoon.org/doc/193239104/
  7. Ram Singh and Others v Ram Singh: 1985 (Supp) SCC 611