Sections 65-A and 65-B of Evidence Act are a Complete Code on Electronic Evidence

Preface:

1.   Section 65-A and Section 65-B occur in Chapter V of the Indian Evidence Act (IEA) which is titled as: “Of Documentary Evidence”.

2.   Section 61 of the IEA deals with the proof of contents of documents, and states that the contents of documents may be proved either by primary or by secondary evidence.

3.   Section 62 of the IEA defines primary evidence as meaning the document itself produced for the inspection of the court.

4.   Section 63 of the IEA speaks of the kind or types of secondary evidence by which documents may be proved.

5.   Section 64 of the IEA enacts that documents must be proved by primary evidence except in the circumstances hereinafter mentioned.

6.   Section 65 of the IEA is important, and states that secondary evidence may be given of “the existence, condition or contents of a document in the following cases …”

Section 65 of the IEA:

1.   Section 65 of the IEA differentiates between existence, condition and contents of a document.

2.   Whereas “existence” goes to “admissibility” of a document, “contents” of a document are to be proved after a document becomes admissible in evidence.

3.   Section 65-A of the IEA speaks of “contents” of electronic records being proved in accordance with the provisions of Section 65-B of the IEA.

4.   Section 65-B of the IEA speaks of “admissibility” of electronic records which deals with “existence” and “contents” of electronic records being proved once admissible into evidence.

Section 65-B of the IEA:

1.   Section 65-B of the IEA makes certification, a precondition for the admissibility of electronic record. While doing so, it does not talk about relevancy.

2.   Section 65-B (1) of the IEA opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document[1], and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible.

3.   Section 65-B (2) refers to the conditions that must be satisfied in respect of a computer output, and it states that the computer should have been regularly used to store or process information for purposes of activities regularly carried on in the period in question.

4.   Under Sub-section (4) of Section 65-B of the IEA, a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities”- whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to the “best of the knowledge and belief of the person stating it”.

5.   In Section 65-B (4) of the IEA, the words “… doing any of the following things…” must be read as “doing all of the following things”.

Ratio in the matter of: Anvar P.V. V/s P.K. Basheer & Ors, (2014) 10 SCC 473:

1.   The admissibility of electronic record (which is also called as the computer output) depends on the satisfaction of the following four conditions:

(i)        Computer was in lawful control of the person producing the certificate: 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)       Information was fed in the computer regularly and in the ordinary course: 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)      Computer was properly operating: 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)      Reproduction is accurate: 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.

2.   The certificate under Section 65-B (4) of the IEA must fulfill the following conditions:

(i)        It must identify the electronic record/ computer output (print-out, pen-drive, VCD or CD) containing the statement.

(ii)       It must state the manner in which electronic record/ computer output was produced.

(iii)      It must furnish particulars of the device involved in the production of the electronic record/ computer output. For example: How print-out (electronic record) was taken from the computer through a printer attached to the computer.

(iv)      It must state that:

(a) Computer was in lawful control of the person producing the certificate;

(b) Information was fed in the computer regularly and in the ordinary course;

(c) Computer was properly operating, all throughout; and,

(d) Reproduction of the content (electronic record) from the computer is accurate.

(v)       It must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

3.   Certificate under Section 65-B (4) of the IEA must accompany the electronic record. “Source” and “Authenticity” are two hallmarks of electronic record.

4.   Only if the electronic record/ computer output is duly produced in terms of Section 65-B of the IEA, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A of the IEA, that is, opinion of examiner of electronic evidence.

At what stage and who can furnish the certificate under Section 65-B (4) of the IEA?

In the matter of: Arjun Panditrao Khotkar V/s Kailash Kushanrao Gorantyal & Ors, Civil Appeal No. 20825- 20826/ 2017, Supreme Court of India (Date of Decision: 14.07.2020), it was held that:

1.   Certificate under Section 65-B (4) of the IEA is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a 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.

2.   Where primary evidence in electronic form has been produced then no certificate under Section 65-B of the IEA is necessary.

3.   Sections 65-A and 65-B of the IEA are a complete code in themselves when it comes to admissibility of evidence of information contained in electronic records.

4.   Written certificate under Section 65-B (4) is sine qua non for admissibility of electronic evidence.

5.   An application can always be made to a Judge[2] for production of certificate from the requisite person under Section 65-B (4) of the IEA in cases in which such person refuses to give it.

6.   Stage at which certificate under Section 65-B of the IEA must be furnished to the court?

(i)        In Anvar P.V. (Supra), the Hon’ble Supreme Court of India observed that certificate under Section 65-B (4) of the IEA must accompany the electronic record when the same is produced in evidence.

(ii)       It is essential to note that, in cases where either a defective certificate is given, or in cases where certificate under Section 65-B (4) of the IEA has been demanded but is not given by the concerned person, the Judge conducting the trial must summon the person(s) referred to in Section 65-B (4) of the IEA, and require that the certificate under Section 65-B (4) be given by such person(s).

(iii)      The trial Judge is required to exercise the power to summon: (a) the person whose name is written/ mentioned in the defective certificate, or, (b) the person who has refused to give the certificate under Section 65-B (4) of the IEA, when the electronic record is produced in evidence before the trial Judge without the requisite certificate.

(iv)      The general principle that governs the criminal law is that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial. It is pertinent to note that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the charge-sheet/ final report have to be given to the accused.[3] Therefore, the electronic evidence, that is, computer output, has to be furnished to the accused at the latest before the trial begins.[4] Ordinarily, the electronic evidence/ computer output must be supported/ accompanied with certificate under Section 65-B (4) of the IEA. The criminal court exercising discretion after seeing that accused is not prejudiced by want of a fair trial, can in appropriate cases allow prosecution to produce certificate under Section 65-B (4) of the IEA at a later point in time.

(v)       So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record can be admitted, and relied upon in evidence.[5]

7.   Who can furnish certificate under Section 65-B (4) of the IEA?

In Para 58 in the matter of Arjun Panditrao Khotkar (Supra) it was observed that:

“… It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device, as also the person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65-B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65-B (4) makes it clear that it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief” (Obviously, the word “and” between knowledge and belief in Section 65-B (4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time).”

Preservation of records by Internet Service Providers and Providers of Mobile Telephony:

That the Department of Telecommunication’s license conditions generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year.[6] If electronic records (data as to call logs in the computer of the service providers) are required in a particular case as evidence then it is incumbent upon the internet service providers and cellular companies to maintain the electronic records in a segregated and secure manner, upon prior intimation to them as regards the requirement of such electronic records in trial of a particular case. It is mandatory for cellular companies to preserve electronic records seized during investigation of a particular case/ offence.[7]

According to Section 67-C (Preservation and retention of information by intermediaries) of the Information Technology Act, 2000 (hereinafter referred to as the IT Act):

(i)        An intermediary is to preserve and retain information as may be specified for such duration, in such manner and format as the Central Government may prescribe.

(ii)       Any intermediary which intentionally/ knowingly contravenes the mandate contained in Sub-section (1) of Section 67-C of the IT Act is to be punished with imprisonment for a term which may extend to 3 years and shall also be liable to pay fine.

Excursus:

1.   Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as: admissibility, relevancy and proof. Under Section 136 of the IEA, relevancy must be established before admissibility can be dealt with.

2.   Certificate under Section 65-B (4) of the IEA is unnecessary if the original document (laptop, tablet or mobile) 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.

3.   Certificate required under Section 65-B (4) of the IEA is a condition precedent to the admissibility of evidence by way of electronic record.

4.   Oral evidence in place of certificate under Section 65-B (4) of the IEA does not suffice mandatory requirement of law contained in Section 65-B (4) of the IEA.

5.   Reports in the matter of: Tomaso Bruno V/s State of U.P., (2015) 7 SCC 178, and Shafhi Mohammad V/s State of Himachal Pradesh, (2018) 2 SCC 801, do not state the law correctly, and hence were overruled vide Arjun Panditrao Khotkar (Supra).