Admissibility Of Electronic Evidence Under The Indian Evidence Act, 1872

Introduction

We, as a society and as individuals, are now more dependent upon Technology. This dependency
is increasing day by day. It is now very easy to take photographs and capture videos. However, it
is also easy to doctor them. In any case, they provide for a major source of evidence and
admissibility of it cannot be negated out rightly simply because there is a possibility of them
being doctored. Such evidence must be allowed after tracking the exact source and certifying its
reproduction. Admissibility of electronic evidence has been made possible with the introduction
of Information Technology Act, 2002 alongwith relevant amendments in the Indian Evidence
Act, 1872. Apex court has clarified the law regarding admissibility of electronic evidence. In this
matter, the court has mandated accompany of a certificate under section 65B of Indian Evidence
Act before any secondary electronic evidence can be taken on record. This requisite is not to be
fulfilled in the case of primary electronic evidence. Electronic evidence is highly susceptible to
tampering, alteration and transposition. To ensure the source and authenticity of the electronic
evidence, certificate under section 65B is mandated. With this judgement, Supreme Court has put
to rest all controversies regarding the manner of admission of electronic evidence. The
proposition is clear and explicit that if the secondary electronic evidence is without a certificate
u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the
deposition of the witness in the court of law to prove authenticity of secondary electronic
evidence cannot be considered by the court. The Indian Evidence Act has been amended by
virtue of Section 92 of Information Technology Act, 2000 (Before amendment). Section 3 of the
Act was amended and the phrase “All documents produced for the inspection of the Court” were
substituted by “All documents including electronic records produced for the inspection of the
Court”. Regarding the documentary evidence, in Section 59, for the words “Content of
documents” the words “Content of documents or electronic records” have been substituted and
Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence.
In Section 61 to 65, the word “Document or content of documents” have not been replaced by
the word “Electronic documents or content of electronic documents”. Thus, the intention of the
legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the
electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to
use any word, the presumption is that the omission is intentional. It is well settled that the
Legislature does not use any word unnecessarily. In this regard, the Apex Court in Utkal
Contractors & Joinery Pvt. Ltd. v. State of Orissa[1] held that “…Parliament is also not
expected to express itself unnecessarily. Even as Parliament does not use any word without
meaning something, Parliament does not legislate where no legislation is called for. Parliament
cannot be assumed to legislate for the sake of legislation; nor indulge in legislation merely to
state what it is unnecessary to state or to do what is already validly done. Parliament may not be
assumed to legislate unnecessarily.”
On the other hand, in Section 61 to 65 Indian Evidence Act, the word “Document or content of
documents” have not been replaced by the word “Electronic documents or content of electronic
documents”. Thus, the omission of the word, “Electronic Records” in the scheme of Section 61
to 65 signifies the clear and explicit legislative intention, i.e. not to extend the applicability of
Section 61 to 65 to the electronic record in view of overriding provision of Section 65-B Indian
Evidence Act dealing exclusively with the admissibility of the electronic record which in view of
the compelling technological reasons can be admitted only in the manner specified under Section
65-B Indian Evidence Act.
In this research project, we will be identifying and analysing various provisions pertaining to
admissibility of electronic evidence.

WHAT IS ELECTRONIC EVIDENCE

Electronic evidence is a form of documentary evidence as apparent from section 3 of IEA. Any
electronic record can be made admissible as electronic evidence upon fulfilment of mentioned in
section 65B of IEA. Information Technology Act, 2002 defines ‘electronic record’ as “data,
record or data generated, image or sound stored, received or sent in an electronic form or micro
film or computer generated micro fiche”. The type of evidence that we are dealing with has been
variously described as ‘electronic evidence’, ‘digital evidence’ or ‘computer evidence’. The
word digital is commonly used in computing and electronics, especially where physical-world
information is converted to binary numeric form as in digital audio and digital photography1 .
Definitions of digital evidence include ‘Information of probative value stored or transmitted in
binary form; and ‘Information stored or transmitted in binary form that may be relied on in court.
While the term ‘digital’ is too wide, as we have seen the use of ‘binary’ is too restrictive, because
it only describes one form of data. Electronic evidence data that is manipulated, stored or
communicated by any man-made device, computer or computer system or transmitted over a
communication system, that has the potential to make the factual account of either party more
probable or less probable than it would be without the evidence. This definition has three
elements. First, it is intended to include all forms of evidence that is created, manipulated or
stored in a product that can, in its widest meaning, be considered a computer, excluding for the
time being the human brain. Second, it aims to include the various forms of devices by which
data can be stored or transmitted, including analogue devices that produce an output. Ideally, this
definition will include any form of device, whether it is a computer as we presently understand
the meaning of a computer; telephone systems, wireless telecommunications systems and
networks, such as the Internet; and computer systems that are embedded into a device, such as
mobile telephones, smart cards and navigation systems. The third element restricts the data to
information that is relevant to the process by which a dispute, whatever the nature of the
disagreement, is decided by an adjudicator, whatever the form and level the adjudication takes.
This part of the definition includes one aspect of admissibility - relevance only - but does not use
‘admissibility’ in itself as a defining criteria, because some evidence will be admissible but
excluded by the adjudicator within the remit of their authority, or inadmissible for reasons that
have nothing to do with the nature of the evidence - for instance because of the way it was
collected. The last criteria, however, restricts the definition of electronic evidence to those items
offered by the parties as part of the fact finding process2 .

1
Electronic Evidence and its Challenges by Dr. Swaroopa Dholam.
2
Burkhard Schafer and Stephen Mason, The characteristics of electronic evidence in digital format, in Electronic
Evidence, Edited by Stephen Mason, LexisNexis, 2013.
 TYPES OF ELECTRONIC EVIDENCE

In India we follow best evidence rule which has its origins in the 18th century case Omychund v
Barker3. Wherein Lord Harwicke stated that no evidence was admissible unless it was "the best
that the nature of the case will allow.” The nature of electronic evidence is such that it might not
be possible to produce the original device in form of primary evidence because the original
device might be huge servers located at a distance far away from the jurisdiction of the court or
due to some other reasons, it is not feasible to bring device to court. In such cases, secondary
electronic evidence may be taken on record and given the status of best possible evidence.

Electronic Evidences can broadly be classified into two types – Primary Electronic Evidence and
Secondary Electronic Evidence. The classification is based on the source of evidence.

Primary Electronic Evidence – This would mean the actual electronic device which has
recorded the video, photograph, document, or any other electronic record. For instance, CCTV
captures video of crime being committed in the premises of a building. This video got stored in a
DVR connected to the camera meant for storage purposes. Primary evidence, in this case, would
include DVR along with the CCTV camera which recorded the video and stored it on DVR. This
DVR along with CCTV camera can be seized by the police during investigation.

Secondary Electronic Evidence – Whenever a copy or transfer of any electronic record is

undertaken and that transferred or copied copy is produced thereof for the perusal of the Court,
such evidence is known as Secondary Electronic Evidence. For instance, an e-mail is received by
a person and he wishes to produce it before the Hon’ble Court. He cannot simply get the servers
in which such email is stored or give access to his email account. In such a circumstance, he
would have to print the email in a hard copy and submit the same along with a certificate under
s.65B of IEA.

The conditions of Section 65B are-

1. Information was produced during the regular course of activities by the person having a lawful
control over the computer’s use .

3
(1744) 125 ER 1310
2. Information has been regularly fed into the computer in the ordinary course of said activities .

3. Throughout the material part of said period, the computer was operating properly or the
improper operation as not such as to affect the electronic record or the accuracy of its contents.

4. Information contained in the electronic records reproduces or is derived from such information
fed into the computer in the ordinary course of activities .

The primary purpose is to sanctify proof by secondary evidence. This facility of proof by
secondary evidence would apply to any computer output, such output being deemed as a
document . A computer output is a deemed document for the purpose of proof.

Where the information was processed or fed into the computer on inter linked computers or one
computer after the other in succession all the computers so used shall be treated as one single
computer.

Section 65B also lays down that for the purpose of evidence, a certificate identifying the
electronic records containing the statement and describing the manner in which it was produced
by a computer and satisfying the conditions mentioned above and signed by a officer in charge of
the operation or management of the related activities shall be the evidence of any matter stated in
the certificate it shall be sufficient for the matter to be stated to the best of the knowledge and
belief of the person stating .

Any information to be taken to be supplied to a computer , if it is done in any appropriate form

whether directly with or without human intervention by means of any appropriate equipment , or
any information is supplied by any official in the course of his activities with a view of storing or
processing it even if the computer is being operated outside those activities .

Admissibility

Sec-4 IT Act, 2000- Legal recognition of electronic records provides that where any law
provides that information or any other matter shall be in writing or in the typewritten or printed
form, then notwithstanding anything contained in such law, such requirement shall be deemed to
have been satisfied if such information or matter is- (a) rendered or made available in an
electronic form; and (b) accessible so as to be usable for a subsequent reference. The rationale
behind the second requirement is that electronic data is intangible and by its very nature
transient, thus it is expedient to require it to be available for future reference. Section 136 of the
Evidence Act empowers a judge to decide as to the admissibility of evidence, and s 3 of the
Evidence Act deals with admissibility of evidence. In order that the proof may be confined to
relevant facts and may not travel beyond the proper limits of the issue at trial, the judge is
empowered to ask in what manner the evidence tendered is relevant. The judge must then decide
its admissibility. It is the duty of the judge to see that evidence brought on the record is relevant.
In a suit or proceeding, evidence can be given only of those facts which are either facts in issue
or are relevant, and of no others4. When either party proposes to give evidence of any fact, the
judge may ask the party adducing the evidence to demonstrate the relevancy of the alleged fact,
if proved, and the judge can admit evidence only if it is considered by the judge that the fact, if
proved, would be relevant, and not otherwise.

If the admissibility of the proposed fact depends upon proof of some other fact, the other fact
must be proved before evidence is given of the fact first mentioned, unless the party undertakes
to give proof of the other fact, and the judge is satisfied with such an undertaking. However, if
the relevancy of the first fact depends upon the admission of a second fact, it may be necessary
for the second -fact to be proved before evidence is given of the first fact. The Supreme Court of
India in the case of State of Bihar v Sri Radha Krishna5, observed that admissibility of a
document is one thing and its probative value quite another these two aspects cannot be
combined. According to the S. 65A6 which provides that the contents of an electronic record may
he proved in accordance with provisions of S. 65B of the Evidence Act, new provisions
introduced into the Evidence Act, which provides that 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 (computer
output) shall be deemed to be a document, provided the conditions specified in S. 65B(2) are
satisfied in relation to the information and computer in question. Such a document is 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

4
Emperor v. Panch Kari DullaAIR 1925 Cal 587
5
1983) 2 SCR 808
6
Indian Evidence Act 1872
admissible. Before a computer output is admissible in evidence, the conditions as set out in S.
65B(2) must be fulfilled. Retention of records section 7(1) and relate to:

1. Accessibility - The technical issues with legal implications relating to accessibility include
ease of alteration and physical deterioration. Thus S.7(1)(a) provides for making records,
"accessible so as to be usable for a subsequent reference".

2. Format Integrity -The integrity of the format in which the information was originally
generated is important because changes in format can affect the material characteristics of the
record. S.7(1)(b) prescribes that, even if there is a change in format, the electronic record shall be
"in a format which can be demonstrated to represent accurately the information originally
generated, sent or received".

3. Identification - the details which will facilitate the identification of the origin, destination,
date and time of dispatch or receipt of such electronic record are available in the electronic
record.

Hard Disk

As to whether a hard disk of a computer can be considered as documentary evidence, the High
Court of Delhi in Dharambir v Central Bureau of Investigation7 has observed that: "While
there can be no doubt that a hard disc is an electronic device used for storing information, once a
blank hard disc is written upon it is subject to a change and to that extent it becomes an
electronic record. Even if the hard disc is restored to its original position of a blank hard disc by
erasing what was recorded on it, it would still retain information which indicates that some text
or file in any form was recorded on it at one time and subsequently removed. By use of software
programmes it is possible to find out the precise time when such changes occurred in the hard
disc. To that extent even a blank hard disc which has once been used in any manner, for any
purpose will contain some information and will therefore be an electronic record. So, once the
hard disc is subject to any change, then even if it restored to the original position, by reversing
that change, the information can be retrieved by using software designed for that purpose. Given
the wide definition of the words "document" and "evidence"' in the amended Section 3 the

7
148 (2008) DLT 289
Evidence Act, read with Sections 2(o) and (t) IT Act, there can be no doubt that an electronic
record is a document. Data copied from hard disk to CD Hyderabad Cyber Forensic Lab –
confirmed that the recorded data [call conversation] on CD as true copies of the originals + hard
disk was in working condition. Hard Disc is a storage devise. If written, then it becomes
electronic record under Evidence Act. Under section 65B it has to be proved that the computer
during the relevant period was in the lawful control of the person proving the email8.

CALL RECORDS

In the case of Rakesh Kumar and Ors. V State, the High Court of Delhi 9, while appreciating the
reliance placed by the prosecution upon the call records, observed that 'computer generated
electronic records is evidence, admissible at a trial if proved in the manner specified by Section
65B of the Evidence Act. Video/Audio Tape Recordings- Indian courts had recognized the
contents of tape recording as admissible evidence for some time before the introduction of the IT
Act, subject to certain conditions being satisfied. The Supreme Court of India in the case of
Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra and Others10 observed that tape-
recorded speeches are a 'document', as defined by s 3 of the Evidence Act, which stands on no
different footing than photographs, and they are admissible in evidence on satisfying certain
conditions. The subject matter recorded had to be shown to be relevant according to rules of
relevancy found in the Evidence Act. The determination of movement of a person on the basis of
mobile phone was discussed in Mohd Arif Ashfaq V. State of NCTC of Delhi11.

Proof of contents of C.D

The person intending to prove C.D. is required to prove whether the disputed C.D. was prepared
by a combination of a computer operating therein or different computer operating in succession
over that period or of different combination of computers. It is not necessary to examine the
computer expert for the proof of C.D. in addition to the compliance of provisions of section 65B.
In Ankur Chawla v. CBI12. The Hon’ble High Court of Delhi, while deciding the charges

8
Babu Ram Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors. 2013 IIAD (Delhi) 441
9
Criminal Appeal No. 19/2007 decided on 27.08.2009
10
AIR 1975 SC 1788
11
(2011) 13 SCC 621
12
MANU/DE/2923/2014
against accused in a corruption case observed that since audio and video CDs in question are
clearly inadmissible in evidence, therefore trial court has erroneously relied upon them to
conclude that a strong suspicion arises regarding petitioners criminally conspiring with co –
accused to commit the offence in question. Thus, there is no material on the basis of which, it
can be reasonably said that there is strong suspicion of the complicity of the petitioners in
commission of the offence in question. Further in the case of JAGJIT SINGH Vs. STATE OF
HARYANA13 the speaker of the Legislative Assembly of the State of Haryana disqualified a
member for defection. When hearing the matter, the Supreme Court considered the digital
evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak
television channel and the Haryana News of Punjab Today television channel.

In K.K. Velusamy Vs. N. Palanisamy14, the Hon'ble Supreme Court considered the point of
electronic evidence such as – the amended definition in Section 3 of Evidence Act 1872 read
with the definition of electronic record in Section 2 clause (t) of the Information Technology Act,
2000. It includes a compact disk containing an electronic record of conversation. Section 8 of
Evidence Act provides that the conduct of any party or of any agent to any party, to any suit, in
reference to such a suit or in a reference to any fact in issue therein or relevant thereto, is relevant
if such conduct influences or influenced by any fact in issue or relevant fact and whether it was
previous or subsequent thereto.

Video-conferencing

In State of Maharashtra v. Praful Desai15 Examination via video-conferencing is permissible.

The question was involved whether a witness can be examined by means of a video conference.
The Supreme Court observed that video conferencing is an advancement of science and
technology which permits seeing, hearing and talking with someone who is not physically
present with the same facility and ease as if they were physically present. The legal requirement
for the presence of the witness does not mean actual physical presence. The court allowed the
examination of a witness through video conferencing and concluded that there is no reason why
the examination of a witness by video conferencing should not be an essential part of electronic

13
(2006) 11 SCC 1)
14
2011 SC 158
15
AIR 2003 SC2053
evidence. Further in case of Amitabh Bagchi Vs. Ena Bagchi16, Sections 65A and 65B of
Evidence Act, 1872 were analyzed. The court held that the physical presence of person in Court
may not be required for purpose of adducing evidence and the same can be done through
medium like video conferencing. Sections 65A and 65B provide provisions for evidences
relating to electronic records and admissibility of electronic records, and that definition of
electronic records includes video conferencing.

In an interesting case dealt by the High Court of Allahabad in the matter of Moninder Singh
Pandher and Surendra Koli v State of U.P17.), the question arose as, to admissibility of the
confessional statement which was recorded in video, as there is no provision for video recording
of the confessional statement. The High Court observed that, in this connection, s 4 of the IT Act
provides that that information or any other matter should be in writing or in typewritten or
printed form, but the requirement is deemed to have been satisfied if the information or matter is
rendered or made available in an electronic form, and accessible so as to be useful for subsequent
reference. The High Court further relied on S 65B of the Evidence Act and held that the
confession was admissible

In Twentieth Century Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd 18.
certain conditions have been laid down for video recording of evidence:

1. The person who examines the witness on the screen is also to file an affidavit/undertaking
before examining the witness with a copy to the other side with regard to identification.

2. The witness has to be examined during working hours of Indian Courts. Oath is to be
administered through the media.

3. The witness should not plead any inconvenience on account of time different between India
and USA.

5. Before examination of the witness, a set of plaint, written statement and other documents must
be sent to the witness so that the witness has acquaintance with the documents and an
acknowledgement is to be filed before the Court in this regard.

16
AIR 2005 Cal 11
17
(Criminal (Capital) Appeal No. 1475 of 2009
18
AIR 2003 KANT 148
6. Learned Judge is to record such remarks as is material regarding the demeanour of the witness
while on the screen.

7. Learned Judge must note the objections if raised during recording of witness and to decide the
same at the time of arguments.

8. After recording the evidence, the same is to be sent to the witness and his signature is to be
obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit
proceedings.

9. The visual is to be recorded and the record would be at both ends. The witness also is to be
alone at the time of visual conference and notary is to certificate to this effect.

10. The learned Judge may also impose such other conditions as are necessary in a given set of
facts.

11. The expenses and the arrangements are to be borne by the applicant who wants this facility.
In Suvarana Musale vs Rahul Musale19, in view of section 65A and 65B of the Evidence Act it
was held that recording of evidence with help of electronic method and techniques is
acknowledged and recognized in judicial system. Petitioner wife was working in U.S. and has a
minor daughter aged 6 yrs, travelling to India for being present physically was expensive and she
may face difficulty in getting leave and hurdles in obtaining VISA . An application for recording
evidence through video conferencing was allowed.

Mode of proof:

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. It requires:- Integrity of the data: That is the data as sent or recorded was intact and
not tampered with. Integrity of the hardware/software: The hardware and software used to
reading, downloading, interpreting, seeing or storing was functioning according to set standards
and there was no deviation or its corruption Security of the system: The system used to access

19
2015 (2) Mh.L.J. 801
such electronic record was secured, and during the particular course of period it was not accessed
by any unauthorized person, so as to rule out the possibility of its tampering or malfunctioning.

Effects of Considering Electronic Evidence as Primary and Direct Evidence

Blurring the Difference between Primary and Secondary Evidence
By bringing all forms of computer evidence into the fold of primary evidence, the statute has
effectually blurred the difference between primary and secondary forms f evidence. While the
difference is still expected to apply with respect to other forms of documents, an exception has
been created with respect to computers. This, however, is essential, given the complicated nature
of computer evidence in terms of not being easily producible in tangible form. Thus, while it
may make for a good argument to say that if the word document is the original then a print out of
the same should be treated as secondary evidence, it should be considered that producing a word
document in court without the aid of print outs or CDs is not just difficult, but quite impossible.

Making Criminal Prosecution Easier

In light of the recent spate of terrorism in the world, involving terrorists using highly
sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to
produce electronic evidence as direct and primary evidence in court, as they prove the guilt of he
accused much better than having to look for traditional forms of evidence to substitute the
electronic records, which may not even exist.

Risk of Manipulation
While allowing all forms of computer output to be admissible as primary evidence, the statute
has overlooked the risk of manipulation. Tampering with electronic evidence is not very difficult
and miscreants may find it easy to change records which are to be submitted in court. However,
technology itself has solutions for such problems. Computer forensics has developed enough to
find ways of cross checking whether an electronic record has been tampered with, when and in
what manner.
 Opening Potential Floodgates

Computers are the most widely used gadget today. A lot of other gadgets involve computer chips
in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going strictly
by the word of the law, any device involving a computer chip should be adducible in court as
evidence. However, practical considerations as well as ethics have to be borne in mind before
letting the ambit of these Sections flow that far. For instance, the Supreme Court has declared
test results of narco-analysis to be inadmissible evidence since they violate Article 20(3) of the
Constitution.

Leading Case Laws on Electronic Evidence

1. Anvar P.V. v. P.K. Basheer And Others20
In this significant judgment, the Supreme Court has settled the controversies arising from the
various conflicting judgments as well as the practices being followed in the various High Courts
and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has
interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary
data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act.
It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by
oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to
make such electronic evidence admissible.

The judgment would have serious implications in all the cases where the prosecution relies on
the electronic data and particularly in the cases of anticorruption where the reliance is being
placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the
Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B
Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to
their genuineness cannot be looked into by the Court as evident from the Supreme Court
Judgment. It was further observed that all these safeguards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic records sought to be used as
evidence. Electronic records being more susceptible to tampering, alteration, transposition,

20
2014 10 SCC 473
excision, etc. without such safeguards, the whole trial based on proof of electronic records can
lead to travesty of justice.

In the anticorruption cases launched by the CBI and anticorruption/Vigilance agencies of the
State, even the original recording which are recorded either in Digital Voice Recorders/mobile
phones are not been preserved and thus, once the original recording is destroyed, there cannot be
any question of issuing the certificate under Section 65B(4) of the Evidence Act. Therefore in
such cases, neither CD/DVD containing such recordings are admissible and cannot be exhibited
into evidence nor the oral testimony or expert opinion is admissible and as such, the
recording/data in the CD/DVD’s cannot become a sole basis for the conviction.

In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘not
obstante clause’ would override the general law on secondary evidence under Section 63 and 65
of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to
the secondary evidence of the electronic evidence and same shall be wholly governed by the
Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court
overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru21by the two judge Bench of the Supreme Court. The court specifically observed that the
Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of
electronic evidence pertaining to electronic record of this Court, does not lay down correct
position and required to be overruled.
The only options to prove the electronic record/evidence is by producing the original electronic
media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of
Evidence Act. Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence,
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.

2. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke 22

21
(2005) 11 SCC 600
22
SC/0040/2015
The Hon’ble High Court of Delhi, while deciding the charges against accused in a corruption
case observed that since audio and video CDs in question are clearly inadmissible in evidence,
therefore trial court has erroneously relied upon them to conclude that a strong suspicion arises
regarding petitioners criminally conspiring with co-accused to commit the offence in question.
Thus, there is no material on the basis of which, it can be reasonably said that there is strong
suspicion of the complicity of the petitioners in commission of the offence in question.

3. Jagjit Singh v. State Of Haryana23

The speaker of the Legislative Assembly of the State of Haryana disqualified a member for
defection. When hearing the matter, the Supreme Court considered the digital evidence in the
form of interview transcripts from the Zee News television channel, the Aaj Tak television
channel and the Haryana News of Punjab Today television channel. The court determined that
the electronic evidence placed on record was admissible and upheld the reliance placed by the
speaker on the recorded interview when reaching the conclusion that the voices recorded on the
CD were those of the persons taking action. The Supreme Court found no infirmity in the
speaker’s reliance on the digital evidence and the conclusions reached by him. The comments in
this case indicate a trend emerging in Indian courts: judges are beginning to recognize and
appreciate the importance of digital evidence in legal proceedings.

4. Abdul Rahaman Kunji v. State of West Bemgal24

The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email
downloaded and printed from the email account of the person can be proved by virtue of Section
65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure
to download and print the same is sufficient to prove the electronic communication

5. State (NCT of Delhi) v. Navjot Sandhu25

There was an appeal against conviction following the attack on Parliament on December 13
2001. This case dealt with the proof and admissibility of mobile telephone call records. While
considering the appeal against the accused for attacking Parliament, a submission was made on

23
2006) 11 SCC 1
24
WB/0828/2014
25
AIR 2005 SC 3820
behalf of the accused that no reliance could be placed on the mobile telephone call records,
because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of
the Evidence Act. The Supreme Court concluded that a cross-examination of the competent
witness acquainted with the functioning of the computer during the relevant time and the manner
in which the printouts of the call records were taken was sufficient to prove the call records.

Conclusion :
The admissibility of the secondary electronic evidence has to be adjudged within the parameters
of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of
the Apex Court and various other High Courts as discussed above. The proposition is clear and
explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act,
it is not admissible and any opinion of the forensic expert and the deposition of the witness in the
court of law cannot be looked into by the court. However, there are few gaps which are still
unresolved as what would be the fate of the secondary electronic evidence seized from the
accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot
be made witness against himself as it would be violative of the Article 19 of the Constitution of
India.