Law of Evidence

By Nizam Azeez Sait,

MODULE No. 20

ADMISSIBILITY OF ELECTRONIC RECORDS

This is the 20th Module of the subject ‘Law of Evidence’, covering law relating to admissibility of Electronic Record. The main provisions are Sections 61, 62 and 63 in Chapter V in part III of the Bharatiya Sakshya Adhiniyam dealing with admissibility and mode of proof of Electronic Record.

Section 62 and 63 Corresponds to Section 65 A and 65 B of the Evidence Act. Section 61 is a new provision which is in the nature of a clarificatory provision ascertaining the admissibility and the legal effect and validity of electronic record. Other provisions in the Bharatiya Sakshya Adhiniyam relating to electronic evidence are also referred and discussed in this module.

MODULE INDEX

1. Introduction

2. Relevant Statutory Provisions

a. Definition of ‘Document’ and ‘Evidence’ in the Bharatiya Sakshya Adhiniyam – Electronic Record is Specifically Included in the Definition of Document
b. Widening the Ambit of Primary Evidence Relating to Electronic Record – Addition of Explanations 4 to 7 to Section 57
c. Relevancy of Expert Opinion on Electronic Record – Section 39(2)
d. Presumption As to Electronic Message Forwarded – Section 90
e. Admissibility Mode of Proof of the Contents of Electronic Records – Sections 61, 62 and 63
3. From ‘Navjot Sandhu’ To ‘Arjun Panditrao’ – Differential Interpretations By The Supreme Court On The Mandatory Nature Of Compliance Of The Requirements Of Section 65B (4) Of The Evidence Act
3.1. Navjot Sandhu Case (Overruled in Anvar P.V)
3.2. Anvar P.V Case (Followed and upheld in Arjun Panditrao)
3.3. Tomaso Bruno Case (held as per incuriam in Arjun Panditrao case)
3.4. Sonu’s case (objection as to the mode proof should be raised at the stage of marking)
3.5. Shafhi Mohammad case – (Overruled in Arjun Panditrao)
3.6. Arjun Panditrao Case – (Upheld Anvar P.V And Conclusively Settled the Law Relating to S.65B)

4. ‘Arjun Panditrao’ – Brief Facts of the Case

5. Discordance Between Anvar P.V. And Shafhi Mohammad – Reference to The Larger Bench

6. Verdict of The Three Judges Bench in Arjun Panditrao

7. The Certificate Required Under S.65B is Mandatory When Computer Output is Produced
8. Certificate Under S.65B (4) is not Required if the Original Itself is Produced.
9. ‘Tomaso Bruno’ and ‘Shafhi Mohammad’ are Overruled and ‘Anvar P.V’ is upheld
10. Mechanism For the Production Of Certificate – Coercive Steps Under the Evidence Act, CPC and CrPC
11. Application Of the Impossibility Doctrine – When Will A Party Be Relieved Of The Mandatory Obligation To Procure The Certificate Under Section 65B (4)
12. Stage Of Production Of Certificate

13. General Directions to the Cellular Companies and Internet Service Providers
14. Summing Up of the Conclusion in Arjun Panditrao by The Court
15. Concurring Judgment By Justice V. Ramasubramanian – Emphasising The Need For A Relook At The Provision By The Legislature
16. Evidence in Analogue Form
17. Difference Between Materials in Analogue Form and The Same Thing in Digital Form
18. The Concurring Judgment Emphasised the Need for A Relook at Section 65B

19. Arjun Panditrao Khotkar is Followed and Reiterated in Ravinder Singh a Later Supreme Court Judgment
20. Admissibility of Conventional / Analogue Audio and Video Tape – Records

21. Changes Brought in Section 63 of the Bharatiya Sakshya Adhiniyam which makes Computer Out Put Admissible.

a. Ambit of Computer Output and Electronic Record are Expressly Made Broader – Clause (1) of Section 63
b. Condition for Admission of Computer Output – Clause (2) of Section 63 of the Bharatiya Sakshya Adhiniyam
c. One or More Computers or Communication Device for Creating/ Processing Information Considered as a Single Computer/ Device – Sub Clause (3) of Section 63
d. Submission of Certificate Along with the Computer Output by Person in Charge of the Computer and an Expert – Sub Clause (4) of Section 63
e. Supply of Information to the Computer and Computer Output Produced – Explained – Sub Clause (4) of Section 63
f. Formats of Certificates in the Schedule
22. Whether An Accused is Entitled to Get Copy of an Electronic Record Produced in the Court

1. Introduction

With the advancement of information Technology – computers, internet, electronic communication, cloud storing, smart phones and smart cameras and various other digital devises with capacity to store and transmit piles of information/data in various digital forms became prevalent in all walks of life. In internet and in such devices, information is embedded in digital form, which could be seen or dealt with only by using required equipment.

These developments necessitated new laws to facilitate electronic data interchange and electronic communication and also to check malpractices.

The General Assembly of the United Nations by resolution A/RES/ 51/162, dated 30th January, 1997 adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law.

In India, the information Technology Act was enacted in the year 2000. The general purpose of the Act as specified in its preamble is to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies etc.

In civil, commercial and criminal cases, in view of its novelty, the evidentiary value and the mode of proof of electronic record got contentious before various courts, and there were diametrically conflicting judgments of the Supreme Court. It became important to rule out the possibility of any kind of tampering with the electronic record and to provide the standard of proof required for its authenticity and accuracy.

The admissibility and mode of proof of electronic record is now governed in the Bharatiya Sakshya Adhiniyam by Sections 61, 62 and 63 (Corresponding to Sections 65A and 65B of the Evidence Act). Sections 65A and 65B of the Evidence Act were first inserted by the information Technology Act 2000, by amending the evidence Act.

2. Relevant Statutory Provisions

a. Definition of ‘Document’ and ‘Evidence’ in the Bharatiya Sakshya Adhiniyam – Electronic Record is Specifically Included in the Definition of Document

Sections 2(d) and 2(e) of the Bharatiya Sakshya Adhiniyam (Section 3 of the Evidence Act) defines ‘Document’ and ‘Evidence’ respectively as under:

2(d) “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

Illustrations.

  • A writing is a document.
  • Words printed, lithographed or photographed are documents.
  • A map or plan is a document.
  • An inscription on a metal plate or stone is a document.
  • A caricature is a document.
  • An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

2(e) “evidence” means and includes— (i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence; (ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

In the Evidence Act “Electronic Record” was not specifically included in the definition of ‘Document’ in S.3. Now in the definition of ‘Document’ in the Section 2(d) of the Bharatiya Sakshya Adhiniyam, ‘electronic record’ is specifically included.

Illustration (vi) provides that, an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;

In the Indian Evidence Act ‘Evidence’ is defined in Section 3. In the new the Bharatiya Sakshya Adhiniyam 2023, ‘Evidence’ is defined in Section 2(e). the words ‘including statements given electronically’ is added and the definition is made broader. Now evidence given through video conferencing is explicitly covered by the definition.

b. Widening the Ambit of Primary Evidence Relating to Electronic Record – Addition of Explanations 4 to 7 to Section 57

Section 57 of the Bharatiya Sakshya Adhiniyam defines Primary Evidence. It says ‘Primary evidence means the document itself produced for the inspection of the Court’. The Corresponding provision in the Indian Evidence Act 1872 was Section 62 which contained only 2 explanations.

Explanation 1 in the Indian Evidence Act 1872 is split up and made into 2 explanations as Explanations 1 and 2 in Section 57 of the Bharatiya Sakshya Adhiniyam.

The following Explanations 4 to 7 are also added and they relate to Electronic Records.

Explanation 4. —Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.

Comment

For instance, cloud storage created of a file in a mobile phone will be primary evidence along with storage of the file in the mobile phone.

Explanation 5. —Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Comment

When a mobile phone is produced by its owner it is from proper custody. Likewise, a mobile phone duly seized by the police from the owner and duly produced before the court is from proper custody.

Explanation 6. —Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.

Comment

A video clip recorded in a smart phone and transferred through WhatsApp or other similar communication App each of it would be primary evidence. Likewise, a video broadcast live in facebook and viewed and stored by a recipient is primary evidence.

Explanation 7. —Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

Comment

Temporary files and all backups in a computer network are primary evidence.

c. Relevancy of Expert Opinion on Electronic Record – Section 39(2)

Section 39(2) of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 45 A of the Evidence Act), relates to Relevancy of Expert opinion on electronic record. The Provision reads as under:

39 (2) 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, is a relevant fact.

Explanation. —

For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.

Section 79A of the Information Technology Act, 2000, which was inserted in 2008, reads as under:

The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation. -For the purposes of this section, “electronic form evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.

d. Presumption As to Electronic Message Forwarded – Section 90

Section 90   of the Bharatiya Sakshya Adhiniyam provides as under:

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

e. Admissibility Mode of Proof of the Contents of Electronic Records – Sections 61, 62 and 63

Section 61 to 63 of the Bharatiya Sakshya Adhiniyam 2023, relates to mode of proof of electronic record and are reproduced hereunder:

Section 61

Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.

Section 61 is a new provision which is in the nature of a clarificatory provision. It unequivocally ascertains the admissibility and the legal effect and validity of electronic record.

It may be noted that In State v. S. J. Choudhury, 1996 (2) SCC 428: AIR 1996 SC 1491: 1996 CriLJ 1713, the Supreme Court had occasion to observe that the Indian Evidence Act, 1872 by its very nature is an “ongoing Act”. In view of the rapid advances in technology, the extant statutes will have to be interpreted in such a manner so as to increase its acceptability. The courts will not be justified in placing unnecessary roadblocks in the acceptability of evidence, particularly of the digital variety. Keeping in mind these aspects, the legislature enacted the Information Technology Act, 2000 and later harmonized the Evidence Act to seamlessly accept electronic evidence to advance the cause of justice. Conventional means of records and data processing have become outdated and the rules relating to admissibility of electronic evidence and its proof were incorporated into Indian Laws. The legislature, it appears, was cognizant of the fact that if the procedural and substantive laws do not keep pace with the speed of change in the society, the casualty would be the interest of justice (See  Jisal Rasak v State of Kerala, 2019 (4) KLT 159)

Section 62

The contents of electronic records may be proved in accordance with the provisions of section 63.

This provision corresponds to section 65A of the Indian Evidence Act

Section 63

(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (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 or 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 or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;

(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 or communication device 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 creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—

(a) in standalone mode; or

(b) on a computer system; or

(c) on a computer network; or

(d) on a computer resource enabling information creation or providing information processing and storage; or

(e) through an intermediary,

all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely: —

(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 or a communication device referred to in clauses (a) to (e) of sub-section (3);

(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 in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert 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 in the certificate specified in the Schedule

(5) For the purposes of this section,— (a) information shall be taken to be supplied to a computer or communication device 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) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

The Corresponding section in the Indian Evidence Act is section 65 B which reads as under:

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 or 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.”)

Changes in Section 63 of the Bharatiya Sakshya Adhiniyam

There are a few changes in the wordings of the provision in section 63 of the Bharatiya Sakshya Adhiniyam from that in section 65B of the Indian Evidence Act:

  1. In Clause (1) of Section 63 ambit of Computer Output and Electronic Record are Expressly Made Broader.
  2. In Sub Clause (3) of Section 63, it is clarified that One or More Computers or Communication Device for Creating/ Processing Information are Considered as a Single Computer/ Device.
  3. The cardinal change in section 63(4) of the Bharatiya Sakshya Adhiniyam from that of section 65 B (4) of the Evidence Act is that it prescribes certificate of an expert along with the certificate of the Person in charge of the computer.
  4. Now in the Bharatiya Sakshya Adhiniyam it is specifically prescribed that the such certificates shall be submitted along with the electronic record (stage of submission of certificate is specified).

Specified format of the Certificates to be submitted by the Person in charge of the computer and that by an expert are provided in the schedule annexed to the Bharatiya Sakshya Adhiniyam.

We will deal with Sections 63 of the Bharatiya Sakshya Adhiniyam 2023 and changes in the wording from the corresponding Section 65B of the Indian Evidence Act, later in this module.

Case Law on S. 65 B of the Evidence Act

Sections 65 A and 65 B were inserted in the Evidence Act in the year 2000 by amendment. Interpretation of Section 65 B (4) had been a matter of judicial turmoil, with the law swinging like a pendulum from one extreme to the other with different judgments of the Supreme Court from ‘Navjot Sandhu’ to ‘Anvar P. V.’ to ‘Tomaso Bruno’ to ‘Shafhi Mohammad’ and ultimately to ‘Arjun Panditrao’.

3. From ‘Navjot Sandhu’ To ‘Arjun Panditrao’ – Differential Interpretations By The Supreme Court On The Mandatory Nature Of Compliance Of The Requirements Of Section 65B (4) Of The Evidence Act

There has been variance in the interpretation of Section 65B of the Evidence Act by different decisions of the Supreme Court. Confusion was caused owing to the inconsistent views expressed on the scope and ambit of Section 65B in earlier decisions of the Supreme Court in ‘Navjot Sandhu’, ‘Anvar P.V.’ ‘Shahfi Mohammad’ and ‘Tomaso Bruno’ cases.

Finally, the law was set at rest by the 3 judges bench decision in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal AIR 2005 SC 3820: (2020) 7 SCC 1. (Rohinton F. Nariman; S. Ravindra Bhat; V. Ramasubramanian, JJ)

3.1 Navjot Sandhu Case (Overruled in Anvar P.V)

In State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru 2005 (11) SCC 600: AIR 2005 SC 3820 (P. Venkatarama Reddi; P. P. Naolekar, JJ) the Parliament attack case, the Supreme Court had held that: –

“Irrespective of the compliance of the requirements of Section 65B 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 & 65.”

(In this case of national importance, 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.)

So, in Navjot Sandhu case the Supreme Court construed electronic record as document and held that irrespective of S 65B, secondary evidence of electronic evidence could be adduced under sections 63 and 65 of the Evidence Act.

3.2 Anvar P.V Case (Followed and upheld in Arjun Panditrao)

The Supreme Court in Anvar P.V. vs. P.K. Basheer AIR 2015 SC 180, (R. M. Lodha, C. J. ; Kurian Joseph; Rohinton F. Nariman, JJ.), a case under the Representation of the People Act, 1951 for setting aside Assembly election based on the allegation of corrupt practice, overruled the above proposition in Navjot Sandhu case holding that Section 63 and Section 65 of the Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by S.65A and S.65B.

The Court observed as follows: –

Under S.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 S.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 S.65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to S.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 S.65B of the Evidence Act are not complied with, as the law now stands in India.

“The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under S.63 read with S.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 S.59 and S.65A dealing with the admissibility of electronic record. S.63 and S.65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by S.65A and S.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, 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.”

3.3 Tomaso Bruno Case (held as per incuriam in Arjun Panditrao case)

In Tomaso Bruno and Another v. State of U. P. 2015 CriLJ 1690: 2015 (7) SCC 178 (Anil R. Dave; Kurian Joseph; R. Banumathi, JJ), a three judges bench took a deviant view from the earlier three judges bench in Anvar P.V Case. The Court observed:

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, S.65A and S.65B were introduced into Chapter V relating to documentary evidence. S.65A provides that contents of electronic records may be admitted as evidence if the criteria provided in S.65B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by S.65B of the Evidence Act. Sub-section (1) of S.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 S.65B. Secondary evidence of contents of document can also be led under S.65 of the Evidence Act.

The Court held that S.65A and S.65B cannot be held to be a complete Code on the subject, which is directly contrary to what was stated by the above three Judge Bench in Anvar P. V. (supra).

3.4 Sonu’s case (objection as to the mode proof should be raised at the stage of marking)

In, Sonu @ Amar v. State of Haryana AIR 2017 SC 3441: 2017 (8) SCC 570 (S. A. Bobde; L. Nageswara Rao), a 2 judges’ bench of the Supreme Court referred to the following judgments relating to the consequence of failure to raise objection as to the mode of proof of document: Gopal Das v. Sri Thakurji, AIR 1943 PC 83, and R. V. E. Venkatachala Gounder v. Arulmigu Visweswaraswami, 2003 (8) SCC 752: AIR 2003 SC 4548. And the Court observed:

“It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by S.65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under S.161 of the Cr. P. C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in S.65B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.”

The Court further held that:

This Court did not apply the principle of prospective overruling in Anvar’s case. The dilemma is whether we should. This Court in K. Madhav Reddy v. State of Andhra Pradesh, 2014 (6) SCC 537 : AIR 2014 SC 2314 held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. If the judgment in the case of Anvar is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar’s case was decided by a Three Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a Three Judge Bench.

3.5 Shafhi Mohammad case – (Overruled in Arjun Panditrao)

In this case the Supreme Court was considering the broad issue of use of videography for crime investigation and to have a Standard Operating Procedure (SOP), and issued a series of orders. In the order reported in Shafhi Mohammad v. State of Himachal Pradesh AIR 2018 SC 714: 2018 (2) SCC 807 (A. K. Goel; Uday U. Lalit, JJ) a 2 judges bench of the Supreme Court held that the requirement of producing a certificate under Section 65B (4) is procedural and not always mandatory. A party who is not in possession of the device from which the document is produced cannot be required to produce a certificate under Section 65B (4) and the procedural requirement under Section 65B (4) is to be applied only when electronic evidence is produced by a person who is in control of the said device. However, if the person is not in possession of the device, Sections 63 and 65 cannot be excluded.

Decisions in Ram Singh and Others v. Col. Ram Singh, AIR 1986 SC 3, and Tomaso Bruno and Another v. State of U. P. 2015 CriLJ 1690: 2015 (7) SCC 178 were relied upon. The Court in Shafhi Mohammad observed:

Though in view of Three – Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under S.65A and S.65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under S.65B(h).

S.65A and S.65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P. V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under S.65A and S.65B of the Evidence Act….

The applicability of procedural requirement under S.65B (4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of S.63 and S.65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence / witness but on account of manner of proving, such document is kept out of consideration by the Court in absence of certificate under S.65B (4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under S.65B(h) is not always mandatory.

 Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under S.65B (4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

The above proposition was however overruled in Arjun Panditrao case.

3.6 Arjun Panditrao Case – (Upheld Anvar P.V And Conclusively Settled the Law Relating To S.65B)

In, Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal AIR 2020 SC 4908: (2020) 7 SCC 1. (Rohinton F. Nariman; S. Ravindra Bhat; V. Ramasubramanian, JJ), a three judges bench of the Supreme Court followed and upheld ‘Anvar P.V.’, overruled ‘Shahfi Mohammad’ and held that ‘Tomaso Bruno’ is per incurrium and categorically laid down that the certificate required under S.65B (4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.

4. ‘Arjun Panditrao’ – Brief Facts of the Case

It was an election petition which challenged the election of Mr. Arjun Panditrao Khotkar to the Legislative Assembly, on the ground that the nomination papers were filed only after the stipulated time deadline. Among other evidence the Respondent relied on video camera recordings to prove that the returned candidate had filed his nomination after the stipulated time. The Election Commission produced CDs which contained a copy of the video camera recordings, in accordance with the direction given by the High Court. However, the necessary certificates were not produced in accordance with Section 65B (4) by the Election Commission.

During the cross examination, an officer of the Election Commission testified that the video camera recordings were authentic. Based on this testimony, the High Court admitted the evidence of the video recordings even though the certificate in accordance with Section 65B (4) was produced. The High Court held that it was satisfied that there was “substantial compliance” with Section 65B, as a competent officer had testified that the video recordings were authentic. Ultimately the election of Mr. Arjun Panditrao Khotkar was setaside by the High Court.

5. Discordance Between Anvar P.V. And Shafhi Mohammad – Reference To The Larger Bench

When the matter came up in appeal before the Supreme Court a 2 Judges bench after quoting from Anvar P.V. and Shafhi Mohammad and recognising the discordance of the subsequent two judges bench in Shafhi Mohammad with the earlier 3 judges bench in Anvar P.V, referred the case to the larger bench holding as under:

“We are of the considered opinion that in view of Anvar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration. With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say, that there is an element of urgency in the matter.”

6. Verdict of The Three Judges Bench in Arjun Panditrao

In, Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal AIR 2020 SC 4908: (2020) 7 SCC 1. (Rohinton F. Nariman; S. Ravindra Bhat; V. Ramasubramanian, JJ), the lead judgment was delivered by justice Rohinton F. Nariman and Justice V. Ramasubramanian delivered a concurring separate judgment.

The three judges bench of the Supreme Court observed:

S.65A and S.65B occur in Chapter V of the Evidence Act which is entitled “Of Documentary Evidence”. S.61 of the Evidence Act 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. S.62 of the Evidence Act defines primary evidence as meaning the document itself produced for the inspection of the Court. S.63 of the Evidence Act speaks of the kind or types of secondary evidence by which documents may be proved. S.64 of the Evidence Act then enacts that documents must be proved by primary evidence except in the circumstances hereinafter mentioned. S.65 of the Evidence Act is important, and states that secondary evidence may be given of “the existence, condition or contents of a document in the following cases…”.

7. The Certificate Required Under S.65B is Mandatory When Computer Output is Produced

The three judges bench concluded that:

“We may reiterate, therefore, that the certificate required under S.65B (4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.(supra), and incorrectly “clarified” “in Shajhi Mohammed (supra).

Oral evidence in the place of such certificate cannot suffice as S.65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. S.65B (4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render S.65B (4) otiose.

(It may be noted that the Principle in Taylor v. Taylor is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden)

8. Certificate Under S.65B (4) is not Required if the Original Itself is Produced.

The Court further held:

Coming back to S.65B of the Indian Evidence Act, sub-section (1) needs to be analysed. The sub-section begins with a non obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a “document”. This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the “document” shall then be admissible in any proceedings. The words “…without further proof or production of the original…” make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the “deemed document” now becomes admissible in evidence 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.

 The non obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of S.65B, which is a special provision in this behalf – S.62 to 65 being irrelevant for this purpose. However, S.65B (1) clearly differentiates between the “original” document – which would be the original “electronic record” contained in the “computer” in which the original information is first stored – and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that S.65B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence, and the latter being secondary evidence.

The clarification referred to above is that the required certificate under S.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 S.65B (1), together with the requisite certificate under S.65B (4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P. V. (supra) which reads as “… if an electronic record as such is used as primary evidence under S.62 of the Evidence Act…”. This may more appropriately be read without the words “under S.62 of the Evidence Act,…”. With this minor clarification, the law stated in paragraph 24 of Anvar P. V. (supra) does not need to be revisited.”

9. ‘Tomaso Bruno’ and ‘Shafhi Mohammad’ are Overruled and ‘Anvar P.V’ is upheld

The Court further laid down:

Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on S.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.

10. Mechanism For the Production Of Certificate – Coercive Steps Under the Evidence Act, CPC and CrPC

It was observed in Arjun Panditrao that:

Quite apart from the fact that the judgment in Shafhi Mohammad (supra) states the law incorrectly and is in the teeth of the judgment in Anvar P. V. (supra), following the judgment in Tomaso Bruno (supra) – which has been held to be per incuriam hereinabove – the underlying reasoning of the difficulty of producing a certificate by a party who is not in possession of an electronic device is also wholly incorrect.

Further the Court referred the following provisions relating to summoning of document available in the Evidence Act, CPC and CrPC.

S.165 of the Evidence Act (Judge’s power to put questions or order production), Rules 6, 7 and 10 of Order XVI of the Civil Procedure Code, 1908(Summons to produce document and consequence of non-production) Section 91 of the Criminal Procedure Code (Summons to produce document or other thing), Section 349 of the Criminal Procedure Code (Imprisonment or committal of person refusing to answer or produce document)

Then the Court observed:

“In a fact – circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.”

Comment

The provisions referred in ‘Arjun Panditrao’ and resorted to by Justice Nariman as coercive steps for procuring the certificate under Section 65 B (4) of the Evidence are Rules 6, 7 and 10 of Order XVI of the Civil Procedure Code, 1908(Summons to produce document and consequence of non-production) Section 91 of the Criminal Procedure Code (Summons to produce document or other thing). These provisions relates to directions to simply produce documents which are already in existence. Now, in ‘Arjun Panditrao’ the Supreme Court has given these provisions the nature of a ‘Mandatory Injunction’ of directions for creating /making and issuing of such certificate under section 65B (4) of the Evidence Act and now is law of the land. The Correctness of such proposition is doubtful though it is law of the land now through the 3 judges judgment in ‘Arjun Panditrao’ and all courts are bound to follow the same.

11. Application Of the Impossibility Doctrine – When Will A Party Be Relieved Of The Mandatory Obligation To Procure The Certificate Under Section 65B (4)

The Court laid down the preposition that though S.65B (4) is mandatory, yet, if the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate, then the Party would be relieved of the obligation to produce/procure the certificate applying the law in the maxim lex non cogit ad impossibilia i.e. the law does not demand the impossible. The Court  held as follows:

“Two Latin maxims become important at this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused.

On an application of the aforesaid maxims to the present case, it is clear that though S.65B (4) is mandatory, yet, on the facts of this case, the Respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third – party over whom the Respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.”

In applying the above maxims, the Supreme court relied on the following judgments of the supreme court:

In Re: Presidential Poll (1974 (2) SCC 33: AIR 1974 SC 1682.) Chandra Kishore Jha v. Mahavir Prasad and Ors. (1999 (8) SCC 266: AIR 1999 SC 3558) Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors. (2005 (3) SCC 601:), Cochin State Power and Light Corporation v. State of Kerala (AIR 1965 SC 1688).

In the facts of the case the court dismissed the appeal holding that:

“It is clear that apart from the evidence in the form of electronic record, other evidence was also relied upon to arrive at the same conclusion. The High Court’s judgment therefore cannot be faulted.”

The election of Mr. Arjun Panditrao Khotkar was setaside by the High Court Judgment and the same was upheld by the Supreme Court.

12. Stage Of Production Of Certificate

The Supreme Court in ‘Arjun Panditrao’ observed:

We may hasten to add that S.65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P. V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person / persons referred to in S.65B (4) of the Evidence Act, and require that such certificate be given by such person / persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.

The Court further observed:

Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, 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 S.91 or 311 of the CrPC or S.165 of the Evidence Act. Depending on the facts of each case, and the Court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case – discretion to be exercised by the Court in accordance with law.

Comment

Under Section 63 (4) of the Bharatiya Sakshya Adhiniyam provides that the subject Certificate should be submitted along with the electronic record.

But still it should be held that the Court has the power in its discretion to receive the electronic record along with the certificate at any stage of the proceedings but such discretion has to be exercised by the Court in accordance with law.

13. General Directions to the Cellular Companies and Internet Service Providers

The Court issued the following directions to the cellular companies and internet service providers:

General directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with S.39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records 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 S.67C of the Information Technology Act, which reads as follows:

67C. Preservation and retention of information by intermediaries. – (1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.

(2) any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.”

14. Summing Up of the Conclusion in Arjun Panditrao by The Court

Ultimately the Court in Arjun Panditrao summed up its decision as under:

The reference is thus answered by stating that:

(a) Anvar P. V. (supra), as clarified by us hereinabove, is the law declared by this Court on S.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 S.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 S.65B(1), together with the requisite certificate under S.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 S.62 of the Evidence Act…” is thus clarified; it is to be read without the words “under S.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 S.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 S.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.

15. Concurring Judgment By Justice Ramasubramanian – Emphasising The Need For A Relook At The Provision By The Legislature

Acrimony In the Provision

In his Concurring Judgment Justice V. Ramasubramanian analysed the provision and pointed out the reasons for the acrimony behind S.65B. It was observed:

“The placement by S.65B, of admissibility as the first or the border check post, coupled with the fact that a number of ‘computer systems’ (as defined in S.2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the ‘originator’ (as defined in S.2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind S.65B, which is evident from the judicial opinion swinging like a pendulum.”

16. Evidence in Analogue Form

The Concurring judgment surveyed through a few foreign decisions and noticed how the Courts dealt with evidence in analogue form without legislative interference. The Court referred the following Judgments- Harry Parker v. Mason ((1940) 2 KB 590) R. v. Burr and Sullivan ((1956) Crim LR 442). Hopes and Lavery v. H. M. Advocate ((1960) Crim LR 566 R. v. Mills ((1962) 3 All ER 298), R. v. Maqsud Ali ((1965) 2 All ER 464).

Following Supreme Court Judgments were also referred S. Pratap Singh v. State of Punjab (1964 (4) SCR 753), Yusaffalli Esmail Nagree v. State of Maharashtra (1967 (3) SCR 720), N. Sri Rama Reddy v. V. V. Giri (AIR 1972 SC 1162), R. M. Malkani v. State of Maharashtra (AIR 1973 SC 157 : 1973 (1) SCC 471, Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (1976 (2) SCC 17 : AIR 1975 SC 1788), Ram Singh v. Col. Ram Singh (AIR 1986 SC 3), Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010 (4) SCC 329 : AIR 2010 SC 965 :),

17. Difference Between Materials In Analogue Form And The Same Thing In Digital Form

The Concurring judgment observed:

The difference between something in analogue form and the same thing in digital form and the reason why digital format throws more challenges, was presented pithily in an article titled ‘Electronic evidence and the meaning of “original”‘ (Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae 26 (2009)), by Stephen Mason (Barrister and recognised authority on electronic signatures and electronic evidence). Taking the example of a photograph in both types of form, the learned author says the following:

For instance, a photograph taken with an analogue camera (that is, a camera with a film) can only remain a single object. It cannot be merged into other photographs, and split off again. It remains a physical object. A photograph taken with a digital camera differs markedly. The digital object, made up of a series of zeros and the number one, can be, and frequently is, manipulated and altered (especially in fashion magazines and for advertisements). Things can be taken out and put in to the image, in the same way the water droplets can merge and form a single, larger droplet. The new, manipulated digital image can also be divided back into its constituent parts.

In R v. Robson Mitchell and Richards ((1991) Crim LR 360) a printout of telephone calls made on a mobile telephone was taken as evidence of the calls made and received in association with the number. The Court held “where a machine observes a fact and records it, that record states a fact. It is evidence of what the machine recorded and this was printed out. The record was not the fact but the evidence of the fact“.

But the facility of operating in anonymity in the cyber space, has made electronic records more prone to manipulation and consequently to a greater degree of suspicion. Therefore, law makers interfered, sometimes making things easy for Courts and sometimes creating a lot of confusion. But over a period of time, certain jurisdictions have come up with reasonably good solutions.

18. The Concurring Judgment Emphasised The Need For A Relook At Section 65B

The Concurring judgment scanned through the Legislative developments in U.S.A., U.K. and Canada on the admissibility of electronic records. It was observed:

S.65B, in its present form, is a poor reproduction of S.5 of the UK Civil Evidence Act, 1968. The language employed in sub-sections (2), (3), (4) and (5) of S.65B is almost in pari materia (with minor differences) with sub-sections (2) to (5) of S.5 of the UK Civil Evidence Act, 1968. However, sub-section (1) of S.65B is substantially different from sub-section (1) of S.5 of the UK Civil Evidence Act, 1968. But it also contains certain additional words in sub-section (1) namely “without further proof or production of the original”.

But the abovementioned S.5 of the U.K. Act of 1968 was repealed by the Civil Evidence Act, 1995. S.15(2) of the Civil Evidence Act, 1995 repealed the enactments specified in Schedule II therein. Under Schedule II of the 1995 Act, Part I of the 1968 Act containing S.1-10 were repealed. The effect is that when S.65B was incorporated in the Indian Evidence Act, by Act 21 of 2000, by copying sub-sections (2) to (5) of S.5 of the UK Civil Evidence Act, 1968, S.5 itself was not there in the U.K. statute book, as a result of its repeal under the 1995 Act.

After a brief analysis of the law in U.S.A., U.K. and Canada on the admissibility of electronic records, the Concurring judgment observed:

“…. the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine – tuned their legislations. Therefore, it is the need of the hour that there is a relook at S.65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P. V. to Tomaso Bruno to Sonu to Shafhi Mohammad.

It appears that the Legislature has not considered or  followed the views of Justice V. Ramasubramanian, while enacting the Bharatiya Sakshya Adhiniyam.

19. Arjun Panditrao Khotkar is Followed and Reiterated in Ravinder Singh a Later Supreme Court Judgment

Recently, in Ravinder Singh @ Kaku v. State of Punjab AIR 2022 SC 2726 (Uday U. Lalit; Vineet Saran, JJ.), a 2 judges bench of the Supreme Court observed that:

The uncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shajhi Mohammad v. State of Himachal Pradesh2018 (2) SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1]

20. Admissibility of Conventional / Analogue Audio and Video Tape – Records

In R. v. Maqsud Ali, reported in 1965 (2) All ER p. 464, English Court said that it would be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded are properly identified. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case.

In India, the Courts have held that a contemporaneous tape record of a relevant conversation is relevant under section 7.

In Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147 1967 (3) SCR 720, Supreme Court observed that since the tape – records are prone to tampering, the time, place and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The Court must be satisfied, beyond reasonable doubt that the record has not been tampered with.

In, Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Others, reported in 1976 (2) SCC 17, the Supreme Court, observed that tape – records of speeches are “documents” as defined in S.3 of the Evidence Act and stand on no different footing than photographs. The three judges bench in “Ziyauddin Burhanuddin” further held that the tape – records of speeches were admissible in evidence on satisfying the following conditions:

“(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject – matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

Similar conditions for admissibility of a tape – recorded statement were reiterated in Ram Singh and Others v. Col. Ram Singh, reported in 1985 (Supp) SCC 611 and in R. K. Anand v. Registrar, Delhi High Court, 2009 (8) SCC 106.

In, Tukaram S. Dinghole v. Manikrao Shivaji kokate, 2010 (4) SCC 329: AIR 2010 SC 965, the Supreme Court considered the issue of admissibility of tape record and observed as follows:

“There is also no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes / cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.”

21. Section 63 of the Bharatiya Sakshya Adhiniyam – Changes Brought in

Section 63 of the Bharatiya Sakshya Adhiniyam corresponds to section 65B of the Indian Evidence Act which makes Computer Out Put Admissible.

There are a few changes in the wordings of the provision from that in section 65B of the Indian Evidence Act.

a. Ambit of Computer Output and Electronic Record are Expressly Made Broader – Clause (1) of Section 63

Sub section (1) of Section 63 reads as under:

(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (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 or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

This section equates computer output with document and makes it admissible as per the conditions provided in the subsequent sub sections.

The Section in the Bharatiya Sakshya Adhiniyam, specifically expands scope of electronic records from Section Sub section (1) of Section 65 B of the Evidence Act, to include information stored in communication devices (Smartphones, laptops and other similar gadgets) other than conventional computer.

Computer output now specifically include information contained in an electronic record which is stored, recorded or copied in ‘semiconductor memory’ also, along with that printed on paper, stored or recorded or copied in ‘optical or magnetic media’ produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form. (Semiconductor memory is a new specific addition from that in Section 65 B of the Evidence Act)

b. Condition for Admission of Computer Output – Clause (2) of Section 63 of the Bharatiya Sakshya Adhiniyam

Clause (2) of Section 63 of the Bharatiya Sakshya Adhiniyam, prescribes conditions for admission of computer output. The Provision reads as under:

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 or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;

(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 or communication device 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.

c. One or More Computers or Communication Device for Creating/ Processing Information Considered as a Single Computer/ Device – Sub Clause (3) of Section 63

Sub Clause (3) of Section 63 reads as under:

Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—

(a) in standalone mode; or

(b) on a computer system; or

(c) on a computer network; or

(d) on a computer resource enabling information creation or providing information processing and storage; or

(e) through an intermediary,

all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.

The wordings of section 63 (3) have been slightly changed from that in Section 65B (3) of the Indian Evidence Act for imparting more clarity.

d. Submission of Certificate Along with the Computer Output by Person in Charge of the Computer and an Expert – Sub Clause (4) of Section 63

Clause (4) of Section 63 of the Bharatiya Sakshya Adhiniyam reads as under:

In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely: —

(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 or a communication device referred to in clauses (a) to (e) of sub-section (3);

(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 in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert 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 in the certificate specified in the Schedule

The cardinal change in section 63(4) of the Bharatiya Sakshya Adhiniyam from that of section 65 B (4) of the Evidence Act is that it prescribes certificate of an expert along with the certificate of the Person in charge of the computer.

Now it is specifically prescribed that the such certificates shall be submitted along with the electronic record (stage of submission of certificate is specified).

Specified format of the Certificates to be submitted by the Person in charge of the computer and that by an expert are provided in the schedule annexed to the Adhiniyam.

As already seen, Section 39(2) of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 45 A of the Evidence Act), relates to Relevancy of Expert opinion on electronic record. The Provision reads as under:

39 (2) 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, is a relevant fact.

Explanation. —

For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.

Section 79A of the Information Technology Act, 2000, which was inserted in 2008, reads as under:

The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation. -For the purposes of this section, “electronic form evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.

e. Supply of Information to the Computer and Computer Output Produced – Explained – Sub Clause (4) of Section 63

(5) For the purposes of this section, —

(a) information shall be taken to be supplied to a computer or communication device 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) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

f. Formats of Certificates in the Schedule

The electronic record may be in the form of 1. information in the hard disc of an office or personal computer, 2. CCTV footage 3. Digital Video 4.  Digital Photo 5. Email 6. Facebook post 7. Whatsapp message etc etc.

Formats for the certificates by the person in charge of the computer or communication device and expert are provided in the schedule to the Bharatiya Sakshya Adhiniyam.

THE SCHEDULE

[See section 63(4)(c)]

CERTIFICATE

PART A

(To be filled by the Party)

 

I, _____________________ (Name), Son/daughter/spouse of ___________________ residing/employed at __________________________ do hereby solemnly affirm and sincerely state and submit as follows:—

I have produced electronic record/output of the digital record taken from the following device/digital record source (tick mark):—

Computer / Storage Media

DVR

Mobile

Flash Drive

CD/DVD

Server

Cloud

Other

 

Other: ________________________________________

 

Make & Model: _______________ Color: _______________

Serial Number: _______________

IMEI/UIN/UID/MAC/Cloud ID_____________________ (as applicable)

and any other relevant information, if any, about the device/digital record____(specify). The digital device or the digital record source was under the lawful control for regularly creating, storing or processing information for the purposes of carrying out regular activities and during this period, the computer or the communication device was working properly and the relevant information was regularly fed into the computer during the ordinary course of business. If the computer/digital device at any point of time was not working properly or out of operation, then it has not affected the electronic/digital record or its accuracy. The digital device or the source of the digital record is: —

Owned

Maintained

Managed

Operated

by me (select as applicable). I state that the HASH value/s of the electronic/digital record/s is _________________, obtained through the following algorithm: —

SHA1:

SHA256:

MD5:

Other__________________ (Legally acceptable standard)

(Hash report to be enclosed with the certificate)

 

 

(Name and signature)

Date (DD/MM/YYYY): _____

Time (IST): ________hours (In 24 hours format)

Place: ____________

 

 

PART B

(To be filled by the Expert)

I, ____________________ (Name), Son/daughter/spouse of _____________________ residing/employed at _________________________ do hereby solemnly affirm and sincerely state and submit as follows:—

The produced electronic record/output of the digital record are obtained from the following device/digital record source (tick mark):—

Computer / Storage Media

DVR

Mobile

Flash Drive

CD/DVD

Server

Cloud

Other

 

Other: ________________________________________

 

 

Make & Model: _______________  Color: _______________

Serial Number: _______________

IMEI/UIN/UID/MAC/Cloud ID_____________________ (as applicable)

and any other relevant information, if any, about the device/digital record_______(specify).

 

I state that the HASH value/s of the electronic/digital record/s is _____________________, obtained through the following algorithm: —

SHA1:

SHA256:

MD5:

Other__________________ (Legally acceptable standard)

(Hash report to be enclosed with the certificate)

 

(Name, designation and signature)

Date (DD/MM/YYYY): _____

Time (IST): ________hours (In 24 hours format)

Place: ____________

22. Whether An Accused is Entitled to Get Copy of an Electronic Record Produced in the Court

Fair trial is a constitutional Principle which cannot be compromised. A trial will be meaningful and fair only if the accused has access to the materials produced in the court to mould his defence.

In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), 2010 (6) SCC 1: AIR 2010 SC 2352 the Supreme Court observed:

“218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The Code gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

The Supreme Court further held:

  1. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under S.173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial.

In Sherin V John v. State of Kerala(supra). The High Court of Kerala considered the following issues.

  1. Is the right of an accused to get copies of the documents produced by the prosecution absolute?
  2. Is an accused entitled to get copy of an electronic record produced in the Court by the prosecution as a material object?

The court after evaluation of Sections 207 and 173 of CrPC (Sections 230 and 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and Judgment in Jasvinder Kalra v. C.B.I., 2011 CriLJ 1416, recognised that right to get copies is not absolute and held that “What can be understood from the provisions in the Cr.P.C discussed above is that no prejudice shall be caused to the accused and once that is done, the Court can refuse to supply copies of documents and statements on the grounds of interests of justice and public interest.”

It was also observed:

“When there is a conflict between the fundamental right of a person and the statutory right of another, the former shall prevail.”

The Court carried out a thorough evaluation of the distinction between document and material object. It was a murder case in which the Prosecution produced a tablet (computer), hard discs, pen drives and compact discs containing related visuals. The Court refused to issue copy of the contents of the subject tablet finding that it is a material object in the case and allowed inspection of the same by the counsel for the accused in the court where as the court directed to issue copies of the other electronic records finding that those were produced as documents. The Court among others observed:

Material evidence is not covered by S.207 Cr.P.C ( S 230 of the Bharatiya Nagaril Suraksha Sanhita 2023). There is no law providing for issuance of copy of material objects to accused. A copy of a material object can be only its replica. When a material object cannot be produced before the Court, there is no provision to produce secondary evidence. But the second proviso to S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam) enables the party concerned to adduce oral evidence in respect of the object.

….. In Raj Kapoor & others v. State (Delhi Administration) & others, AIR 1980 SC 258: 1980 CriLJ 202 the Supreme Court observed: “The Court will examine the film and Judge whether its display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions.” 

The following conclusions were reached in ‘Sherin V John:

(i) Apart from oral and documentary evidence, there is a third category of evidence called material evidence, which consists of materials other than documents.

(ii) Only copies of documents can be given, but not of material objects.

(iii) When nothing is expressed or described upon a substance, it is only a material object.

(iv) When a matter is expressed or described upon a substance, it may be a document or a material object depending upon the purpose for which it is produced.

(v) If the identity of the author of the matter expressed or described upon a substance is relevant, it is a document; otherwise it is only a material object.

(vi) Where the only purpose for which a material object upon which a matter has been expressed or described is produced is to prove its seizure from the possession of the accused, and it is made part of the evidence by proving its seizure from his possession, the Court does not want the testimony of anyone to prove the matter since it has become a ‘matter before the Court’.

The Court Further held:

The ‘tablet’ which has been produced before the Court below was seized from the petitioner. The prosecution only wants the Court to view it and draw the inference that may be taken from its possession by the petitioner.

In the light of the above discussion, I hold that the ‘tablet’ produced before the Court is a material object and the petitioner is not entitled to a copy of it. But his counsel shall be allowed to examine it in his presence and take notes in the presence of the prosecutor under the direct supervision of the Chief Ministerial Officer of the Court, for which he shall file an application and obtain orders of the Court below. The hard discs and the compact disc were not seized from him. So, the prosecution has to prove their genuineness and authenticity. They can be only considered documents.

A different approach was taken by another single bench of the Kerala High Court in Jisal Rasak v State of Kerala, 2019 (4) KLT 159: 2019 (4) KHC 928 (Raja Vijayaraghavan V.  J.), In this case the Court distinguished ‘Sherin V. John’. In this murder case the CCTV footage relied on by the prosecution was produced as “material object” and copy was denied to the accused, the High Court setaside the order of the Magistrate denying copy of the same. The Court observed:

I am of the view that Sherin V. John (supra) was rendered in a different fact situation and the learned Judge, who had decided the petition, had no occasion to consider the provisions of the Information Technology Act, 2000 and the sweeping changes it brought to the provisions of the Indian Evidence Act, 1872.

The Information Technology Act also defines computer resource, computer network, computer system and computer device. Thus, data, information or any other content generated kept stored, sent, received, and communicated through electronic, magnetic, optical and digital media has to be dealt with as per the provisions of the Information Technology Act, 2000 and such electronic evidence can be admitted and proved in courts in accordance with the special provisions as to evidence relating to electronic record as provided under S.65B of the Indian Evidence Act, 1872 (Section 63 of the Bharatiya Sakshya Adhiniyam).

….  if the oral evidence refers to the existence or condition of a material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection. Thus, when material objects such as weapon of offence, clothes or other personal items of the victim or any other thing which is referred by the witnesses are produced in Court, it is regarded as a thing and it can be relied on as it is. It is next to impossible to supply copies of the same to the accused. However, after the advent of technology, the line between categorizing a thing as a ‘material thing’ or a document has become more or less obliterated. If a hard disk or a magnetic disk containing data is stolen and the same is seized and produced in court, it may sometimes be difficult to categorize it as ‘a thing’ produced for inspection of the court or a ‘document’. One way of distinguishing it is by asking a question as to whether the item is relevant in itself or whether the item is relevant because of the information that can be retrieved from it. In other words, if a material thing is produced in Court to rely on the data that it contains, it is probably a document and it has to be regarded as such. On the other hand, if the material thing is brought to court in order to rely on it as it is, it is a thing and may be exhibited as a material object.

In view of the above discussion and on a proper understanding of the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872, it can be deduced that the CCTV footage in the instant case is “data” as defined under S.2(o) of the Information Technology Act, 2000 and it is an electronic record as defined under S.2(t) of the I.T. Act. If that be the case, the electronic record produced for the inspection of the Court has to be regarded as documentary evidence. In that view of the matter, I am unable to accept the logic of the prosecution in producing the CCTV footage as a material object and in refusing to supply a copy of the same to the accused. I hold that cloned Digital copies of the footage relied on by the prosecution have to be made available to the accused, unless it is impracticable or unjustifiable. For instance, in a case of brutal sexual abuse, if the incident has been videotaped, in view of the element of privacy or to prevent misuse, copy may be refused. In a case in which the accused is being prosecuted for possessing pedophilic material, copies of the same can be refused. In such cases, the Court may grant permission to the counsel or the accused to have a private screening to have a proper defense. Same is the case in a terrorism prosecution, wherein national security interests demand non – disclosure of the digital evidence, which has been collected. These are merely illustrative and not exhaustive. As an adversarial system is followed in our country, the accused is entitled to a copy of the records so that he can bring to the notice of the courts exculpatory material or such other aspects in the prosecution case, which may be to his advantage.

In the case on hand, I have no doubt in my mind that the investigating agency has committed a grave error by producing the CCTV footage as a material object and also in refusing to give a copy of the same to the accused. The accused is entitled to a digital copy of the CCTV footage, which is relied on by the prosecution to prove the charge. That being the case, the order passed by the learned Magistrate will stand set aside.

Supreme Court on Furnishing Copies of Electronic Record to the Accused

In Tarun Tyagi v. CBI, 2017 (4) SCC 490: AIR 2017 SC 1136, on the allegation that the accused had stolen source codes of a software, a search was conducted in his house and hard disks were seized. At the stage of S.207 of the Code of Criminal Procedure, all other records except for the cloned copies of the Hard Disk were supplied to the accused. The accused approached the Supreme Court and contended that the copies of the hard disks are to be supplied to demonstrate during trial that no case is made out against him. He also contended that the cloned copies are required for enabling him to prepare his cross examination and a proper defense strategy. The CBI opposed the prayer and it was urged that the accused would misuse the same. The Supreme Court repelled the contention and the cloned copies of the hard disk were ordered to be supplied to the accused.

In Gopalakrishnan P @ Dileep v State of Kerala, AIR 2020 SC 1: 2020 CriLJ 1240, (A M. Khanwilkar; Dinesh Maheshwari, JJ), (Actress abduction and sexual assault case), the factual background as discernible from the high court judgment are as under:

The Petitioner/8th accused is a well-known and popular cine artist. The de facto complainant (victim) is also a well-known actress in Malayalam film industry. The allegation that the petitioner-maintained enmity towards the de facto complainant, believing her to be responsible for the breakdown of his matrimonial relationship. To retaliate, he allegedly conspired with the first accused to abduct the victim, to sexually abuse her, to record the acts of sexual abuse and to black mail her using the video graphed materials. In prosecution of the above conspiracy, the first accused allegedly solicited the assistance of accused Nos. 2 to 6 and on 17/02/2017, while the victim was proceeding in a car along the National Highway, she was intercepted by accused Nos. 1 to 6. They abducted her to Ernakulam and on the way, she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone and stored in a memory card. The alleged offences were under S.342, S.366, S.376, S.506(1), S.120B and S.34 of the 1860 Code and S.66E and S.67A of the 2000 Act.

The Supreme Court was called upon to address the following issues:

whether the contents of a memory card / pen – drive being electronic record as predicated in S.2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of S.3 of the Indian Evidence Act, 1872 (for short, ‘the 1872 Act’) and S.29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)?

If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card / pen – drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused, in terms of S.207 of the Code of Criminal Procedure, 1973 (for short, ‘the 1973 Code’)?

The next question is: whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card / pen – drive in the form of video footage / clipping concerning the alleged incident / occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and more so because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?

The Supreme court after referring to various judgments and the definition of document held:

It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of S.207 of the 1973 Code. The concomitant is that the contents of the memory card / pen – drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card / pen – drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Art.21 of the Constitution of India.

But considering the privacy aspects of the victim in a case of such nature, the court observed and held as under:

The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

Going by the dicta in Asha Ranjan (Asha Ranjan v. State of Bihar, 2017 (4) SCC 397: 2017 (2) SCC (Cri) 376), principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

In conclusion, we hold that the contents of the memory card / pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him / her to present an effective defence during the trial.

However, in cases involving issues such as of privacy of the complainant / witness or his / her identity, the Court may be justified in providing only inspection thereof to the accused and his / her lawyer or expert for presenting effective defence during the trial. The Court may issue suitable directions to balance the interests of both sides.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Discuss admissibility and mode of proof of Electronic Record? Refer to relevant provisions and case law
  1. Write a brief note on Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal AIR 2020 SC 4908: (2020) 7 SCC 1.
  1. When will a Party be relieved of the mandatory obligation to procure the certificate under section 65B (4) of the Evidence Act/ 63(4) / Section 63 of the Bharatiya Sakshya Adhiniyam?