With the advent of electronic means of communications, there is an urgency to transform the law relating to information technology as well as the rules of admissibility of electronic records as evidence both in civil and criminal cases in India.
Recently Hon’ble Chief Justice of India emphasized on making Supreme Court complete digital. The present article is about different hurdles, legal as well as technical, which any individual, irrespective of any profession, could encounter while putting electronic documents or records of digital, audio, or visual records within the ambit of evidence in accordance with the section 65 B of the Act.
As per the Information Technology Act, 2000, the definition of electronic record is given under section 2(t). Electronic Record means “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.
Section 65A reads as follows: “The contents of electronic records may be proved in accordance with the provisions of Section 65B”.
Section 65 B states the following:
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.
As one can notice, Section 65 B requires legal as well as technical interpretation. The technical aspect is of utmost importance. Once the technical interpretation of some of the sub sections of Section 65 B can be deciphered, the legal interpretation shall automatically become apparent.
The primary purpose of this section is to sanctify the proof by secondary evidence. The sub-section (1) of Section 65 B states that any electronic information which is printed on a paper, stored, recorded, or copied in optical or magnetic media produced by a computer will be referred to as computer output and such computer output shall be considered as a document if the conditions mentioned under Section 65 B are met with. The conditions also should be satisfied in relation to the computer in question, i.e., the computer through which the electronic information is printed on a paper, stored, recorded, or copied in optical or magnetic media. Once the conditions have been met with the electronic record shall be admissible in any proceedings without further proof or production of the original evidence of any contents of the original or of any fact stated in it.
The Hon’ble Supreme Court in the case of Anvar P.V. vs. P.K. Basheer has very categorically dealt with the scope of section 65 B. Hon’ble Supreme Court observed and concluded that “any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed Under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non-obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65 B (2).”
In the case of Kundan Singh Vs. The State the Hon’ble Delhi High Court observed that “Section 65B is a part of Chapter V of the Evidence Act, which relates to documentary evidence. Documentary evidence can be primary as defined in Section 62, which means the document itself, or secondary which refers to certified copies or copies made from original and even oral accounts of the contents of documents by a person, who has seen the same. Section 64 states that documents must be proved by primary evidence, except when secondary evidence is permitted and allowed. Section 65 states that secondary evidence may be given of the existence, condition or contents of a document when any of the sub-clauses (a) to (g) apply. In case of sub-clauses (a), (c) and (d), secondary evidence can be given even of the contents and the same is admissible. As noticed above, electronic record is by deeming fiction treated as a document for the purpose of Evidence Act.”
The Hon’ble Supreme Court in the case of P.K. Basheer went on to observe and interpret certain requisites under Section 65 B (2). These are the following:
“The Hon’ble Supreme Court in the case of Anvar P.V. vs. P.K. Basheer has very categorically dealt with the scope of section 65 B. Hon’ble Supreme Court observed and concluded that “any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed Under Section 65B. Section 65B deals with the admissibility of the electronic record.”
Further, for an electronic evidence to be admissible as evidence, it is required to have a certificate in accordance to the abovementioned section. Whenever a statement is to be produced in evidence under this section it must always be accompanied by a certificate which should identify the electronic record containing the statement. It should also describe the way it was produced, details of the any device which was involved in production of such electronic document. The statement should be signed by a person under Section 65 B (4), 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:
The importance of the Section 65 B is that it does not require to produce the original computer or the original media on which data or information was stored, but rather, allows the secondary evidence in the form of computer output to be produced and admitted in evidence, upon fulfilment of the condition that when evidence of computer output is produced and tendered, certificate of a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities as prescribed by Section 65 B (4) is produced. In this manner, Section 65B authorises production and admission, in evidence, all computer output without production of the original, i.e., it permits leading of secondary evidence without the original being produced.
In the case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru the two judge bench of Hon’ble Supreme Court observed the following “Irrespective of the compliance with the requirements of Section 65-B, 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 and 65. It may be that the certificate containing the details in Sub-section (4) of Section 65- B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65. ”
However, the above observation was overruled by Hon’ble Supreme Court in P.K. Basheer . The Hon’ble Supreme Court in the case of P.K. Basheer held that “The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same.
Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 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”.
It is certain that the certificate under section 65 B (4) is mandatory as the law under the Section 65 B is a special law and the same shall prevail over the general law. The certificate under Section 65B assures its authenticity. But the judgment of the Hon’ble Supreme Court in P.K.Basheer’s case is silent on the issue that whether indirectly Section 65 B anywhere indicates primary and secondary electronic record. The issue addressed hereafter is an attempt to clarify as to whether section 65 B anywhere infers the acceptance of primary and secondary electronic record.
“It is certain that the certificate under section 65 B (4) is mandatory as the law under the Section 65 B is a special law and the same shall prevail over the general law. The certificate under Section 65B assures its authenticity. But the judgment of the Hon’ble Supreme Court in P.K.Basheer’s case is silent on the issue that whether indirectly Section 65 B anywhere indicates primary and secondary electronic record.”
The bifurcation of treating electronic record into primary and secondary evidence is not directly written in the section 65 B. Maybe the legislature had thought not to limit the scope of the electronic records within the boundaries of primary and secondary evidence. The Courts have not gone into the interpretation of Section 65 B in terms of deciphering what electronic record be considered as primary and secondary respectively. This issue will crop up when the original source of electronic record would be disputed. Section 65 B (2) (a) is again re-iterated, “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”.
Literally interpreted, aforementioned subsection itself gives a hint to what can be called as a primary and secondary evidence. “The Computer Output” can be called as secondary evidence and “the computer” can be called as the primary source of electronic evidence. A computer output is to be produced by “the computer” over a period by the person who wishes to out forward the electronic record. That person should also have a lawful control over “the computer”. Meaning thereby, the person should be regularly using to store any piece of data and the person should be in lawful control of the primary source of electronic data over a period of time. Therefore, to summon the powers of section 65 B in entirety, conditions as mentioned in 65 B (2) (a) should not be taken lightly. Simplifying the condition precedent before even giving the certificate as mentioned in 65 B (4), the conditions of 65 B (2) (a) should be satisfied which are:
Considering the above explanation, it will be no wrong to state that the legislature did not intend to use the terminology of ‘primary’ and ‘secondary’ electronic record as mentioned in Section 64 and 65 of the Act, but, indirectly the legislature did intend to hint on primary and secondary source of electronic record. To substantiate the above analogy reliance can also be placed on the section 65 B (2) (b) which states that states that information contained in the electronic record or derived from should be regularly fed into the computer in ordinary course of the said activities. This means that the secondary source of electronic record should be ‘regularly’ fed into the primary source i.e., the computer. Further, section 65 B (2) (c) amplifies further that throughout the material part of the said period, the primary source of electronic record, the computer, should operate properly, if not, then the same should not affect the accuracy of the contents of the electronic record contained in the computer or the primary source. It is not the case that by simply submitting the certificate under section 65 B (4) the person relying on the electronic record would be absolved from fulfilling the essentials as mention in the Section 64 B (2). Under section 65 B (4) (b) the person who is submitting the certificate must give such particulars of any device involved in the ‘production’ of that electronic record. This is for showing that the electronic record was produced by a computer, or the primary source.
After interpreting that section 65 B also indirectly infers the existence of primary and secondary electronic record, the third issue to be discussed and concluded is, whether it is mandatory that the source through which any video or audio file is extracted/ copied must be produced to authenticate the credibility of the electronic document. After going through the above topics, it will be correct to state that section 65 B latently emphasizes on source preceding the declaration under section 65 B (4). By simply giving the certificate under section 65 B (4) would not suffice the authenticity of the electronic record. What is to be conclusive is the fact that the secondary electronic evidence is produced from the primary source of electronic evidence. I would like to state that observation of the Hon’ble Supreme Court in P.K. Basheer that “Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B” is correct, however, it will also be correct to say that 65A and 65 B compliments the section 63 and 65 by also latently expounding primary and secondary electronic records. If any person wishes to put forward the electronic record as evidence he or she should also be prepared to secure the primary source of the electronic record through which that secondary electronic record has been produced.
Once section 65 B is interpreted as combination of primary and secondary electronic record and the same used by the Courts, there will be reduction of manipulation. If the source gets it authenticity there would be no need to question the 65 B (4) certificate or the secondary electronic record. The interpretation of 65 B must be looked through section 65 and 63 so that the electronic record gets bifurcated into primary and secondary source, which would act as a weapon to strengthen one’s case as no question with respect to the source could crop up at any stage of the trial or investigation. Similarly, this interpretation will also act as a shield in those cases where the primary source through which the secondary electronic record is obtained gets disputed. Hence, under section 65 B “the computer output” can be called as secondary evidence and “the computer” can be called as the primary source of electronic evidence. Therefore, Section 65 B bifurcates the electronic records into primary and secondary electronic records. The electronic records will be admissible if the conditions as mentioned under section 65 B are met with i.e., the source of electronic record i.e., “the computer” from which “the computer output” is obtained is not disputed and the conditions as elucidated above while interpreting Section 65 B (2) is strictly adhered to.
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