Author: Mr. Harshal Sreen, Institute of Law, Nirma University.
The world has developed a lot and with the developing world, technology has spread its roots to almost each and every section of society. Everything, from communication to processing to documentation has gone digital. Law has not been immune to digitization. In the case of India with the ever-increasing e-commerce activities and e-governance initiatives from the state, the admissibility of e-evidence in the court of law has become a pertinent issue. The debate on the admission of e-evidence in the court has been a long issue. Today, a large variety of e-evidences are presented before courts in India every day, ranging from storage devices such as DVD or Hard Disk to mobile SMS or even a mail or website data.
Section 3 of the Indian Evidence Act, 1872 talks about what can constitute valid evidence in the court of law. Under clause 2 of the Section, it has been stated as “All documents produced for the inspection of the court.” It did not include an electronic form of evidence. But the introduction of the Information Technology Act, 2000 has led to the amendments in the Indian evidence act to include electronic records in the definition of ‘evidence’ of section 3(a). Now the section reads as “All documents including electronic records produced for the inspection of the court.” Further, Sections 65A and 65B were introduced to make electronic evidence admissible in the court of law. An amendment was also done to Section 92 of the Information Technology Act of 2000.
Admissibility under the Evidence Act
The admissibility of the electronic document is also now recognized as per Section 17 of the Evidence Act which has been amended to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. Section 65 elaborately deals with the issue of admissibility of e-evidence. Section 65B of the Indian evidence act is of utmost importance in accepting emails as admissible evidence by the courts as it gives us an important inference as to how an email or any other electronic document can be produced before the court as admissible evidence. The Supreme Court of India, in a path-breaking dynamic judgment, Shafhi Mohammad Vs. The State Of Himachal Pradesh, has rationalized the law relating to the admissibility of the electronic evidence particularly in view of the provision of Sec. 65B of the Indian Evidence Act.
Anvar P.V. Versus P.K. Basheer & Ors, With this significant judgment in the year 2014, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.
Email as evidence – Abdul Rahaman Kunji Vs. The State of West Bengal. The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such a procedure to download and print the same is sufficient to prove the electronic communication.
In another case of Smt Bharathi V Rao v. Sri Pramod G Rao, the learned judge said that emails come under the definition ‘electronic record’ under section 2(t) of the Information Technology Act 2000 and are admissible in evidence.
In Kundan Singh v. The State, The Delhi High court explained section 65B in great detail and held that “ The computer output – when provisions of section 65-B are satisfied is treated as evidence of the contents of the original or facts therein of which direct evidence is admissible. It specifies that the onus of proving its originality lies in the person who sought to produce it as evidence. An electronic evidence needs to be accompanied by a certificate as per section 65B of the act.
The certificate must –
- describing the manner in which it was produced;
- Furnish the particulars of the device involved in the production of that record.
- Deal with the applicable conditions mentioned under section 65 B(2).
- Be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
In Anvar P.V. vs. P.K. Basheer, the Court rendered a landmark judgment where it held that “the person requires only to mention in the certificate that the same is to the best of his knowledge and belief which should be attached to the electronic record like pen drive, computer printout, (CD), etc., referring to which statement is sought to be given in evidence when the same is produced in evidence.
The applicability of procedural requirement under Section 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. 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 Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, the requirement of a certificate under Section 65B(h) is not always mandatory.
With the technological advancement, the admissibility of the
secondary electronic evidence has to be adjudged within the parameters of
Section 65B of Evidence Act and the proposition of the law settled in the
recent judgment of the Apex Court and various other High Courts as discussed
above. The proposition is clear and explicit that if the secondary electronic
evidence is without a certificate u/s 65B of Evidence Act, it is not admissible
and any opinion of the forensic expert and the deposition of the witness in the
court of law cannot be looked into by the court. However, there are few gaps
which are still unresolved as what would be the fate of the secondary
electronic evidence seized from the accused wherein, the certificate u/s 65B of
Evidence Act cannot be taken and “No person accused of any offence shall
be compelled to be a witness against himself” as per Article 20(3) of the
Constitution of India
 2018 (2) S.C. 349.
 (2014) 10 S.C.C. 473.
 (2015) 1 CALLT. 318(HC); 2016 CriLJ 1159.
 (2016) C.C.R.1(Del.).
 Karia,T. ,”Digitalevidence: An Indian Perspective” Digital Evidence and Electronic Signature Law Review, Vol 5 2008.
 A.I.R. 2015 S.C. 180.
 Shafhi Mohammad v. The State Of Himachal Pradesh, 2018 (2) S.C. 349.