By Tanushree Dubey
Published on: October 5, 2023 at 10:17 IST
In the modern era, electronic records have become an essential part of our daily activities, structurally changing the way we communicate, gather information, and do business. These records contain an abundance of data including emails, text messages, digital documents and social media posts, giving us unmatched convenience and efficiency but as we increasingly rely on electronic records for communication and documentation, it is recognized that evidence in the courts has emerged as an important and complex legal issue.
The legal status of electronic records presents opportunities and challenges. On the one hand, these records provide a powerful means of establishing facts and documenting events, providing an invaluable resource for litigation. On the other hand, they also create concerns about their authenticity, reliability and flexibility. Courts around the world are tasked with meeting these challenges by developing legal frameworks and procedures to ensure the authenticity of electronic evidence. As electronic records play a central role in our lives, it is important for lawyers to navigate this digital landscape, striking a balance between taking advantage of those benefits and following the principles of fairness in legal proceedings
This article explores the concept of recordings and their legal standing when presented as evidence, in courts.
Understanding Electronic Records
Electronic records, also referred to as records or e records encompass a range of data stored in an electronic format. This includes emails, text messages, digital documents, databases, photos, audio recordings and videos. The distinctive characteristic of records lies in their creation, storage and transmission through devices and technologies. They have largely replaced paper records across aspects of modern life.
Electronic records play a role, in proceedings as they serve as valuable evidence that sheds light on various aspects of a case. They can provide insights into deals, correspondences, agreements and much more. However it is important to meet requirements and standards unique to each jurisdiction for electronic recordings to be admissible, in court..
Relevance of Electronic Records
The general rule of permissibility of evidence is stated in Section 5 of the Indian Evidence Act. Any factual assertion must be supported by sufficient evidence.. As a result, your first step in admitting evidence in court is to prove its relevance. But it’s important to realize that just because an electronic record exists doesn’t mean it’s immediately necessary. Electronic records must be demonstrated to be appropriate in the specific legal context at hand.
Evidence must be relevant to be considered at trial. Section 136 of the Evidence Act highlights the importance of proving relevance before an admissibility proceeding and highlights the important relationship between merit and admissibility.
Admissibility of Electronic Records
In India, the Information Technology Act, 2000 and the Indian Evidence Act, 1872 govern the admissibility of electronic records as evidence.
The main points regarding the admissibility of electronic records in Indian courts are as follows:
Information Technology Act, 2000 (IT Act):
The Information Technology Act recognizes electronic records as evidence. Section 2(t) of the Information Technology Act defines “electronic records” as data, records, or data, images or sound stored, received, transmitted or created electronically or in electronically generated microfilm or microfiche.
Section 65B of the Indian Evidence
This section concerns to the acceptance of electronic evidence in India. It was included as an amendment in the year 2000 to serve the growing significance of electronic records. This amendment was required because of the rising prevalence of electronic documents, emails, digital images, and other forms of electronic records in present-day society
Section 65B(1) of the Indian Evidence Act
Section 65B(1) include whether or not electronic records can be used as evidence at trial. In the specific circumstances described, any information contained in an electronic record, whether printed on paper, stored on optical or magnetic media, or generated by a computer, may be considered a document
If these requirements are fulfilled, the electronic record possibly be used as evidence in any legal proceeding without any justification of the original record. This electronic record could be used to prove any facts that were included in the original record but would otherwise need to be justified by direct evidence.
Section 65B(2) of the Indian Evidence Act
In Section 65B(2), certain conditions are outlined for the admissibility of electronic records. These conditions include:
- The computer that generated the record must have been regularly used by a person with lawful control over it for storing or processing information related to activities they regularly carried out. The record should also pertain to the period during which the computer was consistently used.
- The information must have been input into the computer as part of the normal, day-to-day activities of the person who had lawful control over the computer.
- The computer should have been functioning correctly at the time the electronic record was generated.
- The information reproduced in the electronic record should align with the type of data typically entered into the computer during regular activities.
Section 65B(4) of the Indian Evidence Act
This section deals with the issuance of a certificate related to electronic records. The certificate must be issued by a person who holds an official position responsible for operating the device in question or managing the relevant activities.
The certificate should contain specific information such as:
a) Identification of the electronic file containing the declaration.
b) Description of how the electronic record was created.
c) Detailed information about the device used to produce the record.
d) The conditions mentioned in Section 65B(2) of the Evidence Act have been met.
e) The certificate signed by a person holding an official position related to the operation of the device.
It’s important to note that electronic evidence, if disclosed in accordance with the procedures set out in section 65B is treated as a form of documentary evidence and can be admitted as strong evidence in legal proceedings.
Anvar P.V. v. P.K. Basheer And Others (2014)
In the case, the issue revolved around the admissibility of electronic evidence, particularly CDs, VCDs, and Chips, in a court of law. The complainant had submitted electronic records as evidence, but without the required certificate under Section 65B(4) of the Indian Evidence Act, 1872.
The Court’s key findings were:
- Section 65B(4) mandates that electronic records must be accompanied by a certificate, which includes specific details about the electronic record’s production and source.
- The Court ruled beyond reasonable doubt that when electronic records are produced as secondary evidence, the stringent requirements laid down in Section 65B of the Indian Evidence Act have to be complied with.
- The court ruled that electronic records used as primary evidence under section 62 are admissible in court without having to comply with section 65B of the Evidence Act.
- Sections 65A and 65B are special provisions taking precedence over the said general provisions, following the statutory maxim “Generalia specialibus non-derogant” (the general does not exclude the special).
- The certificate ensures the authenticity and source of electronic records, which are vulnerable to tampering.
- CDs, VCDs, and Chips are admissible as evidence only if they are accompanied by the necessary Section 65B(4) certificate.
- Without the certificate, the electronic evidence lacks relevance and admissibility
Vikram v. State of Punjab (2017)
The Court held that in this particular case, the recorded conversation is considered as primary evidence and not as secondary evidence, and thereby negating the necessity of a certificate under section 65B of the Indian Evidence Act. The court referred to the precedent set by the Anwar case, laying down an important legal principle. According to Anwar’s case, when electronic evidence is produced as primary evidence in a case, it is admissible without the need to strictly comply with the conditions laid down in Section 65B of the Indian Evidence Act. This landmark decision has had a significant impact on the admissibility of electronic evidence in Indian courts and clarifies the rules governing its use when presented as primary evidence
Shafhi Mohammad v. State of Himachal Pradesh (2018):
In this case, the Court examined the procedural aspects of admissibility and the certificate of authenticity for digital evidence covered under Section 65B(4) of the Evidence Act, 1872. The Court acknowledged the importance of modern methods of collecting electronic evidence.
Key points from the judgment were:
- The Court recognized the advantages of electronic evidence and highlighted the need for a flexible approach when assessing its admissibility.
- While Section 65B(4) is mandatory, the Court held that in cases where a party has made reasonable efforts to obtain the certificate but is unable to do so, the trial judge may summon the requisite person to produce the certificate.
- It was emphasized that electronic evidence can be admitted without the certificate in certain circumstances, particularly when the evidence is original and testified to by the device’s owner.
- The Court clarified that the admissibility of electronic evidence depends on the facts and circumstances of each case and should be subject to the interests of justice
Subhendu Nath v. State of West Bengal (2019)
The court emphasized important principles governing the admissibility and reliability of electronic evidence in court. The court emphasized that any violation of the chain of custody or improper storage of electronic evidence could render it unreliable and defective in the eyes of the law.
Furthermore, the Court emphasized the importance of the certification under Section 65B of the Indian Evidence Act as a prerequisite for the admissibility of electronic evidence. Even if admittedly true, the credibility of electronic evidence depends on how well it is collected, preserved, and presented to the court. Any errors or deficiencies in this regard may impair the probative value of such evidence, making it more susceptible to objection at trial.
Arjun Panditrao Khotkar v. Kailas Khusanrao Gorantyal and Ors. (2020)
In this judgment, the Court maintained the principles laid down in the Anvar P.V. case. The Court shed light on that the certificate under Section 65B(4) of the Indian Evidence Act, 1872, is indeed mandatory for the admissibility of electronic evidence in court. This decision effectively overruled the judgment in Shafhi Mohammad vs. State of Himachal Pradesh, which had suggested some flexibility in certain cases regarding the requirement of the certificate.
The Court highlighted the importance of the certificate in ensuring the authenticity and source of electronic records, specially in an era where electronic evidence can easily be tampered with or altered. It also highlighted that the law does not demand the impossible, and if a party has made reasonable efforts to obtain the certificate but failed, the trial judge may summon the requisite person to produce it. This judgment reaffirms the stringent requirements for the admissibility of electronic evidence as set out in the Anvar P.V. case.
In India, the legal framework for the admissibility of electronic records is well-defined under Section 65B of the Indian Evidence Act. This section outlines stringent requirements, including the necessity of a certificate, to ensure the authenticity and source of electronic evidence. Recent judgments, such as the Arjun Panditrao case, have reaffirmed the importance of adhering to these requirements, emphasizing that the law does not demand the impossible but expects reasonable efforts to obtain the necessary certification.
As electronic records continue to play a central role in our lives, it is imperative for legal practitioners to navigate this digital landscape carefully. Striking a balance between leveraging the benefits of electronic evidence and upholding the principles of fairness in legal proceedings is paramount. In doing so, we can harness the potential of electronic records as a valuable resource for litigation while ensuring the integrity of our justice system in the modern era.