Q. How contents of electronic records may be proved and how it becomes admissible in any proceeding ? [MPCJ 2015]

Ans. The content of electronic records can be proved either through Primary evidence of the electronic records by producing the seized electronic material itself or by way of leading secondary evidence of electronic record. When primary evidence of electronic record is itself produced in the court then the relevant law is contained in section 62 of the Evidence act and the provision of 65 A & B of the Evidence Act has nothing to do with that.

But, if the content of electronic record is sought to be proved by way of its secondary evidence then its admissibility is decided solely under section 65A & B of the Evidence Act. As, Sec. 65A and 65B are special provisions and open with non- obstante clause, so they will be given precedence over general laws embodied in Sections 63 and 65 of the act because principal is Generalia specialibus non derogant. Still further, such electronic evidence in the form of computer outcome has been elevated by the act to the status of document and deliverable in evidence even without accounting for its original. The rationale is that the evidence in electronic form cannot be produced in the court of law owing to the size of computer/server and chance of wear & tear. At the same time, in order to rule out the possibility of concoction, tampering, embellishment etc and to ensure the integrity of information and computer, the aforesaid provision has incorporated certain mandatory conditions relating to its admissibility. Section 65B(2) enumerates such condition and section 65B(4) of the act requires a certification with following averments :-

  1. That condition enumerated under section 65B(2) have been complied. Those condition are-
  • The computer from which the output was produced was used regularly to store or process such information during its regular course of activities.
  • That such computer throughout the material part of the said period was operating properly or where it was not so operating etc then its non-operation has not affected the electronic record or the accuracy of its content.
  • That the relevant information was of such a type which was regularly fed into the computer in the ordinary course of its activities.
  • That such information was reproduced or derived from such computer in the ordinary course of its activities.
  • Identifying the relevant electronic records containing the information and describing the manner in which it was produced

2. Details of the device producing it.

3. Such certification has to be stated to the best of the knowledge and belief of the officer in charge of the operation or management of the related activities.

Thus, the requisite certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the particulars of the device that created it, and certify compliance with the conditions of sub-section (2) of section 65B. The Hon\’ble Apex court has overruled its own judgment of State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru (2005) 11 SCC 600 on the point of admissibility of electronic evidence pertaining to electronic record in the subsequent judgment of Anvar P.V. vs P.K. Basheer (2014) 10 SCC 473 and held that producing of requisite certificate under section 65 B of the Evidence Act along with the Electronic record by way of secondary is mandatory. Most recently, yet again Hon\’ble Apex Court in its judgment Arjun Panditrao Khotkar Vs.Kailash Kushanrao Gorantyal (2020) 7 SCC 1 has reiterated that production of required certificate under section 65B (4) of the Evidence Act is condition precedent for the admissibility of the secondary evidence of the electronic record.

Hence, the compliance of Section 65B is mandatory for the persons who intend to rely upon emails, websites or any other electronic records by way of secondary evidence in a civil or criminal trial.

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