A CRITICAL EVALUATION OF THE LEGAL FRAMEWORK OF SECTION 65B: ADMISSIBILITY OF ELECTRONIC EVIDENCE BY - SAMRUDDHI VARMA
A critical evaluation of the legal framework of section 65B:
Admissibility of electronic evidence
AUTHORED BY
- SAMRUDDHI VARMA
ABSTRACT
According to section 65(B)(4) of the
Evidence Act, 1872, a certificate stating that a piece of evidence was
generated by a computer must be provided by the official responsible for
operating the relevant equipment or the person in charge of managing related
operations. Several legal interpretations have shed light on the Act's Section
65B and its original meaning. The provisions have been reviewed several times,
with the certificate requirement being upheld as required on a few instances
and waived on others.
In this article, we examine previous
rulings on the topic and describe the current state of affairs on the need to
provide a certificate in accordance with Section 65B of the Indian Evidence
Act,1872. Some foreign jurisdictions have started using this method, and this
research examines why. The author will make an effort to investigate the
various justifications offered by various courts for the use of certificates
and electronic proof.
Keywords- Section
65B, electronic documents, computer, certificate.
INTRODUCTION
Evidence is defined as either oral or
documented under Section 3 of the Indian Evidence Act of 1872. Oral
testimony is defined as the declarations that witnesses make in front of the
honorable court, while documentary testimony is any evidence that is presented
to the court for review, including electronic data.
Evidence plays a
major role in deciding every case. However, the categories of evidence might be as follows:
1. Oral or
documentary.
2. Primary or
Secondary.
Documentary evidence is again divided
into two types, primary evidence and secondary evidence. The Indian
Evidence Act, 1872 addresses documented evidence in Sections 61 to 90A.
The method outlined in Sections 61 to 90A of the Indian Evidence Act governs the
admission of any documents offered as evidence in both civil and criminal
trials.
PRIMARY
EVIDENCE: It means Production of the original
electronic record means the production of the document itself.
SECONDARY
EVIDENCE: It means production of computer-output of
the contents of the electronic record; Secondary evidence is a certified copy
or counterparts of documents which the party is unable to produce in the court
and statement of an expert or person who has himself seen that document.
One of Mankind's greatest
accomplishments is the development of computers and digitalization. Many
governments have embraced digitization in their administration in the age of
the digitalized world. The Indian government has launched the "Digital
India" campaign to encourage the use of digitalization in everyday life as
well, which would undoubtedly assist to hasten the growth of our nation.
Digitalization has dramatically increased in government, economic, private, and
personal activities, becoming the main pillar of documentation, processing, and
communication. The importance of electronic devices in human existence is
enormous. If it complies with the rules outlined in the Indian Evidence Act,
the Indian court has recognized and accepted the electronic records as
evidence.
Electronic records are convenient,
but they also present special difficulties when it comes to accurate
verification and accommodating the various viewpoints. Online has expanded
quickly, and at the same time, there has been a huge rise in cyberspace abuse;
as a result, the risk of cybercrime has increased. Because of this, the
admissibility of electronic records presents difficulties for both judicial
systems and investigative organizations (greater chances of manipulation).
Electronic records have a significant influence on the result of civil,
criminal, and other legal processes at the trial stage. Therefore, it is very
important to comprehend electronic documents, their kinds, admissibility,
evidentiary value, and function as proof.
DIFFERENT
KINDS OF ELECTRONIC RECORDS
Electronic records are defined under
the Information Technology Act of 2008, which also includes a broad variety of
data production forms. There are many of them, including DVDs, CDs, pen drives,
telephone recordings, hard drives, e-mails, photos, video recordings, sound
recordings, etc. Regarding their evidential value and legal admissibility in a
court of law, each of the aforementioned electronic record formats deals with a
range of diverse situations.
OBJECTIVES
1) To understand
as to why is there a growing importance of E-Evidence in the field of law with
reference to the main components of the provision electronic evidence.
2) To investigate
the judicial trend followed by Indian courts over the admissibility of
electronic evidence in courts.
3) To study in
detail as what were the radical changes were brough in form of development in
the field of E-Evidence with the help of the case law Arjun v. Kailash (2020)
RESEARCH
QUESTION
1) Why is
there a growing importance for E – Evidence in the field of law?
2) Are E –
Evidence admissible in Indian Courts?
3) What were
some of the radical changes brought by the recent precedents in the domain of E
– Evidence?
RESEARCH
ANALYSIS
ELECTRONIC RECORDS AS EVIDENCE
Secondary evidence is only admissible
in certain circumstances, according to Section 65 of the Indian Evidence Act.
The process for demonstrating the contents of electronic documents that have
been prescribed under Section 65B is outlined in Section 65B.
Section 65B of the Indian Evidence
Act, which deals with the admissibility of electronic records, states that
copies of electronic records that have been printed on paper or created on
optical or magnetic media shall also be considered secondary evidence documents
if they meet the requirements set forth in section 65B. The original source of
the information, an electronic device, shall also be admissible without further
proof in any proceeding.[1]
According to the Indian Evidence Act,
the main components of electronic evidence are as follows:
1) The person
who is legally permitted to have control over such electronic equipment must
provide such created information of electronic records.
2) The storing
of the information must occur as part of the person's regular daily activities.
3) This information
was saved during the user's normal daily activities while using the electronic
gadget.
4) To prevent
any potential harm to its operation or to distort the accuracy and authenticity
of its material contents, the aforementioned electronic equipment must be in a
functional condition while storing or duplicating such material information.
5) Any type of
information storage, copying, or counterpart creation that is necessary for the
production in a court of law as electronic evidence must be free from any
distortion, manual editing, or manipulation, and it must be true and reliable
information that can be admitted as evidence in a court of law.
THE
JUDICIAL TREND FOLLOWED BY INDIAN COURTS OVER THE ADMISSIBILITY OF ELECTRONIC
EVIDENCE.
1)
STATE (NCT
OF DELHI) V. NAVJOT SANDHU (2005)[2]
The earliest notable
decision of the Supreme Court in relation to admissibility of electronic
records is State (NCT of Delhi) v. Navjot Sandhu, which held
that irrespective of compliance with the requirements of Section 65B, there is
no bar to adduce secondary evidence under Sections 63 and 65, of an electronic
record.
It was held that secondary evidence
in the form of an electronic record is exclusively controlled by Sections 65A
and 65B and is not subject to the provisions of Sections 63 and 65. The Court
determined that Sections 65A and 65B constitute a comprehensive code governing
the admissibility of information found in electronic records, and that an
electronic record offered as secondary evidence shall not be admitted unless
Section 65B requirements, including a written certificate under Section 65B,
are satisfied (4). It was also ruled that if the conditions under Section 65B
are not met, the Evidence Act does not anticipate or authorize the
demonstration of an electronic record by oral testimony. However, if an
electronic document is utilized as principal evidence in accordance with
Section 62, it may be used in court without having to meet the requirements
outlined in Section 65B.
Therefore, the only alternative to
show electronic evidence as main or secondary evidence, respectively, is to
provide the original, its copy, or its counterpart coupled with a certificate
under Section 65B.
3)
SHAHFI
MOHAMMAD V. STATE OF HIMACHAL PRADESH (2015)[4]
After that, the Supreme Court ruled
in Shafhi Mohammad (above) that Section 65B(4obligation )'s to provide a
certificate is only procedural and not always required. A certificate according
to Section 65B may not be demanded from a person who is not in possession of
the equipment from which the document is created (4). According to the Court,
the procedural requirement under Section 65B(4) should only be used where
electronic evidence is created by a person who is in charge of the relevant
equipment and is therefore qualified to do so. However, Sections 63 and 65
cannot be omitted if the individual is not in possession of the equipment.
4)
TOMASO
BRUNO. STATE OF UTTAR PRADESH (2018)[5]
In this case, a three-judge Supreme
Court bench ruled that Section 65 permits the leading of secondary evidence on
a document's contents. However, neither Section 65B(4) nor the legislation
established in the Anvar case were cited by the Supreme Court in its ruling.
The Supreme Court, however, cited Navjot Sandhu (supra), which was expressly
overturned in the Anvar case.
5)
ARJUN
PANDITRAO KHOTKAR V. KAILASH KUSHANRAO GORANTYAL (2020)
The Supreme
Court reversed the decisions in Tomaso Bruno and Shafhi Mohammad and said the
following:
The law
established in Anvar need not be reviewed; a certificate under Section 65B(4)
is required and a condition prior to the acceptance of evidence by means of
electronic record. However, the phrase "if an electronic record as such is
used as primary evidence under Section 62 of the Evidence Act, the same is
admissible in evidence, without compliance with the conditions in Section 65-B
of the Evidence Act" should be omitted from the final clause of paragraph
24 of the aforementioned judgment.
It is made
obvious by the non-obstante wording of Section 65B(1) that, with regard to
information included in an electronic record, admission and evidence thereof
must adhere to the procedure of Section 65B, which is a specific provision in
this regard. For this reason, sections 62 and 65 are not applicable.
In the
event that the original document is produced, the requirement under Section
65B(4) is not required. The owner of a laptop, tablet, or even a mobile phone
may do this by testifying in court and demonstrating that the device in
question, where the original information was first saved, is his or hers to own
and/or run. The only way to provide information included in such an electronic
record when the computer is on a system or network and it is impossible to
physically transport that system or network to court is in accordance with
Section 65B(1), together with the necessary certificate under Section 65B (4).
A
certificate required by Section 65B(4) cannot be replaced by oral testimony,
and a person in control of a computer system cannot provide testimony in lieu
of the required certificate (4).[6]
If the
person or authority requested the necessary certificate but refused to provide
it or did not respond to the request, the party requesting the certificate may
apply to the court for its production in accordance with the provisions of the
Evidence Act,[7] the Code
of Civil Procedure,1908[8],
and/or the Code of Criminal Procedure, 1973.
The party
requesting the certificate has done all within his power to get the necessary
certificate by the time such a court application is submitted and the court
orders or directs that the necessary certificate be delivered by the person to
whom it issues a summons in this respect.
It
suffices that the certificate is either to the best of the issuer's knowledge
or belief since the certificate under Section 65B(4) may be issued a
considerable time after the electronic record has actually been formed by the
computer.
Therefore,
Both of the requirements outlined in Sections 65B (2) and 65B(4) must be met.
The
Supreme Court noted that the certificate required by Section 65B (4) of the
Evidence Act must be produced in order to create electronic evidence and that
oral testimony cannot reasonably substitute for such a certificate.
In this
instance, the Trial Court executed three defendants after finding them guilty
of kidnapping and murder. The High Court upheld the two accused's appeal and
declared them innocent. The death penalty for one of the defendants was
overturned, but their conviction was affirmed. This defendant appealed the High
Court's decision to the Supreme Court.
The bench
of Justices Uday Umesh Lalit and Vineet Saran made the following observation in
reference to the ruling in Arjun Panditrao Khotkar case "For the
electronic evidence presented to the High Court to be admissible in a court of
law, it had to be in compliance with the law and meet the certification
requirements. As correctly mentioned above, Section 65B(4) is a condition of
the law and cannot possible be satisfied by oral testimony in the lieu of such
a certificate, as is the situation in the current issue."
COMPARISON WITH LEGAL POSITION IN
UNITED KINGDOM
Apart from a few minor changes,
Justice Nariman and Justice V Ramasubramanian recognized that Section 65B was a
replication of Section 5 of the UK Civil Evidence Act, 1968. In 1995, Section 5
of the UK Civil Evidence Act was abolished. As a result, India adopted a clause
that had been eliminated in the UK when Section 65B was inserted to the
Evidence Act in 2000.
Following the recommendations of the
Law Commission, which stated that the framework under Section 5 had become out
of date due to advancements in computer technology and that there was no need
for having a different regime for computer-generated documents, Section 5 of
the UK Civil Evidence Act was repealed. Given that India adopted a provision
that the UK found to be out-of-date, a similar evaluation is required in India
as well to address any practical issues with Section 65B compliance.
FINDINGS
AND SUGGESTION
Section 65B of the Indian Evidence
Act states that in order for an electronic record to be accepted as evidence,
it must be accompanied by a certificate signed by a responsible person that
explains the computer or device used to create the record and the steps taken
to create it.
When this provision was initially added
to the Evidence Act (in 2000), regulators main concern was making sure that
physical printouts of electronic documents kept on computers were accurate
representations of the originals[10]. Before
the advent of platform technologies, it made sense for the law to demand
certification from the person in charge of the computer system/ electronic
device that it was being used regularly to store and process information of the
kind contained in the electronic record and that it was not down for any reason
that could compromise the integrity of the record.
When applied to the realities of
today's electronic transfers, the criteria of Section 65B[11]
have proven difficult for Indian courts to interpret in a way that is both
practical and effective. A broad range of judgments has been made in the
numerous cases that have considered this subject[12].
And is still confused with what more can be done, as situation changes from
case to case depending on the nature of the same. The gravity and facts of
the crime decide whether the amount of evidence should be more or less.
In 1995, Article 5 of the United
Kingdom's Civil Evidence Act was scrapped. In 2000, India included a provision
that had been previously deleted in the UK when Section 65B was inserted to the
Evidence Act. The Law Commission recommended that Section 5 of the United
Kingdom Civil Evidence Act be abolished because its framework had become
outmoded due to advances in computer technology and because a separate system
for computer-generated documents was unnecessary. The adoption by India of a
provision that has been declared out of date in the UK necessitates a
comparable evaluation in India in order to address the multiplicity of
practical challenges that may emerge in trying to adhere to Section 65B.
Other precautions must be formulated
to maintain the privacy and confidentiality of the information contained in
electronic records, even if the issue of a certificate under Section 65B(4) is
a required protection to establish validity.
Authorisation of electronic evidences
should be made as much as possible. Benefits may be realised by extending the
variety of authentication procedures for electronic evidence in this way. They
will serve to bolster the credibility of the evidence and, in many cases,
provide details that certifications do not. Better authentication mechanisms
are almost certain to emerge as technology develops further. In such case, it
would be backwards and unhelpful to force users to use an outmoded means of
authentication like the Section 65B(4) certificate, which should not happen.
The development of Indian evidence law, which is essential, would be stunted as
a result. Moreover, the electronic evidence requested to be admitted will be
held to a higher reliability standard if various authentication techniques can
be used to confirm the Section 65B certificate. If this is implemented, it will
greatly enhance the judicial system's ability to pursue justice based on the
facts[13]. A
certificate may not be always possible, but it can act as a important document
to verify the authorisation. Some case laws mentioned above might state that
certificate should be made compulsory and some might conclude that it is should
not be made compulsory as it might not be possible for attaining a certificate
by everyone. It should be definitely added to the essential documents list.
A large number of people in India are
presently forced, under the watchful eye of Indian courts, to comply with
section 65B if they desire postings, forums, or internet recordings in a civil
or criminal case. With electronic records being more susceptible to
manipulation and adjustment, the Indian Supreme Court must guarantee that their
trustworthiness and precise verification are taken into account.
You can't put your faith in the
computer's record because it may be hampered in some way, and that makes it
unreliable. Additionally, the Indian Evidence Act could be amended to prohibit
interference-at least for the purposes behind believing at first sight the
validity of the electronic record evidence-by including a provision that the
record was created in the standard way by a person who was not involved in the
procedures, and that the record protector did not control the record
production. The possibility of record ownership might be drastically decreased
by having it recorded by a meeting hostile to the record supporter and then
using it against the hostile side.
The legislation should also
creatively grapple with the necessity for the defence's burden to identify with
the author of a report whether the records were verified or updated, or whether
the computer program that made them had trustworthy data, and whether they
were completed or not. Section 65B of the Evidence Act does not address the
courts' responsibility to ensuring evidence is properly created or altered[14]. When
sending an email, the sender often makes changes to the text as it is being
sent. In many cases, the receivers are unaware of these changes; hence,
having an impartial third party verify the transaction may not be necessary.
CONCLUSION
To summarize, the method outlined in
Sections 65A and 65B of the Indian Evidence Act, 1872 should be followed when
presenting electronic evidence. This act was passed in 1872. In order for
electronic evidence to be admitted into court, it is necessary for there to be
a certificate issued by either the owner of the device or the legitimate
operator of the device. Additionally, in order to present secondary evidence,
the party must have a legitimate reason for doing so and must first make an
effort to provide main evidence before they may file secondary evidence. In
addition, the party must explain why they are submitting secondary evidence
after using all of the methods outlined in Section 65 of the Indian Evidence
Act. The judge has the authority to accept the same as supplemental evidence at
his or her discretion.
The legislature passed Sections 65-A
and 65-B to make electronic record proof easier. However, more issues have been
raised than answered because to the Apex Court's procedural wraths and
contradicting rulings. On the other hand, the law itself must be fluid and
changeable. There has to be some kind of adjustment so that it can deal with
the new environment. In the recent case of Arjun Vs. Kailash, the Supreme Court
made it clear that a certificate under Section 65B(4) of the Evidence Act of
1872 is obligatory. In the modern world, it is normal practice to record a
crime scene or a road rage incident using a cellphone camera. Making the same
inadmissible, however, because of the complicated procedure envisioned by
section 65B (4), is counter to the objective of the legislature. As a result,
it is time for the Indian Parliament to reevaluate the current laws and provide
easy provisions for using digital evidence to deliver justice quickly.
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[1] A.VENKATESWARA
RAO, ADMISSIBILITY OF ELECTRONIC EVIDENCE, (2020),
https://districts.ecourts.gov.in/sites/default/files/Webinar%20on%20Admissibility%20of%20Electronic%20Evidence%20By%20Sri%20A%20Venkateshwara%20Rao.pdf
(last visited Oct 4, 2022).
[1] (2005) 11 SCC 600
[1] (2014) 10 SCC 473.
[1] (2015) 7 SCC 178
[1] (2018) 2 SCC 801.
[1] The Court overruled the Madras
High Court’s decision in K. Ramajyam v. Inspector of Police (2016) Crl. LJ
1542, in this regard.
[1] Section 165 of the Evidence Act.
[1] Order XVI Rules 6, 7 and 10 of
the Code of Civil Procedure, 1908.
[1] Ravinder Singh Kaku vs State of
Punjab (2022) 5 SCC 461
[1] Prerita Aggarwal & Kamal Taneja,
Relevancy and admissibility of evidence, 10 VIDHIGYA: The Journal of Legal
Awareness 40 (2015).
[1] Indian Evidence Act, 1872.
[1] G. V. Nath, Evidence relating to
electronic record - challenges in admissibility, SSRN Electronic Journal
(2017).
[1] D. Yadav, M. Mishra and S. Prakash,
"Mobile Forensics Challenges and Admissibility of Electronic Evidences in
India," (2013) 5th International Conference and Computational Intelligence
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[1] Soni Lavin Valecha & Sonika
Bharadwaj, 4 Admissibility of Electronic Evidence under the Indian Evidence
Act, 1872 15–20 (2020).
[1] A.VENKATESWARA
RAO, ADMISSIBILITY OF ELECTRONIC EVIDENCE, (2020),
https://districts.ecourts.gov.in/sites/default/files/Webinar%20on%20Admissibility%20of%20Electronic%20Evidence%20By%20Sri%20A%20Venkateshwara%20Rao.pdf
(last visited Oct 4, 2022).
[2] (2005) 11 SCC 600
[3] (2014) 10 SCC 473.
[5] (2018) 2 SCC 801.
[6] The
Court overruled the Madras High Court’s decision in K. Ramajyam v. Inspector of
Police (2016) Crl. LJ 1542, in this regard.
[8] Order
XVI Rules 6, 7 and 10 of the Code of Civil Procedure, 1908.
[9] Ravinder Singh Kaku vs State of
Punjab (2022) 5 SCC 461
[10] Prerita Aggarwal & Kamal
Taneja, Relevancy and admissibility of evidence, 10 VIDHIGYA: The Journal of
Legal Awareness 40 (2015).
[11] Indian Evidence Act, 1872.
[12] G. V. Nath, Evidence relating to
electronic record - challenges in admissibility, SSRN Electronic Journal
(2017).
[13] D. Yadav, M. Mishra and S.
Prakash, "Mobile Forensics Challenges and Admissibility of Electronic
Evidences in India," (2013) 5th International Conference and Computational
Intelligence and Communication Networks, 2013, pp. 237-242, doi:
10.1109/CICN.2013.57.
[14] Soni Lavin Valecha & Sonika
Bharadwaj, 4 Admissibility of Electronic Evidence under the Indian Evidence
Act, 1872 15–20 (2020).