Digitalisation of an Era: Admissibility of Electronic Evidence
Written by Manan Daga
Research Associate at Law & Order (month of Oct-Nov 2020)
Third Year, BA. LLB. West Bengal National University of Juridical Sciences, Kolkata (WBNUJS)
Source: Rahul's IAS
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The Indian Evidence Act, 1872 (hereinafter, ‘IEA’) underwent a significant change in the year 2000 when Section 65A and Section 65B were amended to the IEA. Section 65B of IEA is the core provision of electronic evidence. Due to a rise in the use of technology, a lot of pieces of evidence were available on such electronic mediums. Hence, it led to a need for the provision of Section 65B. For the sake of convenience, Section 65B can be divided under three broad conditions for admissibility of electronic evidence. The first condition is the requirement of a computer output. It may include something that is stored in an optical/magnetic medium or a device, something copied to a device, something printed on a paper, or something recorded in a device. The second condition is the process of the provision. It may include the information stored or processed in a computer used regularly by a person having lawful control over the use (and need not use the same device). It may also include the information fed in the ordinary course, or when the computer was operating properly, or when information was denied in the ordinary course. The third condition is the most debated one, which is certification. It includes identification of the electronic record, providing the particulars of the device, dealing with the four criteria as given under ‘process’, or signature by a person occupying the responsible official position. These are the three conditions given under Section 65B.
However, Section 65A holds that the contents of electronic evidence “may” be proved using Section 65B. Further, Section 65B is used only for secondary evidence. However, the conundrum of Section 65B is regarding its third condition, which is certification.
Hence, in this article, the timeline of cases are analysed regarding the issue of certification. Along with this, the potential of mobile phones as electronic evidence is addressed. Lastly, the article is concluded with some helpful recommendations regarding electronic evidence.
Timeline of cases on certification under Section 65B
The point of the inception of this timeline is the Parliament Attack case. In this case, the Supreme Court held that even if compliance is not made under Section 65B of the IEA, a piece of secondary electronic evidence can be produced using other provisions like Section 63 and 65 of the IEA. Therefore, this case laid down that since Section 65B is a special provision dealing with the admissibility of electronic evidence and it need not be necessarily followed. After almost a decade, this case was overruled by Anvar v. Basheer. In this case, a defamatory song was played through a CD and it was recorded on another device. The issue was regarding the admissibility of such a recording, which was a piece of secondary evidence. In this case, the Supreme Court held that recording is not admissible because certification under Section 65B is mandatory. Therefore, it laid down that Section 65B should be necessarily followed. It further held that if the CD would have been produced, then Section 65B need not be followed because the CD is a piece of primary evidence. In the case of electronic evidence, primary evidence is the one through which the cause of action arose.
Thereafter, in the case of Tomaso Bruno, there were five circumstantial pieces of evidence based on which the lower courts convicted the foreigners. The foreigners were charged for murdering their friend, but the accused claimed that they were not at the hotel then. Along with this, there was a CCTV at the desk of the hotel which was not produced.
However, in the case at Supreme Court, the issue of the CCTV arose, and the court held that there was a huge gap since the CCTV was not produced. Hence, the court drew an adverse inference against the prosecution since they failed to produce the CCTV. It was followed by the case of Sonu v. Haryana, where the court held that if Section 65B is not followed at the first instance, then it cannot be objected to later since it is a matter of procedure.
This was followed by the case of Shafhi Mohammad v. State of H.P. In this case, the question of electronic evidence admissibility came up again, and the position of the law changed again. In this case, the court held that sometimes the person is not in possession of the document from which the document is produced. Hence, such a person may not be able to get the certificate. Therefore, the requirements under Section 65B are not mandatory.
The case of Arjun Panditrao followed it. This case is the current position on this law. In this case, the court has gone back to the position in Anvar v. Basheer. It means that in the case of admissibility of electronic evidence, Sections 65A and 65B need to be followed. Along with this, the requirement of certification under Section 65B(4) is held to be mandatory, and other requirements under Section 65B should also be followed. This case laid down an exception, wherein certificate requirement under Section 65B can be waived off for admitting secondary electronic evidence. If one party cannot produce the certificate, then they must file an application in the court asking the court to direct the concerned party to produce the certificate. Even after this, if the certificate is not produced, then the court can waive off this requirement.
Potential of mobile phones as electronic evidence
Mobile phones are one of the most used commodities in everyday life, so much so that it can be regarded as a necessity in this digitised world. There are multiple ways a mobile phone may act as electronic evidence such as, to procure audio/video recording, a photo which is clicked, chats on mobile phones etc. Section 65B is wide enough to bring in all these elements of mobile phone under electronic evidence. Along with this, phone tapping and location tracking through the phone might be another piece of evidence. As per the case of R.M. Malkani, a phone tapping evidence may be regarded as res gestae too. Therefore, the ambit of mobile phones acting as evidence is very broad.
However, it faces a common impediment which is similar to the challenges of producing every other electronic evidence, i.e., a lack of clarity. This lack of clarity exists because the law on requirement of certification is not settled. The legal position regarding the admissibility of electronic evidence has been highly fluctuating. The legal position regarding the necessity of certification under Section 65B(4) has changed multiple times over the last decade. In such a volatile environment, it is unclear whether one should attach the certificate or not. People may apprehend that the law may change in a few years again. This apprehension creates uncertainty which eventually affects the admissibility of electronic evidence. Moreover, the topic of electronic evidence is debated on just one aspect of certification when there are multiple aspects in Section 65B, which need overviewing like, the aspect of process, device, etc.
Recommendations and Conclusion
Electronic evidence is an indispensable part of the future of evidence law. It will not be curtailed, but will only be expanded. For such an expansion, a solid foundation is needed. Therefore, the position of law on the aspect of certification under Section 65B (4) should be clear and sorted.
The courts should address the issue of certification, its requirement, its feasibility and availability, and its necessity. It can also be addressed by the Criminal Law Reform Committee, which may take up the task of settling the position of Section 65B in the IEA.
Section 65B has different aspects, as stated earlier. The courts need to decide on the other two aspects too, namely, the computer output and process. They may have their inconsistencies and their debates. But we have not reached those debates yet because we are stuck on the minor issue of certification. The issue of the process should be focused on ensuring the credibility and admissibility of electronic evidence. What is the scope of ‘ordinary course’ under ‘process’? When is a computer said to be operating properly? Whether robotics and mechanics may fall under ‘computer output’? These questions need to be answered since they can be subjective. Such subjectivity needs to be decided for ensuring the admissibility of the electronic evidence.
Therefore, electronic evidence and particularly mobile phones would be increasingly used for adducing evidence. Section 65A and 65B of the IEA, Information Technology Act 2000, Personal Data Protection Bill 2019, etc. are becoming contemporary. With the growth of digitisation in India, we will undoubtedly see an increase in the use of electronic evidence in courts. Virtual courts have become common, thus allowing for basic pieces of evidence to be adduced through electronic means. The scope of electronic evidence should not be limited to Section 65A and 65B of the IEA. The scope of electronic evidence should be classified with a dedicated Committee for the same. This Committee may address basics of electronic evidence, adducing normal evidence through an electronic medium in virtual courts, adducing electronic evidence in virtual courts, the scope of computer output (whether it may include robotics or not), the usual encounter with electronic medium to name a few. The sooner we make a move towards these pointers, the better equipped our system will be for this digitised era.
 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.  Id.  Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.  Id.  Id.  Id.  Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178.  Id.  Id.  Sonu vs. State of Haryana, (2017) 8 SCC 570.  Id.  Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801.  Id.  Id.  Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors, (2020) 3 SCC 216.  Id.  Id.  Id.  Id.  R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157. BIBLIOGRAPHY
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors, (2020) 3 SCC 216.
R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.
Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801.
Sonu vs. State of Haryana, (2017) 8 SCC 570.
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178.