Admissibility of Electronic Evidence : 10 Important Legal Points

Law summarized on Electronic Evidence

Summation of the law laid down by the Apex Court in respect of admissibility of electronic evidence : 

1. The purpose of the provisions of Sections 59, 65A and 65B of the Evidence Act, is to sanctify secondary evidence. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 14)

2. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to genuineness thereof and in that situation, resort can be made to Section 45A – Opinion of Examiner of Electronic Evidence. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 17)

3. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence, if requirements under Section 65B are not complied with. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 18)

4. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of the Evidence Act are satisfied. In the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B of the said Act, obtained at the time of taking the documents, without which, the secondary evidence pertaining to that electronic record is inadmissible. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 22)

5. The view taken by the Apex Court in Navjot Sandhu's case that even if the certificate containing the details in subsection (4) of Section 65B of the Evidence Act is not filed, that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65 of the said Act, stands overruled and is declared to be no longer a good law. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 22)

6. If an electronic record as such used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance of the conditions in Section 65B of the said Act. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Para 24)

7. The objection that the electronic record tendered in evidence is inadmissible in the absence of a certificate, as required by Section 65B (4) of the Evidence Act pertains to the mode or method of proof which is procedural, and objections, if not taken at the trial, cannot be permitted to be taken at the appellate stage. (Anvar P.V. v. P.K. Basheer, reported in (2014) 10 SCC 473 Paras 29 & 32)

8. Withholding of the best evidence in the form of electronic record clinching the issue, raises a serious doubt about the case of the prosecution and an adverse inference against the prosecution under Section 114, illustration (g) of the Evidence Act can be drawn that the prosecution withheld the same, as it would be unfavourable to them had it been produced. (Tomaso Bruno and another v. State of Uttar Pradesh, reported in (2015) 7 SCC 178 Paras 21 & 28)

9. The applicability of procedural requirement under Section 65B 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. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. The requirement is not always mandatory. (Shafhi Mohammad Vs. State of Himachal Pradesh, JT 2018 (2) SC 277 : 2018 (2) SCALE 235 Para 14)

10. The applicability of requirement of certificate being procedural can be relaxed by Court whenever interest of justice so justifies. (Shafhi Mohammad Vs. State of Himachal Pradesh, JT 2018 (2) SC 277 : 2018 (2) SCALE 235 Para 15)

See Also : Bhupesh @ Rinku v. State of Maharashtra [Bombay High Court, 05-06-2018]