ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT PROCEEDINGS

[Mr. M. GOVINDARAJAN]

Electronic record as document

Section 65B(1) of Indian Evidence Act, 1872 provides that  any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

Conditions

Section 65B (2) provides the following conditions for treating the electronic records as documents-

1. the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
2. during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
3. throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
4. the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

Section 65B(3) provides that where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-

• by a combination of computers operating over that period; or
• by different computers operating in succession over that period; or
•  by different combinations of computers operating in succession over that period; or
•  in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

Certificate

Section 65B(4) provides that in any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-

• identifying the electronic record containing the statement and describing the manner in which it was produced;
•  giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
•  dealing with any of the matters to which the conditions mentioned in sub-section (2) relate

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Issue

Either in Civil Proceedings or in criminal proceedings documentary evidence is the base of the case.  When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant provisions of Cr.PC.

The issue to be discussed in this article whether the issue of above said certificate is mandatory while file electronic evidences before the Court with reference to decided case laws.

In UNION OF INDIA & ORS. VERSUS CDR. RAVINDRA V. DESAI - 2018 (4) TMI 1939 - SUPREME COURT, the Supreme Court held that the non production of certificate under Section 65B of the Act is a curable defect.  The Supreme Court held that the objection relating to the mode of proof has to be raised at the time of making of the document as an exhibit and not later.  If an objection was taken to the CDRs being marked without a certificate the Court could have given the prosecution an opportunity to rectify the deficiency.

The above said view was affirmed by a larger bench of the Madras High Court in ARJUN PANDITRAO KHOTKAR VERSUS KAILASH KUSHANRAO GORANTYAL AND ORS. - 2020 (7) TMI 740 - SUPREME COURT, the High Court held  that Section 65B of the Act does not speak of the stage at which such certificate must be furnished to the Court.  Such certificate must accompany the electronic record when the same is produced in evidence.  In cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person and require that such certificate be given by such person.  This is, of course, subject to discretion being exercised in civil cases in accordance with law and in accordance with the requirements of justice on facts of each case.  In criminal cases all the documents must be supplied to the accused before commencement of the trial.

In CENTRAL BUREAU OF INVESTIGATION (CBI) VERSUS R.S. PAI AND ANR. - 2002 (4) TMI 973 - SUPREME COURT, the High Court held that the only exception to this general rule is if the prosecution had mistakenly not filed a document the said document can be allowed to be placed on record.  A balancing exercise in respect of the rights of the parties has to be carried out by the Court, in examining any application by the prosecution under Sections 91 or 311 of the Cr.PC or Section 165 of the Evidence Act. Depending on the facts of each case and the court exercising discretion after seeing that the accused is not prejudiced by want of trial, the Court may in appropriate cases allow the prosecution to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case.

In ‘Dr. M. Sudheer v. M. Kamaraj’ – (2023) 1 MLJ 444, the respondent has filed a suit for recovery of money.  However the petitioner in this case resisted the same by raising a plea of discharge.  When the suit matter was posted for recording evidence on both sides, the petitioner has come with the instant application seeking to send the pen driver allegedly containing the conversation between the petitioner and respondent for comparison of the admitted voice of the respondent.   The said application was dismissed.  Being aggrieved against the said order the petitioner filed the present revision petition before Madras High Court.

The petitioner submitted the following before the High Court-

• The Court below dismissed the petition filed by the present petitioner on the ground that the petitioner has failed to comply with the provisions of Section 65B of the Act by producing the certificate along with the pen driver.
• The certificate under Section 65B of the Act need not be accompanied the electronic evidence as it can be produced subsequently.   
• The non production of certificate is a curable defect.
• The petitioner is ready to co-operate for the disposal of the suit with a time limit as fixed by the Court.

The respondent submitted the following before the High Court-

• The pen drive now produced by the petitioner for comparison of voice was not produced along with the written statement or marked at the time of trial.
• A document which has not come on record cannot be compared.
• The petitioner sought a direction to send the disputed pen drive to a private lab of his choice which is not permissible in law.
• This is nothing but only an attempt to drag on the proceedings.

The High Court heard the submissions of the parties to the present revision petition.  The High Court observed that the certificate under Section 65B (4) of the Act is a condition precedent to the admissibility of evidence by way of electronic record.  Oral evidence in the place of such certificate cannot possibly suffice as Section 65B (4) is a requirement of the law.   Section 65B(4) of the Act clearly shows that the secondary evidence is admissible only if lead in the manner stated and not otherwise.  To hold otherwise it would render Section 65B(4) otiose.

The High Court held that non production of certificate under Section 65B of the Act is a curable defect.  It can be produced by the party even subsequent to production of electronic record before the Court. 

The High Court then considered the objections of the respondents that the electronic record i.e, the pen drive was not at all produced before the Court either at the time of filing of pleadings or at the time of trial.   Therefore the document which is not available in the case record cannot be sought to be compared with the admitted samples.  The High Court accepted the objections of the respondent.  It held that the pen drive which is sought to be compared by the petitioner is not a part of the case record and hence it is not open to the petitioner to file an application to compare the voice record of the pen driver with the admitted voice.  Therefore the High Court upheld the order by court below dismissing the application.  The High Court dismissed the revision petition filed by the petitioner.