Saturday, 16 May 2020

Delhi HC: The court may raise a presumption about the reliability of Electronic Evidence as per S 114 of Evidence Act if conditions mentioned in Section 65B of Evidence Act are satisfied

Section 65A states that contents of electronic record may be proved in accordance with the provisions of Section 65B. We have already interpreted and referred to Section 65B. The importance of the said Section is that it does away with the requirement to produce the original computer or the original media on which data or information was stored and allows the secondary evidence in the form of computer output to be produced and admitted in evidence, subject to the condition that when evidence of computer output is produced and tendered, certificate of a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities as prescribed by Section 65B of the Evidence Act is produced. In this manner, Section 65B authorises production and admission, in evidence, all computer output without production of the original, i.e., it permits leading of secondary evidence without the original being produced. ( Para 46)

53. In view of the aforesaid discussion, information memorised as business record or records maintained in common course of events are not treated as hearsay even if the maker lacks personal knowledge of the facts or events. The document should be prepared in normal course of business must have been at or near the time of events it records and should have been made in normal course of business activities or events. Sub-section (4) to Section 65B postulates that the certificate should be given by a person occupying a responsible official position in relation to operation of the relevant device or management of the relevant activities. If the said conditions are satisfied, it promotes and establishes the trustworthiness. In such cases, presumption of fact regarding genuineness and authenticity of the content can be invoked at the discretion of the court under Section 114 of the Evidence Act.

54. In Anwar P.V. (supra) in paragraph 1 itself the Supreme Court noticed the difference between relevancy and admissibility, which is examined at the initial stage; and genuineness, veracity and reliability of the evidence, which is seen by the court subsequently. Thus, the ratio and dictum in Anwar P.V. (supra) is based and predicated on the difference between admissibility and veracity or evidentiary value. The Supreme Court dealt with the aspect of admissibility in strict legal sense, not to be confused with evidentiary value or correctness of contents. Of course, when the conditions mentioned in Section 65B are satisfied, in terms of Section 114 of the Evidence Act, the court may presume existence of certain facts for the computer output would have data and information collected or derived in common course of human conduct and in public and private business.

55. In terms of sub-section (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of "electronic records" and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65B is produced the Court may presume or form a prima facie opinion, which is rebuttable and may not be accepted.

56. Electronically generated record is entirely a product of functioning of a computer system or computer process, like call record details or a report generated on a fax, which shows the number from and to which the fax were sent, time, etc. is generated electronically. It does not contain any assertion. Therefore, as noticed above it is not hearsay. These are not writings made by a person (see United States versus Khorozian, 333 F. 3d 498, 506). Normally non-assertive conduct is more reliable, provided there has been no fraud and interpolation in the preparation of the record. Computer generated telephone records are not similar to a statement by a human declarant and, therefore, cannot be treated as hearsay and the credibility and evidentiary value is determined on the reliability and accuracy of the process involved. Ergo, in these cases when conditions of Section 65B are satisfied, the probative value or weight can be substantial of course, subject to verification as to the credibility and integrity of the contents.

IN THE HIGH COURT OF DELHI

Crl. A. 711/2014

Decided On: 24.11.2015

 Kundan Singh  Vs. The State


Hon'ble Judges/Coram:
Sanjiv Khanna and R.K. Gauba, JJ.

Citation: MANU/DE/3674/2015: 2015 SCC OnLine Del 13647
Read full Judgment here:Click here
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