Supreme Court: How to appreciate evidence in motor accident claim petition if initially offence was registered against unknown vehicle?

 The very fact that the case was registered against an unknown vehicle initially would indicate that the offending vehicle was not identified. However, since an FIR is not expected to be encyclopaedic2 and is only for the purpose of putting into motion criminal law such that thorough and full-fledged investigation by the police ensues, it is the duty of the investigating agency to find out the identity of the culprit which in the present case would be the offending car and driver and take action in accordance with law. Thus, the mere fact that initially the FIR records the vehicle as unknown would not be fatal for the prosecution/claimants to later come up with the specific identity of the vehicle/driver, with the obvious caveat that the connection of the accident with the said vehicle has to be based on cogent and reliable evidence. {Para 17}

Ratio: The Supreme court highlighted that the initial identification of the vehicle as "unknown" does not render the prosecution's case fatal, as long as reliable evidence can later establish the identity of the vehicle involved in the accident.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5029 of 2025.

Decided On: 07.04.2025

Kuncham Lavanya and Ors. Vs. Bajaj Allianz General Insurance Co. Ltd. and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and Ahsanuddin Amanullah, JJ.

Author: Ahsanuddin Amanullah, J.

 Citation: 2025 INSC 452,MANU/SC/0462/2025

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What are the implications of not producing and proving CDR records in court?

 In legal proceedings, the burden of proof lies heavily on the party making allegations, particularly in cases involving claims of ill-treatment. The Indian Evidence Act provides a structured approach to how evidence must be presented and substantiated in court. This article explores the implications of communication methods between victims and their parents, particularly focusing on telephonic and written communications, and the necessity of producing documentary evidence to support claims.

When a victim communicates instances of ill-treatment to their parents, the nature and medium of that communication play a crucial role in establishing proof. If such communication occurs via phone calls or written letters, it is essential to produce tangible evidence to substantiate these claims. According to Sections 59 and 60 of the Indian Evidence Act, oral evidence can only support facts that do not pertain to the contents of documents. Therefore, if a victim were to convey their distress through a letter, the letter itself must be presented in court as primary evidence; oral testimony regarding its existence would be inadmissible.

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Bombay HC: How to appreciate evidence in offence Under S 498A of IPC if there was demand of money without harassment for getting that money?

  Informant has thereafter stated that her husband and

parents-in-law were asking her to bring amount of Rs.5,00,000/-

for getting permanency in employment of husband with Nagar

Parishad. She told them that her parents are poor and unable to

give the amount. Then applicant Nos.1 to 3 responded that if she

is unable to bring the amount, then she should not come for

cohabitation and on that count, she was harassed mentally and

physically time and again. Again the acts amounting to “physical

and mental cruelty” are not given. Statement that unless she

brings the amount she should not come for cohabitation without

any action will not amount to mental and physical harassment.

When the alleged demand is made has also not approximately

stated and for how much period the said demand persisted has

not been stated. She then states that she gave information about

the treatment given to her and her father who had in turn given

that information to their relative. All of them had come and tried

to persuade accused persons, but there was no settlement.

According to the informant since that date the accused persons

intensified harassment. Again the details are lacking. Then she

directly states that when she was in her parental house,

applicant No.1 went there and abused her. Thereafter, the other

accused persons i.e. applicant Nos.4 to 7 instigated applicant

Nos.1 to 3 for not to allow cohabitation of the informant with

applicant No.1. Threat was given that if she is unable to bring

the money then she will not be allowed to stay with them and she

would be killed. All these allegations are vague. When that

statement was made has also not been stated. As earlier stated it

is to be noted that she got married on 24.06.2022 and FIR has

been lodged on 24.07.2023. That means the married life of which

narration has been given is of just more than one year. Out of

that three months she was treated properly and when she

returned to the parental home has not been stated. Statements

of the witnesses are on the same line. All the witnesses have also

kept those facts vague as they are. Neither the details about the

alleged cruelty have been given, nor the date on which there was

a meeting and when the informant came to the parental home

has been stated. The statements of the witnesses are copy paste

and it appears that the investigating officer has made maximum

use of the computer, of course which is not for good reasons.

There cannot be statement in the form of copy paste paragraph to paragraph without difference in punctuations and fonts also.

Unnecessarily energy has been wasted in drawing panchanama of the house of applicant No.1 and even photographs have been

taken on the mobile and then certificate under Section 65-B of

Indian Evidence Act has been given. {Para 4}.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.3263 OF 2023

Mohammad Muddassar Vs The State of Maharashtra

 CORAM : SMT. VIBHA KANKANWADI &

 ROHIT W. JOSHI, JJ.

 PRONOUNCED ON : 10 JANUARY 2025

ORDER (Per Smt. Vibha Kankanwadi, J.) :-

Citation: 2025:BHC-AUG:594-DB.

Read full Judgment here: Click here.

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Whether non production of S 65B certificate of Evidence Act at an earlier stage is a curable defect?

 The courts below had gone on a wrong premise to opine that there was delay of six years in producing the certificate whereas there was none. The matter was still pending when the application to resummon M. Krishna (PW-189) and produce the certificate Under Section 65-B of the Act was filed Under Section 311 of the Code of Criminal Procedure. {Para 12}

13. It was only vide order dated 07.04.2017 that the report prepared on the basis of electronic devices was refused to be taken on record by the Trial Court. The original electronic devices had already been produced in evidence and marked as MOs. It was during the examination in chief of M. Krishna (PW-189) that the report of CFSL dated 29.11.2010 was sought to be exhibited. However, the Trial Court vide order dated 07.04.2017 declined to take the same on record in the absence of a certificate Under Section 65B of the Act. When the aforesaid witness was further examined in chief on 27.04.2017, the report Under Section 65B was produced to which objection was raised by the counsel of the defence and vide order dated 20.06.2017 the Trial Court declined to take the certificate, issued Under Section 65B of the Act, on record. It was thereafter that an application was filed Under Section 311 of the Code of Criminal Procedure for recalling M. Krishna (PW-189) and produce the certificate Under Section 65-B of the Act on record. The same was rejected by the Trial Court vide order dated 18.01.2018.

14. From the aforesaid facts, it cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate Under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the Accused against the production of CFSL report prepared on the basis of the electronic devices seized.

15. Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate Under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate Under Section 65B of the Act at this stage will not result in any irreversible prejudice to the Accused. The Accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Code of Criminal Procedure is there. The object of the Code is to arrive at truth. However, the power Under Section 311 of the Code of Criminal Procedure can be exercised to subserve the cause of justice and public interest. In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the Accused.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3456 of 2023 (Special Leave Petition (Crl.) No. 6548 of 2022)

Decided On: 06.11.2023

State of Karnataka Vs. T. Naseer and Ors.

Hon'ble Judges/Coram:

Vikram Nath and Rajesh Bindal, JJ.

Citation: 2023/INSC/988,MANU/SC/1217/2023.

Author: Rajesh Bindal, J.

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What is the basic concept of admissibility of electronic record with reference to provisions of the Indian Evidence Act, 1872?

 The admissibility of electronic records in India is governed by the provisions of the Indian Evidence Act, 1872. With the advancement of technology, electronic records have become an integral part of contemporary evidence in legal proceedings. The Indian Evidence Act has been amended to address the admissibility of electronic records, recognizing their importance in litigation. Here's a note on the admissibility of electronic records with reference to the Indian Evidence Act, 1872:

1. Definition of Electronic Record (Section 2(1)(t)) of The Information Technology Act, 2000: It defines an electronic record as "data, record, or data generated, image, or sound stored, received, or sent in an electronic form or microfilm or computer-generated microfilm."

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Supreme Court: Ballistic Report Forwarded By Lab Director Or Deputy/Assistant Director Under The Seal Is Admissible In Evidence U/S 293 of CrPC

 The decision of this Court in State of Himachal Pradesh v. Mast Ram45is a complete answer to this submission. In an identical situation, this Court held that there is no illegality in the way the prosecution has obtained the ballistic report under Section 293. The relevant portion of the decision is as under:

“6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of the ballistic expert. The report of the ballistic expert (Ext. PX) was signed by one Junior Scientific Officer. According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the forensic science laboratory report (Ext. P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a Junior Scientific Officer is not an officer enumerated under sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the court is to accept the documents issued by any of the six officers enumerated therein as valid evidence without examining the author of the documents. xxx {Para 170}

171. In view of the fact that the ballistic report has come from the office of the Assistant Director bearing his seal and having considered the same in the context of Section 293(4) Cr.P.C., as explained by this Court in State of Himachal Pradesh v. Mast Ram46 we are opinion that the Trial Court committed a serious error in rejecting the ballistic report and it was necessary and compelling for the High Court to reverse the finding of the Trial Court on this count also.

X. The rejection of the FSL (ballistic) report is another grave mistake of the Trial Court. The conclusion of the Trial Court that the ballistic report is inadmissible as it is not in consonance with the requirement of Section 293 Cr.P.C. is entirely wrong. We have explained this in detail. In an identical situation this Court in State of Himachal Pradesh v. Mast Ram51 has explained how the ballistic report is in complete compliance of the statutory provision. The High Court had to necessarily step in to prevent a grave miscarriage of justice.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

Coram: UDAY UMESH LALIT; CJI., S. RAVINDRA BHAT; J., PAMIDIGHANTAM SRI NARASIMHA; J.

 CRIMINAL APPEAL NOS. 946-947 OF 2019; 

Dated: NOVEMBER 04, 2022 

ASHOK KUMAR SINGH CHANDEL Vs STATE OF U.P.

Author: PAMIDIGHANTAM SRI NARASIMHA, J.

Dated: NOVEMBER 04, 2022 

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How is the doctrine of hearsay applicable for proof of Electronic evidence?

In Balram Prasad Agrawal versus State of Bihar and Others; MANU/SC/0427/1997 : (1997) 9 SCC 338, the Supreme Court referred to the concept of hearsay evidence and observed that even if some information is ruled out as hearsay, it may still remain admissible as evidence of the conduct of the witness. Relying on Section 8 of the Evidence Act, it was observed as under:-

"11. ...This part of the evidence of PW 6 would not be hit by the rule of exclusion of hearsay evidence. A decision of this Court deserves to be noted on this aspect. In the case of J.D. Jain v. State Bank MANU/SC/0427/1981 : AIR 1982 SC 673 of India a Bench of three learned Judges speaking through Baharul Islam, J. in the Report has made the following pertinent observations: (AIR p. 676, para 10 : SCC p. 148, paras 21 and 22)

"The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. (See Stephen on Law of Evidence)

The Privy Council in the case of Subramaniam v. Public Prosecutor 1956 WLR 965, observed:

"Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made."

The term "hearsay" applies to both spoken or oral evidence and also has reference to what is written. Hearsay evidence is rejected on the principle that the best evidence obtainable should be produced as it is relatively trustworthy, whereas hearsay evidence poses difficulties for it derives value not from the witness himself, but on the veracity and competence of some other person whose version is not tested in the cross-examination.

50. For principle of hearsay to apply and reject an evidence, it must be shown that it was made by some other declarant other than the one testifying at the trial of hearing and the statement is being offered in evidence to prove the truth of the matter asserted. Therefore, even if the evidence is an assertion made by the declarant, it will not be hearsay until it is offered to prove the truth of what is asserted.

51. A statement which is not assertion, i.e., to state the truth declared and maintained, but only a statement of fact is not hearsay. A hearsay declarants non-verbal conduct may qualify as a "statement" for purpose of exclusion under the hearsay rule, if the conduct of the person intended by him as a substitute for oral or written verbal expression.(see, Matter of Cherl H., 2 Dist. 153 CA 3d 1098). Pertinently, in case of self-generated data or information there is no declarant as such who is asserting a fact.

52. Evidence may be offered for different purposes. The same evidence can be treated as hearsay and non-hearsay depending upon its relevance, i.e., whether it is relevant for a substantive truth or for some other purpose. For example, when person A meets person B and speaks to him about an occurrence, testimony of person B to the said effect would not be hearsay, but may become hearsay if a party seeks to rely upon facts stated by person A implicating a third person. Thus, we must notice and record the difference between a "factum of statement" and "truth of a statement". The said distinction has been recognised and accepted in several pronouncements in J.D. Jain versus State Bank of India, MANU/SC/0427/1981 : AIR 1982 SC 673, Manilal Navavati versus Sushila Mahendra Nanavati, MANU/SC/0192/1964 : AIR 1965 SC 364 and S.R. Ramaraj versus Special Court, Bombay, MANU/SC/0600/2003 : (2003) 7 SCC 175. Thus, electronic record produced as a statement as a tangible in form of a CD, print out on paper, etc. as a fact in itself, must be distinguished from electronic record, which is produced to prove truth of the matter it asserts or correctness of contents for the latter postulates adjudication of veracity and credibility of the information by the person who has made a statement offering or producing the document for its truth.

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.

57. We have already referred to the distinction between factum of a statement and truth of a statement and the concept of presumption of memorandum or records maintained in normal course of business and the credibility or trustworthiness of electronic records. However, it must be understood that mere admission or admissibility of the electronic record would not mean that the contents of the electronic record have been proved beyond doubt and debate and are automatically proved when the document is marked exhibit. Mere marking of a document as exhibit does not dispense with the proof of its contents (see Sait Tarajee Khimchand versus Yelamarti Satyam, MANU/SC/0022/1971 : AIR 1971 SC 1865, Narbada Devi Gupta versus Birendra Kumar Jaiswal, MANU/SC/0862/2003 : (2003) 8 SCC 745 and Mohd. Yusuf versus D. and Another, MANU/MH/0106/1968 : AIR 1968 Bombay 112). Provisions of Section 65 of Evidence Act are apposite on the said legal principle and reference can also be made to Sections 91 and 92 of the Evidence Act. The latter sections deal with exclusion of oral evidence by documentary evidence in certain cases and in which cases oral evidence can be led even when there are documents recording terms of contract, grant or any other disposition of property or when a matter is required by law to be reduced to a form of a document. The effect of the aforesaid provisions is that when a certificate under Section 65B authenticates the computer output, it will only show and establish that the computer output is the paper print out or media copy, etc. of the computer from which the output is obtained. The court has still to rule out when challenged or otherwise, the possibility of tampering, interpolation or changes from the date the record was first stored or created in the computer till the computer output is obtained. The focus over here is not so much on the creation of the out-put as stipulated under sub-section (2) to Section 65B, but rather on the preservation and sanctity of the record after it was originally created. It extends beyond identification of the particular computer equipment and the process or equipment used for computer output, etc. It would relate to the policies, procedures for use of the equipment that stored the said information since creation and data base and integrity of the same. Questions which would arise and have to be answered is whether data base was protected and had no or limited access, which permits modification/alteration; whether the data base could be wrongly lodged or created or could be transferred or changed when the data base was transferred and stored in the backup systems. These are questions which are pertinent and have to be examined to ascertain whether or not there was possibility of change, alteration or manipulation in the initial or original data after it was created. The courts must rule out that the records have not been tampered and read the data or information as it originally existed. These are aspects which are not codified as such, for probative value is examined on the case to case basis keeping in mind the relevant facts.

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

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Whether court commissioner can be appointed to play CD and to evaluate contents and report to Court?

The CD is a piece of evidence produced by the petitioner to prove his contentions in his counter statement. The appointment of a Commission is intended to play the CD, evaluate the contents and report to the Court. According to Section (3) of the Indian Evidence Act, a fact is said to be proved when after considering the matters before the court, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the particular circumstances of the case, to act upon the supposition that it exists. In other words, the court must make an opinion as to 'proved or not proved', after considering the matters before it. In short, the power of appreciation is vested with the court alone, and it can never be relegated to an Advocate Commission and the court itself must evaluate the contents of a CD. That apart, Section 75 of the CPC, specifies the purposes for which the court can issue a Commission. The purposes include; (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act. The appreciation of evidence for reporting to the court is not specifically included in the said provision. We are of the opinion that no interpretation, at any stretch of imagination, can be made to include the act of appreciation of evidence for reporting to the court, within the purposes, for which a Commission can be issued, under the said provision.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 238 of 2019

Decided On: 26.08.2019

 Nishad  Vs.  Najma

Hon'ble Judges/Coram:

K. Harilal and Annie John, JJ.

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Whether quarrelsome talk of wife can be proved through admission of CD in evidence?

 This naturally takes us to an inquisitive question whether the
production and admission of the CD in evidence by the mere force of
Section 14 of the Evidence Act are proof of the alleged quarrelsome
talk of the respondent. Mere admission of a document in evidence,
whether it be electronic or otherwise, will not discharge the burden of
the party proposing evidence from proving the contents also. What
Section 14 of the Act enacts is not any special rule of evidence as
certain other special statues do. A document merely marked with or
without consent of the opposite party in a proceeding before a Family
Court is no proof at all unless the contents thereof are either
admitted by the adverse party or proved through the persons who
can vouch for the truth of the facts. This is an elementary principle of
proof flawing from principles of natural justice, logic fairness and
expediency dehors the provisions of the Evidence Act. We are of the

opinion that Family Courts cannot take any exception to this binding
fundamental rule of evidence and therefore, the CD produced before
the Family Court cannot be said to be proved unless the contents are
also proved despite its admission in evidence. Section 14 of the Act
as evident from the very language of the Section itself only relaxes
observance of the rules of relevancy and admissibility of evidence
rather than dispensing with the very fundamental principles of
evidence and natural justice or proof of contents of a document.
15. The purported voice of respondent extracted in the CD in
our opinion has to be proved in the same manner as a tape recorded
conversation. The petitioner can succeed in proving the alleged
riotous dialogue in the CD only when the identity of the speaker is
also proved. Proof of the accuracy of the statement recorded is
another essential requirement in the matter of proof of a tape
recorded conservation. The court accepting the evidence must rule
out that no tampering was made while the statement was recorded.
These are only some of the guidelines in the matter of proof of
contents of the CD. Elaborate discussion as to how a tape recorded
conservation could be proved is decipherable from Ram Singh and
others V. Col.Ram Singh, (AIR 1986 SC 3), Yusufalli Esmail
Nagree (AIR 1968 SC 147) and Sunil Panchal Vs. State of

Rajasthan, (MANU/RH/0987/2016 ). Unless all the essential
conditions above are satisfied, contents of the CD produced by the
petitioner cannot be said to be proved despite its admission in
evidence by the mere force of Section 14 of the Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT


OP (FC).No. 513 of 2018

PRAMOD E.K. Vs LOUNA V.C.

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Landmark judgment on appreciation of electronic evidence in cheque dishonour case

Be that as it may, the issue in the case in hand was whether the Complainant had proved that the cheques were issued by the Accused towards legally enforceable debt or liability. In this regard the Complainant-company has relied upon the statement of account of account at Exh.'FF', a print out of electronic records allegedly maintained by the Complainant-company in the course of business. In the case of Anwar P.V. Vs. P.K. Basheer and Ors. Apex Court has held as under:

"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65A and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, 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 a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."

66. In the instant case, the accused had challenged the admissibility of the statement at Exh. 'FF' on the ground that CW2 was not the author of the said statement. He had not signed the said statement and had no knowledge about the entries made in the said statement. It was further alleged that CW3, who had issued the certificate purported to be under sub-section 4 of section 65B, was not competent to issue such certificate. It was further stated that the said certificate did not contain the details required under clauses (a) to (c) of sub-section 4 of section 65B of the Indian Evidence Act.

67. The learned Magistrate while rejecting contentions has held that Section 65B of the Indian Evidence Act nowhere mandates that the certificate is required to be issued only by the person having access to the system. The learned Magistrate has further held that since CW3 was working as Head IT, it can be gathered and concluded that he had control and lawful access over the entire computer system of the Complainant-company. The learned Sessions Judge has not addressed the question as to whether CW3 was competent to issue the certificate as envisaged under Sub-Section 4 of Section 65B of the Indian Evidence Act. Nevertheless, the learned Sessions Judge has relied upon the evidence of CW2 and CW3 by holding that the accused have not impeached the credibility of CW2 and that they have not refuted the genuineness of the certificate issued by CW3.

68. It is pertinent to note that, CW1-Vimukt Nayak, the power of attorney of the Complainant Company had neither produced the statement of account nor made any reference to such statement of account. The accused were therefore precluded from cross examining accused No. 1 and eliciting such material as to refute the genuineness of the statement at Exh. 'FF'. A perusal of the certificate shows that the same was signed and certified by Kailash Varodiya and Dattaram Patarpenkar. The Complainant-company has neither examined said Kailash Varodiya and Dattaram Fatarpenkar nor produced any material to show that said Kailash and Dattaram were authorised to sign the said statement on behalf of the Complainant-company.

69. It may be mentioned here that section 65B only relates to the admissibility of electronic records. This amended provision prescribes the mode for proof of contents of electronic records. The very admissibility of electronic records depends upon the satisfaction of the conditions stipulated in the section. Sub-section 4 of section 65B provides that when a statement has to be produced in evidence, it should be accompanied by a certificate containing the details specified in clauses (a) to (c) of Sub-section 4 of Section 65B. This certificate must 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".

70. CW2, who has produced the statement at Ex. FF, has admitted that he had not obtained the print out at Ex. 'FF. CW2 had not signed the said statement and had admittedly no knowledge of the transaction. CW2 had not produced any document to prove that the said statement was a print out of a computer/electronic records maintained by the Company in the ordinary course of business. It is also to be noted that the statement at EX. FF was not accompanied by a certificate as contemplated under sub-section 4 of section 65B of the Indian Evidence Act. The statement at Exh.'FF' was therefore not admissible in the absence of such certificate.

71. The Complainant-company had tried to rectify this defect by examining CW3 who was examined at the stage of final hearing. He has produced the certificate purported to be under sub-section 4 of section 65B of the Indian Evidence Act. No reason has been assigned by the Complainant-company for not producing the said certificate alongwith the statement at Exh.'FF' and this fact leads to an inference that the said certificate was created subsequently to fill in the lacuna in the evidence of CW2.

72. Be that as it may, CW3 has deposed that he is looking after the maintenance of computer system of the Complainant-company since 2008-2009. He has deposed that apart from the maintenance work, he is not allotted any other work relating to information and technology. He has deposed that accounts of the Complainant-company are maintained and prepared by Operation Department and Client Relationship Department. He has admitted that he has not prepared statements of any of the clients of the Complainant-company. He has stated that he has no personal knowledge about the transaction. He has further stated that he had not personally verified the balance, which was due and payable by the accused to the complainant company as on 16.3.2011. He has stated that employee of the Complainant-company used to prepare and enter the statement at the user terminal and the same was saved in the main server. He has stated that he does not know when such data was entered in the user terminal or as to how many persons had entered such data in user terminal. He has stated that he is not a system administrator and that apart from system administrator no other person has access to the server. He has deposed that he had not retrieved the information from the main server in respect of the present transaction.

73. A conjoint reading of evidence of CW2 and CW3 reveals that both these witnesses had no personal knowledge about the transaction. They were not entrusted with the duty of maintaining the records of the company. They had not prepared the statement of account and had no knowledge about the genuineness of the entries reflected in Exh.'FF'. The evidence of CW3 clearly indicates that apart from the system administrator no other person had access to the server. His evidence does not indicate that he was involved in the management of the relevant activities. The evidence of CW3 therefore, does not indicate that he was occupying an official position in relation to the operation of the device and was not entrusted with a duty of the management of the relevant activities. In short, the Complainant Company had failed to prove the source and authenticity of the statement as well as the competency of CW3 to issue the certificate. In this fact situation, the findings of both the courts below are totally erroneous and contrary to the evidence on record and the relevant provisions of law and have thus resulted in miscarriage of justice.

74. It has to be borne in mind that section 65B only relates to the admissibility of electronic records. It authenticates the genuineness of the copy/computer printout and thus absolves the parties from producing the original. This section only makes the computer output admissible on complying with the requirements of the section. It does not prove the actual correctness of the entries and does not dispense with the proof or genuineness of entries made in such electronic records. Furthermore, there is no presumption regarding the genuineness of the entries in electronic records. Hence, it was necessary for the Complainant Company to prove the correctness of the entries. In the instant case, the witnesses examined by the complainant did not have any personal knowledge regarding the entries made in the said statement at Exh. 'FF' and were therefore not competent to depose about the correctness of the entries.

75. It is also to be noted that section 34 of the Evidence Act stipulates that the entries in account books regularly kept in course of business are relevant piece of evidence and admissible. The section further states that such entries cannot be the sole basis of fixing liability on any person. In the instant case, apart from statement at Exh. 'FF' the complainant company had not produced any other material to prove that the liability of the accused in respect of the amount specified in the subject cheques. Hence, the accused could not have been held guilty of the offence solely on the basis of the said statement.

IN THE HIGH COURT OF BOMBAY

Criminal Revision Application No. 432 of 2015

Decided On: 14.03.2017

 Jaimin Jewelery Exports Pvt. Ltd. and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Anuja Prabhudessai, J.

Citation: 2017 ALL MR (Cri) 2994

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Good legal article on appreciation of electronic evidence

http://www.nja.nic.in/Concluded%20Programmes/2016-17/P-1007%20PPTs/3.%20Appreciation%20of%20Electronic%20Evidence.pdf

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Leading Judgment on appreciation of evidence of CCTV Footage

The CCTV footage, which was directly and immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473, which hold:-

"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-Bof the Evidence Act, if an electronic record as such is used as primary evidence underSection 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act."

The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.

14. The CCTV footage is captured by the cameras and can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/ details are self generated and recorded, as a result of pre-existing software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.

15. HG wells in his book "The Time Machine" had said "Now I want you clearly to understand that this lever, being pressed over, sends the machine gliding into the future, and this other reverses the motion. This saddle represents the seat of a time traveler. Presently I am going to press the lever, and off the machine will go. It will vanish, pass into future Time, and disappear. Have a good look at the thing. Look at the table too, and satisfy yourselves there is no trickery." Time machine is friction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence, would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.

16. Per force, we must rule out any possibility of manipulation, fabrication or tampering. The hard-disk CCTV footage must pass the integrity test. It is a two fold test, system integrity and record integrity. It is with this over cautious and pensive approach, that we have proceeded and have bestowed our consideration. We would accept the genuineness and authenticity of the CCTV footage played before us, for good and sound reasons. System integrity test is satisfied by ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18). System was working and contemporaneously storing data. They had viewed the data. On record integrity, i.e., contents of the record have remained unchanged, we were anxious as it was noticed that the list of documents at Sr. No. 27, filed with the charge-sheet, mentions compact disc (CD) indicative that the hard drive had been examined and secondary evidence was created. Examination of the police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge-sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of the video files. However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence. Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This "internal evidence" establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, has held that execution of a document can also be proved by the "internal evidence" contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.

Delhi High Court

Kishan Tripathi @ Kishan Painter vs The State on 12 February, 2016

CRIMINAL APPEAL NO. 108/2013

 CORAM:
  HON'BLE MR. JUSTICE SANJIV KHANNA
  HON'BLE MR. JUSTICE R.K. GAUBA

Citation:2016 CRLJ(NOC)274 Del

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Under which circumstances malfunctioning of computer will not affect admissibility and relevancy of electronic evidence?

 In DPP v. Me. Kewon, (1997) 1 Criminal Appeal 155, Lord Hoffman, applying Section 69 of the Police and Criminal Evidence Act, 1984 in relation to the inaccuracy in the time display in the computer print out, held:-

I shall for the moment assume that the inaccuracy in the time display meant that "the computer not operating properly". The question is therefore whether that was "such as to affect the production of the document or the accuracy of its contents". If the words are read literally, it did. The document said that the first test had occurred at 23.00 GMT when it was in fact 00.13 BST. As to one hour, the discrepancy is merely as to the way in which the time was expressed. 23.00 GMT is the same time as 00.00 BST. But the remaining 13 minutes cannot, I think, be dismissed as de minimis. The inaccuracy of the time reading therefore affected the accuracy of a part of the contents of the document. In my view, however, the paragraph was not intended to be read in such a literal fashion. "The production of the document or the accuracy of its contents" are very wide words. What if there was a software fault which caused the document to be printed in lower case when it was meant to be in upper case? The fault has certainly affected the production of the document. But a rule which excluded an otherwise accurate document on this ground would be quite irrational. To discover the legislative intent, it is necessary to consider the purpose of the rule. The first thing to notice is that Section 69 is concerned solely with the roper operation and functioning of a computer. A computer is a device for storing, processing and retrieving information. It receives information from, for example, signals down a telephone line, strokes on a keyboard or (in this case) a device for Chemical analysis of gas, and it stores and processes that information. If the information received by the computer was inaccurate (for example, if the operator keyed in the wrong name) then the information retrieved from the computer in the form of a statement will likewise be inaccurate. Computer experts have colourful phrases in which to express this axiom. But Section 69 is not in the least concerned with the accuracy of the information supplied to the computer. If the gas analyser of the Intoximeter is not functioning properly and gives an inaccurate signal which the computer faithfully reproduces, Section 69 does not affect the admissibility of the statement. The same is true if the operator keys in the wrong name. Neither of these errors is concerned with the proper operation or functioning of the computer. The purpose of Section 69, therefore, is a relatively modest one. It does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the justices or jury. All that Section 69 requires as a condition of the admissibility of a computer-generated statement is positive evidence that the computer has properly processed, stored and reproduced whatever information it received. It is concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. The language of Section 69(1) recognises that a computer may be malfunctioning in a way which is not relevant to the purpose of the exclusionary rule. It cannot therefore be argued that any malfunction is sufficient to cast doubt upon the capacity of the computer to process information correctly. The legislature clearly refused to accept so extreme a proposition. What, then, was contemplated as the distinction between a relevant and an irrelevant malfunction? It seems to me that there is only one possible answer to that question. A malfunction is relevant if it affects the way in which the computer processes, stores or retrieves the information used to generate the statement tendered in evidence. Other malfunctions do not matter. It follows that the words "not such as to affect the production of the document or the accuracy of its contents" must be read subject to the overall qualification that the paragraph is referring to those aspects of the document or its contents which are material to the accuracy of the statement tendered in evidence.

 In effect, substantially, Section 65B of the Indian Evidence Act and Section 69 of the Act in England have same effect. 293. Thus, in the context of Section 65B(2)(c) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. However, this compliance would be on the principle laid down in Shepherd (supra) and as applied in Ana Marcolino (supra) and Me. Kewon (supra). Thus in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of system or operating failure or interpolation. Such challenge has to be established by the challenger. Generic and theoretical doubts by way of smoke screen have to be ignored.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal No. 199/2008

Decided On: 16.06.2014

 Pankaj Kumar Vs. State of H.P.

Hon'ble Judges/Coram:Rajiv Sharma and Sureshwar Thakur, JJ.

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Good legal article on appreciation of electronic evidence

01. The proliferation of computers, the social influence of information technology and the ability to store information in digital form have all required Indian law to be amended to include provisions on the appreciation of digital evidence. In 2000 Parliament enacted the Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility of digital evidence.

02. The IT Act is based on the United Nations Commission on International Trade Law Model Law on Electronic Commerce and, together with providing amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker's Book Evidence Act 1891. It recognizes transactions that are carried out through electronic data interchange and other means of electronic communication.

02. Changes to Evidence Act :-

Although the Evidence Act has been in force for many years, it has often been amended to acknowledge important developments. Amendments have been made to the Evidence Act to introduce the admissibility of both electronic records and paper-based documents.

03. Evidence :-

The definition of 'evidence' has been amended to include electronic records (Section 3(a) of the Evidence Act). Evidence can be in oral or documentary form. The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. The term 'electronic records' has been given the same meaning as that assigned to it under the IT Act, which provides for "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche."

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Leading judgment on recording and appreciation of Electronic Evidence

 Electronic record produced for the inspection of the
court is documentary evidence under Section 3 of The Indian
Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’).

The Evidence Act underwent a major amendment by Act 21 of
2000 [The Information Technology Act, 2000 (hereinafter
referred to as ‘IT Act’)]. Corresponding amendments were also
introduced in The Indian Penal Code (45 of 1860), The Bankers
Books Evidence Act, 1891, etc.
7. Section 22A of the Evidence Act reads as follows:
“22A. When oral admission as to contents of
electronic records are relevant.- Oral admissions
as to the contents of electronic records are not
relevant, unless the genuineness of the electronic
record produced is in question.”
8. Section 45A of the Evidence Act reads as follows:
“45A. Opinion of Examiner of Electronic
Evidence.-When in a proceeding, the court has to
form an opinion on any matter relating to any
information transmitted or stored in any computer
resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence
referred to in section 79A of the Information
Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.--For the purposes of this section, an
Examiner of Electronic Evidence shall be an expert.”
9. Section 59 under Part II of the Evidence Act dealing with
proof, reads as follows:
“59. Proof of facts by oral evidence.—All facts,
except the contents of documents or electronic
records, may be proved by oral evidence.”
10. Section 65A reads as follows:
 “65A. Special provisions as to evidence
relating to electronic record: The contents of
electronic records may be proved in accordance with
the provisions of section 65B.”
11. Section 65B reads as follows:
“65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act,
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 (hereinafter referred to as the computer
output) 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 of any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in
respect of a computer output shall be the following,
namely: -
(a) 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;
(b) 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;
(c) 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
(d) 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.
(3) 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 –
(a) by a combination of computers operating
over that period; or
(b) by different computers operating in
succession over that period; or
(c) by different combinations of computers
operating in succession over that period;
or
(d) 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.
(4) 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, -
(a) identifying the electronic record containing
the statement and describing the manner
in which it was produced;
(b) 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;
(c) 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
sub-section it shall be sufficient for a
matter to be stated to the best of the
knowledge and belief of the person stating
it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied
to a computer if it is supplied thereto in
any appropriate form and whether it is so
supplied directly or (with or without human
intervention) by means of any appropriate
equipment;

(b) whether in the course of activities carried
on by any official, information is supplied
with a view to its being stored or
processed for the purposes of those
activities by a computer operated
otherwise than in the course of those
activities, that information, if duly supplied
to that computer, shall be taken to be
supplied to it in the course of those
activities;
(c) a computer output shall be taken to have
been produced by a computer whether it
was produced by it directly or (with or
without human intervention) by means of
any appropriate equipment.
Explanation: For the purposes of this section
any reference to information being derived from
other information shall be a reference to its being
derived therefrom by calculation, comparison or any
other process.”
These are the provisions under the Evidence Act relevant
to the issue under discussion.
12. In the Statement of Objects and Reasons to the IT Act, it
is stated thus:
“New communication systems and digital technology
have made drastic changes in the way we live. A
revolution is occurring in the way people transact
business.”

In fact, there is a revolution in the way the evidence is
produced before the court. Properly guided, it makes the
systems function faster and more effective. The guidance
relevant to the issue before us is reflected in the statutory
provisions extracted above.
13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure
prescribed under Section 65B. Section 65B deals with the
admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic form,
generated by a computer. It may be noted that the Section
starts with a non obstante clause. Thus, notwithstanding
anything contained in the Evidence Act, 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 a document
only if the conditions mentioned under sub-Section (2) are
satisfied, without further proof or production of the original. The
very admissibility of such a document, i.e., electronic record

which is called as computer output, depends on the satisfaction
of the four conditions under Section 65B(2). Following are the
specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should
have been produced by the computer during the period
over which the same was regularly used to store or
process information for the purpose of any activity
regularly carried on over that period by the person having
lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record
or of the kind from which the information is derived was
regularly fed into the computer in the ordinary course of
the said activity;
(iii) During the material part of the said period, the computer
was operating properly and that even if it was not
operating properly for some time, the break or breaks had
not affected either the record or the accuracy of its
contents; and

(iv) The information contained in the record should be a
reproduction or derivation from the information fed into
the computer in the ordinary course of the said activity.
14. Under Section 65B(4) of the Evidence Act, if it is desired
to give a statement in any proceedings pertaining to an
electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies the electronic
record containing the statement;
(b) The certificate must describe the manner in which the
electronic record was produced;
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
(d) The certificate must deal with the applicable conditions
mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device.

15. It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must
accompany the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc.,
pertaining to which a statement is sought to be given in
evidence, when the same is produced in evidence. All these
safeguards are taken to ensure the source and authenticity,
which are the two hallmarks pertaining to electronic record
sought to be used as evidence. Electronic records being more
susceptible to tampering, alteration, transposition, excision,
etc. without such safeguards, the whole trial based on proof of
electronic records can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as to
the genuineness thereof and in that situation, resort can be
made to Section 45A – opinion of examiner of electronic
evidence.
17. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if requirements

under Section 65B of the Evidence Act are not complied with,
as the law now stands in India.
18. It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
the evidential output was recording properly at the material
time. The presumption can be rebutted if evidence to the
contrary is adduced. In the United States of America, under
Federal Rule of Evidence, reliability of records normally go to
the weight of evidence and not to admissibility.
19. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the Evidence
Act, read with Sections 59 and 65B is sufficient to hold that the
special provisions on evidence relating to electronic record
shall be governed by the procedure prescribed under Section
65B of the Evidence Act. That is a complete code in itself. Being

a special law, the general law under Sections 63 and 65 has to
yield.
20. In State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru (2005) 11 SCC 600

, a two-Judge Bench of this Court had an occasion

to consider an issue on production of electronic record as
evidence. While considering the printouts of the computerized
records of the calls pertaining to the cellphones, it was held at
Paragraph-150 as follows:
“150. According to Section 63, secondary
evidence means and includes, among other things,
“copies made from the original by mechanical
processes which in themselves insure the accuracy
of the copy, and copies compared with such copies”.
Section 65 enables secondary evidence of the
contents of a document to be adduced if the original
is of such a nature as not to be easily movable. It is
not in dispute that the information contained in the
call records is stored in huge servers which cannot
be easily moved and produced in the court. That is
what the High Court has also observed at para 276.
Hence, printouts taken from the computers/servers
by mechanical process and certified by a responsible
official of the service-providing company can be led
in evidence through a witness who can identify the
signatures of the certifying officer or otherwise speak
of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements
of Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to
adducing secondary evidence under the other


provisions of the Evidence Act, namely, Sections 63
and 65. It may be that the certificate containing the
details in sub-section (4) of Section 65-B is not filed
in the instant case, but 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.”
21. It may be seen that it was a case where a responsible
official had duly certified the document at the time of
production itself. The signatures in the certificate were also
identified. That is apparently in compliance with the procedure
prescribed under Section 65B of the Evidence Act. However, it
was held that irrespective of the compliance with the
requirements of Section 65B, which is a special provision
dealing with admissibility of the electronic record, there is no
bar in adducing secondary evidence, under Sections 63 and 65,
of an electronic record.
22. The evidence relating to electronic record, as noted
herein before, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59
and 65A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 65B. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in
Navjot Sandhu case (supra), does not lay down the correct
legal position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 65B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4226 OF 2012
Reportable

Anvar P.V.  Vs  P.K. Basheer and others 

Dated;September 18, 2014.
Citation; AIR2015SC180, 2014(6)ALLMR951, 2015(2)MhLJ135(SC),  (2014)10SCC473,

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