Digital images are no different from the droplets of rain that fall, merge, and
then divide: there is no telling whether the droplets that split are identical
to the droplets that came together to form the larger droplet.
Law may be divided into substantive and procedural laws. The laws by which
rights, duties and liabilities are defined are called substantive law whereas
laws which prescribe mode by which application of substantive law is regulated
are called procedural law. Law of Evidence is a judicial recognition to the
system of logical reasoning. The Indian Evidence act, 1872 is a bunch of 167
sections divided into 11 chapters and 3 parts.
Part II, Chapter V is headed as of Documentary Evidence
is of relevance for
our discussion in this article. At the threshold, it is submitted that the
proving of oral evidence are in contrast to the proving of documentary evidence.
The system of documentary evidence revolves around 3 check posts:
Relevancy, Admissibility and Prove.
There is no concrete rule for a documentary evidence as to which check post
have to pass first and which check post to latter. Though the general practice
is that the document has to pass the test of relevancy primarily before it went
into check post of admissibility. Though there are situations which speak
otherwise. For example, Section 68 of Evidence act which asked the attesting
witness to be examined primarily before court went into test of relevancy and
admissibility. Hence, Section 68 put prove as primary check post.
If Relevancy is a Horse, admissibility is chariot. Chariot cannot run without
Horse. 65B is that exception which put chariot before Horse.
Section 65B is also one of those instances which make departure from general
rule. Section 65B put admissibility as Primary check post. Thus, without
ensuring compliance of 65B check post, the question of relevancy and prove
cannot be looked into.
Document means any Information expressed on any substance for purpose of
recording whereas Evidence means Oral Evidence and Documentary Evidence.
Section 61 states that the content of document can be proved either by primary
evidence or secondary evidence.
Section 62 states where the document itself is produced then it would be
considered as primary evidence. Section 63 read with Section 65 list out the
circumstances under which content of a document can be proved by secondary
With the advancement of technology, the production of electronic evidence is
becoming common practice to secure the justice. At the same time it must not be
forgotten that the electronic records are more vulnerable to tampering and
alterations. Thus, electronic records cannot be looked upon with same standard
as that of ordinary documentary evidence.
The Document though expressly does not include electronic evidence but the term
documentary evidence does include electronic record by virtue of definition of
Evidence and deeming fiction of Section 65B.
The term electronic evidence, computer, computer system and information have the
same meaning as defined under Information technology act, 2000.
Section 22A states that the contents of electronic record cannot be proved
unless the genuineness of electronic record is proved. Section 45A gives a
defense to raise objection with respect to genuine of electronic record where
opinion of expert would be a relevant. Section 65 makes a clear distinction
between existence, condition and contents of documentary evidence.
Section 136 of Evidence act, 1872 has 3 parts where 2nd Part states that where a
fact is to prove by another fact then the latter fact to be proved first. E.g.
where the site plan of sale deed is to be proved then the sale deed is to be
proved first. Section 65B is based upon II nd Part of Section 136 where content
of electronic evidence can be proved if electronic evidence is proved first.
Section 65A and Section 65B starts with a marginal note as to special
provision. Section 65A states content of Electronic record can be proved
through compliance of Section 65B. Section 65B has 5 sub-sections where (1) to
(3) list out conditions to be fulfill which largely revolve around the working
conditions of computer during the period when electronic record is produced.
Section 65B(4) which is of great controversy states that the person who is
having responsibility of that device or the person who having responsibility of
management of relevant activities of computer will give a statement on
The statement under certificate is best of his knowledge and belief. (This and to be read as OR).
The moot question would be whether this Certificate under Section 65B (4) is
mandatory ? Also, Whether departure can be made if certificate could not be
To answer this question, we need to look at the genesis from where Section 65B
has taken its origin into Evidence act. Section 65B is exact reproduction of
Section 5 of UK Civil Evidence act, 1968 with minor changes.
It is pertinent to note that when the IT Act, 2000 was in draft mode, this
Section 5 of UK Civil Evidence act, 1968 (on which Section 65B is based) was
repealed and replaced by UK Civil Evidence act, 1995. The Law commission who
suggested the repeal of same has observed that there are largely two types of
evidence – Direct evidence and hearsay evidence and electronic evidence are more
in nature of hearsay evidence due to current safeguards (i.e. Certificate +
Conditions similar to Section 65B) which seem to be only illusionary and not
real safeguards. However, despite such observations, law makers in India stuck
to old repealed provisions of Section 5 of UK Evidence act, 1965 and incorporate
the same under Section 65B of Indian Evidence act, 1872.
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
Section 65B(1) used the non-obstante clause which means the general rule with
respect to documentary evidence cannot be used as a standard for electronic
records. Section 65B(1) has made a clear recognition of Primary evidence and
Secondary Evidence. In fact Section 65B has given sanctity to the secondary
any information contained in electronic record means primary evidence. This
means the electronic record where information is stored for the first time. E.g.
where a video is record on a Mobile Phone or Laptop then the production of very
mobile phone or laptop is primary evidence.
printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer
means secondary evidence. Thus where the video recorded
in Laptop/Mobile Phone is copied to Pen-drive/CD and submits to court then that
very Pen-Drive/CD would be Secondary evidence.
This secondary evidence can be admissible only if the conditions of Section 65B
are fulfilled and not otherwise. However, where the party itself produced the
Primary Evidence (I.e. the laptop, mobile phone itself) then the operation of
Section 65B is of no mandate because the document is proved by primary evidence
The deeming fiction is added to Section 65B (1) because the definition of
document do not expressly include electronic record.
Section 65A and 65B being a code in itself with respect to electronic record and
thus in absence of compliance of them, the general standard of proving
documentary evidence cannot be looked into.
However, the important question is what would be the consequence if the party,
who has been asked by the court, could not produce the electronic evidence/
Certificate under 65B due to reason that the person in authority is not giving
the certificate to party concerned for any reason.
To answer this situation, Two Latin maxims become important:
- first is lex non cogit ad impossibilia i.e. the law does not demand the
- impotentia excusat legem i.e. when there is a disability that makes it
impossible to obey the law, the alleged disobedience of the law is excused.
In Re Presidential Poll, the provisions were mandatory, which could not be
satisfied owing to an act of God. The Court excused the mandatory provisions on
account of these maxims.
These maxims have been applied by Indian courts also in different situations in:
- Chandra Kishore Jha v. Mahavir Prasad and Ors
- Special Reference 1 of 2002 and
- Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
- Raj Kumar Dubey v. Tarapada Dey and Ors.
Section 165 of Evidence act, 1872 gives immense power to the court to ask any
question in any form at any stage to any party/person concerned in litigation
with a rider of self-incrimination. Section 91 of Crpc read with Section 311
Crpc gives party an opportunity to file an application before court to produce
any document or thing to the court. Similarly, Order XVI Code of Civil
Procedure, 1908 also entitle a party to file application before court praying
production of any document/thing.
Section 65B does not talk about stage
at which the certificate is to be
submitted. Though, the general practice for submission is to produce it at the
time of adducing the evidence. However, the justice delivery system is not
having same standard for both civil and criminal trial. In a criminal trial, the
accused must be provided with all the documents including electronic evidence
before commencement of trial so that he would be able to prepare his defense
which is essential for fair trial.
At the same time, Section 178 confers Police
to submit the supplementary charge sheet with additional document including
electronic records. Similarly, the parties can be application under Section 311 Crpc to allow production of any document including electronic evidence post
trial. To plug in the abuse of process, Internet provider and cellular companies
must adhere to the mandate of Section 67C of IT act, 2000 in tune with Section
39 of Evidence act to retain the data in segregated and separate form if it form
part of an Investigation.
Hence, the court has to maintain the balancing between rights of accused and
rights of prosecution while allowing compliance of Section 65B.
Hence, where despite all the efforts a party could not produce the certificate
as required under Section 65B then the mandatory provisions of 65B can be
excused for impossibility to perform by that party concerned. Alternatively,
Court would order the production of certificate to the person in authority of
Present Judicial Position
In State (NCT of Delhi) v. Navjot Sandhu
, two Judge bench 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
In Anwar P.V. v. P.K. Basheer & Ors
. a three Judge Bench decision of this
Court held that the requirement of Certificate under Section 65B is mandatory
and overruled the judgment of Navtoj Sandhu to the extent of its observations on
In Vikram Singh and Anr. v. State of Punjab and Anr
, a three-Judge Bench of
this Court followed the law in Anvar P.V. (supra), clearly stating that where
primary evidence in electronic form has been produced, no certificate under
Section 65B would be necessary.
In Shafhi Mohammad v. State of Himachal Pradesh
 , two judges bench held that
whenever the interest of justice required, the requirement of a certificate
could be done away with under Section 65B (4).
In Tomaso Bruno and Anr. v. State of Uttar Pradesh
 following Navjot Sandhu
(supra) that secondary evidence of the contents of a document can also be led
under Section 65 of the Evidence Act to make CCTV footage admissible.
Resting the controversy on 14th July 2020
In Arjun Panditrao Khotkar Judgment dated 14.07.2020 has made it crystal
In Anvar P.V. is the law declared by this Court on Section 65B of the Evidence
Act is a correct law and The judgment in Tomaso Bruno (supra), being per
incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.)
No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and
are therefore overruled.
- Section 65A & 65B contains a code in itself with respect to electronic
evidence and is a mandatory requirement with respect to admissibility of
electronic (documentary) evidence.
- Two situations where requirement of Section 65B need not to perform:
- Where primary evidence itself is produced
- Impossibility to produce the same.
- Section 65B requires relook by legislators.
- Legislator required coming up with a law regulating the data retention
with respect to Section 67C of IT act, 2000.
The views and opinions expressed in this article are those of the authors and do
not necessarily reflect the official policy or position of any agency of the
Indian government. Examples of analysis performed within this article are only
examples. They should not be utilized in real-world analytic products as they
are based only on very limited and dated open source information. Assumptions
made within the analysis are not reflective of the position of any Indian
Written By: CS Shubham Budhiraja
- R.F. Nariman, J, PARA 23, Civil appeal No. 20825 of 2017
- (1974) 2 SCC 33
- (1999) 8 SCC 266 (at paragraphs 17 and 21)
- (2002) 8 SCC 237 (at paragraphs 130 and 151)
- (1987) 4 SCC 398
- (2014) 10 SCC 473
- 2017 8 SCC 518
- (2018) 2 SCC 801
- (2015) 7 SCC 178
- Civil appeal No. 20825 of 2017
- Ramasubarmanian J, PARA 45, Civil appeal No. 20825 of 2017
- R.F. Nariman, J, PARA 72, Civil appeal No. 20825 of 2017
- Stephen Mason, Electronic evidence and the meaning of original, 79
, A Practicing company secretary and founder of
Budhiraja & co. He is a Final year Law student at faculty of law, University of
Delhi besides associated as Para Legal volunteer with Delhi State Legal Service
authority and core member of moot court society of its college.
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