By a recent Judgement dated 14.07.2020, the Supreme Court of India while
deciding Arjun PanditRao Khotkar settled the law relating to admissibility of
evidence of electronic records in legal proceedings. Above said judgement was
delivered by a three-judge bench comprising of Hon’ble Justices Mr R.F. Nariman,
Mr S. Ravindra Bhatt and Mr V. Ramasubramanian JJ dealing with the
interpretation of Section 65B of the Evidence Act.
The said bench was formed to decide the correctness of the judgement of the
Supreme Court of India in Shafhi Mohammad Case in the light of a judgement
given by a three-judge bench of the Supreme Court in Anvar P V Case
The above said sec 65B of the Evidence Act was introduced 20 years ago by an Act
21 of 2000 is neither in line with the development of technology nor in line
with the major jurisdictions of the world, was the comment of Justice V.
Ramasubramanian who wrote a supplementary judgement, even though he concurred
with the majority view.
As a matter of practice, genuineness, veracity or reliability of the evidence is
seen by the court only after the stage of relevancy and admissibility. Hence,
one of the principle issues that arise in a court proceeding is the nature and
manner of electronic records in a court proceeding.
This becomes important in view of section 22 A of the Evidence Act that reads
that oral admissions to the contents of electronic records are not relevant,
unless the genuineness of the electronic record produced is in question.
Moreover, section 59 under part II of Evidence Act dealing with proof reads that
all facts, except the contents of the documents or electronic records, may be
proved by oral evidence. More importantly section 65A of the Evidence Act reads
that the contents of electronic records may be proved in accordance with the
provisions of section 65B.
Section 65B of the Evidence Act states that any information contained in the
electronic record shall be deemed to be a document without further proof or
production of the original as an admissible evidence. In 65B(2) it explains
certain conditions that are required to be fulfilled, to make the electronic
record as an admissible evidence which include that the record is produced from
the computer which was used to store and process the information by the person
having lawful control over the computer in the course of regular business
activities, during the said period the said device was operating properly, the
information contained in the electronic record is derived from such information
fed into the computer etc., In addition to that the person occupying a
responsible official position in relation to the operation of the relevant
device should certify certain aspects under Section 65B(4) of the Evidence Act.
For the convenience the said section is reproduced below:
“(4) In any proceedings where it is desired to give a statement in evidence by
virtue of this section, a certificate doping any of the following things, that
is to say:
- identifying the electronic record containing the statement and
describing the manner in which it was produced;
- giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
- dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate,
And purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the management
of the relevant activities (whichever is appropriate) shall be evidence of any
manner 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 of stating it.
The main issue covered in the article is whether the above said certificate
under section 65B (4) is mandatory or not for the purpose of admissibility of an
Electronic record as an evidence. In the case of Anvar P V (Supra)
held that 65B(4) certificate by the competent person is mandatory requirement
for admissibility of an electronic record as an evidence. It further held that
the person who certifies only needs to state that the certificate that the same
is to the best of his knowledge and belief.
Most importantly the said
certificate should accompany the electronic record like Computer Printout,
Compact Disc (CD), Video Compact Disc (VCD), Pen drive etc., pertaining to which a
statement sought to be given in evidence, when the same is produced in evidence.
It further stated that only if the electronic evidence is duly produced in terms
of Section 65B of the Evidence Act, would the question arise as to the
genuineness thereof and in that situation, resort can be made to Section 45-A,
opinion of Examiner of Electronic Evidence.
It further held that the Evidence
Act does not contemplate or permit the proof of an Electronic record by an oral
evidence if requirements under Section 65B of the Evidence Act are not complied
with as the law now stands in India.
Later various judgments including Shafhi Mohamad (Supra)
held that the
applicability of procedural requirement under section 65B(4) of the Evidence Act
of furnishing certificate is to be applied only when such electronic evidence is
produced by a person who is in a position to produce such certificates being in
control of the said device and not of the opposite party. It was further held
that in a case where electronic evidence is produced by a party who is not in
possession of a device, such party cannot be required to produce certificate
under section 65B(4) of the Evidence Act. It was further held that the
applicability of requirement of the said certificate being procedural it can be
relaxed by the Court whenever interest of justice so justifies.
But in the above said Arjun Panditrao (Supra), the Supreme Court of India
settled the law by overruling Shafhi Mohammad (Supra) and declaring Tomaso
judgement of the Supreme Court of India and upheld Anvar PV (Supra) with one
alteration in paragraph 24 by deleting the words “under section 62 of the
Hence, the law as on today with regard to admissibility of
electronic record as evidence can be summarized as follows:
- The required certificate under section 65B(4) is unnecessary if the
original document itself is produced. This can be done by the owner of a
laptop computer, computer tablet or even a mobile phone, by stepping into
the witness box and proving that the concerned device, on which the original
information is first stored, is owned and/or operated by him.
- In cases where the computer happens to be part of a computer system or
computer network and it becomes impossible to physically bring such system
or network to the court, then the only means of providing information
contained in such electronic record can be in accordance with section
65B(1), together with the requisite certificate under section 65B(4).
- Hence, the certificate under section 65B(4) of the Evidence Act is
mandatory and not procedural.
Indian Arbitration Act expressly excludes the applicability of Evidence Act
to the arbitration proceedings and hence the above said requirement of filing a
certificate under section 65B(4) does not arise with regard to electronic
records produced as evidence in an arbitration proceeding.
- Arjun Panditrao Khotkar Vs Kailash Kushan Rao Gorantyal and others,
(2020) SCCOnline SC 571
- Indian Evidence Act,1872
- Shafhi Mohammad Vs State of Himachal Pradesh, (2018) 2 SCC 801
- Anvar PV Vs PK Bhaseer , (2014) 10 SCC 473
- Tomaso Bruno Vs State of UP, (2015) 7 SCC 178
- Arbitration and Conciliation Act, 1996