As government, business, and commerce move into the 21st century and onto the
high level age, it is important for the law to break up with its subject, and
advance compatibles. Regardless of whether something is vital or elective, the
source commonly relies on the point and its use. A science course book reading
would be viewed as a secondary source if in the field of science, since it
depicts and decodes the science in any case, makes no exclusive commitment to
On the other hand, if the point is science training and the historical backdrop
of reading material, course books could be utilized as essential sources to take
a gander at how they have changed over the long haul. There exist a couple of
new troubles under the watchful eye of the courts while keeping an eye on
electronic confirmation – its novel character, joined with its weakness to
straightforward assembling and contaminated, and also its distinctive new
sources (messages, SMS/MMS, web based life, website data, etc.) and their unsure
status in law.
So far, electronic story affirmation was banged along with standard account
assertion and was to be appeared under section 61-65 of the Indian Proof
Demonstration. It was responsible for equivocal plans from actual files were,
and this made augmentation for impressive control and misuse.
The concept of Primary and Secondary evidence:Primary evidence
The contents of files can be proved either by means of primary proof or
secondary proof (section 61). Primary evidence means documents in its original
shape produced earlier than the inspection of the courtroom (section 62). That
is based totally on the great evidence rule that the original report ought to be
produced earlier than the court docket because in its original shape it's miles
first hand and most dependable.
As an example if A executes a sale deed in favour of B for rupees 1000/- B documents an in shape for the ownership of the
assets on the premise of sale deed. A denies the execution of the sale deed. B
produces the very sale deed earlier than the courtroom. This would be the great
proof and is primary proof.
Every other evidence including copies of the sale
deed, a few man or woman who examine the sale deed and makes an oral declaration
about its contents or the witness who signed it have continually given an
opportunity of a few additions or omissions to the unique. This is why a unique
replica of the file is first-rate evidence.
Explanation 1 and 2 of section 61 provides the scope of the primary proof. While
a file is achieved within the several components, each part is primary evidence
of the file. As an example, if a partition deed is accomplished and registered
in the favour of the events that have stocks inside the property. Each of such
parties wants the deed specifying his wonderful share. All of the copies of the
deed for all such events are prepared and are the primary document for them.
Further when a file is performed in counter parts, each part is primary report
against the executing events and his privies, but for the non- executing
celebration and his privies it is secondary document. As an instance, Patta is
achieved and signed by means of the lessor for the rent and qabuliat is
performed and signed via the lessee. Therefore Patta is primary report for the
lessor and secondary record for the lessee and qabuliat is number one document
for the lessee and secondary report for the lessor.
Explanation 2 gives that printed lithographic, photographic, and other replicas
of the documents through the one uniform process are primary evidence of each
different but if original isn't the duplicate however the document from which
the replica becomes made, replica might be simply a secondary evidence of the
For instance one specimen of a newspaper is not a replica of every other
specimen of the newspaper of the equal date. They all are originals; all are the
primary file for the contents cited in it. Further carbon copies which can be
made via uniform manner are originals of each different and secondary of the
Secondary evidence is a proof which may be given underneath precise situations
in non-look of the important proof. Section 63 gives the meaning of the
auxiliary confirmations which may be created as opposed to important proof
beneath situations referenced within the section 65. There may be five
conditions inside the section 63, out of which preliminary three preparations
showed duplicates of the records, fourth one is worried about the counter
quantities of the reviews and fifth one is the oral statement about the
substance of records.
- Certified copies of the original document as licensed by way of the
general public officer under section 76 of the Act. Section 76 lies down
that every public officer having custody of a public record shall give to
someone, on demand of, and on fee of prison prices, a replica of it (public
file). A public officer after preparing the copy from the original will
affix the certificates on the foot of such reproduction, that it's a far
authentic reproduction of the record and cited the date on it. The name of
the general public officer in whose custody document became and the seal of
such officer is likewise affixed on the copy. If the reproduction of such a
public file with above stated certificate is submitted to the court docket,
it's miles admissible as secondary evidence. The secondary evidence as a
certified replica of the primary proof under this clause is presumed to be
true below section 77 of the Act. As an example, Khatauni is the secondary
proof of the collect rate record
- Copies made from the unique via mechanical procedure documents which
might be organized by means of the uniform mechanical manner together with
printing, lithography, or photocopy which in themselves guarantee the
accuracy of the replica and the copies in comparison with such copies. Best
licensed copies of the secondary evidence is admissible as proof under this
clause while it is proved that unique is within the ownership of the
opposite birthday celebration. Replica of a copy isn't always admissible as
secondary evidence simplest copies organized via the mechanical manner and
copies of a duplicate compared with the unique is secondary proof.
- Copies made from in comparison with the unique. If a replica is a
prepared phrase to word from the authentic its miles secondary evidence.
- Counter to a part of the report towards the party who did not now
execute it is secondary proof.
- Oral account of the contents of a document given through someone who has
himself observed or studied the report.
Distinction amongst Primary and Secondary evidence
The vital confirmation beneath the Indian evidence Act is what seems to be the
most noteworthy kind of proof, regarding precision and esteem. With respect to
reports and digital information, essential proof of the substance of a specific
archive is definitely the record. Its miles are represented by using section 62
of the evidence Act, which directs the subtleties of the equal.
proof, interestingly, is what is displayed without essential confirmations,
consequently the name. Area 63 characterizes and administers auxiliary
confirmations in Indian regulation. It’s an extreme substandard nature of
affirmation whilst contrasted with the previous.
Be that as it is able to, it’s
a fundamental method for accommodating the prattle control with the regularly
taking place difficulty of securing vital confirmations, for there may
additionally exist, some instances where the primary report or electronic file
cannot be created beneath the watchful eye of court docket. Section 65 moreover
clears up such situations, where auxiliary affirmation is utilized in place of
vital affirmation due to the non-accessibility of the final stated.
The Hearsay Rule
Earlier than expertise the idea of primary evidence and secondary confirmation
in Indian regulation, it is fundamental to beneath why there exists a demand for
one of these qualifications. The Indian evidence Act has made this qualification
through its provisions in chapter V of the Act, particularly for narrative (and
currently digital narrative) evidence.
It’s an extreme typical guideline of
normal regulation that oral confirmation (this is immediately) might be utilized
to demonstrate all styles of facts. Narrative affirmation individually has been
rejected from being illustrated by using oral confirmation in section 599, and
every single other fact might be demonstrated through oral evidence. The
rationale behind the production of this kind of qualification is the Hearsay
Simply clarified, the gossip run bars the usage of out of court
articulations to illustrate a truth from being conceded as shown in view of the
failure of the forbidding party to interrogate the manufacturer of the
statement". One of the factor of interest cases that set out this popular in
customary law countries worldwide was that of R v. Sharp
, where it became
depicted as 'Any confirmation aside from one made by means of a man while giving
oral affirmation in the approaches is forbidden as proof of any fact or
The persistence noise confirm is not perceived in
custom-based, totally law is the manner that it is difficult to determine the
precision and veracity of such evidence, which is typically completed by way of
approach for interrogation. Because the character who placed fourth the
expression in the query is absent in the trial procedures, it is difficult to
interrogate him, and along these lines such affirmation is unlawful from
concept. The noise run in it-self is unpredictable and layered, and there exist
some admonitions and exemptions, but it's far superfluous to dig into them in
the placing of this exposition.
When secondary evidence can be given in place of primary evidence sec 65
Section 64 offers the guideline that documents must be proved with the primary
evidence besides in the instances supplied underneath section 65 of the Act. Sec
65 offers seven situations where secondary evidence is admissible. However
conditions are required:
- It ought to be proved that record can be positioned as secondary
evidence in life.
- The circumstances ought to be justified which leads to the manufacturing
of secondary evidence. As an instance, though a party wished to show the
content of files has to by means of the secondary evidence on the lack of
primary evidence. They have to show the loss of record. See the illustration
B of the sec 104 of the Indian proof Act.
Where there is no foundation laid for the reception of
secondary evidence, the courtroom can also exclude such evidence (Setal das v
AIR 1954 SC 404).
The secondary proof may be given underneath following situations
- When the report is in the possession of
- The man or woman against whom it's miles to be proved, or
- Any individual out of the reach of, or no longer problem to, the person
of the court, or
- Any individual who's legally sure to supply it but does no longer
produce it after being aware to supply the same is given.
- When the life or the contents of the original had been proved as an
admission in writing by the character towards whom it is to be proved by
the; or his consultant.
- When the original has been destroyed, or lost, or the celebration
providing proof of its contents cannot be for another reason, no longer
springing up from his very own negligence or default, produce it in
- When the novel is of such nature and no longer is effortlessly
- When a novel is a public document or whose certified copy is legally
- When consisting of several accounts or can’t naturally be scrutinized.
Admissibility of document as secondary evidence
Production of document as a secondary evidence is permissible best in case while
original report (primary) is not available below any circumstance mentioned in
the section 65. Consequently secondary evidence relating to the contents of a
report is inadmissible, till the non-manufacturing of the original is accounted
for, to be able to convey it with one or different of the cases furnished for in
the section. The court has an obligation to decide the query of admissibility of
a document in secondary proof earlier than making an endorsement thereon.
v. A. Ramalingam,
(2011) 4 SCC 240). The software seeking permission to supply
secondary proof should supply full information essential to draw the provisions
and be supported by way of a right affidavit. (H.Siddiqui v. A. Ramalingam
(2011) 4 SCC 240). Non- manufacturing of primary file must be proved first
earlier than adducing secondary file as evidence.
As an instance, a sale deed
cannot be considered as a supply of identity in favour of the person in absence
of any clarification about the unique sale deed and want of producing secondary
evidence as a certified copy of that sale deed. An order permitting secondary
proof of the contents of the document without compliance with the provisions of
section 65 is illegal. (Laxmi Narain v. Parmanand
, 1978 Raj LW 411). Secondary
proof underneath section 65 is most effective to show the life, circumstance and
contents of a file nothing else.
Admissibility of electronic evidence (sec 65A and 65B)
By the effect of science technology, communication and generation, we all used
personal computers and different records mostly. In those transactions as an
instance, from the CCTV footage to the receipt of online payment, emails, and so
forth, all are electronic evidence. Those electronic evidences become the part
and parcel of our existence, these electronic evidences regularly store such
information which are relevant in courtroom cases.
Therefore to give reputation
to the digital information and to set up its admissibility within the court
docket of Information Technology Act 2000 became enacted. Information Technology
Act, 2000 amended numerous sections of the Indian evidence Act to include the
‘digital statistics’ as part of documentary proof. Such as, section 17, 22, 34,
35, 39, 47,59,65,67,73,81,85, 88, 90 and 131. It also brought sec 22A, 47A, 65A,
65B, 67A, 73A, 81A, 85B, 85C and 90A.
Section 3 of the proof Act gives that
Documentary evidence consists of ‘digital records’. Electronic statistics has
the identical meaning as referred to in section 2(t) of the facts technology Act
2000 that is statistics, document or information generated, photo or sound
stored, received or despatched in a digital shape or microfilm or laptop
Relevancy of the Electronic evidence
A fact to be admissible in court docket of law must skip the check of relevancy
supplied beneath section 5- 55 of the evidence act. The relevancy exams cited
under these sections are equally relevant to the digital statistics. But those
are particular sections deals with the relevancy of digital information
- Provisions regarding the Admissions and confessions underneath section
17, 22A, section 24
- Relevancy of declaration made below certain circumstances Section 34
- Relevancy of component statements section 39
- Relevancy of Opinion of examiner of electronic proof section 47A
Admissibility of electronic evidence Sec 65 A and 65B
Before the year 2000, digital information had been taken into consideration
primary documents and their published reproductions authenticated by means of a
competent authority had been treated as secondary proof. Such authority becomes
at risk of the cross-examined inside the court docket in recognition of such
file. Statistics technology Act, 2000 added new changes inside the proof Act now
not best within the provisions referring to relevancy but also laid special
provisions for the admissibility of electronic information as evidence beneath
section 65A and section 65B.
In section 61 to 65 of the evidence Act, the word
“report” or “content material of documents” have no longer been replaced via the
word “digital document” or “contents of electronic record”. For that reason, the
intention of the legislature is explicitly clear that is no longer to extend the
applicability of section 61 to 65 to rule the admissibility of digital records.
This rivalry is similarly reinforced with the aid of the insertion of the words
“however anything contained in this Act” in section 65B that's a non- obstante
clause, which similarly fortifies the fact that the legislature has supposed the
production or exhibition of the electronic facts with the aid of section 65A &
65B simply. Section 65A proclaimed that the contents of digital information can
be proved according to the provisions of section 65B.
Authentication of electronic record
Clause (4) of section 65B of the Act requires for a certificate of authenticity
of electronic evidence signed through a person occupying a responsible and
respectable role with regards to the operation of the applicable tool or the
management of relevant sports, whichever is appropriate. The certificates shall
be evidence of any reply said in the certificates.
Such certificate may be for
any of the following functions:
- Identifying the digital report containing the statement and describing
the way wherein it was produced;
- Giving the details of the device dealing with any of the matters to
which the situations referred to in sub-section (2) Relate.
In Nation v Mohd Afjal
(2003) 107 DLT 385 it became contended whether or not the
computer printouts for the diverse cell phone information, stood proved as
consistent with section 65B. It was held by way of the courtroom that compliance
of the sec 65B (1) and (2) is sufficient to prove the digital facts and it is
able to be admissible. It was mentioned that the certificate beneath section 65
(IV) is ‘alternative mode of evidence’.
Treating computer output as secondary
evidence under sec 65(d), it changed into and held that the oral evidence is
enough. In nation (NCT Delhi) v Navjot Sandhu
(2005) 11 SCC 600), admissibility
of the cellular call facts becomes wondered. Contentions on behalf of the
accused made via the accused that reliance can't be located on the decision
statistics in absence of the certificate of authentication beneath sec 65 B (4)
of the evidence Act.
The rejected the competition and held that a pass
examination of the ready whiteness familiar with the functioning of the computer
for the duration of the applicable time and the manner wherein the printouts of
the decision statistics have been taken become enough to prove the decision
facts. It became further held that despite the fact that the requirements under
section 65B (4) were now not happy, proof might be produced underneath section
63 and 65 of the Act.
In Anvar P.V v P. k. Basheer
(2014) SC 10 SCC 473, The
Apex courtroom overruled the Navjot Sandhu case
and held that Sec 65B (4)
presents a necessary pre situation for the admissibility of the digital
information, and certificates of authentication beneath such section is
obligatory and is the best manner to held electronic document admissible before
the court of regulation. The admissibility of the digital file changed into
entertainment inside the case.
The courtroom held that studying of the section
65A with the sec 59 and 63 and 65 of the Act offers that the special provisions
relating to the admissibility of the electronic records will be governed by the
procedure prescribed within the sec 65B of the proof Act. It’s miles whole in
all feel and being special regulation supersedes the general regulation (‘Generlia
speciallibus non derogant’ way unique law will usually be successful over
fashionable regulation’), this is supported through the fact that sec 65B starts
with the expression ‘however something contained’ as a ‘non obstante clause’.
The courtroom rejected the competition noted inside the Afajal Case that section
61-65 can be applied whilst the conditions of sec 65B aren't happy. Thus
electronic evidence may be adduced most effectively with the manner furnished
under sec 65 B simplest. Currently in 2018 the ideal court in the Shafi Mohd v
state of Himachal Pradesh
held that a party who is in now not ownership of the
device, from which the document is produced, cannot be required to provide a
certificate underneath sec 65B. In addition, it became held by the ideal court
that if an electronic report is used as primary evidence, the equal is
admissible in proof, without compliance with the conditions of sec 65 B( AIR
2017 SC 3228).
In Amitabh Bagchi v Ena Bagchi,
AIR 2005 Cal 11 courtroom issued
distinctive pointers for the usage of audio video hyperlink. In State of Maharashtra v Prafulla B. Desai 2003 1 SCW 1885, it became held wherein a
positive witness is necessary for the ends of justice and the attendance of such
witness cannot be procured right now, rate or inconvenience, the courtroom may
also issue the fee for exam of witness.
In conclusion, with respect to technological advancement, the admissibility of
the secondary electronic evidence has to be adjudged within the restrictions of
Section 65B of Evidence Act and the proposition of the law established in the
recent judgment of the Apex Court and numerous other High Courts as deliberated
above. The proposition is vibrant and obvious that if the secondary electronic
evidence is without a certificate under section 65B of Evidence Act, it is not
permissible and any judgement of the forensic expert and the statement of the
witness in the court of law cannot be looked into by the court.
However, there are few gaps which are still unsettled as what would be the
outcome of the secondary electronic evidence detained from the accused wherein,
the certificate under section 65B of Evidence Act cannot be taken and No person accused of any
offence shall be obligated to be a witness against himself
as per Article 20(3)
of the Constitution of India.” Also, the importance of the Anvar judgment cannot
The need for regulation to evolve with the quick-developing
use of generation in all spheres of lifestyles is amazing and sections 65A and
65B contribute to that to an outstanding quantity.
However, as determined, the
issues in the Anvar judgment in addition to the brand new provisions cannot be
ignored. Section 65B lays down several strict situations, non-compliance with
which may additionally render extraordinarily crucial evidence inadmissible. At
the same time as this is useful in most of the cases, there exist several
eventualities where such provisions might obstruct the entire dissemination of
This could consist of one-off cyber-crimes, in which the offender
of the crime did no longer often feed that precise facts into the computer in
query, and the identical was not used to often save such records. In such an
instance, the situations beneath 65B (4) will no longer complied with.
- Law of Evidence, Ratanlal and Dhirajlal, Wadhwa Publication Nagpur
- Indian Evidence Act, Justice A.K.Nandi, Kamal Law house.
- Setal das v Sant ram AIR 1954 SC 404
- H.Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
- Laxmi Narain v. Parmanand, 1978 Raj LW 411
- Nation v Mohd Afjal (2003) 107 DLT 385
- Anvar P.V v P. k. Basheer (2014) SC 10 SCC 473
- Amitabh Bagchi v Ena Bagchi, AIR 2005 Cal 11
- State of Maharashtra v Prafulla B. Desai 2003 1 SCW 1885