Forensic Research & Criminology International Journal

Admissibility of Electronic Evidence: An Indian

Abstract Proceeding

This article begins with the concept and meaning of electronic evidence. Further Volume 4 Issue 2 - 2017
the principles of the evidence act has been explained with amendments in regard
to electronic evidence. Several decisions of the Indian Supreme Court have
been cited in reference to the admissibility of electronic evidence. Finally the Dr. H.S.Gour Vishwavidyalaya Sagar University, India
safeguards and procedure which needs to be adopted by the Indian judiciary in
handling electronic evidences. *Corresponding author: Vivek Dubey, School of Law, Dr.
H.S.Gour Vishwavidyalaya Sagar University, Madhya Pradesh
- 470003, India, Tel: 8358800320; Email:

Introduction Received: February 27, 2017 | Published: March 14, 2017

The 21 century saw a technological revolution which enthralled

not only India but the whole world. The use of computers is not
limited to established organizations or institutions but available
to every individual at swipe of a finger. Information Technology evidence is any probative information stored or transmitted in
has eased out almost every humanized action. In this age of cyber digital form that a party to a court case may use at trial. Before
world as the application of computers became more popular, accepting digital evidence it is vital that the determination of its
there was expansion in the growth of technology. The evolution relevance, veracity and authenticity be ascertained by the court
of Information Technology (IT) gave birth to the cyber space and to establish if the fact is hearsay or a copy is preferred to
wherein internet provides equal opportunities to all the people the original. Digital Evidence is “information of probative value
to access any information, data storage, analyse etc. with the use that is stored or transmitted in binary form”. Evidence is not
of high technology. This increasing reliance on electronic means only limited to that found on computers but may also extend to
of communications, e-commerce and storage of information in include evidence on digital devices such as telecommunication
digital form has most certainly caused a need to transform the or electronic multimedia devices. The e-EVIDENCE can be found
law relating to information technology and rules of admissibility in e-mails, digital photographs, ATM transaction logs, word
of electronic evidence both in civil and criminal matters in India. processing, documents, instant message histories, files saved from
The proliferation of computers and the influence of information accounting programs, spreadsheets, internet browser histories
technology on society as whole, coupled with the ability to store databases, Contents of computer memory, Computer backups,
and amass information in digital form have all necessitated Computer printouts, Global Positioning System tracks, Logs from
amendments in Indian law to incorporate the provisions on the a hotel’s electronic door locks, Digital video or audio files. Digital
appreciation of digital evidence. The Information Technology Evidence tends to be more voluminous, more difficult to destroy,
Act, 2000 and its amendment are based on the United Nations easily modified, easily duplicated, potentially more expressive
Commission on International Trade Law (UNCITRAL) model and more readily available3.
Law on Electronic Commerce. The Information Technology (IT)
Act 2000 was amended to allow for the admissibility of digital Meaning of Electronic evidence
evidence. An amendment to the Indian Evidence Act 1872, the The type of evidence that we are dealing with has been variously
Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 described as ‘electronic evidence’, ‘digital evidence’ or ‘computer
provides the legislative framework for transactions in electronic evidence’. The word digital is commonly used in computing and
world1. electronics, especially where physical-world information is
With the change in law, Indian courts have developed case converted to binary numeric form as in digital audio and digital
law regarding reliance on electronic evidence. Judges have also photography4. Definitions of digital evidence include ‘Information
demonstrated perceptiveness towards the intrinsic ‘electronic’ of probative value stored or transmitted in binary form; and
nature of evidence, which includes insight regarding the ‘Information stored or transmitted in binary form that may be
admissibility of such evidence, and the interpretation of the law relied on in court. While the term ‘digital’ is too wide, as we have
in relation to the manner in which electronic evidence can be seen the use of ‘binary’ is too restrictive, because it only describes
brought and filed before the court2. Digital evidence or electronic one form of data. Electronic evidence : data (comprising the output
of analogue devices or data in digital format) that is manipulated,
1
Available at, https://www.linkedin.com/pulse/electronic-evidence- stored or communicated by any man-made device, computer or
digital-cyber-law-india-adv-prashant-mali-, last accessed on 15 feb 2017. 3
Available at https://www.linkedin.com/pulse/electronic-evidence-
2
The Supreme Court of India re-defines admissibility of electronic digital-cyber-law-india-adv-prashant-mali-, last accessed on 10 feb 2017.
evidence in India by Tejas Karia, Akhil Anand and Bahaar Dhawan. 4
Electronic Evidence and its Challenges by Dr. Swaroopa Dholam.

Submit Manuscript | http://medcraveonline.com Forensic Res Criminol Int J 2017, 4(2): 00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 2/7

computer system or transmitted over a communication system, for the inspection of the court8. Section 3 of the Act was amended
that has the potential to make the factual account of either party and the phrase “All documents produced for the inspection of the
more probable or less probable than it would be without the Court” was substituted by “All documents including electronic
evidence5. This definition has three elements. First, it is intended records produced for the inspection of the Court9”. Regarding
to include all forms of evidence that is created, manipulated or the documentary evidence, in Section 59, for the words “Content
stored in a product that can, in its widest meaning, be considered of documents” the words “Content of documents or electronic
a computer, excluding for the time being the human brain. Second, records” have been substituted and Section 65A & 65B were
it aims to include the various forms of devices by which data can inserted to incorporate the admissibility of electronic evidence.
be stored or transmitted, including analogue devices that produce Traditionally, the fundamental rule of evidence is that direct oral
an output. Ideally, this definition will include any form of device, evidence may be adduced to prove all facts, except documents.
whether it is a computer as we presently understand the meaning The hearsay rule suggests that any oral evidence that is not direct
of a computer; telephone systems, wireless telecommunications cannot be relied upon unless it is saved by one of the exceptions as
systems and networks, such as the Internet; and computer systems outlined in sections 59 and 60 of the Evidence Act dealing with the
that are embedded into a device, such as mobile telephones, smart hearsay rule. However, the hearsay rule10 is not as restrictive or as
cards and navigation systems. The third element restricts the data straightforward in the case of documents as it is in the case of oral
to information that is relevant to the process by which a dispute, evidence. This is because it is settled law that oral evidence cannot
whatever the nature of the disagreement, is decided by an prove the contents of a document, and the document speaks
adjudicator, whatever the form and level the adjudication takes. for itself. Therefore, where a document is absent, oral evidence
This part of the definition includes one aspect of admissibility cannot be given as to the accuracy of the document, and it cannot
- relevance only - but does not use ‘admissibility’ in itself as a be compared with the contents of the document. This is because it
defining criteria, because some evidence will be admissible but would disturb the hearsay rule (since the document is absent, the
excluded by the adjudicator within the remit of their authority, or truth or accuracy of the oral evidence cannot be compared to the
inadmissible for reasons that have nothing to do with the nature document). In order to prove the contents of a document, either
of the evidence - for instance because of the way it was collected. primary or secondary evidence must be offered11.
The last criteria, however, restricts the definition of electronic
While primary evidence of the document is the document
evidence to those items offered by the parties as part of the fact
itself12, it was realized that there would be situations in which
finding process6.
primary evidence may not be available. Thus secondary evidence
Due to enormous growth in e-governance throughout in the form of certified copies of the document, copies made by
the Public & Private Sector and ecommerce activities mechanical processes and oral accounts of someone who has seen
Electronic Evidence have involved into a fundamental pillar of the document, was permitted under section 63 of the Evidence Act
communication, processing and documentation. The government for the purposes of proving the contents of a document. Therefore,
agencies are opening up to introduce various governance policies the provision for allowing secondary evidence in a way dilutes the
electronically and periodical filings to regulate and control the principles of the hearsay rule and is an attempt to reconcile the
industries are done through electronic means. These various difficulties of securing the production of documentary primary
forms of Electronic Evidence/ Digital Evidence are increasingly evidence where the original is not available. Section 65 of the
being used in the judicial proceedings. At the stage of trial, Evidence Act sets out the situations in which primary evidence
Judges are often asked to rule on the admissibility of electronic of the document need not be produced, and secondary evidence
evidence and it substantially impacts the outcome of civil law - as listed in section 63 of the Evidence Act - can be offered. This
suit or conviction/acquittal of the accused. The Court continue to includes situations when the original document
grapple with this new electronic frontier as the unique nature of
i. Is in hostile possession.
evidence, as well as the ease with which it can be fabricated or
falsified, creates hurdle to admissibility not faced with the other ii. Or has been proved by the prejudiced party itself or any of its
evidences. The various categories of electronic evidence such representatives.
as CD, DVD, hard disk/ memory card data, website data, social
network communication, email, instant chat messages, SMS/MMS 8
Section 3 of the Indian Evidence Act, 1872.
and computer generated documents poses unique problem and 9
The Indian Evidence Act has been amended by virtue of Section 92 of
challenges for proper authentication and subject to a different set Information Technology Act, 2000.
of views7. 10
Hearsay evidence is anything said outside a court by a person absent
from a trial, but which is offered by a third person during the trial as
Electronic Evidence and the Indian Evidence Act 1872 evidence. The law excludes hearsay evidence because it is difficult or
impossible to determine its truth and accuracy, which is usually achieved
The definition of evidence as given in the Indian Evidence Act, through cross examination. Since the person who made the statement and
1872 covers a) the evidence of witness i.e. oral evidence, and b) the person to whom it was said cannot be cross examined, a third person’s
documentary evidence which includes electronic record produced account of it is excluded. There are a few exceptions to this rule which
need no explanation here.
5
Ibid. 11
Anvar v. Basheer and the New (Old) Law of Electronic Evidence -
6
Burkhard Schafer and Stephen Mason, The characteristics of electronic The Centre for Internet and Society, available at http://cisindia.org/
evidence in digital format, in Electronic Evidence, Edited by Stephen internetgovernance/blog/anvarvbasheernewoldlawofelectronicevidence
Mason, LexisNexis, 2013. last accessed on 10/02/2017.
7
Infra note 18. 12
Section 62 of the Indian Evidence Act, 1872.

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 3/7

iii. Is lost or destroyed. to exclude electronic records from the probative force of oral
evidence in the same manner as it excluded documents. This is
iv. Cannot be easily moved, i.e. physically brought to the court.
the re-application of the documentary hearsay rule to electronic
v. Is a public document of the state. records. But, instead of submitting electronic records to the
test of secondary evidence - which, for documents, is contained
vi. Can be proved by certified copies when the law narrowly in sections 63 and 65, it inserted two new evidentiary rules for
permits; and electronic records in the Evidence Act: section 65A and section
vii. Is a collection of several documents13. 65B. The intention of the legislature is to introduce the specific
provisions which has its origin to the technical nature of the
Electronic Document evidence particularly as the evidence in the electronic form
cannot be produced in the court of law owing to the size of
As documents came to be digitized, the hearsay rule faced
computer/server, residing in the machine language and thus,
several new challenges. While the law had mostly anticipated
requiring the interpreter to read the same19. Section 65A of the
primary evidence (i.e. the original document itself) and had created
Evidence Act creates special law for electronic evidence - The
special conditions for secondary evidence, increasing digitisation
contents of electronic records may be proved in accordance
meant that more and more documents were electronically stored.
with the provisions of section 65B20. This section performs the
As a result, the adduction of secondary evidence of documents
same function for electronic records that section 61 does for
increased14. In the Anvar case15, the Supreme Court noted that
documentary evidence: it creates a separate procedure, distinct
“there is a revolution in the way that evidence is produced
from the simple procedure for oral evidence, to ensure that the
before the court. In India before 2000, electronically stored
adduction of electronic records obeys the hearsay rule. It also
information was treated as a document and secondary evidence
secures other interests, such as the authenticity of the technology
of these electronic ‘documents’ was adduced through printed
and the sanctity of the information retrieval procedure. But
reproductions or transcripts, the authenticity of which was
section 65A is further distinguished because it is a special law
certified by a competent signatory. The signatory would identify
that stands apart from the documentary evidence procedure in
her signature in court and be open to cross examination. This
sections 63 and 65.
simple procedure met the conditions of both sections 63 and 65
of the Evidence Act. In this manner, Indian courts simply adapted Section 65B of the Evidence Act details this special procedure
a law drafted over one century earlier in Victorian England. for adducing electronic records in evidence. Sub-section (2)
However, as the pace and proliferation of technology expanded, lists the technological conditions upon which a duplicate copy
and as the creation and storage of electronic information grew (including a print-out) of an original electronic record may be
more complex, the law had to change more substantially16. Under used:
the provisions of Section 61 to 65 of the Indian Evidence Act,
i. At the time of the creation of the electronic record, the
1872, the word “Document or content of documents” have not
computer that produced it must have been in regular use,
been replaced by the word “Electronic documents or content
of electronic documents”. Thus, the intention of the legislature ii. The kind of information contained in the electronic record
is explicitly clear i.e. not to extend the applicability of section must have been regularly and ordinarily fed in to the
61 to 65 to the electronic record. It is the cardinal principle of computer,
interpretation that if the legislature has omitted to use any word,
the presumption is that the omission is intentional. It is well settled iii. The computer was operating properly; and,
that the Legislature does not use any word unnecessarily17. In this iv. The duplicate copy must be a reproduction of the original
regard, the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. electronic record.
v. State of Orissa18 held that “...Parliament is also not expected to
express itself unnecessarily. Even as Parliament does not use any The Section 65B of the Evidence Act makes the secondary copy
word without meaning something, Parliament does not legislate in the form of computer output comprising of printout or the data
where no legislation is called for. Parliament cannot be assumed copied on electronic/magnetic media admissible. It provides21:
to legislate for the sake of legislation; nor indulge in legislation Notwithstanding anything contained in this Act, any information
merely to state what it is unnecessary to state or to do what is contained in an electronic record which is printed on a paper,
already validly done. Parliament may not be assumed to legislate stored, recorded or copied in optical or magnetic media, produced
unnecessarily.” by a computer shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in relation to
The IT Act amended section 59 of the Evidence Act, 1872 the information and computer in question and shall be admissible
13
Manisha T. Karia and Tejas D. Karia, ‘India’ (Chapter 13) in Stephen in any proceedings, without further proof or production of the
Mason, ed, Electronic Evidence (3rd edn, LexisNexis Butterworths, 2012). original, as evidence of any contents of the original or of any fact
14
Supra note 12. stated therein of which direct evidence would be admissible.
15
Anvar P. K. vs. P.K Basheer &Ors. (2014) 10 SCC 473
16
Supra note 12.
Supra note 18.
19
17
E-Evidence in India by Prashanti, available at www.legalservicesindia.
Section 65-A of the Indian evidence Act, 1872: Special provisions as to
20
com, last accessed on 09/02/2017.
evidence relating to electronic record.
18
Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported as AIR
1987 SC 1454. Section 65B provides for ‘Admissibility of Electronic Records’.
21

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 4/7

Sec. 65B(2) view to give the enacting part of the Section, in case of conflict,
an overriding effect over the provision in the same or other act
The computer from which the record is generated was mentioned in the non obstante clause. It is equivalent to saying
regularly used to store or process information in respect of activity that despite the provisions or act mentioned in the non obstante
regularly carried on by a person having lawful control over the clause, the provision following it will have its full operation or the
period, and relates to the period over which the computer was provisions embraced in the non obstante clause will not be an
regularly used; Information was fed in computer in the ordinary impediment for the operation of the enactment or the provision
course of the activities of the person having lawful control over in which the non obstante clause occurs. The aforesaid principles
the computer; The computer was operating properly, and if not, of interpretation with respect to the non obstante clause in form
was not such as to affect the electronic record or its accuracy; of “Notwithstanding anything contained in this Act” is further
Information reproduced is such as is fed into computer in the supported by the Hon’ble Apex Court in Union of India and Anr.,
ordinary course of activity22. v. G.M. Kokil and Ors24. observed “It is well known that a non
Sec.65 B(3) obstante clause is a legislative device which is usually employed
to give overriding effect to certain provisions over some contrary
The following computers shall constitute as single computer provisions that may be found either in the same enactment or
a. By a combination of computers operating over that period; some other enactment, that is to say, to avoid the operation and
or effect of all contrary provisions.” Further, the Hon’ble Apex Court
in the case cited as Chandavarkar Sita Ratna Rao v. Ashalata
b. By different computers operating in succession over that S. Guram25, explained the scope of non obstante clause as “It is
period; or equivalent to saying that in spite of the provision of the Act or any
other Act mentioned in the non obstante clause or any contract or
c. By different combinations of computers operating in
document mentioned the enactment following it will have its full
succession over that period; or
operation”.
d. In any other manner involving the successive operation over
that period, in whatever order, of one or more Non Application the Special Legal Provisions
e. In any other manner involving the successive operation over The special law and procedure created by sections 65A and
that period, in whatever order, of one or more computers and 65B of the Evidence Act for electronic evidence were not used.
one or more combinations of computers. Disappointingly, the cause of this non-use does not involve
the law at all26. India’s lower judiciary - the third tier of courts,
Sec. 65B(4) where trials are undertaken - is vastly inept and technologically
unsound. With exceptions, trial judges simply do not know
Regarding the person who can issue the certificate and contents
the technology the IT Act comprehends. It is easier to carry
of certificate, it provides the certificate doing any of the following
on treating electronically stored information as documentary
things: identifying the electronic record containing the statement
evidence. The reasons for this are systemic in India and, I suspect,
and describing the manner in which it was produced; giving the
endemic to poor developing countries. India’s justice system
particulars of device, dealing with any of the matters to which the
is decrepit and poorly funded. As long as the judicial system is
conditions mentioned in subsection (2) relate and purporting
not modernized, India’s trial judges will remain clueless about
to be signed by a person occupying a responsible official
electronic evidence and the means of ensuring its authenticity27.
position in relation to the operation of the relevant device or the
By bypassing the special law on electronic records, Indian courts
management of the relevant activities (whichever is appropriate)
have continued to apply the provisions of sections 63 and 65 of
shall be evidence of any matter stated in the certificate and for
the Evidence Act, which pertain to documents, to electronically
the purposes of this subsection it shall be sufficient for a matter
stored information. Simply put, the courts have basically ignored
to be stated to the best of the knowledge and belief of the person
sections 65A and 65B of the Evidence Act. Curiously, this state of
stating it23. This contention is further strengthened by the
affairs was blessed by the Supreme Court in Navjot Sandhu (the
insertion words “Notwithstanding anything contained in this
Parliament Attacks case)28, which was a particularly high-profile
Act” to Section 65A & 65B, which is a non obstante clause, further
appeal from an emotive terrorism trial. On the question of the
fortifies the fact that the legislature has intended the production
defence’s challenge to the authenticity and accuracy of certain
or exhibition of the electronic records by Section 65A & 65B only.
call data records (CDRs) that the prosecution relied on, which
A non obstante clause is generally appended to a Section with a
were purported to be reproductions of the original electronically
22
Section 65 B (2) of the Indian Evidence Act, 1872 lists the technological
conditions upon which a duplicate copy (including a print-out) of an stored records, a Division Bench of Justice P. Venkatarama Reddi
original electronic record may be used. and Justice P. P. Naolekar held.
23
Section 65B (4) of the Evidence Act lists additional non-technical
qualifying conditions to establish the authenticity of electronic evidence. 24
Union of India and Anr., v. G.M. Kokil and Ors. [(1984)SCR196].
This provision requires the production of a certificate by a senior person 25
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986)3SCR866].
who was responsible for the computer on which the electronic record was 26
Prior to 2000 in India, electronically stored information was dealt
created, or is stored. The certificate must uniquely identify the original with as a document, and secondary evidence of electronic records were
electronic record, describe the manner of its creation, describe the device adduced as ‘documents’ in accordance with section 63 of the Evidence Act.
that created it, and certify compliance with the technological conditions of 27
Supra note 12.
sub-section (2) of section 65B. 28
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 5/7

According to Section 63, secondary evidence means and The Evidence Act mandates a special procedure for electronic
includes, among other things, “copies made from the original by records precisely because printed copies of such information are
mechanical processes which in themselves ensure the accuracy vulnerable to manipulation and abuse. This is what the veteran
of the copy, and copies compared with such copies”. Section 65 defence counsel, Mr. Shanti Bhushan, pointed out in Navjot Sandhu
enables secondary evidence of the contents of a document to where there were discrepancies in the CDRs led in evidence by
be adduced if the original is of such a nature as not to be easily the prosecution. Despite these infirmities, which should have
movable. It is not in dispute that the information contained in disqualified the evidence until the state demonstrated the absence
the call records is stored in huge servers which cannot be easily of mala fide conduct, the Supreme Court stepped in to certify the
moved and produced in the court. That is what the High Court secondary evidence itself, even though it is not competent to do
has also observed at para 276. Hence, printouts taken from the so. The court did not compare the printed CDRs to the original
computers/servers by mechanical process and certified by a electronic record. Essentially, the court allowed hearsay evidence.
responsible official of the service-providing company can be led This is exactly the sort of situation that section 65B of the Evidence
into evidence through a witness who can identify the signatures Act intended to avoid by requiring an impartial certificate under
of the certifying officer or otherwise speak to the facts based on sub-section (4) that also speaks to compliance with the technical
his personal knowledge29. requirements of sub-section (2)36. When the lack of a proper
certificate regarding the authenticity and integrity of the evidence
Electronic Evidence and the Indian Supreme Court was pointed out, this is what the Supreme Court said in pr. 150:
In Som Prakash vs. State Of Delhi30, the Supreme Court has Irrespective of the compliance of the requirements of Section
rightly observed that “in our technological age nothing more 65B, which is a provision dealing with admissibility of electronic
primitive can be conceived of than denying discoveries and records, there is no bar to adducing secondary evidence under the
nothing cruder can retard forensic efficiency than swearing by other provisions of the Evidence Act, namely, Sections 63 and 65.
traditional oral evidence only thereby discouraging the liberal It may be that the certificate containing the details in sub-section
use of scientific aids to prove guilt.” Statutory changes are needed (4) of Section 65B is not filed in the instant case, but that does
to develop more fully a problem solving approach to criminal not mean that secondary evidence cannot be given even if the law
trials and to deal with heavy workload on the investigators and permits such evidence to be given in the circumstances mentioned
judges. In SIL Import, USA v vs. Exim Aides Exporters, Bangalore31, in the relevant provisions, namely, Sections 63 and 6537.
the Supreme Court held that “Technological advancement like In the years that followed, printed versions of CDRs were
fascimile, Internet, e-mail, etc. were in swift progress even before admitted in evidence if they were certified by an officer of the
the Bill for the Amendment Act was discussed by Parliament. telephone company under sections 63 and 65 of the Evidence Act.
So when Parliament contemplated notice in writing to be given The special procedure of section 65B was ignored. This has led
we cannot overlook the fact that Parliament was aware of to confusion and counter-claims. For instance, the 2011 case of
modern devices and equipment already in vogue.” In State vs. Amar Singh v. Union of India38 saw all the parties, including the
Mohd. Afzal And Ors32, the court held that Computer generated state and the telephone company, dispute the authenticity of the
electronic records is evidence, admissible at a trial if proved in printed transcripts of the CDRs, as well as the authorisation itself.
the manner specified by Section 65B of the Evidence Act. In Currently, in the case of Ratan Tata v. Union of India39, a compact
State vs. Navjyot Sandhu33 the court held that merely because disc (CD) containing intercepted telephone calls was introduced
a certificate containing the details in sub-Section (4) of Section in the Supreme Court without following any of the procedure
65B is not filed in the instant case, does not mean that secondary contained in the Evidence Act. In Avnish Bajaj vs. State40, the
evidence cannot be given even if the law permits such evidence question as to what kind of distinction do we draw between
to be given in the circumstances mentioned in the relevant Internet Service Provider and Content Provider was raised. The
provisions, namely Sections 63 & 65. The Supreme Court’s finding burden rests on the accused that he was the Service Provider and
in Navjot Sandhu case34 raised uncomfortable questions about the not the Content Provider. It also raises a lot of issues regarding
integrity of prosecution evidence, especially in trials related to how the police should handle the cyber crime cases and a lot of
national security or in high-profile cases of political importance. education is required.
The state’s investigation of the Parliament Attacks was shoddy
with respect to the interception of telephone calls. The Supreme The trend of ignoring the special procedure prescribed
Court’s judgment notes in prs. 148, 153, and 154 that the law and for adducing electronic records as evidence was seen even in
procedure of wiretaps was violated in several ways35. subsequent cases. For example the case of Ratan Tata v. Union

29
Available at www.cidap.gov.in/.../State_(N.C.T._Of_Delhi)_vs_Navjot_ 36
Anvar v. Basheer and the New (Old) Law of Electronic
Sandhu@_Afsan_Guru_o., Last accessed on 11/02/2017. Evidence - The Centre for Internet and Society available
30
Som Prakash vs. State Of Delhi AIR 1974 SC 989, 1974 Cri. LJ 784, MANU/ at, http://cisindia.org/internetgovernance/blog/
SC/0213/1974. anvarvbasheernewoldlawofelectronicevidence, last accessed on
31
SIL Import, USA v vs. Exim Aides Exporters, Bangalore MANU/ 21/02/2017.
SC/0312/1999, (1999) 4 SCC 567. 37
Ibid.
32
State vs. Mohd. Afzal And Ors (2003) DLT 385, 2003(71)DRJ 17. 38
Amar Singh v. Union of India (2011) 7 SCC 69.
33
State vs. Navjyot Sandhu AIR 2005 SC 3820. 39
Ratan Tata v. Union of India Writ Petition (Civil) 398 of 2010.
34
Supra note 29. 40
Avnish Bajaj vs. State (Bazee.com case) 2008(105)DRJ 721 MANU/
35
Supra note 30. DE/0851/2008.

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 6/7

of India41 was another case where a CD containing intercepted electronic record. If the original electronic record is challenged,
telephone calls was introduced in the Supreme Court without section 22A of the Evidence Act permits oral evidence as to its
following the procedure laid down under section 65B of the genuineness only. Note that section 22A disqualifies oral evidence
Evidence Act. In Anvar vs. Basheer42, the court held that Section as to the contents of the electronic record, only the genuineness of
65B of the Evidence Act has been inserted by way of an amendment the record may be discussed. In this regard, relevant oral evidence
by the Information Technology Act, 2000. In as much it is a special as to the genuineness of the record can be offered by the Examiner
provision which governs digital evidence and will override the of Electronic Evidence, an expert witness under section 45A of the
general provisions with respect to adducing secondary evidence Evidence Act who is appointed under section 79A of the IT Act. In
under the Evidence Act. In 2007, the United States District Court Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke45. The
for Maryland handed down a landmark decision in Lorraine v. court relying upon the judgment of Anvar case while considering
Markel American Insurance Company43241 FRD 534 (D. Md. 2007) the admissibility of transcription of recorded conversation in a
that clarified the rules regarding the discovery of electronically case where the recording has been translated, it was held that
stored information. In American federal courts, the law of as the voice recorder had itself not subjected to analysis, there
evidence is set out in the Federal Rules of Evidence. Lorraine held is no point in placing reliance on the translated version. Without
when electronically stored information is offered as evidence, the source, there is no authenticity for the translation. Source and
following tests need to be affirmed for it to be admissible: authenticity are the two key factors for electronic evidence.
i. Is the information relevant. In the recent judgment, Jagdeo Singh vs. The State and Ors46
pronounced by Hon’ble High Court of Delhi, while dealing with
ii. Is it authentic.
the admissibility of intercepted telephone call in a CD and CDR
iii. Is it hearsay. which were without a certificate u/s 65B Evidence Act, the
court observed that the secondary electronic evidence without
iv. Is it original or, if it is a duplicate, is there admissible certificate u/s 65B Evidence Act is inadmissible and cannot be
secondary evidence to support it; and looked into by the court for any purpose whatsoever.
v. Does its probative value survive the test of unfair prejudice?
Conclusion
In a small way, Anvar does for India what Lorraine did for US
Strict compliance with section 65B is now mandatory for
federal courts. In Anvar, the Supreme Court unequivocally returned
persons who intend to rely upon e-mails, web sites or any
Indian electronic evidence law to the special procedure created
electronic record in a civil or criminal trial before the courts in
under section 65B of the Evidence Act. It did this by applying the
India. This outlook of the Supreme Court of India is to ensure
maxim generalia specialibus non derogant (“the general does not
that the credibility and evidentiary value of electronic evidence
detract from the specific”), which is a restatement of the principle
is provided for, since the electronic record is more susceptible
lex specialis derogat legi generali (“special law repeals general
to tampering and alteration. In its judgment, Kurian J observed,
law”). The Supreme Court held that the provisions of sections 65A
that: ‘Electronic records being more susceptible to tampering,
and 65B of the Evidence Act created special law that overrides
alteration, transposition, excision, etc. without such safeguards,
the general law of documentary evidence. Proof of electronic
the whole trial based on proof of electronic records can lead to
record is a special provision introduced by the IT Act amending
travesty of justice.’ Therefore, the computer generated electronic
various provisions under the Evidence Act. The very caption of
record cannot be solely relied upon, because there is a possibility
Section 65Aof the Evidence Act, read with Sections 59 and 65B is
of it being hampered. The Indian Evidence Act could be further
sufficient to hold that the special provisions on evidence relating
amended to rule out any manipulation - at least for the purposes
to electronic record shall be governed by the procedure prescribed
of presuming prima facie authenticity of the evidence of the
under Section 65B of the Evidence Act. That is a complete code in
electronic record - by adding a condition that the record was
itself. Being a special law, the general law under Sections 63 and
created in the usual way by a person who was not a party to the
65 has to yield. By doing so, it disqualified oral evidence offered
proceedings and the proponent of the record did not control the
to attest secondary documentary evidence. The Evidence Act does
making of the record. By ensuring that the record was created by a
not contemplate or permit the proof of an electronic record by
party who was adverse in interest to the proponent of the record,
oral evidence if requirements under Section 65B of the Evidence
and the record was being used against the adverse party, the risk
Act are not complied with, as the law now stands in India44.
of the manipulation of the records would be reduced significantly.
The scope for oral evidence is offered later. Once electronic This is because, it is argued, no disinterested party would want
evidence is properly adduced according to section 65B of the to certify the authenticity of the record which to his knowledge
Evidence Act, along with the certificate of sub-section (4), had been tampered with. The law also needs to creatively address
the other party may challenge the genuineness of the original the requirement of the burden being on the proponent to provide
testimony as to the author of a document to determine whether
41
Ratan Tata v. Union of India, Writ Petition (Civil) 398 of 2010 before there was any manipulation or alteration after the records were
Supreme Court of India.
created, the reliability of the computer program that generated
42
Anvar vs. Basheer AIR 2015 SC 180, MANU/SC/0834/2014.
43
Lorraine v. Markel American Insurance Company 241 FRD 534 (D. Md. 45
Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke MANU/
2007). SC/0040/2015.
44
Supra note 43. 46
Jagdeo Singh vs. The State and Ors. MANU/DE/0376/2015.

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109
 Copyright:
Admissibility of Electronic Evidence: An Indian Perspective ©2017 Dubey 7/7

the records, 20 and whether the records are complete or not. The challenges with respect to the admissibility and appreciation of
courts also have to be mindful that data can be easily forged or electronic evidence, India still has a long way to go in keeping pace
altered, and section 65B of the Evidence Act does not address with the developments globally. Although the amendments were
these contingencies. For instance, when forwarding an e-mail, introduced to reduce the burden of the proponent of records, they
the sender can edit the message. Such alterations are often not cannot be said to be without limitations. It is clear that India has
detectible by the recipient, and therefore a certificate of a third yet to devise a mechanism for ensuring the veracity of contents of
party to the dispute may not always be a reliable condition to electronic records, which are open to manipulation by any party
provide for the authenticity of the document. by obtaining access to the server or space where it is stored.
Serious issues have been raised in the digital world due The admission of electronic evidence along with advantages
to malpractices such as falsification of information and can also be complex at the same time. It is upon the courts to
impersonation, in relation to the authenticity of information see that the whether the evidence fulfils the three essential
relied upon as evidence. It raises queries as to how it is possible to legal requirements of authenticity, reliability and integrity. After
prove the creation and transmission of electronic communication Anvars case decision by the Supreme Court laying down the rules
by one party when the party’s name as the author of the post for admissibility of electronic evidence it can be expected that the
could have been inserted by anyone. Perhaps, it may be prudent Indian courts will adopt a consistent approach, and will execute
for the courts or the government to set up a special team of digital all possible safeguards for accepting and appreciating electronic
evidence specialists who would assist the courts and specifically evidence
investigate the authenticity of the electronic records. The

Citation: Dubey V (2017) Admissibility of Electronic Evidence: An Indian Perspective. Forensic Res Criminol Int J 4(2): 00109. DOI:
10.15406/frcij.2017.04.00109