Rajendra Law Office : Advocates in Chennai
HOW TO PROVE ELECTRONIC RECORD U/S. 65B OF EVIDENCE ACT ?
LEGAL INDIA EVIDENCE
Electronic Record
In the case of Anvar P.V Vs. P.K Basheer, (2014) 10 SCC 473 it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act.
In the case of Anvar P.V Vs. P.K Basheer, (2014) 10 SCC 473 it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A of said Act, can be proved only in accordance with the procedure prescribed under Section 65B of said Act.
# Electronic Record
Section 65B deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer.
It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice.
Also was held that 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.
Following are the four 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.
It was also held in aforesaid precedent that 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 was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of The Indian Evidence Act shall yield to be same; Generalia specialibus non derogant, special law will always prevail over the general law.
It was also held that Section 63 and 65 of The Indian Evidence Act have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B of The Indian Evidence Act, so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 does not lay down the correct legal position, which requires to be overruled and was accordingly overruled.
It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B of The Indian Evidence Act are satisfied.
It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of Section 65B of The Indian Evidence Act obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
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