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FeaturedCompliance with S.65A & S.65B, Indian Evidence Act, 1872 – A Practical Guide for Practitioners – PART I©
N. S. Nappinai, Advocate, Supreme Court & Bombay High Court
Sections 65A [1] and 65B [2] of the Indian Evidence Act, 1872 (“Evidence Act”) were introduced to facilitate ease of admissibility of electronic records in evidence. S.65A Evidence Act merely postulates that electronic records have to be proved, as per the procedures set out in S.65B of the Evidence Act. The very purpose of the special provisions has been defeated due to the convoluted phraseology and draftsmanship adapted in formulating S.65B Evidence Act. Whilst so, until these provisions continue to be part of the enactment, compliance with the requirements mandated under the special provisions are essential for electronic records to be relied on, in any legal proceedings.
It would be preposterous to presume that law or legislators would want to discourage use of electronic evidence or that they would knowingly make reliance on electronic evidence (which the Supreme Court qualifies as “best evidence” in Tomaso Bruno v. State of UP [3]) purposefully difficult. S.65B has drawn heavily from S.69 of the Police and Criminal Evidence Act 1984 (UK) (“PACE Act”) [4], which special provision was itself repealed in 1999 [5]. United Kingdom moved back to its common law precepts with respect to proving of electronic documents as of 1999 but India adapted and made more complex the process for admissibility of secondary evidence of electronic records.
Given the complexity of the provisions, it is imperative to simply break it down into its components to help apply the special provisions effectively for electronic records to be relied upon. One cannot shy away from compliance with these complex processes nor can electronic evidence be ignored. It is therefore important to understand the simple procedures to be adapted to not only rely on electronic evidence but to also ensure that the same can be done in an easy manner, which will be upheld by Courts (or Tribunals). This article is intended to be a practical guide to facilitate this process in legal proceedings.
No 65B For Original Electronic Records
The special provisions under S.65B Evidence Act become applicable only when copies of electronic records are sought to be relied upon. The certificate under S.65B(4) Evidence Act is mandatory, as more fully set out hereunder, when a party to legal proceedings, wishes to rely on “any information contained in an electronic record” by producing copies of such electronic record. Such copy may be “printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer” (computer output) and such copy is then “deemed to be also a document”.
The provision itself is therefore clear that it is only when a party to legal proceedings wishes to rely on secondary evidence of electronic records that the conditions under S.65B Evidence Act must be complied with. This was affirmed by the Supreme Court in Anvar v. Basheer [6].
What Are the Conditions Under S.65B Indian Evidence Act, 1872?
The primary requirement under S.65B Evidence Act is captured at S.65B(4) – that of giving a certificate setting out the details in the sub clauses therein.
In State v. Navjot Sandhu [7], the Supreme Court interpreted S.65B(4) to be discretionary and held that though a certificate may be given, parties to legal proceedings may also resort to S.63 and S.65 of the Evidence Act, i.e., the general provisions for proving of copies of documents, to rely on secondary evidence of electronic records.
Nearly a decade later, in Anvar v. Basheer[8], a three-judge bench of the Supreme Court held that S.65A & S.65B of the Evidence Act being special provisions, compliance with the conditions in S.65B was mandatory. This was indeed the correct interpretation. However, the Hon’ble Supreme Court erred in interpreting S.65B(4) of the Evidence Act.
S.65B(4) clearly provides that ANY of three conditions in the said section have to be complied with. Further even under S.65B(4)(c) it is again reiterated that any of the conditions under S.65B(2) have to be complied with. The full text is extracted hereunder:
“S.65B(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) 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;
(c) 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 matter 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 stating it.”
The Supreme Court in Anvar (supra) unfortunately interpreted the provision to mean that ALL of the conditions not only under S.65B(4) but ALSO under S.65B(2) have to be complied with.
Thereafter in 2017, a two-judge bench of the Supreme Court observed in Sonu v. State of Haryana [9] that Anvar (Supra) could have made its ruling applicable only for future cases (through the doctrine of prospective overruling) but had not done so. The two-judge bench restricted its findings however to hold that when objections have not been raised at the stage of trial, the same could not be raised thereafter. Hence cases where the S.65B(4) certificate may not have been submitted based on Navjot Sandhu’s decision were saved to some extent.
In 2018, another two-judge bench of the Supreme Court again sought to mitigate the complexities involved in reliance on secondary evidence of electronic records in Shafhi Mohammad v. The State of Himachal Pradesh [10]. The bench held that whilst the decision in Anvar was correct, the same applied to documents in the hands of the litigants and where such documents are in the custody of third parties, general laws would apply and that a certificate under S.65B(4) would not be required. It however qualified this by holding that such decision on whether the certificate is needed or not was left to the discretion of the trial judge.
In a further twist to the tale of S.65B and the certificate required thereunder, in 2019, a two-judge bench of the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [11]held that since Anvar was decided by a three-judge bench whereas the modifications therein under the decision in Shafhi Mohammad was that of a two-judge bench, the issue ought to be referred to a larger bench. Consequently, as on date, it would be safe to presume that pending a decision by a larger bench, and despite the fact that the legislature did not intend it so (refer to the more detailed analysis in this regard to Chapter V of Technology Laws Decoded by N. S. Nappinai (published by LexisNexis) and the Article titled “Electronic Evidence – The Great Indian Quagmire” by N. S. Nappinai, published by Supreme Court Cases [12].
Conditions to be Complied for S.65B(4) Certificate
In the light of the decisions and ratio in the above judgments, the following simplified version of the conditions, as finally elicited in Anvar v. Basheer (Supra) are summed up, as under:
Certificate in writing, covering each / all of the following parameters ought to be submitted, when relying on copies of electronic records:
(a) identifying the electronic record and describing how it was produced;
(b) identifying the device used for producing the electronic record to show that it is a computer output;
Complying with S.65B(2), which comprises the following©:That the computer output was produced by the computer, during period of regular use, for storing or processing information, for purpose of any activities regularly carried on over that period, in ordinary course of business; by person having lawful control over use of the computer;
That information was regularly fed into the computer in the ordinary course of the said activities;
That through material part, computer was operating properly and even if for any period it was not operating properly or was out of operation then during such period, the electronic record or accuracy of its contents was not affected;
That information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities;
(End of Part I. Refer to Part II of the Article for further details on who, what, how and when of the S.65B(4) Certificate and more details to assist in admissibility of secondary evidence of electronic records.)
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REFERENCES:
[1] Section 65A, Indian Evidence Act, 1872:
“65A. Special provisions as to evidence relating to electronic record.—
The contents of electronic records may be proved in accordance with the provisions of section 65B.”
[2] Section 65B, 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.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether –
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) 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;
(c) 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 matter 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 stating it.
(5) For the purposes of this section, –
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”
[3] (2015) 7 SCC 178
[4] S.69 PACE Act:
“(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact therein unless it is shown-
(a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer and;
(b) that at all materials times the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents.”
[5] S.60 of the Youth Justice and Criminal Evidence Act, 1999 removed the special provisions under S.69 PACE Act:
S. 60 of Youth Justice and Criminal Evidence Act:“Section 69 of the Police and Criminal Evidence Act 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect.”
[6] (2014) 10 SCC 473
[7] (2005) 11 SCC 600 (overruled)
[8] (2014) 10 SCC 473
[9] (2017) (8) SCC 570
[10] (2018) 2 SCC 801
[11] 2019 SCC OnLine SC 1553
[12] (2019) 3 SCC J-41
