Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act and these special provisions on evidence relating to electronic record would be governed by the procedure prescribed under Section 65B of the Evidence Act.
The present matter was about acceptability of electronic evidence. The precise question that arose before the Corut was to determine the nature and manner of admission of electronic records.The Court in the instant petition clarified on the position of law relating to admissibility of electronic record as evidence as accordingly the conditions connected therewith.
It was observed that electronic record produced for the inspection of the court is documentary evidence under Section 3 of the Indian Evidence Act, 1872 which underwent a major amendment by the Information Technology Act, 2000 (‘IT Act), also causing corresponding amendments in the Indian Penal Code and the Bankers Books Evidence Act.
Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B, dealing with the admissibility of the electronic record. The very admissibility of such a document, i.e., electronic record or a computer output, depends on the satisfaction of the four conditions under Section 65B(2) of the Evidence Act, enumerated as under:
(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.
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 only when there is a certificate:
a. Identifying the electronic record containing the statement;
b. Describing the manner in which the electronic record was produced;
c. Furnishing the particulars of the device involved in the production of that record;
d. Dealing with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
e. Signed by a person occupying a responsible official position in relation to the operation of the relevant device.
As was clarified the person issuing the certificate is only required to state that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records would lead to mockery of justice.
It was further observed that only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation resort can be made to provision of Section 45A relating to obtaining opinion of examiner of electronic evidence.
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. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act and these special provisions on evidence relating to electronic record would be governed by the procedure prescribed under Section 65B of the Evidence Act.
[P.V. Anvar vs. P.K. Basheer and Ors.]