In 1871, Sir James Stephen was tasked with preparing an Indian Evidence Act. The following year, his bill was approved, and we got the Indian Evidence Act of 1872. In its almost 150 years of existence, this law has seen very few amendments, and scholars have considered this Act a brilliant piece of legislation. The few modifications this Act saw were to keep up with the forward-moving world and its developments.
In 2000, India saw the Information Technology Act, which brought significant amendments and inserted new provisions into the Evidence Act. Section 65B is the provision that laysdown the conditions, procedure, and relevant requirements to admit electronic evidence in court.
The following cases are chronologically presented in order to showcase the trend in the judiciary concerning cases of Electronic Evidence.
Brief Facts: The petitioner lost to the respondent in the Assembly elections. The petitioner alleged that the respondent had orchestrated malicious propaganda by implicating the petitioner as a murderer before the voting day. Petitioner provided electronic evidence of hoardings, defamatory speeches, and pamphlets to portray the petitioner as a murderer. Petitioner, however, did not attach certificates as per Section 65B, and the court did not admit his evidence.
Key Issues
- Is the requirement under Section 65B mandatory?
- Is the certificate required under subsection four mandatory?
Key Takeaways
The Court laid stress on Section 65B being a special provision created especially for electronic evidence. Specific provisions are preferred over general provisions as understood by the legal maxim generelia specialibus non derogant, which means that specific provisions should prevail over general provisions. It was clarified that if secondary evidence is not admissible under Section 65B then it cannot be admissible under Section 63 and 65 as Section 65B being a special provision due to its non-obstante clause will prevail and is thereby mandatory.
The three-judge bench of Supreme Court in Anvar case held that it is necessary to meet the requirements under Section 65B to be admissible as secondary evidence. So, failing to provide the certificate would make the evidence inadmissible.
Therefore, it was held that if the electronic evidence is serving as primary evidence, then it will be admissible under Section 62, but if it is being served as secondary evidence then it will become inadmissible without the conditions under Section 65B being fulfilled.
Brief Facts : In this case the petitioner was said to be involved in corruption. The CBI relied upon video footage and CD to make prima facie case against the accused. However, the accused wanted protection under Section 65B as the electronic evidence was not accompanied by the certificate requirement and thus was contented to be inadmissible.
Key Issue : The Delhi High Court was faced with the question of whether an electronic evidence can be admissible without the requirements being fulfilled under Section 65B.
Key Takeaways
The Delhi High Court’s Singh Judge Bench followed the footsteps of the Apex Court and, relying upon the Anvar case held that the evidence will be inadmissible as it was not accompanied with a certificate under sub-section 4. It was also held that the certificate has to be filed along with electronic evidence in the court.
Brief Facts : Kundan Singh was accused of murder and appealed that since a certificate did not accompany the CD. Hence, the electronic evidence becomes inadmissible as per Section 65B.
Key Issue : A division bench of the High Court was faced with an issue as to whether the certificate should simultaneously accompany the evidence or can it be admitted later.
Key Takeaway: The bench decided not to accept the legal ratio of the Ankur Chawla case. It held that the certificate can be filed at a later stage. The certificate will be admissible when the parties want to bring it on record, marked as exhibit and read as evidence. Thus, position of Ankur Chawla was overruled by the Division Bench.
Brief Facts : As per the Anti-Corruption Bureau the petitioner was selling fake ghee at a large scale. Transcriptions of phone conversations and CDs were produced in front of the court.
Key Issue : Can a certificate under Section 65B be filed later in the process?
Key Takeaway: the Rajasthan High Court took a similar approach as the Delhi High Court and agreed that the certificate could be admitted later. Further it was observed that filing the certificate late is merely a procedural irregularity.
Brief Facts: This case is about the murder of a French person. CCTV footage was majorly relied upon in this case.
Key Takeaway: It was held that electronic evidence could be admitted strictly as per Section 65B. In contradiction to the Anvar case, it was also held that secondary evidence can be led under Section 65.
Brief facts : The accused in this case was charged with murder and took defence under Section 65B stating that the CDRs are inadmissible because they don’t follow the requirements in subsection 4.
Held : It was held that fundamental issues such as issue of admissibility can be taken at appellate stage. The court chose to look at admissibility in this case in terms of mode and method . However, question regarding mode and method cannot be raised at an appellate stage and only at trial stage. The court in this case also raised doubts over the decision of Anvar because it was believed that the court, in that case, did not apply the principle of the prospective ruling.
Brief Facts : This was a murder case where the prosecution relied on video footage and the accused sought protection under requirements of Section 65B.
Key Issue : Are the requirements under Section 65B(4) mandatory or directory?
Key Takeaway : A three-judge bench of the Apex Court reached the verdict that the certificate requirement under the section is only a procedural requirement. The necessity of providing a certificate will apply to the person in a position of delivering certificate and has control over the device. The reasoning given was that a party who does not have control over the device or is not in a position to provide the required certificate cannot be expected to file the said certificate and it will be injustice if the evidence is not admitted because of not having a capacity to provide certificate. Thus, this decision provided exceptions to the otherwise mandatory requirements of the section. Hence in interest of justice the electronic evidence can be allowed to be admitted.
The court also observed the high accuracy of such electronic evidence that needs to be considered.
Section 65B was held to be a procedural provision that is supplementary and non-exhaustive.
Brief facts: This case was about election nominations in Maharashtra and the admissibility of videographic proofs relating to certificate requirements were questioned.
Issue : Is the requirement of certificate under sub-section four mandatory?
Key takeaways: This case was sent from a division bench to a three-judge bench to clarify the position. The Supreme Court gave various significant judgments and overruled previous positions of law. It was held that the certificate under sub-section four is not required if the original document is presented. Suppose the original computer cannot be brought. In that case, the evidence will be admitted after fulfilling given requirements but if it is possible to get the original computer then the certificate is not required.
The exception of not being able to procure certificate from person in authority was overruled because the Supreme Court said that if such person is not issuing the certificate to the party then the Court can always order the person in power to do so.
The court also held that the certificates must accompany the electronic evidence when the evidence is being presented. This judgement confirmed the mandatory nature of the requirements under section 65B. Section 65A and 65B were observed to be complete code regarding the admissibility of electronic evidence.
It was held that electronic evidence can be deemed to be document only after fulfilling the conditions under sub-section 2. It was also observed that the case of Anvar PV is the correct law and matter of Tomaso is not the correct law.
It was held that the certificate requirement under section 65B can be asked to be produced in front of the court as long as the trial continues.
| Year | Case | Position of Law |
| 2005 | State (NCT of Delhi) v. Navjot Sandhu | Even if certificate is not filed it does not mean that secondary evidence becomes inadmissible. |
| 2014 | Anvar PV v. PK Basheer | Section 65A and 65B being special provision will prevail. The certificate requirement is mandatory. |
| 2015 | Ankur Chawla v. State | The Delhi HC followed Anvar’s decision and held that certificate has to be filed along with the evidence. |
| 2015 | Kundan Singh v. State | The Delhi HC disagreed with decision in Ankur Chawla and held that certificate can be filed at a later stage also for the electronic evidence to be admissible. |
| 2015 | Paras Jain v. State of Rajasthan | Rajasthan HC had a similar view as Delhi HC and held that certificate can be filed later. It was also observed that certificate is a procedural requirement. |
| 2015 | Tomaso Bruno v. State of UP | This case followed the precedent in Navjot Sandhu case and did not follow Anvar case. |
| 2017 | Sonu v. State pf Haryana | Doubts were raised as to Anvar case. It was also held that questions of mode and method can be raised only at trial stage and not later. |
| 2018 | Shafi Mohammad v. State of HP | Tomaso Bruno was followed and decision was not followed. The requirement of certificate u/s 65B was observed to be procedural requirement. Court also said that certificate can only be expected to be produced by person in authority and possession of such device. |
| 2020 | Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal | The decision in Anvar was upheld. Section 65A and 65B were held to be complete code for admissibility of electronic evidence. The Court overruled Tomaso Bruno.
Currently, the case of Arjun Panditrao remains the law on admissibility of electronic evidence. |
| 2020 | Narendra Kumar v. State of Rajasthan | Decision in Arjun Panditrao and Anvar PV case was upheld and held to be correct law. |
| 2021 | M/S Kapoor Imaging case | Certificate can be produced as long as trial continues. |
It can be concluded that the case of Arjun Panditrao which upheld the case of Anvar PV remains the correct law on admissibility of electronic evidence.
While the Arjun Panditrao case might be a decision which is seen as sufficient and capable of dealing with admissibility of electronic evidence, but the velocity at which technology develops makes it clear that there might come a time when the current position might fall short on answering questions that might arise in the future.
This ever-evolving field requires a law of such nature that is not stagnant and the courts too need to adapt and interpret the same as the world moves forward.