• Information Technology Act, 2000 (IT Act)

1. Electronic evidence is defined under the Explanation to Section 79A as, “any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.”
2. Section 2(t) defines ‘electronic record’ as, “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer-generated micro fiche”

• The Indian Evidence Act, 1872

1. Section 3 of the Act includes electronic records within the definition of “document.”, stating that, “all documents including electronic records produced for the inspection of the Court are called documentary evidence.”
2. Section 65B specifically addresses the admissibility of electronic evidence and sets forth certain requirements for its admissibility.

Admissibility of electronic evidence

Section 65B of the Indian Evidence Act, 1872, pertains to the admissibility of electronic evidence in court proceedings. It lays down the conditions for the admissibility of electronic records and the requirements for proving the authenticity of such records.

• Admissibility of electronic records: Section 65B(1) states that 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, can be deemed to be a document and admitted as evidence in any proceedings, without further proof or production of the original record.
• Computer functioning requirement: Section 65B(2) states that the computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used.
• Combination of computers: Section 65B(3) states that combination of different computers used will be treated as single computer for purpose of this section.
• Certification requirement: Section 65B(4) specifies that any electronic record, including computer output or printouts, must be accompanied by a certificate in the prescribed form. The certificate must be signed by a person who has knowledge of the operation of the relevant device or computer and is in a position to provide the necessary details regarding the generation, storage, and retrieval of the electronic record.
• Contents of the certificate: Section 65B(4) outlines the details that should be included in the certificate. It must identify the electronic record being certified, describe the manner in which it was produced, specify the device or computer used, mention the period of its operation, and affirm that it was produced in the ordinary course of business.
• Court’s discretion: Section 65B(5) provides the court with discretionary power to admit electronic evidence, even if the conditions under Section 65B(2) or (4) have not been fully satisfied. The court may consider factors such as the interest of justice, the reliability of the electronic record, and any other relevant circumstances.

Landmark judgments:

1. Anvar P.V. v. P.K. Basheer (2014): In this case, the Supreme Court of India clarified that the certificate required under Section 65B(4) is mandatory for the admissibility of electronic evidence and emphasized the importance of maintaining the integrity of electronic records.
2. Shafhi Mohammad v. State of Himachal Pradesh (2018): The Supreme Court provided further clarification on the admissibility and held that the certificate under Section 65B is required to establish the authenticity of but may be furnished at any stage of the trial, even if it is not produced at the time of filing the charge sheet.
3. Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015): In this case, the Supreme Court ruled that secondary evidence of electronic records can be admitted if the original electronic record is not available or cannot be produced. The court held that the production of the original record is not an absolute pre-condition for the admissibility of electronic evidence.
4. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005): This case dealt with the admissibility of electronic records obtained through interception and surveillance under the provisions of the Indian Telegraph Act and the Information Technology Act. The court held that intercepted electronic records can be admissible as evidence if they fulfill the requirements of the relevant laws.
5. Kailash Dhirajlal Soni v. State of Maharashtra (2019): The Bombay High Court clarified that the requirement of a certificate under Section 65B applies to all electronic evidence, including CCTV footage. The court held that the certificate must accompany to establish its authenticity and admissibility.
6. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others (2019): The Supreme court declared that the certificate under Section 65B(4) is mandatory for the admissibility of electronic evidence. It held that the certificate should confirm the authenticity, establish the conditions for its admissibility, and be issued by a person occupying a responsible official position in relation to the operation of the relevant device or the management of relevant activities.

Conclusion:

The current law is that compliance with Section 65B is crucial. Failure to provide the necessary certificate may result in the exclusion of the evidence. The Supreme Court of India has issued various judgments and guidelines emphasizing the strict adherence to the requirements of Section 65B for the admissibility and authenticity. But still some clarity is needed on the issue of certificates.