The advent of technology has changed and evolved rapidly with the changing needs of society. This increasing reliance on electronic means of communication as well as storage of information in digital form becomes a reason to transform the law relating to information technology and rules of admissibility of electronic evidence in legal matters. The Information Technology Act hereinafter referred to as IT Act and its amendment are based on the United Nations Commission on International Trade Law model law on Electronic Commerce. The IT Act was amended to allow the admissibility of digital evidence. Apart from this, amendments are also made in the other legislation including the Indian Evidence Act, Indian Penal Code, and the Banker’s Book Evidence Act to recognize the electronic evidence.

What is the meaning of electronic evidence?

According to the IT Act, electronic evidence includes data, sound, images generated or recorded and sent or received through electronic form. It covers an extensive variety of formats in which data can be produced. To illustrate, video footage, telephonic recordings, hard drives, e-mails, pictures, sound recordings, pen drives, etc. are few examples of electronic evidence.

What are the provisions under the Indian Evidence Act?

The Indian Evidence Act was amended by the virtue of the IT Act, and the term “evidence” includes “electronic evidence”, thereby allows the admissibility of the digital evidence. Otherwise, the definition of evidence is given under Section 3 of the Indian Evidence Act, which includes oral and documentary evidence. Oral evidence can be said the statements which are made by the witnesses before the court, whereas the documentary evidence is one which is produced before the court for its inspection including electronic records.

Electronic records as evidence: –

Section 65A and 65B were introduced in the Indian Evidence Act to incorporate the admissibility of electronic evidence. Section 65B spells out the procedure of proving the contents of electronic records which have been laid down under Section 65A. Hence, any documentary evidence in form of an electronic record can be proved only in accordance with the procedure given under Section 65B of the Evidence Act.

What are the conditions under Section 65B?

Since Section 65B provides technical conditions for admissibility of electronic evidence to make sure that there is no unauthorized use of data and the device storing the electronic record was working properly. These technical conditions are discussed below: –

  • A computer must be in regular use at the time of the creation of the electronic record.
  • The category of information contained in the electronic record must have been regularly and ordinarily fed into the computer.
  • The computer system was operating properly.
  • The second copy copy must be a reproduction of the original electronic record.

Certificate under Section 65B: –

Despite the technical conditions Section 65B also requires non-technical compliance which is a certificate of authenticity. The purpose of the certificate is to satisfy the fulfillment of the technical conditions mentioned above. Such certificate is required to be executed or signed by a person holding a responsible position relating to the device through which the data has been produced. Besides this, the particulars of the certificate must include the identification of the electronic record through a statement, the manner in which the data was produced, and any other appropriate details of any tool occupied in the production of the electronic record. The entire idea behind the certificate is to ensure the integrity of the source and the authenticity of the data.

When an intended party can file the certificate?

According to the former view with regard to the filing of the certificate, it must be filed along with the reproduction of the electronic record and not subsequently. But now various courts are of the view that the certificate under Section 65B is not mandatory to be filed along with the reproduction of the electronic data. The Hon’ble High Court of Delhi in its verdict in a case titled as Kundan Singh vs. The State, 2015 SCC Online Del 13647 held that the certificate under Section 65B of the Evidence Act can be filed subsequently and does not mandatorily have to be filed alongside the reproduction of the data.

Correspondingly, the Hon’ble Orissa High Court while dealing with the bail application in a case titled as Pravata Kumar Tripathy vs. Union of India, 2014 SCC Online 407 held that it is not at all necessary to ask the prosecution to first satisfy the fulfillment of all the criteria of filing the certificate under Section 65B of the Evidence Act, before taking into account the digital records.

Presumptions with regard to electronic evidence: –

The Act also provides some presumptions in order to facilitate the use of electronic records. According to Section 85, the court shall presume that every electronic record claimed to be an agreement was concluded by affixing the electronic signatures of the parties. Likewise, Section 85B, allows the court to assume that the secure electronic record has not been changed since the specific point of time to which the secured status relates until proven to the contrary. Moreover, Section 85C provides for presumptions as to the accuracy of the information contained in an electronic signature certificate.

Conclusion: –

As per legal provisions, the satisfactoriness of the secondary evidence has to be considered within the parameters set under Section 65B of the Indian Evidence Act. However, despite well-settled legal provisions as well as various judicial pronouncements stressing the significance of the certificate, the certificate has become a mere formality. With the continuous progress of internet, it becomes vital for the courts to promote certainty in the use of such electronic records while keeping up with the changes in web technology by taking into account the practical aspects.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali