Whether court can relax requirement of production of certifi

Whether Court can relax requirement of production of certificate U/S 65B of Evidence Act for proving electronic evidence?


Though in view of Three-Judge Bench judgments in Tomaso
Bruno and Ram Singh (supra), it can be safely held that
electronic evidence is admissible and provisions under
Sections 65A and 65B of the Evidence Act are by way of a
clarification and are procedural provisions. If the
electronic evidence is authentic and relevant the same can
certainly be admitted subject to the Court being satisfied
about its authenticity and procedure for its admissibility may
depend on fact situation such as whether the person producing
such evidence is in a position to furnish certificate under
Section 65B(h).
(8) Sections 65A and 65B of the Evidence Act, 1872 cannot be
held to be a complete code on the subject. In Anvar P.V.
(supra), this Court in para 24 clarified that primary evidence
of electronic record was not covered under Sections 65A and
65B of the Evidence Act. Primary evidence is the document
produced before Court and the expression “document” is defined
in Section 3 of the Evidence Act to mean any matter expressed
or described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording that
(9). The term “electronic record” is defined in Section 2(t)
of the Information Technology Act, 2000 as follows:
“Electronic record” means data, record or data
generated, image or sound stored, received or
sent in an electronic form or micro film or
computer generated micro fiche.”8
(10). Expression “data” is defined in Section 2(o) of the
Information Technology Act as follows.
“Data” means a representation of information,
knowledge, facts, concepts or instructions which
are being prepared or have been prepared in a
formalised manner, and is intended to be
processed, is being processed or has been
processed in a computer system or computer
network, and may be in any form (including
computer printouts magnetic or optical storage
media, punched cards, punched tapes) or stored
internally in the memory of the computer.”
(11) The applicability of procedural requirement under Section
65B(4) of the Evidence Act of furnishing certificate is to be
applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being
in control of the said device and not of the opposite party.
In a case where electronic evidence is produced by a party who
is not in possession of a device, applicability of Sections 63
and 65 of the Evidence Act cannot be held to be excluded. In
such case, procedure under the said Sections can certainly be
invoked. If this is not so permitted, it will be denial of
justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving, such
document is kept out of consideration by the court in absence
of certificate under Section 65B(4) of the Evidence Act, which
party producing cannot possibly secure. Thus, requirement of
certificate under Section 65B(h) is not always mandatory.
(12) Accordingly, we clarify the legal position on the
subject on the admissibility of the electronic evidence,
especially by a party who is not in possession of device from
which the document is produced. Such party cannot be required
to produce certificate under Section 65B(4) of the Evidence
Act. The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of
justice so justifies.

Dated: January 30, 2018.


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