Almost all data is digital these days and most communication is exchanged electronically through SMS,Email, Whatsapp, Facebook, Twitter etc. In Civil as well as Criminal Cases, the courts are frequently called upon to rule on whether ‘electronic evidence is admissible or not’. Practice has shown that this is not an easy question to answer. Some of the illustrative cases where courts have to rely on electronic evidence are :-
- Electronically produced Books of Accounts in a Commercial Dispute;
- In a case of Divorce based on Adultery – WhatsApp/facebook messages, emails, SMSes exchanged by the adulterous spouse with the paramour;
- CCTV footage in a ATM robbery case;
- Voice Recording and Call Detail Records in an Extortion case.
All these pieces of evidence are stored electronically in disks/devices/huge servers. The manner of their proof before the courts is something Section 65B of the Evidence Act deals with.
Section 65B of the Evidence Act provides for conditions that are required to be satisfied in order to render electronic evidence admissible in a court of law.
A certificate, in compliance of Section 65B(4) is also required to be filed before the court to render such evidence admissible.
Q. Is the certificate u/s 65B(4) of Evidence Act mandatory for reception of electronic evidence ?
Yes. the Supreme Court in ANVAR P.V. VS. P.K. BASHEER AND OTHERS [MANU/SC/0834/2014] has categorically ruled that a certificate u/s 65B is compulsory for admission of electronic evidence. The party cannot lead oral evidence to prove the contents of an electronic record in absence of the certificate. Expert evidence cannot be led either. The case (Anvar) concerned proof of video footage relating to an election matter wherein the election of a candidate was challenged on account of alleged malpractices. The court held that the output of the video footage, in the form of CD/DVD/Pen drive was inadmissible in absence of the certificate; however, if the original recorder/hard drive attached to CCTV is led in evidence, the same can be received even without the certificate as it will be primary evidence itself. However, in all other cases where the output of the electronic record is produced, either in the form of a printout or a disk/CD/DVD/Pen Drive or other soft copy, the same has to be mandatorily accompanied by the certificate.
Question : Whether the requirement of certificate u/s 65B(4) Evidence Act can be satisfied by the witness appearing and deposing as to the conditions of S.65B(4) as a part of his oral deposition in the court ? In other words, whether oral deposition in lieu of a written certificate would satisfy the rigors of Section 65B of the Evidence Act ?
The answer is No. If in a case certificate u/s 65B(4) Evidence Act is not filed, the witness who is seeking to prove the electronic record cannot be allowed to depose in the court in his examination-in-chief as to the conditions of S.65B. When the statute requires something to be done in a particular manner, it has to be done in that manner alone and none else. Expedience cannot be given way over a specific and categoric rule of law. Therefore, the requirement of certificate u/s 65B of the Evidence Act cannot be satisfied by an oral deposition of the witness as its conditions. This is the import in the decision of Jagdeo Singh and Ors. Vs. The State (MANU/DE/0376/2015)
*This is a first in a series of blog posts on Electronic Evidence. In the next few weeks, We’ll try examining various other legal issues relating to eception and appreciation of electronic evidence. So, Stay tuned !