Evidentiary Value of Electronic Record

Evidentiary value of Electronic Record – Take an example, A & B are fighting and that scene is being recorded by C with his Mobile phone. Later, A asks C to forward the recording as a piece of evidence against B. C sends the video recording to A via Whatsapp. Can this recording be admissible as a piece of documentary evidence in court of Law?

To answer this question, we need to look into the provision for admissibility of electronic record as a piece of evidence which is governed by Section 65B of Indian Evidence Act which states that –

65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Now, the various court rulings were ambiguous or contradictory to what would amount as primary evidence and secondary evidence under Electronic Records & its admissibility. Now, this position has been settled by the 3 judges bench of the Supreme Court of India in the Year 2020 in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal July 14, 2020 SC. 

The judgement is beautifully authored by Justice Nariman and have laid to rest any ambiguities regarding admissibility of electronic evidence. The highlights of the judgement are-

1. Section 65B begins with a non-obstante clause, if forms a complete code for the admissibility of electronic evidence.
2. Section 65B(4) – certificate is only mandatory if a secondary copy of original is brought into evidence.
3. Original Electronic Record – Is the device itself that is used for the first time to stored or captured. The secondary copies are made from the primary record.
4. In the present case – Khotkar case, Hard disk of CCTV would be primary evidence and CD Copies would be secondary evidence.
5. Certificate under 65B(4) only required when CDs are produced before the court.
6. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him.

The court further understood the difficulties that might arise in getting certificate copies of the secondary evidence and highlighted various sections of Procedural Laws under Evidence Act (Section 165), Civil Procedure Act (Order XVI)  & Criminal Procedure Act (Section 91 and Section 349) which empower the Court to order for the production of any document or thing during the course of the trial. It was accordingly stated that a person can in any case make an application to the Judge to order for the production of any ‘document’ that would constitute electronic evidence, if he is unable to obtain the certificate under Section 65B(4).

The Court concluded that the obligation placed by Section 65B(4) was mandatory, and not voluntary, and is a condition precedent before secondary copies of an electronic record can be admitted.

Hence, coming back to our opening example of A & B fight. The video recording done by C would be admitted into evidence only if

1. C would deposit his phone by which recording was done as evidence. As the phone memory is the original electronic record and dispose before the court that YES, its his phone that he had used to shoot the video of A & B fighting. In such case, a certificate is NOT REQUIRED.
2. The Whatsapp video sent by C to A can be used as evidence ONLY WHEN it has been certified by competent authority that its content are true.