Indian Law Research

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

Decision date:

Court
Supreme Court of India
Decision date
14 July 2020
Citation / docket
(2020) 7 SCC 1
Source length
141 PDF pages
Review status
AI-assisted draft; not reviewed by a lawyer
Read summaryRead judgmentOpen original PDF

Draft summary

Written with AI assistance from the source judgment. Not reviewed by a lawyer. Historical decision summary, independently checked by an AI reviewer; not a current-law certification.

In one sentence

The Court reaffirmed the section 65B certificate requirement for computer outputs and clarified the distinct treatment of an original electronic record.

Question decided

When is a section 65B(4) certificate necessary, and what can a litigant do when the certificate is held by someone else?

Key holdings

Outcome

The appeals were dismissed with the costs stated in paragraph 73, and the judgment issued directions on electronic-record preservation and certification.

Source PDF pages: 82, 83.

Plain-English explanation

The dispute arose from an election challenge involving electronic evidence. The Supreme Court examined the special rules for proving computer outputs under section 65B of the Indian Evidence Act. It reaffirmed the certificate requirement and rejected the approach that generally dispensed with it merely because the person relying on the evidence did not control the device. The judgment also explains how a court can assist in obtaining a certificate from the person or authority that holds it. The Court distinguished a computer output from the original electronic record itself: producing and properly proving the original device or record involves a different route, described in the judgment. It also discussed when a certificate may be produced later, particularly the need to protect an accused's fair-trial rights. These distinctions make a blanket statement that every screenshot is admissible, or that every electronic item always needs the same certificate, misleading. The appeals were dismissed. This summary describes the Evidence Act decision delivered in 2020; the Bharatiya Sakshya Adhiniyam and transitional rules require separate analysis before using it as current evidence guidance.

Relevant law in the judgment

Separate opinions

The PDF includes the principal judgment and V. Ramasubramanian J.'s separate concurring opinion; both are retained in the court-text section.

Research notes and limits

Verify later case law and BSA applicability. Distinguish a genuine original electronic record from a copy stored on a different device; do not treat inability to obtain a certificate as an automatic exemption.

Source and extraction notes

Unchanged source PDF · Source website

Page references use physical PDF pages. Complete source PDF saved; not certified as a flawless transcription.

Judgment — source material

The section below reproduces machine-extracted court text, with original page images where extraction is unreliable. It is not an AI rewrite. Each page links to the unchanged PDF.

Jump to a source page

1 · 2 · 3 · 4 · 5 · 6 · 7 · 8 · 9 · 10 · 11 · 12 · 13 · 14 · 15 · 16 · 17 · 18 · 19 · 20 · 21 · 22 · 23 · 24 · 25 · 26 · 27 · 28 · 29 · 30 · 31 · 32 · 33 · 34 · 35 · 36 · 37 · 38 · 39 · 40 · 41 · 42 · 43 · 44 · 45 · 46 · 47 · 48 · 49 · 50 · 51 · 52 · 53 · 54 · 55 · 56 · 57 · 58 · 59 · 60 · 61 · 62 · 63 · 64 · 65 · 66 · 67 · 68 · 69 · 70 · 71 · 72 · 73 · 74 · 75 · 76 · 77 · 78 · 79 · 80 · 81 · 82 · 83 · 84 · 85 · 86 · 87 · 88 · 89 · 90 · 91 · 92 · 93 · 94 · 95 · 96 · 97 · 98 · 99 · 100 · 101 · 102 · 103 · 104 · 105 · 106 · 107 · 108 · 109 · 110 · 111 · 112 · 113 · 114 · 115 · 116 · 117 · 118 · 119 · 120 · 121 · 122 · 123 · 124 · 125 · 126 · 127 · 128 · 129 · 130 · 131 · 132 · 133 · 134 · 135 · 136 · 137 · 138 · 139 · 140 · 141

Source PDF page 1

View this page in the original PDF
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017
ARJUN PANDITRAO KHOTKAR …Appellant
Versus
KAILASH KUSHANRAO GORANTYAL AND ORS.         …Respondents
WITH
CIVIL APPEAL NO.2407 OF 2018
CIVIL APPEAL NO.3696 OF 2018
J U D G M E N T
R.F. Nariman, J.
1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-
20826 of 2017 is allowed.
2. These Civil Appeals have been referred to a Bench of three
honourable Judges of this Court by a Division Bench reference order dated
26.07.2019, dealing with the interpretation of Section 65B of the Indian
1

Source PDF page 2

View this page in the original PDF
Evidence Act, 1872 (“Evidence Act”) by two judgments of this Court. In the
reference order, after quoting from  Anvar P.V. v. P.K. Basheer & Ors.
(2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was
found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011
reported as Shafhi Mohammad v. State of Himachal Pradesh  (2018) 2
SCC 801 may need reconsideration by a Bench of a larger strength.
3. The brief facts necessary to appreciate the controversy in the
present case, as elucidated in Civil Appeals 20825-20826 of 2017, are as
follows:
i. Two election petitions were filed by the present Respondents
before  the  Bombay  High  Court  under  Sections  80  and  81  of  the
Representation of the People Act, 1951, challenging the election of the
present Appellant, namely, Shri Arjun Panditrao Khotkar (who is the
Returned Candidate [hereinafter referred to as the “ RC”] belonging to
the Shiv Sena party from 101-Jalna Legislative Assembly Constituency)
to the Maharashtra State Legislative Assembly for the term commencing
November,  2014.  Election  Petition  No.6  of  2014  was  filed  by  the
defeated  Congress  (I)  candidate  Shri  Kailash  Kishanrao  Gorantyal,
whereas Election Petition No.9 of 2014 was filed by one Shri  Vijay
2

Source PDF page 3

View this page in the original PDF
Chaudhary, an elector in the said constituency. The margin of victory for
the  RC  was  extremely  narrow,  namely  296  votes  -  the  RC  having
secured  45,078  votes,  whereas  Shri  Kailash  Kishanrao  Gorantyal
secured 44,782 votes. 
ii. The entirety of the case before the High Court had revolved
around four sets of nomination papers that had been filed by the RC. It
was the case of the present Respondents that each set of nomination
papers suffered from defects of a substantial nature and that, therefore,
all four sets of nomination papers, having been improperly accepted by
the  Returning  Officer  of  the  Election  Commission,  one  Smt.  Mutha,
(hereinafter referred to as the “ RO”), the election of the RC be declared
void. In particular, it was the contention of the present Respondents that
the late presentation of Nomination Form Nos. 43 and 44 by the RC -
inasmuch as they were filed by the RC after the stipulated time of 3.00
p.m. on 27.09.2014 - rendered such nomination forms not being filed in
accordance with the law, and ought to have been rejected.
iii. In order to buttress this submission, the Respondents sought
to rely upon video-camera arrangements that were made both inside
and outside the office of the RO. According to the Respondents, the
3

Source PDF page 4

View this page in the original PDF
nomination papers were only offered at 3.53 p.m. (i.e. beyond 3.00
p.m.), as a result of which it was clear that they had been filed out of
time. A specific complaint making this objection was submitted by Shri
Kailash Kishanrao Gorantyal before the RO on 28.09.2014 at 11.00
a.m., in which it was requested that the RO reject the nomination forms
that had been improperly accepted. This request was rejected by the
RO on the same day, stating that the nomination forms had, in fact,
been filed within time.
4. Given the fact that allegations and counter allegations were
made as to the time at which the nomination forms were given to the RO,
and that videography was available, the High Court, by its order dated
16.03.2016, ordered the Election Commission and the concerned officers
to produce the entire record of the election of this Constituency, including
the original video recordings. A specific order was made that this electronic
record needs to be produced along with the ‘necessary certificates’. 
5. In  compliance  with  this  order,  such  video  recordings  were
produced by the Election Commission, together with a certificate issued
with regard to the CDs/VCDs, which read as follows:
“Certificate
4

Source PDF page 5

View this page in the original PDF
This is to certify that the CDs in respect of video recording
done  on  two  days  of  filing  nomination  forms  of  date
26.9.2014 and 27.9.2014 which were present in the record
are produced. 
6.
Transcripts  of  the  contents  of  these
CDs/VCDs were prepared by the High Court itself. Issue nos.6 and 7 as
framed by the High Court (and its answers to these issues) are important,
and are set out in the impugned judgment dated 24.11.2017, and extracted
hereinbelow:
“  Issues Findings
6.  Whether the petitioner proves
that the nomination papers at Sr.
Nos.  43  and  44  were  not
presented  by  respondent/
Returned  candidate  before  3.00
p.m. on 27/09/2014 ?
Affirmative.  (nomination
papers  at  Sr.  Nos.  43
and  44  were  not
presented by RC before
3.00 p.m. of 27.9.2014.)
5
Sd/-
Asst. Returning Officer
101 Jalna Legislative Assembly 
Constituency/Tahsildar
Jalna
Sd/-
Returning Officer
101 Jalna Legislative Assembly 
Constituency/Tahsildar
Jalna”

Source PDF page 6

View this page in the original PDF
7.  Whether the petitioner proves
that  the  respondent  /Returned
candidate  submitted  original
forms  A  and  B  along  with
nomination  paper  only  on
27/09/2014  after  3.00  p.m.  and
along  with  nomination  paper  at
Sr. No. 44 ?
Affirmative. (A, B forms
were  presented  after
3.00 p.m. of 27.9.2014)”
7. In answering issues 6 and 7, the High Court recorded:
“60.  Many  applications  were  given  by  the  petitioner  of
Election Petition No. 6/2014 to get the copies of electronic
record in respect of aforesaid incidents with certificate as
provided  in  section  65-B  of  the  Evidence  Act.  The
correspondence  made  with  them  show  that  even  after
leaving  of  the  office  by  Smt.  Mutha,  the  Government
machinery, incharge of the record, intentionally avoided to
give  certificate  as  mentioned  in  section  65-B  of  the
Evidence Act. After production of the record in the Court in
this regard, this Court had allowed to Election Commission
by order to give copies of such record to applicants, but
after  that  also  the  authority  avoided  to  give  copies  by
giving lame excuses. It needs to be kept in mind that the
RC is from political party which has alliance with ruling
party, BJP , not only in the State, but also at the center. It is
unfortunate that the machinery which is expected to be fair
did not act fairly in the present matter. The circumstances
of the present matter show that the aforesaid two officers
tried to cover up their mischief. However the material gives
only one inference that nomination forms Nos. 43 and 44
with A, B forms were presented before the RO by RC after
3.00 p.m. of 27.9.2014 and they were not handed over
prior  to  3.00  p.m.  In  view  of  objection  of  the  learned
counsels of the RC to using the information contained in
aforesaid VCDs, marked as Article A1 to A6, this Court
had made order on 11.7.2017 that the objections will be
considered in the judgment itself. This VCDs are already
6

Source PDF page 7

View this page in the original PDF
exhibited by this Court as Exhs. 70 to 75. Thus, if the
contents  of  the  aforesaid  VCDs  can  be  used  in  the
evidence, then the petitioners are bound to succeed in the
present matters.”
8. The High Court then set out Sections 65-A and 65-B of the
Evidence Act, and referred to this Court’s judgment in Anvar P.V. (supra).
The Court held in paragraph 65 of the impugned judgment that the CDs
that were produced by the Election Commission could not be treated as an
original  record  and  would,  therefore,  have  to  be  proved  by  means  of
secondary evidence. Finding that no written certificate as is required by
Section 65-B(4) of the Evidence Act was furnished by any of the election
officials, and more particularly, the RO, the High Court then held:
“69. In substantive evidence, in the cross examination of
Smt. Mutha, it is brought on the record that there was no
complaint with regard to working of video cameras used
by the office. She has admitted that the video cameras
were  regularly  used  in  the  office  for  recording  the
aforesaid incidents and daily VCDs were collected of the
recording by her office. This record was created as the
record of the activities of the Election Commission. It is
brought on the record that on the first floor of the building,
arrangement  was  made  by  keeping  electronic  gazettes
like  VCR  players  etc.  and  arrangement  was  made  for
viewing the recording. It is already observed that under
her instructions, the VCDs were marked of this recording.
Thus, on the basis of her substantive evidence, it can be
said that the conditions mentioned in section 65-B of the
Evidence  Act  are  fulfilled  and  she  is  certifying  the
electronic record as required by section 65-B (4) of the
7

Source PDF page 8

View this page in the original PDF
Evidence Act. It can be said that Election Commission, the
machinery avoided to give certificate in writing as required
by section 65-B (4) of the Evidence Act. But, substantive
evidence is brought on record of competent officer in that
regard. When the certificate expected is required to be
issued on the basis of best of knowledge and belief, there
is evidence on oath about it of Smt. Mutha. Thus, there is
something more than the contents of certificate mentioned
in section 65-B  (4)  of  the  Evidence Act  in the present
matters. Such evidence is not barred by the provisions of
section 65-B of the Evidence Act as that evidence is only
on certification made by the responsible official position
like  RO.  She  was  incharge  of  the  management  of  the
relevant activities and so her evidence can be used and
needs to be used as the compliance of the provision of
section 65-B of the Evidence Act. This Court holds that
there is compliance of the provision of section 65-B of the
Evidence Act in the present matter in respect of aforesaid
electronic record and so, the information contained in the
record can be used in the evidence.”
Based, therefore, on “substantial compliance” of the requirement of giving
a certificate under Section 65B of the Evidence Act, it was held that the
CDs/VCDs were admissible in evidence, and based upon this evidence it
was found that, as a matter of fact, the nomination forms by the RC had
been  improperly  accepted.  The  election  of  the  RC  was  therefore  was
declared void in the impugned judgment.
9. Shri Ravindra Adsure, learned advocate appearing on behalf of
the Appellant, submitted that the judgment in Anvar P .V. (supra) covered
the case before us. He argued that without the necessary certificate in
8

Source PDF page 9

View this page in the original PDF
writing  and  signed  under  Section  65B(4)  of  the  Evidence  Act,  the
CDs/VCDs upon which the entirety of the judgment rested could not have
been admitted in evidence. He referred to  Tomaso Bruno and Anr. v.
State of Uttar Pradesh  (2015) 7 SCC 178, and argued that the said
judgment did not notice either Section 65B or Anvar P .V. (supra), and was
therefore  per incuriam . He also argued that  Shafhi Mohammad  (supra),
being a two-Judge Bench of this Court, could not have arrived at a finding
contrary to Anvar P.V.  (supra), which was the judgment of three Hon’ble
Judges of this Court. In particular, he argued that it could not have been
held in  Shafhi Mohammad  (supra) that whenever the interest of justice
required, the requirement of a certificate could be done away with under
Section 65B(4). Equally, this Court’s judgment dated 03.04.2018, reported
as (2018) 5 SCC 311, which merely followed the law laid down in Shafhi
Mohammad (supra), being contrary to the larger bench judgment in Anvar
P .V.  (supra), should also be held as not having laid down good law. He
further argued that the Madras High Court judgment in  K. Ramajyam v.
Inspector of Police  (2016) Crl. LJ 1542, being contrary to  Anvar P .V.
(supra), also does not lay down the law correctly, in that it holds that
evidence  aliunde, that is outside Section 65B, can be taken in order to
9

Source PDF page 10

View this page in the original PDF
make electronic records admissible. In the facts of the present case, he
contended that since it was clear that the requisite certificate had not been
issued, no theory of “substantial compliance” with the provisions of Section
65B(4),  as  was  held  by  the  impugned  judgment,  could  possibly  be
sustained in law.
10. Ms. Meenakshi Arora, learned Senior Advocate appearing on
behalf of the Respondents, has taken us in copious detail through the facts
of this case, and has argued that the High Court has directed the Election
Commission to produce before the Court the original CDs/VCDs of the
video-recording done at the office of the RO, along with the necessary
certificate. An application dated 16.08.2016 was also made to the District
Election Commission and RO as well as the Assistant RO for the requisite
certificate under Section 65B. A reply was given on 14.09.2016, that this
certificate could not be furnished since the matter was sub-judice. Despite
this,  later  on,  on  26.07.2017  her  client  wrote  to  the  authorities  again
requesting for issuance of certificate under Section 65B, but by replies
dated 31.07.2017 and 02.08.2017, no such certificate was forthcoming.
Finally, after having run from pillar to post, her client applied on 26.08.2017
to the Chief Election Commissioner, New Delhi, stating that the authorities
10

Source PDF page 11

View this page in the original PDF
were refusing to give her client the necessary certificate under Section 65B
and that the Chief Election Commissioner should therefore ensure that it
be given to them. To this communication, no reply was forthcoming from
the Chief Election Commissioner, New Delhi. Given this, the High Court at
several places had observed in the course of the impugned judgment that
the authorities deliberately refused, despite being directed, to supply the
requisite certificate under Section 65B, as a result of which the impugned
judgment  correctly  relied  upon  the  oral  testimony  of  the  RO  herself.
According to Ms. Arora, such oral testimony taken down in the form of
writing, which witness statement is signed by the RO, would itself amount
to the requisite certificate being issued under Section 65B(4) in the facts of
this case, as was correctly held by the High Court. Quite apart from this,
Ms. Arora also stated that - independent of the finding given by the High
Court by relying upon CDs/VCDs - the High Court also relied upon other
documentary and oral evidence to arrive at the finding that the RC had not
handed over nomination forms directly to the RO at 2.20 p.m (i.e. before
3pm). In fact, it was found on the basis of this evidence that the nomination
forms were handed over and accepted by the RO only after 3.00 p.m. and
11

Source PDF page 12

View this page in the original PDF
were therefore improperly accepted, as a result of which, the election of
the Appellant was correctly set aside.
11. On law, Ms. Arora argued that it must not be forgotten that
Section 65B is a procedural provision, and it cannot be the law that even
where a certificate is impossible to get, the absence of such certificate
should result in the denial of crucial evidence which would point at the truth
or falsehood of a given set of facts. She, therefore, supported the decision
in  Shafhi Mohammad  (supra), stating that  Anvar P .V.  (supra) could be
considered to be good law only in situations where it was possible for the
party to produce the requisite certificate. In cases where this becomes
difficult or impossible, the interest of justice would require that a procedural
provision be not exalted to such a level that vital evidence would be shut
out, resulting in manifest injustice.
12. Shri Vikas Upadhyay, appearing on behalf of the Intervenor,
took us through the various provisions of the Information Technology Act,
2000 along with Section 65B of the Evidence Act, and argued that Section
65B does not refer to the stage at which the certificate under Section
65B(4) ought to be furnished. He relied upon a judgment of the High Court
of Rajasthan as well as the High Court of Bombay, in addition to Kundan
12

Source PDF page 13

View this page in the original PDF
Singh v. State  2015 SCC OnLine Del 13647  of the Delhi High Court, to
argue that the requisite certificate need not necessarily be given at the time
of  tendering  of  evidence  but  could  be  at  a  subsequent  stage  of  the
proceedings, as in cases where the requisite certificate is not forthcoming
due to no fault of the party who tried to produce it, but who had to apply to
a Judge for its production. He also argued that Anvar P.V. (supra) required
to be clarified to the extent that Sections 65A and 65B being a complete
code as to admissibility of electronic records, the “baggage” of Primary and
Secondary Evidence contained in Sections 62 and 65 of the Evidence Act
should not at all be adverted to, and that the drill of Section 65A and 65B
alone be followed when it comes to admissibility of information contained in
electronic records.
13. It is now necessary to set out the relevant provisions of the
Evidence Act and the Information Technology Act, 2000. Section 3 of the
Evidence Act defines “document” as follows:
“Document.-- "Document" means 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 matter.”
“Evidence” in Section 3 is defined as follows:
13

Source PDF page 14

View this page in the original PDF
“Evidence."--  "Evidence"  means  and  includes—(1)  all
statements  which  the  Court  permits  or  requires  to  be
made before it by witnesses, in relation to matters of fact
under inquiry;
such statements are called oral evidence;
(2) all documents including electronic records produced for
the inspection of the Court; such documents are called
documentary evidence.”
The  Evidence  Act  also  declares  that  the  expressions  “Certifying
Authority”, “electronic  signature”,  “Electronic  Signature  Certificate”,
“electronic  form”,  “electronic  records”,  “information”,  “secure  electronic
record”, “secure digital signature” and “subscriber” shall have the meanings
respectively assigned to them in the Information Technology Act. 
14. Section  22-A  of  the  Evidence  Act,  which  deals  with  the
relevance of oral admissions as to contents of electronic records, reads as
follows:
“22A.  When  oral  admission  as  to  contents  of
electronic records are relevant.  -- Oral admissions as to
the contents of electronic records are not relevant, unless
the genuineness of the electronic record produced is in
question.”
15. Section  45A  of  the  Evidence  Act,  on  the  opinion  of  the
Examiner of Electronic Evidence, then states:
14

Source PDF page 15

View this page in the original PDF
“45A. Opinion  of Examiner of Electronic Evidence. --
When in a proceeding, the court has to form an opinion on
any matter relating to any information transmitted or stored
in any computer resource or any other electronic or digital
form, the opinion of the Examiner of Electronic Evidence
referred to in section 79A of the Information Technology
Act, 2000 (21 of 2000), is a relevant fact.
Explanation.--  For  the  purposes  of  this  section,  an
Examiner of Electronic Evidence shall be an expert.”
16. Sections 65-A and 65-B of the Evidence Act read as follows:
“65A.  Special  provisions  as  to  evidence  relating  to
electronic  record.--The  contents  of  electronic  records
may  be  proved  in  accordance  with  the  provisions  of
section 65B.”
“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 or 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
15

Source PDF page 16

View this page in the original PDF
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
16

Source PDF page 17

View this page in the original PDF
(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  subsection  it  shall  be  sufficient  for  a  matter  to  be
stated  to  the  best  of  the  knowledge  and  belief  of  the
person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer
if  it  is  supplied  thereto  in  any  appropriate  form  and
17

Source PDF page 18

View this page in the original PDF
whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment; --
(b) whether in the course of activities carried on by any
official, information  is  supplied  with  a view to its  being
stored or processed for the purposes of those activities by
a computer operated otherwise than in the course of those
activities,  that  information,  if  duly  supplied  to  that
computer, shall be taken to be supplied to it in the course
of those activities;
(c)  a  computer  output  shall  be  taken  to  have  been
produced by a computer whether it was produced by it
directly or (with or without human intervention) by means
of any appropriate equipment.
Explanation. --  For  the  purposes  of  this  section  any
reference  to  information  being  derived  from  other
information  shall  be  a  reference  to  its  being  derived
therefrom  by  calculation,  comparison  or  any  other
process.”
17. The  following  definitions  as  contained  in  Section  2  of  the
Information Technology Act, 2000 are also relevant:
“(i) “computer” means any electronic, magnetic, optical or
other high-speed data processing device or system which
performs  logical,  arithmetic,  and  memory  functions  by
manipulations of electronic, magnetic or optical impulses,
and  includes  all  input,  output,  processing,  storage,
computer software or communication facilities which are
connected  or  related  to  the  computer  in  a  computer
system or computer network;”
“(j) “computer network” means the inter-connection of one
or  more  computers  or  computer  systems  or
communication  device  through–  (i)  the  use  of  satellite,
18

Source PDF page 19

View this page in the original PDF
microwave,  terrestrial  line,  wire,  wireless  or  other
communication  media;  and  (ii)  terminals  or  a  complex
consisting  of  two  or more  interconnected  computers  or
communication device whether or not the inter-connection
is continuously maintained;”
“(l)  “computer  system”  means  a  device  or  collection  of
devices, including input and output support devices and
excluding  calculators  which  are  not  programmable  and
capable of being used in conjunction with external files,
which  contain  computer  programmes,  electronic
instructions,  input  data  and  output  data,  that  performs
logic,  arithmetic,  data  storage  and  retrieval,
communication control and other functions;”
“(o)  “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;”
“(r) “electronic form”, with reference to information, means
any  information  generated,  sent,  received  or  stored  in
media, magnetic, optical, computer memory, micro film,
computer generated micro fiche or similar device;”
“(t)  “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;”
18. Sections  65A  and  65B  occur  in  Chapter  V  of  the
Evidence Act which is entitled “Of Documentary Evidence”. Section 61 of
19

Source PDF page 20

View this page in the original PDF
the Evidence Act deals with the proof of contents of documents, and states
that the contents of documents may be proved either by primary or by
secondary  evidence.  Section  62  of  the  Evidence  Act  defines  primary
evidence as meaning the document itself produced for the inspection of the
court.  Section  63  of  the  Evidence  Act  speaks  of  the  kind  or  types  of
secondary evidence by which documents may be proved. Section 64 of the
Evidence  Act  then  enacts  that  documents  must  be  proved  by  primary
evidence except in the circumstances hereinafter mentioned. Section 65 of
the Evidence Act is important, and states that secondary evidence may be
given  of  “ the  existence,  condition  or  contents  of  a  document  in  the
following cases…”.
19. Section  65  differentiates  between  existence,  condition
and contents of a document. Whereas “existence” goes to “admissibility” of
a document, “contents” of a document are to be proved after a document
becomes  admissible  in  evidence.  Section  65A speaks  of  “contents”  of
electronic  records  being  proved  in  accordance  with  the  provisions  of
Section 65B. Section 65B speaks of “admissibility” of electronic records
which deals with “existence” and “contents” of electronic records being
20

Source PDF page 21

View this page in the original PDF
proved once admissible into evidence. With these prefatory observations
let us have a closer look at Sections 65A and 65B.
20. It will first be noticed that the subject matter of Sections 65A
and 65B of the Evidence Act is proof of information contained in electronic
records.  The  marginal  note  to  Section  65A  indicates  that  “special
provisions” as to evidence relating to electronic records are laid down in
this  provision.  The  marginal  note  to  Section  65B  then  refers  to
“admissibility of electronic records”.
21. Section 65B(1) opens with a non-obstante clause, and makes
it clear that any information that is contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer shall be deemed to be a document, and
shall be admissible in any proceedings without further proof of production
of the original, as evidence of the contents of the original or of any facts
stated therein of which direct evidence would be admissible. The deeming
fiction is for the reason that “document” as defined by Section 3 of the
Evidence Act does not include electronic records.
22. Section  65B(2)  then  refers  to  the  conditions  that  must  be
satisfied in respect of a computer output, and states that the test for being
21

Source PDF page 22

View this page in the original PDF
included  in  conditions  65B(2(a))  to  65(2(d))  is  that  the  computer  be
regularly used to store or process information for purposes of activities
regularly carried on in the period in question. The conditions mentioned in
sub-sections 2(a) to 2(d) must be satisfied cumulatively.
23. Under  Sub-section  (4),  a  certificate  is  to  be  produced  that
identifies the electronic record containing the statement and describes the
manner in which it is produced, or gives particulars of the device involved
in the production of the electronic record to show that the electronic record
was produced by a computer, by either a person occupying a responsible
official position in relation to the operation of the relevant device; or a
person who is in the management of “relevant activities” – whichever is
appropriate. What is also of importance is that it shall be sufficient for such
matter to be stated to the “best of the knowledge and belief of the person
stating it”. Here, “doing  any of the following things…” must be read as
doing  all of the following things, it being well settled that the expression
“any”  can  mean  “all”  given  the  context  (see,  for  example,  this  Court’s
judgments in Bansilal Agarwalla v. State of Bihar  (1962) 1 SCR 33 1 and
1 “3. The first contention is based on an assumption that the word “any one” in Section 76
means only “one of the directors, and only one of the shareholders”. This question as regards
the interpretation of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98
to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word
“any one” should be interpreted there as “every one”. Thus under Section 76 every one of the
shareholders of a private company owning the mine, and every one of the directors of a public
22

Source PDF page 23

View this page in the original PDF
Om Parkash v. Union of India  (2010) 4 SCC 17 2). This being the case,
the conditions mentioned in sub-section (4) must also be interpreted as
being cumulative.
24.  It is now appropriate to examine the manner in which Section
65B was interpreted by this Court. In  Anvar P .V. (supra), a three Judge
Bench of this Court, after setting out Sections 65A and 65B of the Evidence
Act, held:
“14. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and
65-A,  can  be  proved  only  in  accordance  with  the
procedure prescribed under Section 65-B. Section 65-B
deals with the admissibility of the electronic record. The
purpose  of  these  provisions  is  to  sanctify  secondary
evidence in electronic form, generated by a computer. It
may be noted that the section starts with a non obstante
clause. Thus, notwithstanding anything contained in the
Evidence 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 shall be deemed to be a document only if the
conditions mentioned under sub-section (2) are satisfied,
company owning  the mine is  liable  to prosecution. No question of violation  of Article 14
therefore arises.”
2 “70. Perusal of the opinion of the Full Bench in  B.R. Gupta-I [Balak Ram Gupta  v. Union of
India, AIR 1987 Del 239] would clearly indicate with regard to interpretation of the word “any”
in Explanation 1 to the first  proviso to Section 6  of the Act which expands the scope of stay
order granted in one case of landowners to be automatically extended to all those landowners,
whose lands are covered under the notifications issued under Section 4 of the Act, irrespective
of the fact whether there was any separate order of stay or not as regards their lands. The
logic  assigned  by  the  Full  Bench,  the  relevant  portions  whereof  have  been  reproduced
hereinabove, appear to be reasonable, apt, legal and proper.”
(emphasis added)
23

Source PDF page 24

View this page in the original PDF
without further proof or production of the original. The very
admissibility  of  such  a  document  i.e.  electronic  record
which  is  called  as  computer  output,  depends  on  the
satisfaction of the four conditions under Section 65-B(2).
Following are the specified conditions under Section 65-
B(2) of the Evidence Act:
(i) The electronic record containing the information should
have been produced by the computer during the period
over  which  the  same  was  regularly  used  to  store  or
process  information  for  the  purpose  of  any  activity
regularly carried on over that period by the person having
lawful control over the use of that computer;
(ii)  The  information  of  the  kind  contained  in  electronic
record or of the kind from which the information is derived
was regularly fed into the computer in the ordinary course
of the said activity;
(iii)  During  the  material  part  of  the  said  period,  the
computer was operating properly and that even if it was
not operating properly for some time, the break or breaks
had not affected either the record or the accuracy of its
contents; and
(iv) The information contained in the record should be a
reproduction or derivation from the information fed into the
computer in the ordinary course of the said activity.
15. Under  Section  65-B(4)  of  the  Evidence  Act,  if  it  is
desired to give a statement in any proceedings pertaining
to  an  electronic  record,  it  is  permissible  provided  the
following conditions are satisfied:
(a)  There  must  be  a  certificate  which  identifies  the
electronic record containing the statement;
(b) The certificate must describe the manner in which the
electronic record was produced;
24

Source PDF page 25

View this page in the original PDF
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
(d) The certificate must deal with the applicable conditions
mentioned under Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device.
16. It is further clarified that the person need only to state
in  the  certificate  that  the  same  is  to  the  best  of  his
knowledge and belief. Most importantly, such a certificate
must  accompany  the  electronic  record  like  computer
printout, compact disc (CD), video compact disc (VCD),
pen drive, etc., pertaining to which a statement is sought
to be given in evidence, when the same is produced in
evidence. All these safeguards are taken to ensure the
source  and  authenticity,  which  are  the  two  hallmarks
pertaining  to  electronic  record  sought  to  be  used  as
evidence.  Electronic  records  being  more  susceptible  to
tampering, alteration, transposition, excision, etc. without
such  safeguards,  the  whole  trial  based  on  proof  of
electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms
of Section 65-B of the Evidence Act, would the question
arise as to the genuineness thereof and in that situation,
resort can be made to Section 45-A—opinion of Examiner
of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the
proof  of  an  electronic  record  by  oral  evidence  if
requirements under Section 65-B of the Evidence Act are
not complied with, as the law now stands in India.
xxx xxx xxx
20. Proof  of  electronic  record  is  a  special  provision
introduced  by  the  IT  Act  amending  various  provisions
25

Source PDF page 26

View this page in the original PDF
under the Evidence Act. The very caption of Section 65-A
of the Evidence Act, read with Sections 59 and 65-B is
sufficient to hold that the special provisions on evidence
relating  to  electronic  record  shall  be  governed  by  the
procedure prescribed under Section 65-B of the Evidence
Act. That is a complete code in itself. Being a special law,
the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi)  v. Navjot Sandhu  a two-Judge
Bench of this Court had an occasion to consider an issue
on  production  of  electronic  record  as  evidence.  While
considering the printouts of the computerised records of
the calls pertaining to the cellphones, it was held at para
150 as follows: (SCC p. 714)
“150.  According  to  Section  63,  “secondary  evidence”
means and includes, among other things, ‘copies made
from  the  original  by  mechanical  processes  which  in
themselves insure the accuracy of the copy, and copies
compared  with  such  copies’.  Section  65  enables
secondary evidence of the contents of a document to be
adduced if the original is of such a nature as not to be
easily movable. It is not in dispute that the information
contained in the call  records is stored in huge servers
which cannot be easily moved and produced in the court.
That is what the High Court has also observed at para
276. Hence, printouts taken from the computers/servers
by  mechanical  process  and  certified  by  a  responsible
official  of  the  service-providing  company  can  be  led  in
evidence  through  a  witness  who  can  identify  the
signatures of the certifying officer or otherwise speak of
the facts based on his personal knowledge. Irrespective of
the  compliance  with  the  requirements  of  Section  65-B,
which is a provision dealing with admissibility of electronic
records, there is no bar to adducing secondary evidence
under the other provisions of the Evidence Act, namely,
Sections  63  and  65.  It  may  be  that  the  certificate
containing the details in sub-section (4) of Section 65-B is
26

Source PDF page 27

View this page in the original PDF
not filed in the instant case, but that does not mean that
secondary  evidence  cannot  be  given  even  if  the  law
permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, Sections 63
and 65.”
It may be seen that it was a case where a responsible
official  had  duly  certified  the  document  at  the  time  of
production  itself.  The  signatures  in  the  certificate  were
also identified. That is apparently in compliance with the
procedure prescribed under Section 65-B of the Evidence
Act.  However,  it  was  held  that  irrespective  of  the
compliance with the requirements of Section 65-B, which
is  a  special  provision  dealing  with  admissibility  of  the
electronic record, there is no bar in adducing secondary
evidence,  under  Sections  63  and  65,  of  an  electronic
record.”
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section
65 of the Evidence Act shall yield to the same.  Generalia
specialibus non derogant , special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65-A dealing with the admissibility
of  electronic  record.  Sections  63  and  65  have  no
application in the case of secondary evidence by way of
electronic  record;  the  same  is  wholly  governed  by
Sections 65-A and 65-B. To that extent, the statement of
law on admissibility of secondary evidence pertaining to
electronic record, as stated by this Court in Navjot Sandhu
case,  does  not  lay  down  the  correct  legal  position.  It
requires  to  be  overruled  and  we  do  so.  An  electronic
record  by  way  of  secondary  evidence  shall  not  be
admitted  in  evidence  unless  the  requirements  under
Section 65-B are satisfied. Thus, in the case of CD, VCD,
chip,  etc.,  the  same  shall  be  accompanied  by  the
certificate in terms of Section 65-B obtained at the time of
27

Source PDF page 28

View this page in the original PDF
taking  the  document,  without  which,  the  secondary
evidence  pertaining  to  that  electronic  record,  is
inadmissible.
23. The  appellant  admittedly  has  not  produced  any
certificate in terms of Section 65-B in respect of the CDs,
Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-
22. Therefore, the same cannot be admitted in evidence.
Thus, the whole case set up regarding the corrupt practice
using  songs,  announcements  and  speeches  fall  to  the
ground.
24. The  situation  would  have  been  different  had  the
appellant adduced primary evidence, by making available
in evidence, the CDs used for announcement and songs.
Had  those  CDs  used  for  objectionable  songs  or
announcements been duly got seized through the police or
Election Commission and had the same been used as
primary evidence, the High Court could have played the
same in court to see whether the allegations were true.
That is not the situation in this case. The speeches, songs
and  announcements  were  recorded  using  other
instruments and by feeding them into a computer, CDs
were  made  therefrom  which  were  produced  in  court,
without due certification. Those CDs cannot be admitted in
evidence since the mandatory requirements of Section 65-
B of the Evidence Act are not satisfied. It is clarified that
notwithstanding  what  we  have  stated  herein  in  the
preceding  paragraphs  on  the  secondary  evidence  of
electronic record with reference to Sections 59, 65-A and
65-B of the Evidence Act, if an electronic record as such is
used  as  primary  evidence  under  Section  62  of  the
Evidence Act, the same is admissible in evidence, without
compliance  with  the  conditions  in  Section  65-B  of  the
Evidence Act.”
28

Source PDF page 29

View this page in the original PDF
25. Shri Upadhyay took exception to the language of paragraph 24
in this judgment. According to the learned counsel, primary and secondary
evidence as to documents, referred to in Sections 61 to Section 65 of the
Evidence Act, should be kept out of admissibility of electronic records,
given the fact that Sections 65A and 65B are a complete code on the
subject. 
26. At this juncture, it is important to note that Section 65B has its
genesis in Section 5 of the Civil Evidence Act 1968 (UK), which reads as
follows:
“Admissibility of statements produced by computers.
(1) In any civil proceedings a statement contained in a
document produced by a computer shall, subject to rules
of  court,  be  admissible  as  evidence  of  any  fact  stated
therein of which direct oral evidence would be admissible,
if it is shown that the conditions mentioned in subsection
(2) below are satisfied in relation to the statement and
computer in question.
(2) The said conditions are—
(a)  that  the  document  containing  the  statement  was
produced by the computer during a 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, whether for profit or not, by
any body, whether corporate or not, or by any individual;
29

Source PDF page 30

View this page in the original PDF
(b) that over that period there was regularly supplied to the
computer  in  the  ordinary  course  of  those  activities
information of the kind contained in the statement or of the
kind from which the information so contained is derived;
(c)  that  throughout  the  material  part  of  that  period  the
computer  was  operating  properly  or,  if  not,  that  any
respect in which it was not operating properly or was out
of operation during that part of that period was not such as
to affect the production of the document or the accuracy of
its contents; and
(d)  that  the  information  contained  in  the  statement
reproduces or is derived from information supplied to the
computer in the ordinary course of those activities.
(3)  Where  over  a  period  the  function  of  storing  or
processing information for the purposes of any activities
regularly  carried  on  over  that  period  as  mentioned  in
subsection  (2)(a)  above  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 Part of this Act as
30

Source PDF page 31

View this page in the original PDF
constituting a single computer; and references in this Part
of this Act to a computer shall be construed accordingly.
(4) In any civil 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 document 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 document as may be appropriate for the
purpose of showing that the document was produced by a
computer;
(c) dealing with any of the matters to which the conditions
mentioned in subsection (2) above relate,
and  purporting  to  be  signed  by  a  person  occupying  a
responsible  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  subsection  it  shall  be  sufficient  for  a  matter  to  be
stated  to  the  best  of  the  knowledge  and  belief  of  the
person stating it.
(5) For the purposes of this Part of this Act—
(a) information shall be taken to be supplied to a computer
if  it  is  supplied  thereto  in  any  appropriate  form  and
whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) where, in the course of activities carried on by any
individual or body, information is supplied with a view to its
being  stored  or  processed  for  the  purposes  of  those
activities by a computer operated otherwise than in the
31

Source PDF page 32

View this page in the original PDF
course of those activities, that information, if duly supplied
to that computer, shall be taken to be supplied to it in the
course of those activities;
(c) a document shall be taken to have been produced by a
computer whether it was produced by it directly or (with or
without human intervention) by means of any appropriate
equipment.
(6) Subject to subsection (3) above, in this Part of this Act
“computer ” means any device for storing and processing
information,  and  any  reference  to  information  being
derived from other information is a reference to its being
derived therefrom by calculation, comparison or any other
process.”
27. It may be noticed that sub-sections (2) to (5) of Section 65B of
the Evidence Act are a reproduction of sub-sections (2) to (5) of Section 5
of the Civil Evidence Act, 1968, with minor changes 3. The definition of
3 Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence from
computer records in criminal proceedings. Section 69 read thus:
“69.-(1) In any proceedings, a statement in a document produced by a computer shall not be
admissible as evidence of any fact stated therein unless it is shown-
(a) that there are no reasonable grounds for believing that the statement is inaccurate
because of improper use of that computer;
(b) that at all material times the computer was operating properly, or if not, that any
respect in which it was not operating properly or was out of operation was not such as to
affect the production of the document or the accuracy of its contents; and
(c) that any relevant conditions specified in rules of court under subsection (2) below
are satisfied.
(2) Provision may be made by rules of court requiring that in any proceedings where it is
desired to give a statement in evidence by virtue of this section such information concerning the
statement as may be required by the rules shall be provided in such form and at such time as
may be so required.”
By Section 70, Sections 68 and 69 of this Act had to be read with Schedule 3 thereof, the
provisions of which had the same force in effect as Sections 68 and 69. Part I of Schedule 3
supplemented Section 68. Notwithstanding the importance of Part I of Schedule 3, we propose
to refer to only two provisions of it, namely:
32

Source PDF page 33

View this page in the original PDF
“computer” under Section 5(6) of the Civil Evidence Act, 1968 was not,
however, adopted by Section 2(i) of the Information Technology Act, 2000,
which as noted above, is a ‘means and includes’ definition of a much more
complex and intricate nature. It is also important to note Section 6(1) and
(5) of the Civil Evidence Act, 1968, which state as follows:
“(1) Where in any civil proceedings a statement contained
in a document is proposed to be given in evidence by
virtue of section 2, 4 or 5 of this Act it may, subject to any
rules  of  court,  be  proved  by  the  production  of  that
document  or  (whether  or  not  that  document  is  still  in
“1.  Section 68(1) above applies whether the information contained in the document was
supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom
it was supplied was acting under a duty; and applies also where the person compiling the
record is himself the person by whom the information is supplied.”
“6. Any reference in Section 68 above or this Part of this Schedule to a person acting under a
duty includes a reference to a person acting in the course of any trade, business, profession or
other occupation in which he is engaged or employed or for the purposes of any paid or unpaid
office held by him.”
Part II supplemented  Section 69 in important respects. Two  provisions of it are relevant,
namely-
“8.  In any proceedings where it is desired to give a statement in evidence in accordance with
section 69 above, a certificate –
(a) identifying the document 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
document  as  may  be  appropriate  for  the  purpose  of  showing  that  the  document  was
produced by a computer;
(c) dealing with any of the matters mentioned in Section 69(1) above; and
(d) purporting to be signed by a person occupying a reasonable position in
relation to the operation of the computer, shall be evidence of anything stated in it; and for
the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of
anything of which evidence could be given by a certificate under that paragraph.”
33

Source PDF page 34

View this page in the original PDF
existence) by the production of a copy of that document,
or  of  the  material  part  thereof,  authenticated  in  such
manner as the court may approve.
xxx xxx xxx
(5)  If any person in a certificate tendered in evidence in
civil proceedings by virtue of section 5(4) of this Act wilfully
makes a statement material in those proceedings which
he knows to be false or does not believe to be true, he
shall be liable on conviction on indictment to imprisonment
for a term not exceeding two years or a fine or both.”
28. Section 6(1), in essence, maintains the dichotomy between
proof by ‘primary’ and ‘secondary’ evidence - proof by production of the
‘document’ itself being primary evidence, and proof by production of a copy
of that document, as authenticated, being secondary evidence. Section
6(5), which gives teeth to the person granting the certificate mentioned in
Section 5(4) of the Act, by punishing false statements wilfully made in the
certificate,  has  not  been  included  in  the  Indian  Evidence  Act.  These
sections have since been repealed by the Civil Evidence Act of 1995 (UK),
pursuant to a UK Law Commission Report published in S eptember, 1993
(Law Com. No. 216), by which the strict rule as to hearsay evidence was
relaxed, and hearsay evidence was made admissible in the circumstances
mentioned by the Civil Evidence Act of 1995. Sections 8, 9 and 13 of this
Act are important, and are set out hereinbelow:
34

Source PDF page 35

View this page in the original PDF
“8. Proof of statements contained in documents.
(1)  Where  a  statement  contained  in  a  document  is
admissible  as  evidence  in  civil  proceedings,  it  may  be
proved—
(a) by the production of that document, or
(b) whether or not that document is still in existence, by
the  production  of  a  copy  of  that  document  or  of  the
material part of it,
authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes
there are between a copy and the original.
9. Proof of records of business or public authority.
(1) A document which is shown to form part of the records
of  a  business  or  public  authority  may  be  received  in
evidence in civil proceedings without further proof.
(2) A document shall be taken to form part of the records
of a business or public authority if there is produced to the
court a certificate to that effect signed by an officer of the
business or authority to which the records belong. For this
purpose—
(a) a document purporting to be a certificate signed by an
officer of a business or public authority shall be deemed to
have been duly given by such an officer and signed by
him; and
(b) a certificate shall be treated as signed by a person if it
purports to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or
public  authority  may  be  proved  in  civil  proceedings  by
affidavit of an officer of the business or authority to which
the records belong.
35

Source PDF page 36

View this page in the original PDF
(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a
period  of  time,  whether  for  profit  or  not,  by  any  body
(whether corporate or not) or by an individual;
“officer”  includes  any  person  occupying  a  responsible
position in relation to the relevant activities of the business
or public authority or in relation to its records; and
“public  authority ”  includes  any  public  or  statutory
undertaking, any government department and any person
holding office under Her Majesty.
(5) The court may, having regard to the circumstances of
the case, direct that all or any of the above provisions of
this  section  do  not  apply  in  relation  to  a  particular
document  or  record,  or  description  of  documents  or
records.”
Section 13 of this Act defines “document” as follows:
“document” means anything in which information of any
description  is  recorded,  and  “copy”,  in  relation  to  a
document,  means  anything  onto  which  information
recorded in the document has been copied, by whatever
means and whether directly or indirectly;”
29. Section  15(2)  of  this  Act  repeals  enactments  mentioned  in
Schedule II therein; and Schedule II repeals Part I of the Civil Evidence
Act,  1968  -  of  which  Sections  5  and  6  were  a  part.  The  definition  of
“records” and “document” in this Act would show that electronic records are
considered  to  be  part  of  “document”  as  defined,  needing  no  separate
36

Source PDF page 37

View this page in the original PDF
treatment as to admissibility or proof. It is thus clear that in UK law, as at
present, no distinction is made between computer generated evidence and
other evidence either qua the admissibility of, or the attachment of weight
to, such evidence.
30. Coming back to Section 65B of the Indian Evidence Act, sub-
section (1) needs to be analysed. The sub-section begins with a  non-
obstante clause, and then goes on to mention information contained in an
electronic record produced by a computer, which is, by a deeming fiction,
then  made  a  “document”.  This  deeming  fiction  only  takes  effect  if  the
further conditions mentioned in the Section are satisfied in relation to both
the information and the computer in question; and if such conditions are
met, the “document” shall then be admissible in any proceedings. The
words “…without further proof or production of the original …” make it clear
that  once  the  deeming  fiction  is  given  effect  by  the  fulfilment  of  the
conditions  mentioned  in  the  Section,  the  “deemed  document”  now
becomes admissible in evidence 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.
37

Source PDF page 38

View this page in the original PDF
31. The non-obstante clause in sub-section (1) makes it clear that
when  it  comes  to  information  contained  in  an  electronic  record,
admissibility and proof thereof must follow the drill of Section 65B, which is
a special provision in this behalf - Sections 62 to 65 being irrelevant for this
purpose.  However,  Section  65B(1)  clearly  differentiates  between  the
“original”  document  -  which  would  be  the  original  “electronic  record”
contained in the “computer” in which the original information is first stored -
and the computer output containing such information, which then may be
treated as evidence of the contents of the “original” document. All this
necessarily  shows  that  Section  65B  differentiates  between  the  original
information contained in the “computer” itself and copies made therefrom –
the  former  being  primary  evidence,  and  the  latter  being  secondary
evidence.
32. Quite obviously, the requisite certificate in sub-section (4) is
unnecessary if the original document itself is produced. This can be done
by the owner of a laptop computer, a computer tablet or even a mobile
phone, by stepping into the witness box and proving that the concerned
device, on which the original information is first stored, is owned and/or
operated by him. In cases where “the computer”, as defined, happens to
38

Source PDF page 39

View this page in the original PDF
be a part of a “computer system” or “computer network” (as defined in the
Information Technology Act, 2000) and it becomes impossible to physically
bring such network or system to the Court, then the only means of proving
information contained in such electronic record can be in accordance with
Section 65B(1), together with the requisite certificate under Section 65B(4).
This being the case, it is necessary to clarify what is contained in the last
sentence in paragraph 24 of  Anvar P.V. (supra) which reads as “… if an
electronic record as such is used as primary evidence under Section 62 of
the Evidence Act …”. This may more appropriately be read without the
words  “ under  Section  62  of  the  Evidence  Act,… ”.  With  this  minor
clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not
need to be revisited.
33. In fact, in Vikram Singh and Anr. v. State of Punjab and Anr.
(2017) 8 SCC 518, a three-Judge Bench of this Court followed the law in
Anvar  P .V. (supra),  clearly  stating  that  where  primary  evidence  in
electronic form has been produced, no certificate under Section 65B would
be necessary. This was so stated as follows:
“25. The  learned  counsel  contended  that  the  tape-
recorded conversation has been relied on without there
being any certificate under Section 65-B of the Evidence
Act, 1872. It was contended that audio tapes are recorded
39

Source PDF page 40

View this page in the original PDF
on  magnetic  media,  the  same  could  be  established
through  a  certificate  under  Section  65-B  and  in  the
absence of the certificate, the document which constitutes
electronic  record,  cannot  be  deemed  to  be  a  valid
evidence  and  has  to  be  ignored  from  consideration.
Reliance has been placed by the learned counsel on the
judgment of this Court in  Anvar P .V. v. P .K. Basheer. The
conversation  on  the  landline  phone  of  the  complainant
situate in a shop was recorded by the complainant. The
same cassette containing conversation by which ransom
call was made on the landline phone was handed over by
the complainant in original to the police. This Court in its
judgment dated 25-1-2010 has referred to the aforesaid
fact and has noted the said fact to the following effect:
“5. The cassette on which the conversations had been
recorded on the landline was handed over by Ravi Verma
to  SI  Jiwan  Kumar  and  on  a  replay  of  the  tape,  the
conversation was clearly audible and was heard by the
police.”
26. The  tape-recorded  conversation  was  not  secondary
evidence which required certificate under Section 65-B,
since it was the original cassette by which ransom call was
tape-recorded,  there  cannot  be  any  dispute  that  for
admission of secondary evidence of electronic record a
certificate  as  contemplated  by  Section  65-B  is  a
mandatory condition.”4
34. Despite the law so declared in Anvar P.V. (supra), wherein this
Court made it clear that the special provisions of Sections 65A and 65B of
the Evidence Act are a complete Code in themselves when it comes to
4 The  definition  of  “data”,  “electronic  form”  and  “electronic  record”  under  the  Information
Technology Act, 2000 (as set out hereinabove) makes it clear that “data” and “electronic form”
includes “magnetic  or optical  storage media”, which would include the audio  tape/cassette
discussed in Vikram Singh (supra). 
40

Source PDF page 41

View this page in the original PDF
admissibility of evidence of information contained in electronic records, and
also that a written certificate under Section 65B(4) is a  sine qua non  for
admissibility  of  such  evidence,  a  discordant  note  was  soon  struck  in
Tomaso Bruno (supra). In this judgment, another three Judge Bench dealt
with the admissibility of evidence in a criminal case in which CCTV footage
was sought to be relied upon in evidence. The Court held:
“24. With  the  advancement  of  information  technology,
scientific temper in the individual and at the institutional
level is to pervade the methods of investigation. With the
increasing impact of technology in everyday life and as a
result, the production of electronic evidence in cases has
become relevant to establish the guilt of the accused or
the liability of the defendant. Electronic documents stricto
sensu  are  admitted  as  material  evidence.  With  the
amendment to the Evidence Act in 2000, Sections 65-A
and  65-B  were  introduced  into  Chapter  V  relating  to
documentary  evidence.  Section  65-A  provides  that
contents  of  electronic  records  may  be  admitted  as
evidence  if  the  criteria  provided  in  Section  65-B  is
complied with. The computer generated electronic records
in  evidence  are  admissible  at  a  trial  if  proved  in  the
manner specified by Section 65-B of the Evidence Act.
Sub-section (1) of Section 65-B makes admissible as a
document, paper printout of electronic records stored in
optical  or  magnetic  media  produced  by  a  computer,
subject to the fulfilment of the conditions specified in sub-
section  (2)  of  Section  65-B.  Secondary  evidence  of
contents of document can also be led under Section 65 of
the Evidence Act. PW 13 stated that he saw the full video
recording of the fateful night in the CCTV camera, but he
has not recorded the same in the case diary as nothing
substantial to be adduced as evidence was present in it.
41

Source PDF page 42

View this page in the original PDF
25. The production of scientific and electronic evidence in
court as contemplated under Section 65-B of the Evidence
Act is of great help to the investigating agency and also to
the prosecution. The relevance of electronic evidence is
also  evident  in  the  light  of  Mohd.  Ajmal  Amir
Kasab v. State of Maharashtra  [(2012) 9 SCC 1] , wherein
production  of  transcripts  of  internet  transactions  helped
the prosecution case a great deal in proving the guilt of the
accused.  Similarly,  in  State  (NCT  of  Delhi)  v. Navjot
Sandhu,  the  links  between  the  slain  terrorists  and  the
masterminds of the attack were established only through
phone call transcripts obtained from the mobile service
providers.”
35. What is clear from this judgment is that the judgment of Anvar
P .V. (supra) was not referred to at all. In fact, the judgment in  State v.
Navjot  Sandhu (2005)  11  SCC  600  was  adverted  to,  which  was  a
judgment  specifically  overruled  by  Anvar  P .V. (supra).  It  may  also  be
stated that Section 65B(4) was also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno (supra) following Navjot
Sandhu  (supra) that secondary evidence of the contents of a document
can also be led under Section 65 of the Evidence Act to make CCTV
footage admissible would be in the teeth of Anvar P .V., (supra) and cannot
be said to be a correct statement of the law. The said view is accordingly
overruled.
42

Source PDF page 43

View this page in the original PDF
36. We now come to the decision in Shafhi Mohammad (supra).
In this case, by an order dated 30.01.2018 made by two learned Judges of
this Court, it was stated:
“21. We have been taken through certain decisions which
may  be  referred  to.  In  Ram  Singh v. Ram  Singh [Ram
Singh v. Ram Singh, 1985 Supp SCC 611] , a three-Judge
Bench  considered  the  said  issue.  English  judgments
in R. v. Maqsud  Ali [R. v. Maqsud  Ali,  (1966)  1  QB  688]
and R. v. Robson [R. v. Robson, (1972) 1 WLR 651] and
American  Law  as  noted  in  American  Jurisprudence  2d
(Vol. 29) p. 494, were cited with approval to the effect that
it will be wrong to deny to the law of evidence advantages
to  be  gained  by  new  techniques  and  new  devices,
provided the accuracy of the recording can be proved.
Such  evidence  should  always  be  regarded  with  some
caution and assessed in the light of all the circumstances
of  each  case.  Electronic  evidence  was  held  to  be
admissible subject  to  safeguards  adopted  by  the Court
about the authenticity of the same. In the case of tape-
recording, it was observed that voice of the speaker must
be duly identified, accuracy of the statement was required
to be proved by the maker of the record, possibility of
tampering was required to be ruled out. Reliability of the
piece of evidence is certainly a matter to be determined in
the facts and circumstances of a fact situation. However,
threshold admissibility of an electronic evidence cannot be
ruled out on any technicality if the same was relevant.
22. In Tukaram  S.  Dighole  v. Manikrao  Shivaji
Kokate [(2010)  4  SCC  329],  the  same  principle  was
reiterated. This Court observed that new techniques and
devices are the order of the day. Though such devices are
susceptible to tampering, no exhaustive rule could be laid
down by which the admission of such evidence may be
judged. Standard of proof of its authenticity and accuracy
43

Source PDF page 44

View this page in the original PDF
has  to  be  more  stringent  than  other  documentary
evidence.
23. In Tomaso Bruno v. State of U.P.  [(2015) 7 SCC 178],
a  three-Judge  Bench  observed  that  advancement  of
information technology and scientific temper must pervade
the  method  of  investigation.  Electronic  evidence  was
relevant  to  establish  facts.  Scientific  and  electronic
evidence can be a great help to an investigating agency.
Reference  was  made  to  the  decisions  of  this  Court
in Mohd.  Ajmal  Amir  Kasab  v. State  of
Maharashtra [(2012)  9  SCC  1]  and  State  (NCT  of
Delhi) v. Navjot Sandhu.
24. We may, however, also refer to the judgment of this
Court in  Anvar P.V. v. P.K. Basheer, delivered by a three-
Judge  Bench.  In  the  said  judgment  in  para  24  it  was
observed  that  electronic  evidence  by  way  of  primary
evidence was covered by Section 62 of the Evidence Act
to which procedure of Section 65-B of the Evidence Act
was not admissible. However, for the secondary evidence,
procedure  of  Section  65-B  of  the  Evidence  Act  was
required  to  be  followed  and  a  contrary  view  taken
in Navjot  Sandhu that  secondary  evidence  of  electronic
record could be covered under Sections 63 and 65 of the
Evidence  Act,  was  not  correct.  There  are,  however,
observations in para 14 to the effect that electronic record
can be proved only as per Section 65-B of the Evidence
Act.
25. Though in view of the three-Judge Bench judgments
in Tomaso Bruno and Ram Singh  [1985 Supp SCC 611] ,
it can be safely held that electronic evidence is admissible
and  provisions  under  Sections  65-A  and  65-B  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
44

Source PDF page 45

View this page in the original PDF
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 65-B(4).
26. Sections  65-A and  65-B  of  the  Evidence  Act,  1872
cannot be held to be a complete code on the subject.
In Anvar P .V., this Court in para 24 clarified that primary
evidence  of  electronic  record  was  not  covered  under
Sections  65-A and  65-B  of  the  Evidence  Act.  Primary
evidence is the document produced before the 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
matter.
27. The term “electronic record” is defined in Section 2(1)
(t) of the Information Technology Act, 2000 as follows:
“2.(1)(t) “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;”
28. The expression “data” is defined in Section 2(1)( o) of
the Information Technology Act as follows:
“2.(1)(o) “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;”
45

Source PDF page 46

View this page in the original PDF
29. The  applicability  of  procedural  requirement  under
Section  65-B(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
the absence of certificate under Section 65-B(4) of the
Evidence  Act,  which  party  producing  cannot  possibly
secure. Thus, requirement of certificate under Section 65-
B(4) is not always mandatory.
30. 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  65-B(4)  of  the
Evidence Act. The applicability of requirement of certificate
being procedural can be relaxed by the court wherever
interest of justice so justifies.”
37.  It may be noted that the judgments referred to in paragraph 21
of  Shafhi Mohammed  (supra) are all judgments before the year 2000,
when Amendment Act 21 of 2000 first introduced Sections 65A and 65B
into  the  Evidence  Act  and  can,  therefore,  be  of  no  assistance  on
interpreting  the  law  as  to  admissibility  into  evidence  of  information
46

Source PDF page 47

View this page in the original PDF
contained in electronic records. Likewise, the judgment cited in paragraph
22, namely  Tukaram S. Dighole v. Manikrao Shivaji Kokate  (2010) 4
SCC 329 is also a judgment which does not deal with Section 65B. In fact,
paragraph 20 of the said judgment states the issues before the Court as
follows:
“20. However,  in  the  present  case,  the  dispute  is  not
whether a cassette is a public document but the issues are
whether:
(i) the finding by the Tribunal that in the absence of any
evidence to show that the VHS cassette was obtained by
the appellant from the Election Commission, the cassette
placed on record by the appellant could not be treated as
a public document is perverse; and
(ii) a mere production of an audio cassette, assuming that
the  same  is  a  certified  copy  issued  by  the  Election
Commission, is per se conclusive of the fact that what is
contained in the cassette is the true and correct recording
of the speech allegedly delivered by the respondent or his
agent?”
The second issue was answered referring to judgments which did not deal
with Section 65B at all.
38. Much succour was taken from the three Judge Bench decision
in  Tomaso Bruno  (supra) in paragraph 23, which, as has been stated
hereinabove, does not state the law on Section 65B correctly. Anvar P .V.
(supra) was referred to in paragraph 24, but surprisingly, in paragraph 26,
47

Source PDF page 48

View this page in the original PDF
the Court held that Sections 65A and 65B cannot be held to be a complete
Code on the subject, directly contrary to what was stated by a three Judge
Bench in Anvar P .V. (supra). It was then “clarified” that the requirement of
a certificate under Section 64B(4), being procedural, can be relaxed by the
Court wherever the interest of justice so justifies, and one circumstance in
which the interest of justice so justifies would be where the electronic
device is produced by a party who is not in possession of such device, as a
result of which such party would not be in a position to secure the requisite
certificate.
39. Quite  apart  from  the  fact  that  the  judgment  in  Shafhi
Mohammad  (supra) states the law incorrectly and is in the teeth of the
judgment in Anvar P .V. (supra), following the judgment in Tomaso Bruno
(supra) -  which  has  been  held  to  be  per  incuriam  hereinabove  -  the
underlying reasoning of the difficulty of producing a certificate by a party
who is not in possession of an electronic device is also wholly incorrect.
40. As a matter of fact, Section 165 of the Evidence Act empowers
a Judge to order production of any document or thing in order to discover
or obtain proof of relevant facts. Section 165 of the Evidence Act states as
follows:
48

Source PDF page 49

View this page in the original PDF
“Section 165. Judge’s power to put questions or order
production.-  The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of the
parties about any fact relevant or irrelevant; and may order
the production of any document or thing; and neither the
parties  nor  their  agents  shall  be  entitled  to  make  any
objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any
answer given in reply to any such question.
Provided  that  the  judgment  must  be  based  upon  facts
declared by this Act to be relevant, and duly proved:
Provided  also  that  this  section  shall  not  authorize  any
Judge to compel any witness to answer any question or to
produce  any  document  which  such  witness  would  be
entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.
41. Likewise, under Order XVI of the Civil Procedure Code, 1908
(“CPC”) which deals with ‘Summoning and Attendance of Witnesses’, the
Court can issue the following orders for the production of documents:
“6. Summons to produce document. —Any person may
be  summoned  to  produce  a  document,  without  being
summoned to give evidence; and any person summoned
merely to produce a document shall be deemed to have
complied with the summons if he causes such document
to be produced instead of attending personally to produce
the same.
49

Source PDF page 50

View this page in the original PDF
7. Power to require persons present in Court to give
evidence or produce document.—Any person present in
Court may be required by the Court to give evidence or to
produce any document then and there in his possession or
power.
xxx xxx xxx
10.  Procedure  where  witness  fails  to  comply  with
summons.—(1)  Where  a  person  has  been  issued
summons either to attend to give evidence or to produce a
document, fails to attend or to produce the document in
compliance with such summons, the Court— (a) shall, if
the certificate of the serving officer has not been verified
by the affidavit, or if service of the summons has affected
by a party or his agent, or (b) may, if the certificate of the
serving officer has been so verified, examine on oath the
serving officer or the party or his agent, as the case may
be,  who  has  effected  service,  or  cause  him  to  be  so
examined  by  any  Court,  touching  the  service  or  non-
service of the summons.
(2)  Where  the  Court  sees  reason  to  believe  that  such
evidence or production is material, and that such person
has, without lawful excuse, failed to attend or to produce
the document in compliance with such summons or has
intentionally avoided service, it may issue a proclamation
requiring him to attend to give evidence or to produce the
document at a time and place to be named therein; and a
copy of such proclamation shall be affixed on the outer
door or other conspicuous part of the house in which he
ordinarily resides. 
(3) In lieu of or at the time of issuing such proclamation, or
at any time afterwards, the Court may, in its discretion,
issue a warrant, either with or without bail, for the arrest of
such person, and may make an order for the attachment
50

Source PDF page 51

View this page in the original PDF
of  his  property  to  such  amount  as  it  thinks  fit,  not
exceeding the amount of the costs of attachment and of
any fine which may be imposed under rule 12: 
Provided that no Court of Small Causes shall make an
order for the attachment of immovable property.”
42. Similarly, in the Code of Criminal Procedure, 1973 (“ CrPC”),
the Judge conducting a criminal trial is empowered to issue the following
orders for production of documents:
“91. Summons to produce document or other thing. —
(1) Whenever any Court or any officer in charge of a police
station considers that the production of any document or
other thing is necessary or desirable for the purposes of
any investigation, inquiry, trial or other proceeding under
this Code by or before such Court or officer, such Court
may issue a summons, or such officer a written order, to
the person in whose possession or power such document
or  thing  is believed  to be, requiring  him  to attend  and
produce it, or to produce it, at the time and place stated in
the summons or order.
(2)  Any  person  required  under  this  section  merely  to
produce a document or other thing shall be deemed to
have  complied  with  the  requisition  if  he  causes  such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect
sections 123 and 124 of the Indian Evidence Act, 1872 (1
of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of
1891), or (b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the custody of the
postal or telegraph authority.”
51

Source PDF page 52

View this page in the original PDF
“349. Imprisonment or committal of person refusing to
answer or produce document.—If any witness or person
called to produce a document or thing before a Criminal
Court refuses to answer such questions as are put to him
or to produce any document or thing in his possession or
power which the Court requires him to produce, and does
not, after a reasonable opportunity has been given to him
so to do, offer any reasonable excuse for such refusal,
such Court may, for reasons to be recorded in writing,
sentence him to simple imprisonment, or by warrant under
the hand of the Presiding Magistrate or Judge commit him
to the custody of an officer of the Court for any term not
exceeding  seven  days,  unless  in  the  meantime,  such
person  consents  to  be  examined  and  to  answer,  or  to
produce the document or thing and in the event of his
persisting in his refusal, he may be dealt with according to
the provisions of section 345 or section 346.”
43. Thus, it is clear that the major premise of Shafhi Mohammad
(supra) that such certificate cannot be secured by persons who are not in
possession of an electronic device is wholly incorrect. An application can
always be made to a Judge for production of such a certificate from the
requisite  person  under  Section  65B(4)  in  cases  in  which  such  person
refuses to give it.
44. Resultantly,  the  judgment  dated  03.04.2018  of  a  Division
Bench of this Court reported as (2018) 5 SCC 311, in following the law
incorrectly laid down in Shafhi Mohammed (supra), must also be, and is
hereby, overruled.
52

Source PDF page 53

View this page in the original PDF
45. However, a caveat must be entered here. The facts of the
present case show that despite all efforts made by the Respondents, both
through the High Court and otherwise, to get the requisite certificate under
Section 65B(4) of the Evidence Act from the authorities concerned, yet the
authorities concerned wilfully refused, on some pretext or the other, to give
such certificate. In a fact-circumstance where the requisite certificate has
been  applied  for  from  the  person  or  the  authority  concerned,  and  the
person or authority either refuses to give such certificate, or does not reply
to such demand, the party asking for such certificate can apply to the Court
for its production under the provisions aforementioned of the Evidence Act,
CPC or CrPC. Once such application is made to the Court, and the Court
then orders or directs that the requisite certificate be produced by a person
to whom it sends a summons to produce such certificate, the party asking
for  the  certificate  has  done  all  that  he  can  possibly  do  to  obtain  the
requisite certificate. Two Latin maxims become important at this stage. The
first is  lex non cogit ad impossibilia  i.e. the law does not demand the
impossible, and  impotentia excusat legem  i.e. when there is a disability
that makes it impossible to obey the law, the alleged disobedience of the
53

Source PDF page 54

View this page in the original PDF
law is excused. This was well put by this Court in Re: Presidential Poll
(1974) 2 SCC 33 as follows:
“14. If the completion of election before the expiration of
the  term  is  not  possible  because  of  the  death  of  the
prospective candidate it is apparent that the election has
commenced  before  the  expiration  of  the  term  but
completion before the expiration of the term is rendered
impossible by an act beyond the control of human agency.
The  necessity  for  completing  the  election  before  the
expiration of the term is enjoined by the Constitution in
public and State interest to see that the governance of the
country  is  not  paralysed  by  non-compliance  with  the
provision that there shall be a President of India.
15. The impossibility of the completion of the election to fill
the  vacancy  in  the  office  of  the  President  before  the
expiration of the term of office in the case of death of a
candidate as may appear from Section 7 of the 1952 Act
does not rob Article 62(1) of its mandatory character. The
maxim  of  law  impotentia  excusat  legam  is  intimately
connected  with  another  maxim  of  law lex  non  cogit  ad
impossibilia. Impotentia excusat legam  is that when there
is  a  necessary  or  invincible  disability  to  perform  the
mandatory part of the law that impotentia excuses. The
law does not compel one to do that which one cannot
possibly perform. “Where the law creates a duty or charge,
and the party is disabled to perform it, without any default
in him, and has no remedy over it, there the law will in
general excuse him.” Therefore, when it appears that the
performance of the formalities prescribed by a statute has
been rendered impossible by circumstances over which
the persons interested had no control, like the act of God,
the circumstances will be taken as a valid excuse. Where
the act of God prevents the compliance of the words of a
statute,  the  statutory  provision  is  not  denuded  of  its
mandatory character because of supervening impossibility
54

Source PDF page 55

View this page in the original PDF
caused  by  the  act  of  God.  (See  Broom's  Legal
Maxims 10th Edn. at pp. 162-163 and  Craies on Statute
Law 6th Edn. at p. 268).”
It is important to note that the provision in question in Re Presidential Poll
(supra) was also mandatory, which could not be satisfied owing to an act of
God, in the facts of that case. These maxims have been applied by this
Court in different situations in other election cases – see Chandra Kishore
Jha v. Mahavir Prasad and Ors. (1999) 8 SCC 266 (at paragraphs 17 and
21); Special Reference 1 of 2002  (2002) 8 SCC 237 (at paragraphs 130
and 151) and  Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
(2005) 3 SCC 601 (at paragraphs 13 and 14). 
46. These Latin maxims have also been applied in several other
contexts by this Court. In Cochin State Power and Light Corporation v.
State of Kerala (1965) 3 SCR 187, a question arose as to the exercise of
an option of purchasing an undertaking by the State Electricity Board under
Section 6(4) of the Indian Electricity Act, 1910. The provision required a
notice of at least 18 months before the expiry of the relevant period to be
given by such State Electricity Board to the State Government. Since this
mandatory provision was impossible of compliance, it was held that the
State Electricity Board was excused from giving such notice, as follows:
55

Source PDF page 56

View this page in the original PDF
“Sub-section (1) of Section 6 expressly vests in the State
Electricity Board the option of purchase on the expiry of
the relevant period specified in the license. But the State
Government claims that under sub-section (2) of Section 6
it is now vested with the option. Now, under sub-section
(2) of Section 6, the State Government would be vested
with the option only “where a State Electricity Board has
not been constituted, or if constituted, does not elect to
purchase the undertaking”. It  is common case that the
State Electricity Board was duly constituted. But the State
Government claims that the State Electricity Board did not
elect to purchase the undertaking. For this purpose, the
State Government relies upon the deeming provisions of
sub-section (4) of Section 6, and contends that as the
Board  did  not  send  to  the  State  Government  any
intimation in writing of its intention to exercise the option
as  required  by  the  sub-section,  the  Board  must  be
deemed to have elected not to purchase the undertaking.
Now, the effect of sub-section (4) read with sub-section (2)
of Section 6 is that on failure of the Board to give the
notice prescribed by sub-section (4), the option vested in
the Board under sub-section (1) of Section 6 was liable to
be divested. Sub-section (4) of Section 6 imposed upon
the Board the duty of giving after the coming into force of
Section 6 a notice in writing of its intention to exercise the
option at least 18 months before the expiry of the relevant
period. Section 6 came into force on September 5, 1959,
and the relevant period expired on December 3, 1960. In
the circumstances, the giving of the requisite notice of 18
months in respect of the option of purchase on the expiry
of  December  2,  1960,  was  impossible  from  the  very
commencement  of  Section  6.  The  performance  of  this
impossible duty must be excused in accordance with the
maxim, lex non cogitia ad impossibilia  (the law does not
compel the doing of impossibilities), and sub-section (4) of
Section 6 must be construed as not being applicable to a
case  where  compliance  with  it  is  impossible.  We  must
therefore, hold that the State Electricity Board was not
56

Source PDF page 57

View this page in the original PDF
required to give the notice under sub-section (4) of Section
6 in respect of its option of purchase on the expiry of 25
years. It must follow that the Board cannot be deemed to
have elected not to purchase the undertaking under sub-
section (4) of Section 6. By the notice served upon the
appellant,  the  Board  duly  elected  to  purchase  the
undertaking on the expiry of 25 years. Consequently, the
State Government never became vested with the option of
purchasing  the  undertaking  under  sub-section  (2)  of
Section  6.  The  State  Government  must,  therefore,  be
restrained from taking further action under its notice, Ex.
G, dated November 20, 1959.”5
47. In  Raj Kumar Dubey v. Tarapada Dey and Ors.  (1987) 4
SCC 398, the maxim  non cogit ad impossibilia  was applied in the context
of the applicability of a mandatory provision of the Registration Act, 1908,
as follows:
“6. We have to bear in mind two maxims of equity which
are well settled, namely, actus curiae neminem gravabit —
An  act  of  the  Court  shall  prejudice  no  man.  In
Broom's Legal Maxims, 10th Edn., 1939 at page 73 this
maxim is explained that this maxim was founded upon
justice and good sense; and afforded a safe and certain
guide for the administration of the law. The above maxim
should,  however,  be  applied  with  caution.  The  other
maxim  is  lex  non  cogit  ad  impossibilia  (Broom's Legal
Maxims — page 162) — The law does not compel a man
to do that which he cannot possibly perform. The law itself
and  the  administration  of  it,  said  Sir  W.  Scott,  with
reference  to  an  alleged  infraction  of  the  revenue  laws,
must  yield  to  that  to  which  everything  must  bend,  to
necessity;  the  law, in  its most  positive  and  peremptory
5 (1965) 3 SCR 187, at 193.
57

Source PDF page 58

View this page in the original PDF
injunctions,  is  understood  to  disclaim,  as  it  does  in  its
general  aphorisms,  all  intention  of  compelling
impossibilities, and the administration of laws must adopt
that general exception in the consideration of all particular
cases.
7. In this case indisputably during the period from 26-7-
1978 to December 1982 there was subsisting injunction
preventing  the  arbitrators  from  taking  any  steps.
Furthermore,  as  noted  before  the  award  was  in  the
custody of the court, that is to say, 28-1-1978 till the return
of the award to the arbitrators on 24-11-1983, arbitrators
or the parties could not have presented the award for its
registration during that time. The award as we have noted
before was made on 28-11-1977 and before the expiry of
the four months from 28-11-1977, the award was filed in
the court pursuant to the order of the court. It was argued
that the order made by the court directing the arbitrators to
keep the award in the custody of the court was wrong and
without jurisdiction, but no arbitrator could be compelled to
disobey  the  order  of  the  court  and if  in compliance  or
obedience with court of doubtful jurisdiction, he could not
take back the award from the custody of the court to take
any further steps for its registration then it cannot be said
that he has failed to get the award registered as the law
required. The aforesaid two legal maxims —  the law does
not compel a man to do that which he cannot possibly
perform and an  act  of  the  court  shall  prejudice  no
man would, apply with full vigour in the facts of this case
and if that is the position then the award as we have noted
before was presented before the Sub-Registrar, Arambagh
on  25-11-1983  the  very  next  one  day  of  getting
possession of the award from the court. The Sub-Registrar
pursuant  to  the  order  of  the  High  Court  on  24-6-1985
found that the award was presented within time as the
period during which the judicial proceedings were pending
that is to say, from 28-1-1978 to 24-11-1983 should be
excluded in view of the principle laid down in Section 15 of
58

Source PDF page 59

View this page in the original PDF
the Limitation Act, 1963. The High Court, therefore, in our
opinion, was wrong in holding that the only period which
should be excluded was from 26-7-1978 till 20-12-1982.
We are unable to accept this position. 26-7-1978 was the
date  of  the  order  of  the  learned  Munsif  directing
maintenance of status quo and 20-12-1982 was the date
when  the  interim  injunction  was  vacated,  but  still  the
award was in the custody of the court and there is ample
evidence as it would appear from the narration of events
hereinbefore made that the arbitrators had tried to obtain
the custody of the award which the court declined to give
to them.”
48. These maxims have also been applied to tenancy legislation –
see M/s B.P . Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr.
(1987) 2 SCC 401 (at paragraph 12), and have also been applied to relieve
authorities of fulfilling their obligation to allot plots when such plots have
been  found  to  be  un-allottable,  owing  to  the  contravention  of  Central
statutes – see Hira Tikoo v. U.T., Chandigarh and Ors. (2004) 6 SCC 765
(at paragraphs 23 and 24). 
49. On an application of the aforesaid maxims to the present case,
it is clear that though Section 65B(4) is mandatory, yet, on the facts of this
case,  the  Respondents, having  done  everything  possible  to  obtain  the
necessary certificate, which was to be given by a third-party over whom the
Respondents had no control, must be relieved of the mandatory obligation
contained in the said sub-section.  
59

Source PDF page 60

View this page in the original PDF
50. We may hasten to add that Section 65B does not speak of the
stage at which such certificate must be furnished to the Court. In  Anvar
P .V. (supra), this Court did observe that such certificate must accompany
the electronic record when the same is produced in evidence. We may only
add that this is so in cases where such certificate could be procured by the
person seeking to rely upon an electronic record. However, in cases where
either a defective certificate is given, or in cases where such certificate has
been demanded and is not given by the concerned person, the Judge
conducting  the  trial  must  summon  the  person/persons  referred  to  in
Section 65B(4) of the Evidence Act, and require that such certificate be
given by such person/persons. This, the trial Judge ought to do when the
electronic record is produced in evidence before him without the requisite
certificate in the circumstances aforementioned. This is, of course, subject
to discretion being exercised in civil cases in accordance with law, and in
accordance with the requirements of justice on the facts of each case.
When it comes to criminal trials, it is important to keep in mind the general
principle  that  the  accused  must  be  supplied  all  documents  that  the
prosecution seeks to rely upon before commencement of the trial, under
the relevant sections of the CrPC. 
60

Source PDF page 61

View this page in the original PDF
51. In a recent judgment, a Division Bench of this Court in State of
Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar
P .V. (supra) held:
“16. The  same  view  has  been  reiterated  by  a  two-
Judge Bench of this Court in Union of India v. Ravindra
V. Desai [(2018) 16 SCC 273]. The Court emphasised
that non-production of a certificate under Section 65-B
on an earlier occasion is a curable defect. The Court
relied  upon  the  earlier  decision  in  Sonu v. State  of
Haryana [(2017) 8 SCC 570], in which it was held:
“32.  …  The  crucial  test,  as  affirmed  by  this  Court,
is whether the defect could have been cured at the
stage of marking the document. Applying this test to
the  present  case,  if  an  objection  was  taken  to  the
CDRs  being  marked  without  a  certificate,  the  court
could  have  given  the  prosecution  an  opportunity  to
rectify the deficiency.”
17. Having regard to the above principle of law, the
High Court erred in coming to the conclusion that the
failure to produce a certificate under Section 65-B(4) of
the Evidence Act at the stage when the charge-sheet
was filed was fatal to the prosecution. The need for
production of such a certificate would arise when the
electronic record is sought to be produced in evidence
at the trial. It is at that stage that the necessity of the
production of the certificate would arise.”
52. It  is  pertinent  to  recollect  that  the  stage  of  admitting
documentary evidence in a criminal trial is the filing of the charge-sheet.
When a criminal court summons the accused to stand trial, copies of all
61

Source PDF page 62

View this page in the original PDF
documents which are entered in the charge-sheet/final report have to be
given to the accused. Section 207 of the CrPC, which reads as follows, is
mandatory6. Therefore, the electronic evidence, i.e. the computer output,
has to be furnished at the latest before the trial begins. The reason is not
far to seek; this gives the accused a fair chance to prepare and defend the
charges  levelled  against  him  during  the  trial.  The  general  principle  in
criminal proceedings therefore, is to supply to the accused all documents
that the prosecution seeks to rely upon before the commencement of the
trial. The requirement of such full disclosure is an extremely valuable right
and an essential feature of the right to a fair trial as it enables the accused
to prepare for the trial before its commencement.
6 “Section 207. Supply to the accused of copy of police report and other documents.- In
any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of costs, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements  recorded  under  sub-section  (3)  of section  161  of  all
persons  whom  the  prosecution  proposes  to  examine  as  its  witnesses,  excluding
therefrom any part in regard to which a request for such exclusion has been made by
the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any  other  document  or  relevant  extract  thereof  forwarded  to  the
Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to
in clause (iii) and considering the reasons given by the police officer for the request, direct that
a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is
voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will
only be allowed to inspect it either personally or through pleader in Court.”
62

Source PDF page 63

View this page in the original PDF
53. In  a  criminal  trial,  it  is  assumed  that  the  investigation  is
completed and the prosecution has, as such, concretised its case against
an accused before commencement of the trial. It is further settled law that
the prosecution ought not to be allowed to fill up any lacunae during a trial.
As recognised by this Court in  Central Bureau of Investigation v. R.S.
Pai (2002) 5 SCC 82, the only exception to this general rule is if the
prosecution had ‘mistakenly’ not filed a document, the said document can
be allowed to be placed on record. The Court held as follows:
“7. From the aforesaid sub-sections, it is apparent that
normally, the investigating officer is required to produce
all the relevant documents at the time of submitting the
charge-sheet. At the same time, as there is no specific
prohibition,  it  cannot  be  held  that  the  additional
documents cannot be produced subsequently. If some
mistake  is  committed  in  not  producing  the  relevant
documents at the time of submitting the report or the
charge-sheet,  it  is  always  open  to  the  investigating
officer to produce the same with the permission of the
court.”
 
54. Therefore, in terms of general procedure, the prosecution is
obligated to supply all documents upon which reliance may be placed to an
accused before commencement of the trial. Thus, the exercise of power by
the courts in criminal trials in permitting evidence to be filed at a later stage
should not result in serious or irreversible prejudice to the accused. A
63

Source PDF page 64

View this page in the original PDF
balancing exercise in respect of the rights of parties has to be carried out
by  the  court,  in  examining  any  application  by  the  prosecution  under
Sections  91  or  311  of  the  CrPC  or  Section  165  of  the  Evidence  Act.
Depending on the facts of each case, and the Court exercising discretion
after seeing that the accused is not prejudiced by want of a fair trial, the
Court may in appropriate cases allow the prosecution to produce such
certificate  at  a  later  point  in  time.  If  it  is  the  accused  who  desires  to
produce  the  requisite  certificate  as  part  of  his  defence,  this  again  will
depend upon the justice of the case - discretion to be exercised by the
Court in accordance with law.
55. The  High  Court  of  Rajasthan  in  Paras  Jain  v.  State  of
Rajasthan 2015 SCC OnLine Raj 8331, decided a preliminary objection
that was raised on the applicability of Section 65B to the facts of the case.
The preliminary objection raised was framed as follows:
“3. (i) Whether transcriptions of conversations and for that
matter CDs of the same filed alongwith the charge-sheet
are not admissible in evidence even at this stage of the
proceedings as certificate as required u/Sec. 65-B of the
Evidence Act was not obtained at the time of procurement
of said CDs from the concerned service provider and it
was  not  produced  alongwith  charge-sheet  in  the
prescribed  form  and  such  certificate  cannot  be  filed
subsequently.”
64

Source PDF page 65

View this page in the original PDF
After referring to Anvar P .V. (supra), the High Court held:
“15. Although, it has been observed by Hon'ble Supreme
Court that the requisite certificate must accompany the
electronic record pertaining to which a statement is sought
to be given in evidence when the same is produced in
evidence, but in my view it does not mean that it must be
produced  alongwith  the  charge-sheet  and  if  it  is  not
produced alongwith the charge-sheet, doors of the Court
are  completely  shut  and  it  cannot  be  produced
subsequently  in  any  circumstance.  Section  65-B  of  the
Evidence  Act  deals  with  admissibility  of  secondary
evidence  in  the  form  of  electronic  record  and  the
procedure to be followed and the requirements be fulfilled
before such an evidence can be held to be admissible in
evidence and not with the stage at which such a certificate
is to be produced before the Court. One of the principal
issues arising for consideration in the above case before
Hon'ble Court was the nature and manner of admission of
electronic records.
16. From the facts of the above case it is revealed that the
election of the respondent to the legislative assembly of
the State of Kerala was challenged by the appellant-Shri
Anwar P .V. by way of an election petition before the High
Court of Kerala and it was dismissed vide order dated
16.11.2011  by  the  High  Court  and  that  order  was
challenged  by  the  appellant  before  Hon'ble  Supreme
Court. It appears that the election was challenged on the
ground of corrupt practices committed by the respondent
and  in  support  thereof  some  CDs  were  produced
alongwith the election petition, but even during the course
of trial certificate as required under Section 65-B of the
Evidence  Act  was  not  produced  and  the  question  of
admissibility of the CDs as secondary evidence in the form
of electronic record in absence of requisite certificate was
considered and it was held that such electronic record is
not admissible in evidence in absence of the certificate. It
65

Source PDF page 66

View this page in the original PDF
is clear from the facts of the case that the question of
stage at which such electronic record is to be produced
was not before the Hon'ble Court.
17. It is to be noted that it has been clarified by Hon'ble
Court  that  observations  made  by  it  are  in  respect  of
secondary evidence of electronic record with reference to
Sections 59, 65-A and 65-B of the Evidence Act and if an
electronic  record  as  such  is  used  as  primary  evidence
under  Section  62  of  the  Evidence  Act,  the  same  is
admissible  in  evidence  without  compliance  with  the
conditions in Section 65-B of the Evidence Act.
18. To  consider  the  issue  raised  on  behalf  of  the
petitioners in a proper manner, I pose a question to me
whether an evidence and more particularly evidence in the
form of a document not produced alongwith the charge-
sheet  cannot  be  produced  subsequently  in  any
circumstances. My answer to the question is in negative
and  in  my  opinion  such  evidence  can  be  produced
subsequently also as it is well settled legal position that
the goal of a criminal trial is to discover the truth and to
achieve  that  goal,  the  best  possible  evidence  is  to  be
brought on record.
19. Relevant  portion  of  sub-sec.  (1)  of  Sec.  91  Cr.P .C.
provides  that  whenever  any  Court  considers  that  the
production of any document is necessary or desirable for
the purposes of any trial under the Code by or before such
Court, such Court may issue a summons to the person in
whose possession or power such document is believed to
be, requiring him to attend and produce it or to produce it,
at the time and place stated in the summons. Thus, a wide
discretion  has  been  conferred  on  the  Court  enabling  it
during the course of trial to issue summons to a person in
whose possession or power a document is believed to be
requiring him to produce before it, if the Court considers
that  the  production  of  such  document  is  necessary  or
66

Source PDF page 67

View this page in the original PDF
desirable for the purposes of such trial. Such power can
be exercised by the Court at any stage of the proceedings
before judgment is delivered and the Court must exercise
the power if the production of such document is necessary
or desirable for the proper decision in the case. It cannot
be disputed that such summons can also be issued to the
complainant/informer/victim of the case on whose instance
the  FIR  was  registered.  In  my  considered  view  when
under this provision Court has been empowered to issue
summons for the producment of document, there can be
no bar for the Court to permit a document to be taken on
record if it is already before it and the Court finds that it is
necessary for the proper disposal of the case irrespective
of the fact that it was not filed along with the charge-sheet.
I am of the further view that it is the duty of the Court to
take  all  steps  necessary  for  the  production  of  such  a
document before it.
20. As per Sec. 311 Cr.P .C., any Court may, at any stage
of any trial under the Code, summon any person as a
witness, or examine any person in attendance, though not
summoned  as  a  witness,  or  recall  or  re-examine  any
person already examined; and the Court shall summon
and examine or recall and re-examine any such person if
his  evidence  appears  to  it  to  be  essential  to  the  just
decision  of  the  case.  Under  this  provision  also  wide
discretion has been conferred upon the Court to exercise
its power and paramount consideration is just decision of
the  case.  In  my  opinion  under  this  provision  it  is
permissible for the Court even to order production of a
document before it if it is essential for the just decision of
the case.
21. As per Section 173(8) Cr.P.C. carrying out a further
investigation  and  collection  of  additional  evidence  even
after filing of charge-sheet is a statutory right of the police
and  for  that  prior  permission  of  the  Magistrate  is  not
required. If during the course of such further investigation
67

Source PDF page 68

View this page in the original PDF
additional  evidence,  either  oral  or  documentary,  is
collected by the Police, the same can be produced before
the Court in the form of supplementary charge-sheet. The
prime consideration for further investigation and collection
of additional evidence is to arrive at the truth and to do
real and substantial justice. The material collected during
further investigation cannot be rejected only  because it
has been filed at the stage of the trial.
22. As per Section 231 Cr.P.C., the prosecution is entitled
to produce any person as a witness even though such
person is not named in the charge-sheet.
23. When legal position is that additional evidence, oral or
documentary, can be produced during the course of trial if
in the opinion of the Court production of it is essential for
the proper disposal of the case, how it can be held that the
certificate as required under Section 65-B of the Evidence
Act  cannot  be  produced  subsequently  in  any
circumstances if the same was not procured alongwith the
electronic record and not produced in the Court with the
charge-sheet. In my opinion it is only an irregularity not
going to the root of the matter and is curable. It is also
pertinent to note that certificate was produced alongwith
the charge-sheet but it was not in a proper form but during
the  course of  hearing  of  these  petitioners,  it has been
produced on the prescribed form.”
56. In Kundan Singh (supra), a Division Bench of the Delhi
High Court held:
“50. Anwar  P .V. (supra)  partly  overruled  the  earlier
decision of the Supreme Court on the procedure to prove
electronic record(s) in  Navjot Sandhu (supra), holding that
Section  65B  is  a  specific  provision  relating  to  the
admissibility  of  electronic  record(s)  and,  therefore,
production  of  a  certificate  under  Section  65B(4)  is
68

Source PDF page 69

View this page in the original PDF
mandatory. Anwar P .V. (supra) does not state or hold that
the  said  certificate  cannot  be  produced  in  exercise  of
powers of the trial court under Section 311 Cr.P .C or, at
the appellate stage under Section 391 Cr.P .C. Evidence
Act is a procedural law and in view of the pronouncement
in Anwar  P.V.  (supra)  partly  overruling  Navjot
Sandhu (supra), the prosecution may be entitled to invoke
the  aforementioned  provisions,  when  justified  and
required. Of course, it is open to the court/presiding officer
at that time to ascertain and verify whether the responsible
officer  could  issue  the  said  certificate  and  meet  the
requirements of Section 65B.”
57. Subject to the caveat laid down in paragraphs 50 and 54
above, the law laid down by these two High Courts has our concurrence.
So long as the hearing in a trial is not yet over, the requisite certificate can
be directed to be produced by the learned Judge at any stage, so that
information contained in electronic record form can then be admitted, and
relied upon in evidence.
58. It may also be seen that the person who gives this certificate
can be anyone out of several persons who occupy a ‘responsible official
position’ in relation to the operation of the relevant device, as also the
person who may otherwise be in the ‘management of relevant activities’
spoken  of  in  Sub-section  (4)  of  Section  65B.  Considering  that  such
certificate may also be given long after the electronic record has actually
been produced by the computer, Section 65B(4) makes it clear that it is
69

Source PDF page 70

View this page in the original PDF
sufficient that such person gives the requisite certificate to the “best of his
knowledge and belief” (Obviously, the word “and” between knowledge and
belief in Section 65B(4) must be read as “or”, as a person cannot testify to
the best of his knowledge and belief at the same time).
59. We may reiterate, therefore, that the certificate required under
Section 65B(4) is a condition precedent to the admissibility of evidence by
way  of  electronic  record,  as  correctly  held  in  Anvar  P .V.  (supra),  and
incorrectly “clarified” in Shafhi Mohammed  (supra). Oral evidence in the
place of such certificate cannot possibly suffice as Section 65B(4) is a
mandatory requirement of the law. Indeed, the hallowed principle in Taylor
v. Taylor (1876) 1 Ch.D 426,   which has been followed in a number of the
judgments  of  this  Court,  can  also  be  applied.  Section  65B(4)  of  the
Evidence Act clearly states that secondary evidence is admissible only if
lead in the manner stated and not otherwise. To hold otherwise would
render Section 65B(4) otiose.
60. In view of the above, the decision of the Madras High Court in
K. Ramajyam  (supra), which states that evidence  aliunde can be given
through a person who was in-charge of a computer device in the place of
70

Source PDF page 71

View this page in the original PDF
the requisite certificate under Section 65B(4) of the Evidence Act is also an
incorrect statement of the law and is, accordingly, overruled.
61. While on the subject, it is relevant to note that the Department
of  Telecommunication’s  license  conditions  [i.e.  under  the  ‘License  for
Provision  of  Unified  Access  Services’  framed  in  2007,  as  also  the
subsequent  ‘License  Agreement  for  Unified  License’ and  the  ‘License
Agreement  for  provision  of  internet  service’]  generally  oblige  internet
service  providers  and  providers  of  mobile  telephony  to  preserve  and
maintain electronic call records and records of logs of internet users for a
limited duration of one year 7. Therefore, if the police or other individuals
(interested, or party to any form of litigation) fail to secure those records -
or secure the records but fail to secure the certificate - within that period,
the  production  of  a  post-dated  certificate  (i.e.  one  issued  after
commencement  of  the  trial)  would  in  all  probability  render  the  data
unverifiable. This places the accused in a perilous position, as, in the event
7 See, Clause 41.17 of the ‘License Agreement for Provision of Unified Access Services’: “The
LICENSEE  shall  maintain  all  commercial  records  with  regard  to  the  communications
exchanged on the network. Such records shall be archived for at least one year for scrutiny by
the Licensor for security reasons and may be destroyed thereafter unless directed otherwise
by the licensor”; Clause 39.20 of the ‘License Agreement for Unified License’: “ The Licensee
shall maintain all commercial records/ Call Detail Record (CDR)/ Exchange Detail Record
(EDR)/ IP Detail Record (IPDR) with regard to the 39 communications exchanged on the
network. Such records shall be archived for at least one year for scrutiny by the Licensor for
security reasons and may be destroyed thereafter unless directed otherwise by the Licensor.
Licensor may issue directions /instructions from time to time with respect to CDR/IPDR/EDR.”
71

Source PDF page 72

View this page in the original PDF
the accused wishes to challenge the genuineness of this certificate by
seeking the opinion of the Examiner of Electronic Evidence under Section
45A of the Evidence Act, the electronic record (i.e. the data as to call logs
in the computer of the service provider) may be missing.
62. To  obviate  this,  general  directions  are  issued  to  cellular
companies and internet service providers to maintain  CDRs and other
relevant records for the concerned period (in tune with Section 39 of the
Evidence Act) in a segregated and secure manner if a particular CDR or
other record is seized during investigation in the said period. Concerned
parties can then summon such records at the stage of defence evidence,
or in the event such data is required to cross-examine a particular witness.
This direction shall be applied, in criminal trials, till appropriate directions
are  issued  under  relevant  terms  of  the  applicable  licenses,  or  under
Section 67C of the Information Technology Act, which reads as follows:
“67C.  Preservation  and  retention  of  information  by
intermediaries.–  (1)  Intermediary  shall  preserve  and
retain  such  information  as  may  be  specified  for  such
duration and in such manner and format as the Central
Government may prescribe. 
(2)  any  intermediary  who  intentionally  or  knowingly
contravenes  the  provisions  of  sub-section  (1)  shall  be
punished  with  an  imprisonment  for  a  term  which  may
extend to three years and also be liable to fine.”
72

Source PDF page 73

View this page in the original PDF
63. It is also useful, in this context, to recollect that on 23 April
2016, the conference of the Chief Justices of the High Courts, chaired by
the  Chief  Justice  of  India,  resolved  to  create  a  uniform  platform  and
guidelines  governing  the  reception  of  electronic  evidence.  The  Chief
Justices of Punjab and Haryana and Delhi were required to constitute a
committee to “frame Draft Rules to serve as model for adoption by High
Courts”. A five-Judge Committee was accordingly constituted on 28 July,
20188.  After  extensive  deliberations,  and  meetings  with  several  police,
investigative  and  other  agencies,  the  Committee  finalised  its  report  in
November  2018.  The  report  suggested  comprehensive  guidelines,  and
recommended their adoption for use in courts, across several categories of
proceedings.  The  report  also  contained  Draft  Rules  for  the  Reception,
Retrieval, Authentication and Preservation of Electronic Records. In the
opinion  of  the  Court,  these  Draft  Rules  should  be  examined  by  the
concerned authorities, with the object of giving them statutory force, to
guide courts in regard to preservation and retrieval of electronic evidence.
64. We turn now to the facts of the case before us. In the present
case,  by  the  impugned  judgment  dated  24.11.2017,  Election  Petition
8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain 
Raina and R.K. Gauba, JJ.
73

Source PDF page 74

View this page in the original PDF
6/2014 and Election Petition 9/2014 have been allowed and partly allowed
respectively,  the  election  of  the  RC  being  declared  to  be  void  under
Section 100 of the Representation of the People Act, 1951, inter alia , on
the ground that as nomination papers at serial numbers 43 and 44 were
not presented by the RC before 3.00 p.m. on 27.09.2014, such nomination
papers were improperly accepted. 
65. However, by an order dated 08.12.2017, this Court admitted
the Election Appeal of the Appellant, and stayed the impugned judgment
and order.
66. We  have  heard  this  matter  after  the  five  year  Legislative
Assembly term is over in November 2019. This being the case, ordinarily, it
would be unnecessary to decide on the merits of the case before us, as the
term  of  the  Legislative  Assembly  is  over.  However,  having  read  the
impugned  judgment,  it  is  clear  that  the  learned  Single  Judge  was
anguished by the fact that the Election Commission authorities behaved in
a partisan manner by openly favouring the Appellant. Despite the fact that
the reason given of “substantial compliance” with Section 65B(4) in the
absence of the requisite certificate being incorrect in law, yet, considering
that  the  Respondent  had  done  everything  in  his  power  to  obtain  the
74

Source PDF page 75

View this page in the original PDF
requisite certificate from the appropriate authorities, including directions
from the Court to produce the requisite certificate, no such certificate was
forthcoming. The horse was directed to be taken to the water to drink - but
it refused to drink, leading to the consequence pointed out in paragraph 49
of this judgment (supra).
67. Even otherwise, apart from evidence contained in electronic
form, the High court arrived at the following conclusion:
“48. The evidence in cross examination of Smt. Mutha
shows  that  when  Labade was  sent  to  the  passage for
collecting nomination forms, she continued to accept the
nomination forms directly from intending candidates and
their proposers in her office. Her evidence shows that on
27.9.2014  the  last  nomination  form  which  was  directly
presented to her was form No. 38 of Anand Mhaske. The
time of receipt of this form was mentioned in the register of
nomination forms as 2.55 p.m. In respect of subsequent
nomination  forms  from  Sr.  Nos.  39  to  64,  the  time  of
acceptance is mentioned as 3.00 p.m. Smt. Mutha admits
that the candidates of nomination form Nos. 39 to 64 (form
No. 64 was the last form filed) were not present before her
physically at 3.00 p.m. At the cost of repetition, it needs to
be mentioned here that form numbers of RC are 43 and
44.  The  oral  evidence  and  the  record  like  register  of
nomination forms does not show that form Nos. 43 and 44
were presented to RO at 2.20 p.m. of 27.9.2014. As per
the evidence of Smt. Mutha and the record, one Arvind
Chavan, a candidate having form Nos. 33, 34 and 35 was
present before her between 2.15 p.m. and 2.30 p.m. In
nomination form register, there is no entry showing that
any nomination form was received at 2.20 p.m. Form Nos.
36 and 37 of Sunil Khare were entered in the register at
75

Source PDF page 76

View this page in the original PDF
2.40 p.m. Thus, according to Smt. Mutha, form No. 38,
which was accepted by her directly from the candidate
was tendered to her at 2.55 p.m. of 27.9.2014 and after
that she had done preliminary examination of form No. 38
and check list was given by her to that candidate. Thus, it
is not possible that form Nos. 43 and 44 were directly
handed over to Smt. Mutha by RC at 2.20 p.m. or even at
3.00 p.m. of 27.9.2014.
50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m.
of handing over the check list to RC and she showed the
time as 3.00 p.m., but this time was shown in respect of all
forms starting from Sr. Nos. 39 to 64. Thus, substantive
evidence of Smt. Mutha and the aforesaid record falsifies
the contention of the RC made in the pleading that he had
handed over the nomination forms (form Nos. 43 and 44)
directly to RO prior to 3.00 p.m., at 2.20 p.m.”
68. Thus, it is clear that apart from the evidence in the form
of electronic record, other evidence was also relied upon to arrive at the
same conclusion. The High Court’s judgment therefore cannot be faulted.
69. Shri Adsure, however, attacked the impugned judgment when it
held  that  the  improper  acceptance  of  the  nomination  form  of  the  RC
himself being involved in the matter, no further pleadings and particulars on
whether the election is “materially affected” were required, as it can be
assumed that if such plea is accepted, the election would be materially
affected, as the election would then be set aside. He cited a Division
Bench judgment of this Court in Rajendra Kumar Meshram v. Vanshmani
Prasad Verma (2016) 10 SCC 715, wherein an election petition was filed
76

Source PDF page 77

View this page in the original PDF
against the appellant, inter alia, on the ground that as the appellant - the
returned candidate - was a Government servant, his nomination had been
improperly  accepted.  The  Court  held  that  the  requirement  of  Section
100(1)(d) of the Representation of People Act, 1951, being that the election
can be set aside only if such improper acceptance of the nomination has
“materially affected” the result of the election, and there being no pleading
or evidence to this effect, the election petition must fail. This Court stated:
“9. As  Issues  1  and  2  extracted  above,  have  been
answered in favour of the returned candidate and there is
no  cross-appeal,  it  is  only  the  remaining  issues  that
survive for consideration. All the said issues centre round
the  question  of  improper  acceptance  of the  nomination
form of the returned candidate. In  this  regard,  Issue  6
which raises the question of material effect of the improper
acceptance of nomination of the returned candidate on the
result of the election may be specifically noticed.
10. Under Section 100(1)( d), an election is liable to be
declared void on the ground of improper acceptance of a
nomination if such improper acceptance of the nomination
has materially affected the result of the election. This is in
distinction to what is contained in Section 100(1)( c) i.e.
improper  rejection  of  a  nomination  which  itself  is  a
sufficient ground for invalidating the election without any
further  requirement  of  proof  of  material  effect  of  such
rejection  on  the  result  of  the  election.  The  above
distinction must be kept in mind. Proceeding on the said
basis, we find that the High Court did not endeavour to go
into  the  further  question  that  would  be  required  to  be
determined  even  if  it  is  assumed  that  the  appellant
returned  candidate  had  not  filed  the  electoral  roll  or  a
77

Source PDF page 78

View this page in the original PDF
certified  copy  thereof  and,  therefore,  had  not  complied
with the mandatory provisions of Section 33(5) of the 1951
Act.
11. In other words, before setting aside the election on the
above ground, the High Court ought to have carried out a
further exercise, namely, to find out whether the improper
acceptance of the nomination had materially affected the
result  of  the  election.  This  has  not  been  done
notwithstanding Issue 6 framed which is specifically to the
above effect. The High Court having failed to determine
the said issue i.e. Issue 6, naturally, it was not empowered
to declare the election of the appellant returned candidate
as void even if we are to assume that the acceptance of
the nomination of the returned candidate was improper.”
70. On the other hand, Ms. Meenakshi Arora cited a Division
Bench judgment in  Mairembam Prithviraj v. Pukhrem Sharatchandra
Singh (2017) 2 SCC 487. In this judgment, several earlier judgments of
this Court were cited on the legal effect of not pleading or proving that the
election had been “materially affected” by the improper acceptance of a
nomination under Section 100(1)(d)(i) of the Representation of People Act,
1951. After referring to  Durai Muthuswami v. N. Nachiappan and Ors.
1973(2) SCC 45 and  Jagjit Singh v. Dharam Pal Singh  1995 Supp (1)
SCC 422, this Court then referred to a three-Judge Bench judgment in
Vashist Narain Sharma v. Dev Chandra 1955 (1) SCR 509 as under:
“25. It  was  held  by  this  Court  in  Vashist  Narain
Sharma v. Dev Chandra [(1955) 1 SCR 509] as under:
78

Source PDF page 79

View this page in the original PDF
“9. The learned counsel for the respondents concedes that
the burden of proving that the improper acceptance of a
nomination  has  materially  affected  the  result  of  the
election lies upon the petitioner but he argues that the
question can arise in one of three ways:
(1) where the candidate whose nomination was improperly
accepted  had  secured  less  votes  than  the  difference
between  the  returned  candidate  and  the  candidate
securing the next highest number of votes,
(2)  where  the  person  referred  to  above  secured  more
votes, and
(3) where  the  person  whose  nomination  has  been
improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is
not materially affected because if all the wasted votes are
added to the votes of the candidate securing the highest
votes,  it  will  make  no  difference  to  the  result  and  the
returned candidate will retain the seat. In the other two
cases  it  is  contended  that  the  result  is  materially
affected. So far as the third case is concerned it may be
readily conceded that such would be the conclusion…”
This Court then concluded:
“26. Mere  finding  that  there  has  been  an  improper
acceptance  of  the  nomination  is  not  sufficient  for  a
declaration that the election is void under Section 100(1)
(d). There has to be further pleading and proof that the
result  of  the  election  of  the  returned  candidate  was
materially affected. But, there would be no necessity of
any proof in the event of the nomination of a returned
candidate  being  declared  as  having  been  improperly
accepted, especially in a case where there are only two
candidates  in  the  fray.  If  the  returned  candidate's
nomination is declared to have been improperly accepted
79

Source PDF page 80

View this page in the original PDF
it  would  mean  that  he  could  not  have  contested  the
election and that the result of the election of the returned
candidate  was  materially  affected  need  not  be  proved
further…”
71. None  of  the  earlier  judgments  of  this  Court  referred  to  in
Mairembam Prithviraj (supra) have been adverted to in Rajendra Kumar
Meshram (supra) cited by Shri Adsure. In particular, the judgment of three
learned  Judges  of  this  Court  in  Vashist  Narain  Sharma  (supra) has
specifically  held  that  where  the  person  whose  nomination  has  been
improperly accepted is the returned candidate himself, it may be readily
conceded that the conclusion has to be that the result of the election would
be “materially affected”, without there being any necessity to plead and
prove the same. The judgment in Rajendra Kumar Meshram  (supra), not
having referred to these earlier judgments of a larger strength binding upon
it, cannot be said to have declared the law correctly. As a result thereof, the
impugned judgment of the High Court is right in its conclusion on this point
also.
72. The reference is thus answered by stating that: 
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law
declared  by  this  Court  on  Section  65B  of  the  Evidence  Act.  The
judgment in  Tomaso Bruno (supra), being  per incuriam , does not lay
80

Source PDF page 81

View this page in the original PDF
down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of
2011 reported as Shafhi Mohammad (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled.
(b) The  clarification  referred  to  above  is  that  the  required
certificate under Section 65B(4) is unnecessary if the original document
itself is produced. This can be done by the owner of a laptop computer,
computer tablet or even a mobile phone, by stepping into the witness
box  and  proving  that  the  concerned  device,  on  which  the  original
information is first stored, is owned and/or operated by him. In cases
where the “computer” happens to be a part of a “computer system” or
“computer network” and it becomes impossible to physically bring such
system  or  network  to  the  Court,  then  the  only  means  of  providing
information contained in such electronic record can be in accordance
with Section 65B(1), together with the requisite certificate under Section
65B(4). The last sentence in Anvar P.V. (supra) which reads as “… if an
electronic record as such is used as primary evidence under Section 62
of the Evidence Act…” is thus clarified; it is to be read without the words
“under Section 62 of the Evidence Act,… ” With this clarification, the law
81

Source PDF page 82

View this page in the original PDF
stated  in  paragraph 24 of  Anvar P.V.  (supra) does  not  need  to  be
revisited.
(c) The general directions issued in paragraph 62 (supra) shall
hereafter be followed by courts that deal with electronic evidence, to
ensure  their  preservation,  and  production  of  certificate  at  the
appropriate stage. These directions shall apply in all proceedings, till
rules and directions under Section 67C of the Information Technology
Act  and  data  retention  conditions  are  formulated  for  compliance  by
telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise
of the Information Technology Act, by exercising powers such as in
Section 67C, and also framing suitable rules for the retention of data
involved in trial of offences, their segregation, rules of chain of custody,
stamping and record maintenance, for the entire duration of trials and
appeals, and also in regard to preservation of the meta data to avoid
corruption. Likewise, appropriate rules for preservation, retrieval and
production of electronic record, should be framed as indicated earlier,
after considering the report of the Committee constituted by the Chief
Justice’s Conference in April, 2016.
82

Source PDF page 83

View this page in the original PDF
73. These appeals are dismissed with costs of INR One Lakh each
to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos.
20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri
Vijay Chaudhary.
…………………..………………J.
(R. F. Nariman)
……………..……………………J.
(S. Ravindra Bhat)
……………..……………………J.
(V. Ramasubramanian)
New Delhi.
14th July, 2020.
83

Source PDF page 84

View this page in the original PDF
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.20825­20826 OF 2017
   ARJUN  PANDITRAO  KHOTKAR  …Appellant
Versus
    KAILASH KUSHANRAO GORANTYAL AND ORS.…Respondents
                WITH
             CIVIL APPEAL NO.2407 OF 2018
             CIVIL APPEAL NO.3696 OF 2018
J U D G M E N T
V. Ramasubramanian.J
1. While   I   am   entirely   in   agreement   with   the   opinion
penned by R. F. Nariman, J. I also wish to add a few lines
about (i) the reasons for the acrimony behind Section 65B of
the Indian Evidence Act, 1872 (hereinafter “Evidence Act”) (ii)
84

Source PDF page 85

View this page in the original PDF
how   even   with   the   existing   rules   of   procedure,   the   courts
fared well, without any legislative interference, while dealing
with evidence in analogue form, and (iii) how after machines
in analogue form gave way to machines in electronic form,
certain   jurisdictions   of   the   world   changed   their   legal
landscape, over a period of time, by suitably amending the
law, to avoid confusions and conflicts.
I. Reasons for the acrimony behind Section 65B
2. Documentary evidence, in contrast to oral evidence, is
required to pass through certain check posts, such as
(i) admissibility (ii) relevancy and (iii) proof, before it is
allowed   entry   into   the   sanctum.   Many   times,   it   is
difficult   to   identify   which   of   these   check   posts   is
required   to   be   passed   first,   which   to   be   passed   next
and which to be  passed later. Sometimes, at  least in
practice,   the   sequence   in   which   evidence   has   to   go
through   these   three   check   posts,   changes.   Generally
and   theoretically,   admissibility   depends   on   relevancy.
Under Section 136 of the Evidence Act, relevancy must
85

Source PDF page 86

View this page in the original PDF
be  established   before   admissibility   can  be  dealt   with.
Therefore if we go by Section 136, a party should first
show   relevancy,   making   it   the   first   check   post   and
admissibility   the   second   one.   But   some   documents,
such as those indicated in Section 68 of the Evidence
Act, which pass the first check post of relevancy and
the   second   check   post   of   admissibility   may   be   of   no
value unless the attesting witness is examined. Proof of
execution of such documents, in a manner established
by   law,   thus   constitutes   the   third   check   post.   Here
again, proof of execution stands on a different footing
than proof of contents. 
3. It must also be noted that whatever is relevant may not
always   be   admissible,   if   the   law   imposes   certain
conditions. For instance, a document, whose contents
are relevant, may not be admissible, if it is a document
requiring stamping and registration, but had not been
duly   stamped   and   registered.   In   other   words,   if
admissibility is the cart, relevancy is the horse, under
86

Source PDF page 87

View this page in the original PDF
Section   136.   But   certain   provisions   of   law   place   the
cart   before   the   horse   and   Section   65B   appears   to   be
one of them. 
4. Section 136 which confers a discretion upon the Judge
to  decide as to the admissibility  of evidence reads as
follows:
136. Judge to decide as to admissibility of
evidence. ––
When either party proposes to give evidence of
any   fact,   the   Judge   may   ask   the   party
proposing to give the evidence in what manner
the  alleged  fact,   if  proved,  would  be  relevant;
and   the   Judge   shall   admit   the   evidence   if   he
thinks   that   the   fact,   if   proved,   would   be
relevant, and not otherwise.
If the fact proposed to be proved is one of which
evidence is admissible only upon proof of some
other   fact,   such   last­mentioned   fact   must   be
proved before evidence is given of the fact first­
mentioned, unless the party undertakes to give
proof   of   such   fact,   and   the   Court   is   satisfied
with such undertaking.
If   the   relevancy   of   one   alleged   fact   depends
upon   another   alleged   fact   being   first   proved,
the Judge may, in his discretion, either permit
evidence of the first fact to be given before the
second fact is proved, or require evidence to be
given   of   the   second   fact   before   evidence   is
given of the first fact.
87

Source PDF page 88

View this page in the original PDF
5. There   are   three   parts   to   Section   136.   The   first   part
deals   with   the   discretion   of   the   Judge   to   admit   the
evidence, if he thinks that the fact sought to be proved
is relevant. The second part of Section 136 states that
if   the   fact   proposed   to   be   proved   is   one,   of   which
evidence is admissible only upon proof of some other
fact, such last  mentioned  fact  must  be proved before
evidence is given of the fact first mentioned. But this
rule is subject to a small concession, namely, that   if
the party undertakes to produce proof of the last
mentioned   fact   later   and   the   Court   is   satisfied
about such undertaking, the Court may proceed to
admit   evidence   of   the   first   mentioned   fact .   The
third   part   of   Section   136   deals   with   the   relevancy   of
one alleged fact, which depends upon another alleged
fact   being   first   proved.  The   third   part   of   Section  136
has no relevance for our present purpose.
88

Source PDF page 89

View this page in the original PDF
6. Illustration   (b)   under   Section   136   provides   an   easy
example of the second part of Section 136. Illustration
(b) reads as follows:
(b)   It   is   proposed   to   prove,   by   a   copy,   the
contents of a document said to be lost.
The fact that the original is lost must be proved
by   the   person   proposing   to   produce   the   copy,
before the copy is produced.
7. What is laid down in Section 65B as a precondition for
the admission of an electronic record, resembles what
is   provided   in   the   second   part   of   Section   136.   For
example, if a fact is sought to be proved through the
contents   of   an   electronic   record   (or   information
contained   in   an   electronic   record),   the   Judge   is   first
required   to   see   if   it   is   relevant,   if   the   first   part   of
Section 136 is taken to be applicable. 
8. But   Section   65B   makes   the   admissibility   of   the
information contained in the electronic record subject
to   certain   conditions,   including   certification.   The
certification   is   for   the   purpose   of   proving   that   the
information   which   constitutes   the   computer   output
89

Source PDF page 90

View this page in the original PDF
was produced by a computer which was used regularly
to   store   or   process   information   and   that   the
information   so   derived   was   regularly   fed   into   the
computer in the ordinary course of the said activities. 
9. In other words, if we go by the requirements of Section
136,   the   computer   output   becomes   admissible   if   the
fact sought to be proved is relevant. But such a fact is
admissible only upon proof of some other fact namely,
that it was extracted from a computer used regularly
etc.   In   simple   terms,   what   is   contained   in   the
computer   output   can   be   equated   to   the   first
mentioned   fact   and   the   requirement   of   a
certification can be equated to the last mentioned
fact, referred to in the second part of Section 136
read with Illustration (b) thereunder .
10. But Section 65B(1) starts with a non­obstante clause
excluding the application of the other provisions and it
makes   the   certification,   a   precondition   for
90

Source PDF page 91

View this page in the original PDF
admissibility.   While   doing   so,   it   does   not   talk   about
relevancy.   In   a   way,   Sections   65A   and   65B,   if   read
together, mix­up both proof and admissibility, but not
talk   about   relevancy.   Section   65A   refers   to   the
procedure prescribed in Section 65B,  for the purpose
of   proving   the   contents   of   electronic   records ,   but
Section 65B speaks entirely about   the preconditions
for   admissibility .   As   a   result,   Section   65B   places
admissibility as the first or the outermost check post,
capable   of   turning   away   even   at   the   border,   any
electronic   evidence,   without   any   enquiry,   if   the
conditions stipulated therein are not fulfilled. 
11. The placement by Section 65B, of admissibility as the
first   or   the   border   check   post,   coupled   with   the   fact
that   a   number   of   ‘computer   systems’   (as   defined   in
Section   2(l)   of   the   Information   Technology   Act,   2000)
owned by different individuals, may get involved in the
production of an electronic record, with the ‘originator’
(as   defined   in   Section   2(za)   of   the   Information
91

Source PDF page 92

View this page in the original PDF
Technology   Act,   2000)   being   different   from   the
recipients or the sharers, has created lot of acrimony
behind Section 65B, which is evident from the judicial
opinion swinging like a pendulum.
II. How the courts dealt with evidence in analogue form
without legislative interference and the shift
12. It is a matter of fact and record that courts all over the
world   were   quick   to   adapt   themselves   to   evidence   in
analogue   form,   within   the   framework   of   archaic,
centuries old rules of evidence. It was not as if evidence
in analogue form was incapable of being manipulated.
But the courts managed the show well by applying time
tested rules for sifting the actual from the manipulated.
13. It is no doubt true that the felicity with which courts
adapted   themselves   to   appreciating   evidence   in
analogue   form   was   primarily   due   to   the   fact   that   in
analogue   technology,   one   is   able   to   see   and/   or
perceive   something   that   is   happening.   In   analogue
technology, a wave is recorded or used in its original
92

Source PDF page 93

View this page in the original PDF
form. When someone speaks or sings, a signal is taken
directly by the microphone and laid onto a tape, if we
take the example of an analogue tape recorder. Both,
the   wave   from   the   microphone   and   the   wave   on   the
tape,   are   analogue   and   the   wave   on   the   tape   can   be
read, amplified and sent  to a speaker to produce the
sound.   In   digital   technology,   the   analogue   wave   is
sampled   at   some   interval   and   then   turned   into
numbers that are stored in a digital device. Therefore,
what are stored, are in terms of numbers and they are,
in turn, converted into voltage waves to produce what
was stored. 
14. The   difference   between   something   in   analogue   form
and the same thing in digital form and the reason why
digital   format   throws  more  challenges,  was   presented
pithily   i n   an   article   titled   ‘ Electronic   evidence   and
the   meaning   of   “original”’ ,9  by   Stephen   Mason
(Barrister   and   recognised   authority   on   electronic
9 Stephen Mason,  Electronic evidence and the meaning of “original”,  79 Amicus Curiae 
26 (2009)
93

Source PDF page 94

View this page in the original PDF
signatures   and   electronic   evidence).   Taking   the
example   of   a   photograph   in   both   types   of   form,   the
learned author says the following:
For   instance,   a   photograph   taken   with   an
analogue camera (that is, a camera with a film)
can   only   remain   a   single   object.   It   cannot   be
merged   into   other   photographs,   and   split   off
again.   It   remains   a   physical   object.   A
photograph taken with a digital camera differs
markedly.   The   digital   object,   made   up   of   a
series   of   zeros   and   the   number   one,   can   be,
and   frequently   is,   manipulated   and   altered
(especially   in   fashion   magazines   and   for
advertisements). Things can be taken out and
put in to the image, in the same way the water
droplets   can   merge   and   form   a   single,   larger
droplet.   The   new,   manipulated   digital   image
can   also   be   divided   back   into   its   constituent
parts.
Herein   lies   the   interesting   point:   when   three
droplets of water  fuse and  then separate into
three   droplets,   it   is   to   be   questioned   whether
the   three   droplets   that   merge   from   the   bigger
droplet were the identical droplets that existed
before they merged. In the same way, consider
a digital object that has been manipulated and
added to, and the process is then reversed. The
original object that was used remains (unless it
was   never   saved   independently,   and   the
changes made to the image were saved in the
original   file),   but   another   object,   with   the
identical image (or near identical, depending on
the system software and application software)
now exists. Conceptually, it is possible to argue
94

Source PDF page 95

View this page in the original PDF
that the two digital images are different: one is
the original, the other a copy of the original that
was   manipulated   and   returned   to   its   original
state   (whatever   “original”   means).   But   both
images   are   identical,   apart   from   some
additional  meta  data  that  might,   or  might  not
be conclusive. However, it is apparent that the
images, if viewed together, are identical – will
be identical, and the viewer will not be able to
determine   which   is   the   original,   and   which
image   was   manipulated.   In   this   respect,   the
digital images are no different from the droplets
of rain that fall, merge, then divide: there is no
telling   whether   the   droplets   that   split   are
identical to the droplets that came together  to
form the larger droplet.  
15. That courts did not have a problem with the evidence
in   analogue   form   is   established   by   several   judicial
precedents,   in   U.K.,   which   were   also   followed   by   our
courts.   A   device   used   to   clandestinely   record   a
conversation   between   two   individuals   was   allowed   in
Harry Parker vs. Mason 10  in proving fraud on the part
of   the   plaintiff.   While   Harry   Parker   was   a   civil
proceeding,   the   principle   laid   down   therein   found
acceptance   in   a   criminal   trial   in   R.   vs.   Burr   and
10 [1940] 2 KB 590
95

Source PDF page 96

View this page in the original PDF
Sullivan.11  The   High   Court   of   Judiciary   in   Scotland
admitted in evidence, the tape record of a conversation
between the complainant and a black mailer, in  Hopes
and   Lavery   vs.   H.   M.   Advocate .12  A   conversation
recorded   in   police   cell   overheard   without   any
deception,  beyond   setting  up   a   tape  recorder   without
warning, was admitted in evidence in  R. vs. Mills .13
16. Then   came   R.   vs.   Maqsud   Ali 14  where   Marshall   J.
drew   an   analogy   between   tape­recordings   and
photographs and held that  just as evidence of things
seen   through   telescopes   or   binoculars   have   been
admitted, despite the fact that those things could
not   be   picked   up   by   the   naked   eye,   the   devices
used   for   recording   conversations   could   also   be
admitted, provided the accuracy of the recording
11 [1956] Crim LR 442
12 [1960] Crim LR 566
13 [1962] 3 All ER 298
14 [ 1965] 2 All ER 464
96

Source PDF page 97

View this page in the original PDF
can   be   proved   and   the   voices   recorded   properly
identified. 
17. Following the above precedents, this Court also held in
S.   Pratap   Singh   vs.   State   of   Punjab ,15  Yusaffalli
Esmail   Nagree   vs.   State   of   Maharashtra ,16  N.   Sri
Rama Reddy vs. V. V. Giri ,17  R.M. Malkani vs. State
of   Maharashtra ,18  Ziyauddin   Burhanuddin
Bukhari   vs.   Brijmohan   Ramdass   Mehra ,19  Ram
Singh vs. Col. Ram Singh ,20  Tukaram S. Dighole vs.
Manikrao   Shivaji   Kokate ,21  that   tape   records   of
conversations and speeches are admissible in evidence
under   the   Indian   Evidence   Act,   subject   to   certain
conditions. In  Ziyauddin Burhanuddin Bukhari   and
Tukaram S. Dighole , this Court further held that tape
records   constitute   “document”   within   the   meaning   of
15 (1964) 4 SCR 753
16 ( 1967) 3 SCR 720
17 AIR 1972 SC 1162
18 AIR 1973 SC 157
19 ( 1976) 2 SCC 17
20 AIR 1986 SC 3
21 (2010) 4 SCC 329
97

Source PDF page 98

View this page in the original PDF
the   expression   under   Section   3   of   the   Evidence   Act.
Thus, without looking up to the law makers to come up
with   necessary   amendments   from   time   to   time,   the
courts   themselves   developed   certain   rules,   over   a
period   of   time,   to   test   the   authenticity   of   these
documents in analogue form and these rules have in
fact, worked well. 
18. There   was   also   an   important   question   that   bothered
the   courts   while   dealing   with   evidence   in   analogue
form. It was as to whether such evidence was direct or
hearsay.   In   The   Statute   of   Liberty,   Sapporo   Maru
M/S (Owners) vs. Steam Tanker Statute of Liberty
(Owners),22  the film recording of a radar set of echoes
of ships within its range was held to be real evidence.
The court opined that there was no distinction between
a photographer operating a camera manually and the
observations of a barometer operator or its equivalent
operation   by   a   recording   mechanism.   The   Judge
rejected the contention that the evidence was hearsay. 
22 [1968] 2 All ER 195
98

Source PDF page 99

View this page in the original PDF
19. But when it  comes to  a computer output, one of the
earliest of cases where the Court of Appeal had to deal
with   evidence   in   the   form   of   a   printout   from   a
computer was in   R. vs. Pettigrew .23  In that case, the
printout from a computer operated by an employee of
the Bank of England was held to be hearsay. But the
academic opinion about the correctness of the decision
was   sharply   divided.   While   Professor   Smith 24
considered the evidence in this case as direct and not
hearsay,   Professor   Tapper 25  took   the   view   that   the
printout was partly hearsay and partly not. Professor
Seng26 thought that both views were plausible.
20. But   the   underlying   theory   on   the   basis   of   which
academicians   critiqued   the   above   judgment   is   that
wherever   the   production   of   the   output   was   made
possible   without   human   intervention,   the   evidence
23 [1980] 71 Cr. App. R. 39
24 Professor Smith was a well­known authority on criminal law and law of evidence; J. 
C. Smith,  The admissibility of statements by computer , Crim LR 387, 388 (1981).
25 Professor Tapper is a well­known authority on law of evidence; Colin Tapper,  Reform
of the law of evidence in relation to the output from computers , 3 IntlJ L & Info Tech 87 
(1995).
26 Professor Seng is an Associate Professor at the National University of Singapore; 
Daniel K B Seng,  Computer output as evidence , Sing JLS 139 (1997).
99

Source PDF page 100

View this page in the original PDF
should be taken as direct. This is how the position was
explained in   Castle vs. Cross ,27  in which the printout
from   the   Intoximeter   was   held   to   be   direct   and   not
hearsay, on the ground that the breath alcohol value in
the   printout   comprised   information   produced   by   the
Intoximeter without the data being processed through
a human brain. 
21. In   R vs. Robson Mitchell and Richards ,28  a printout
of   telephone   calls   made   on   a   mobile   telephone   was
taken   as   evidence   of   the   calls   made   and   received   in
association with the number. The Court held  “where a
machine   observes   a   fact   and   records   it,   that
record   states   a   fact.   It   is   evidence   of   what   the
machine   recorded   and   this   was   printed   out.   The
record   was   not   the   fact   but   the   evidence   of   the
fact”.
27 [ 1984] 1 WLR 1372
28 [ 1991] Crim LR 360
100

Source PDF page 101

View this page in the original PDF
22. But the facility of operating in anonymity in the cyber
space,   has   made   electronic   records   more   prone   to
manipulation and consequently to a greater degree of
suspicion. Therefore, law makers interfered, sometimes
making things easy for courts and sometimes creating
a   lot   of   confusion.   But   over   a   period   of   time,   certain
jurisdictions   have   come   up   with   reasonably   good
solutions. Let us now take a look at them.   
III. Legislative developments in U.S.A., U.K. and Canada
on the admissibility of electronic records
POSITION IN USA
23. The   Federal   Rules   of   Evidence   (FRE)   of   the   United
States   of   America   as   amended   with   effect   from
01.12.2017 recognise the availability of more than one
option   to   a   person   seeking   to   produce   an   electronic
record. Under the amended rules, a person can follow
either the traditional route under Rule 901 or the route
of   self­authentication   under   Rule   902   whereunder   a
101

Source PDF page 102

View this page in the original PDF
certificate of authenticity will elevate its status. Rules
901 and 902 of FRE read as follows:
Rule 901. Authenticating or Identifying 
Evidence
(a)  In   General.   To   satisfy   the   requirement   of
authenticating   or   identifying   an   item   of
evidence, the proponent must produce evidence
sufficient to support a finding that the item is
what the proponent claims it is.
(b)  Examples.  The  following   are  examples  only
—not a complete list—of evidence that satisfies
the requirement:
(1)  Testimony   of   a   Witness   with
Knowledge.  Testimony that an item is what it is
claimed to be.
(2)  Non   expert   Opinion   About   Handwriting.   A
non   expert's   opinion   that   handwriting   is
genuine, based on a familiarity with it that was
not acquired for the current litigation.
(3)  Comparison   by   an   Expert   Witness   or   the
Trier   of   Fact.   A   comparison   with   an
authenticated   specimen   by   an   expert   witness
or the trier of fact.
(4)  Distinctive Characteristics and the Like.   The
appearance,   contents,   substance,   internal
patterns,   or   other   distinctive   characteristics   of
the   item,   taken   together   with   all   the
circumstances.
(5)  Opinion   About   a   Voice.   An   opinion
identifying   a   person's   voice—whether   heard
firsthand   or   through   mechanical   or   electronic
transmission   or   recording—based   on   hearing
the voice at any time under circumstances that
connect it with the alleged speaker.
(6)  Evidence   About   a   Telephone
Conversation.  For   a   telephone   conversation,
102

Source PDF page 103

View this page in the original PDF
evidence that a call was made to the number
assigned at the time to:
(A)   a   particular   person,   if   circumstances,
including   self­identification,   show   that   the
person answering was the one called; or
(B) a particular business, if the call was made
to a business and the call related to business
reasonably transacted over the telephone.
(7)  Evidence   About   Public   Records.   Evidence
that:
(A) a document was recorded or filed in a public
office as authorized by law; or
(B)   a   purported   public   record   or   statement   is
from   the   office   where   items   of   this   kind   are
kept.
(8)  Evidence About Ancient Documents or Data
Compilations.  For   a   document   or   data
compilation, evidence that it:
(A)  is  in  a  condition  that  creates  no  suspicion
about its authenticity;
(B) was in a place where, if authentic, it would
likely be; and
(C) is at least 20 years old when offered.
(9)  Evidence   About   a   Process   or
System.  Evidence   describing   a   process   or
system   and   showing   that   it   produces   an
accurate result.
(10)  Methods   Provided   by   a   Statute   or
Rule.  Any   method   of   authentication   or
identification allowed by a federal statute or a
rule prescribed by the Supreme Court.
Rule 902. Evidence That Is Self­
Authenticating
The   following   items   of   evidence   are   self­
authenticating;   they   require   no   extrinsic
evidence of authenticity in order to be admitted:
103

Source PDF page 104

View this page in the original PDF
(1)  Domestic Public Documents That Are Sealed
and Signed.   A document that bears:
(A)   a   seal   purporting   to   be   that   of   the   United
States;   any   state,   district,   commonwealth,
territory,   or   insular   possession   of   the   United
States;   the   former   Panama   Canal   Zone;   the
Trust Territory of the Pacific Islands; a political
subdivision   of   any   of   these   entities;   or   a
department,   agency,   or   officer   of   any   entity
named above; and
(B) a signature purporting to be an execution or
attestation.
(2)  Domestic   Public   Documents   That   Are   Not
Sealed   but   Are   Signed   and   Certified.   A
document that bears no seal if:
(A)   it   bears   the   signature   of   an   officer   or
employee of an entity named in Rule 902(1)(A);
and
(B)  another  public officer   who has a seal and
official duties within that same entity certifies
under   seal—or   its   equivalent—that   the   signer
has the official capacity and that the signature
is genuine.
(3)  Foreign Public Documents.   A document that
purports to be signed or attested by a person
who is authorized by a foreign country's law to
do so. The document must be accompanied by
a   final   certification   that   certifies   the
genuineness   of   the   signature   and   official
position   of   the   signer   or   attester—or   of   any
foreign official whose certificate of genuineness
relates to the signature or attestation or is in a
chain of certificates of genuineness relating to
the   signature   or   attestation.   The   certification
may be made by a secretary of a United States
embassy or legation; by a consul general, vice
consul, or consular agent of the United States;
or   by   a   diplomatic   or   consular   official   of   the
foreign   country   assigned   or   accredited   to   the
United States. If all parties have been given a
reasonable   opportunity   to   investigate   the
104

Source PDF page 105

View this page in the original PDF
document's   authenticity   and   accuracy,   the
court may, for good cause, either:
(A)   order   that   it   be   treated   as   presumptively
authentic without final certification; or
(B)   allow   it   to   be   evidenced   by   an   attested
summary with or without final certification.
(4)  Certified Copies of Public Records.   A copy of
an official record—or a copy of a document that
was   recorded   or   filed   in   a   public   office   as
authorized   by   law—if   the   copy   is   certified   as
correct by:
(A) the custodian or another person authorized
to make the certification; or
(B) a certificate that complies with Rule 902(1),
(2), or (3), a federal statute, or a rule prescribed
by the Supreme Court.
(5)  Official   Publications.   A   book,   pamphlet,   or
other publication purporting to be issued by a
public authority.
(6)  Newspapers   and   Periodicals.   Printed
material   purporting   to   be   a   newspaper   or
periodical.
(7)  Trade   Inscriptions   and   the   Like.   An
inscription, sign, tag, or label purporting to have
been   affixed   in   the   course   of   business   and
indicating origin, ownership, or control.
(8)  Acknowledged   Documents.   A   document
accompanied   by   a   certificate   of
acknowledgment that is lawfully executed by a
notary   public   or   another   officer   who   is
authorized to take acknowledgments.
(9)  Commercial   Paper   and   Related
Documents.  Commercial   paper,   a   signature   on
it, and related documents, to the extent allowed
by general commercial law.
(10)  Presumptions   Under   a   Federal   Statute.   A
signature,   document,   or   anything   else   that   a
federal statute declares to be presumptively or
prima facie genuine or authentic.
105

Source PDF page 106

View this page in the original PDF
(11)  Certified   Domestic  Records  of  a  Regularly
Conducted Activity.   The original or a copy of a
domestic record that meets the requirements of
Rule 803(6)(A)–(C), as shown by a certification
of   the   custodian   or   another   qualified   person
that   complies   with   a   federal   statute   or   a   rule
prescribed   by   the   Supreme   Court.   Before   the
trial   or   hearing,   the   proponent   must   give   an
adverse party reasonable written notice of the
intent to offer the record—and must make the
record and certification available for inspection
—so   that   the   party   has   a   fair   opportunity   to
challenge them.
(12)  Certified   Foreign   Records   of   a   Regularly
Conducted Activity.   In a civil case, the original
or   a   copy   of   a   foreign   record   that   meets   the
requirements   of   Rule   902(11),   modified   as
follows: the certification, rather than complying
with   a   federal   statute   or   Supreme   Court   rule,
must   be   signed   in   a   manner   that,   if   falsely
made,   would   subject   the   maker   to   a   criminal
penalty in the country where the certification is
signed.   The   proponent   must   also   meet   the
notice requirements of Rule 902(11).
(13)  Certified   Records   Generated   by   an
Electronic   Process   or   System.   A   record
generated   by   an   electronic   process   or   system
that produces an accurate result, as shown by
a   certification   of   a   qualified   person   that
complies   with   the   certification   requirements   of
Rule 902(11) or (12). The proponent must also
meet the notice requirements of Rule 902(11).
(14)  Certified   Data   Copied   from   an   Electronic
Device,   Storage   Medium,   or   File.   Data   copied
from   an   electronic   device,   storage   medium,   or
file,   if   authenticated   by   a   process   of   digital
identification, as shown by a certification of a
qualified   person   that   complies   with   the
certification   requirements   of   Rule   902(11)   or
(12). The proponent also must meet the notice
requirements of Rule 902(11).
106

Source PDF page 107

View this page in the original PDF
24. An  important   decision in  the  American  jurisprudence
on this issue was delivered by Chief Magistrate Judge
of   District   of   Maryland   in   Lorraine   vs.   Markel
American Insurance Co .29  In this case, Paul Grimm,
J.   while   dealing   with   a   challenge   to   an   arbitrator’s
decision in an insurance dispute, dealt with the issue
whether   emails   discussing   the   insurance   policy   in
question,   were   admissible   as   evidence.   The   Court,
while extending the applicability of Rules 901 and 902
of FRE to electronic evidence, laid down a broad test
for   admissibility   of   electronically   stored   information. 30
This decision was rendered in 2007 and the FRE were
amended in 2017.
29 241 FRD 534 (2007)
30 Paragraph 2:  “Whenever ESI is offered as evidence, either at trial or in summary 
judgment, the following evidence rules must be considered: (1) is the ESI relevant as 
determined by Rule 401 (does it have any tendency to make some fact that is of 
consequence to the litigation more or less probable than it otherwise would be); (2) if 
relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show 
that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it 
hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 
803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original 
or duplicate under the original writing rule, of if not, is there admissible secondary 
evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value 
of the ESI substantially outweighed by the danger of unfair prejudice or one of the other 
factors identified by Rule 403, such that it should be excluded despite its relevance.”
107

Source PDF page 108

View this page in the original PDF
25. Sub­rules (13) and (14) were incorporated in Rule 902
under the amendment of the year 2017. Until then, a
person seeking to produce electronic records had to fall
back   mostly   upon   Rule   901   (except   in   few   cases
covered   by   sub­rules   (11)   and   (12)   of   Rule   902).   It
means that the benefit  of self­authentication was  not
available until then [until the advent of sub­rules (13)
and (14), except in cases covered by sub­rules (11) and
(12)].   Nevertheless,   the   introduction   of   sub­rules   (13)
and   (14)   in   Rule   902   did   not   completely   exclude   the
application of the general provisions of Rule 901. 
26. Rule 901 applies to all evidence across the board. It is
a general provision. But Rule 902 is a special provision
dealing   with   evidence   that   is   self­authenticating.
Records generated by an electronic process or system
and   data   copied   from   an   electronic   device,   storage
medium or file, are included in sub­rules (13) and (14)
of Rule 902 of the Federal Rules of Evidence. 
108

Source PDF page 109

View this page in the original PDF
27. But FRE 902 does not exclude the application of FRE
901. It is only when a party seeks to invoke the benefit
of self­authentication that Rule 902 applies. If a party
chooses not to claim the benefit of self­authentication,
he is free to come under Rule 901, even if the evidence
sought   to   be   adduced   is   of   an   electronically   stored
information (ESI).
28. In   an   article   titled   ‘E­Discovery:   Authenticating
Common   Types   of   ESI   Chart’,   authored   by   Paul   W.
Grimm   (the   Judge   who   delivered   the   verdict   in
Lorraine) and co­authored by Gregory P. Joseph and
published   by   Thomson   Reuters   (2017),   the   learned
authors have given a snapshot of the different methods
of authentication of various types of ESI (electronically
stored   information).   In   a   subsequent   article   (2018)
titled   ‘Admissibility   of   Electronic   Evidence’   published
under   the   caption   ‘Grimm­Brady   Chart’   (referring   to
Paul   W.   Grimm   and   Kevin   F.   Brady)   on   the   website
“complexdiscovery.com”, a condensed chart is provided
109

Source PDF page 110

View this page in the original PDF
which   throws   light   on   the   different   methods   of
authentication of ESI. The chart is reproduced in the
form of a table, with particular reference to the relevant
sub­rules of Rules 901 and 902 of the Federal Rules of
Evidence as follows :
S. No. Type of ESI Potential Authentication 
Methods
1. Email, Text 
Messages, and 
Instant Messages
 Witness with personal knowledge■
(901(b)(1))
 Expert testimony or comparison■
with   authenticated   examples
(901(b)(3))
  Distinctive   characteristics■
including   circumstantial   evidence
(901(b)(4))
  System   or   process   capable   of■
proving   reliable   and   dependable
result (901(b)(9))
 Trade inscriptions (902(7))■
  Certified   copies   of   business■
record (902(11))
 Certified records generated by an■
electronic   process   or   system
(902(13))
  Certified   data   copied   from   an■
electronic   device,   storage   medium,
or file (902(14))
2.  Chat Room Postings,
Blogs, Wikis, and
Other Social Media 
Conversations
 Witness with personal knowledge■
(901(b)(1))
 Expert testimony or comparison■
with   authenticated   examples
(901(b)(3))
110

Source PDF page 111

View this page in the original PDF
  Distinctive   characteristics■
including   circumstantial   evidence
(901(b)(4))
  System   or   process   capable   of■
proving   reliable   and   dependable
result (901(b)(9))
 Official publications (902(5))■
  Newspapers   and   periodicals■
(902(6))
 Certified records generated by an■
electronic   process   or   system
(902(13))
  Certified   data   copied   from   an■
electronic   device,   storage   medium,
or file (902(14))
3.  Social Media Sites 
(Facebook, LinkedIn,
Twitter,
Instagram, and 
Snapchat)
 Witness with personal knowledge■
(901(b)(1))
 Expert testimony or comparison■
with   authenticated   examples
(901(b)(3))
  Distinctive   characteristics■
including   circumstantial   evidence
(901(b)(4))
 Public records (901(b)(7))■
  System   or   process   capable   of■
proving   reliable   and   dependable
result (901(b)(9))
 Official publications (902(5))■
 Certified records generated by an■
electronic   process   or   system
(902(13))
  Certified   data   copied   from   an■
electronic   device,   storage   medium,
or file (902(14))
4.  Digitally Stored Data
and Internet of 
Things
 Witness with personal knowledge■
(901(b)(1))
 Expert testimony or comparison■
111

Source PDF page 112

View this page in the original PDF
with   authenticated   examples
(901(b)(3))
  Distinctive   characteristics■
including   circumstantial   evidence
(901(b)(4))
  System   or   process   capable   of■
proving   reliable   and   dependable
result (901(b)(9))
 Certified records generated by an■
electronic   process   or   system
(902(13))
  Certified   data   copied   from   an■
electronic   device,   storage   medium,
or file (902(14))
5. Computer Processes,
Animations,
Virtual Reality, and 
Simulations
 Witness with personal knowledge■
(901(b)(1))
 Expert testimony or comparison■
with   authenticated   examples
(901(b)(3))
  System   or   process   capable   of■
proving   reliable   and   dependable
result (901(b)(9))
 Certified records generated by an■
electronic   process   or   system
(902(13))
6.  Digital Photographs  Witness with personal knowledge■
(901(b)(1))
  System   or   process   capable   of■
providing   reliable   and   dependable
result (901(b)(9))
 Official publications (902(5))■
 Certified records generated by an■
electronic   process   or   system
(902(13))
  Certified   data   copied   from   an■
electronic   device,   storage   medium,
or file (902(14))
112

Source PDF page 113

View this page in the original PDF
29. It is interesting to note that while the Indian Evidence
Act is of the year 1872, the Federal Rules of Evidence
were adopted by the order of the Supreme Court of the
United States exactly 100 years later, in 1972 and they
were enacted with amendments made by the Congress
to take effect on 01.07.1975. Yet, the Rules were found
inadequate to deal with emerging situations and hence,
several   amendments   were   made,   including   the   one
made   in   2017   that   incorporated   specific   provisions
relating to electronic records under sub­rules (13) and
(14) of FRE 902. After this amendment, a lot of options
have   been   made   available   to   litigants   seeking   to   rely
upon   electronically   stored   information,   one   among
them   being   the   route   provided   by   sub­rules   (13)   and
(14)   of   FRE   902.   This   development   of   law   in   the   US
demonstrates that, unlike in India, law has kept pace
with technology to a great extent.
113

Source PDF page 114

View this page in the original PDF
POSITION IN UK
30. As pointed out in the main opinion, Section 65B, in its
present form, is a poor reproduction of Section 5 of the
UK Civil Evidence Act, 1968. The language employed in
sub­sections   (2),   (3),   (4)   and   (5)   of   Section   65B   is
almost   in   pari   materia   (with   minor   differences)   with
sub­sections   (2)   to   (5)   of   Section   5   of   the   UK   Civil
Evidence Act, 1968. However, sub­section (1) of Section
65B   is   substantially   different   from   sub­section   (1)   of
Section   5   of   the   UK   Civil   Evidence   Act,   1968.   But   it
also   contains   certain   additional   words   in   sub­section
(1)   namely   “without   further   proof   or   production   of   the
original”. For easy comparison and appreciation, sub­
section (1) of Section 65B of the Indian  Evidence Act
and sub­section (1) of Section 5 of UK Civil Evidence
Act, 1968 are presented in a tabular form as follows:
Section 65B(1), Indian 
Evidence Act, 1872
Section 5(1), Civil Evidence 
Act, 1968 [UK]
Notwithstanding   anything
contained   in   this   Act,   any
information   contained   in   an
In   any   civil   proceedings   a
statement   contained   in   a
document   produced   by   a
114

Source PDF page 115

View this page in the original PDF
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.
computer shall, subject to rules of
court,   be   admissible   as   evidence
of   any   fact   stated   therein   of
which direct oral evidence would
be admissible, if it is shown that
the   conditions   mentioned   in
subsection (2) below are satisfied
in   relation   to   the   statement   and
computer in question.
31. But  the   abovementioned  Section   5  of  the  U.K.  Act  of
1968   was   repealed   by   the   Civil   Evidence   Act,   1995.
Section 15(2) of the Civil Evidence Act, 1995 repealed
the enactments specified in Schedule II therein. Under
Schedule   II   of   the   1995   Act,   Part   I   of   the   1968   Act
containing   Sections   1­10   were   repealed.   The   effect   is
that when Section 65B was incorporated in the Indian
Evidence   Act,   by   Act   21   of   2000,   by   copying   sub­
sections (2) to (5) of Section 5 of the UK Civil Evidence
Act,   1968,   Section   5   itself   was   not   there   in   the   U.K.
115

Source PDF page 116

View this page in the original PDF
statute book, as a result of its repeal under the 1995
Act. 
32. The   repeal   of   Section   5   under   the   1995   Act   was   a
sequel   to   the   recommendations   made   by   the   Law
Commission   in   September   1993.   Part   III   of   the   Law
Commission’s   report   titled   ‘The   Hearsay   Rule   in   Civil
Proceedings’  noted the problems with the 1968 Act, one
of which concerned computer records. Paragraphs 3.14
to 3.21 in Part III of the Law Commission’s report read
as follows:
Computer records
3.14  A   fundamental   mistrust   and   fear   of   the
potential for error or mechanical failure can be
detected in the elaborate precautions governing
computer records in section 5 of the 1968 Act.
The   Law   Reform   Committee   had   not
recommended   special   provisions   for   such
records,   and   section   5   would   appear   to
have   been   something   of   an   afterthought
with its many safeguards inserted in order
to   gain   acceptance   of   what   was   then   a
novel   form   of   evidence .   Twenty­five   years
later,   technology   has   developed   to   an   extent
where   computers   and   computer­generated
documents   are   relied   on   in   every   area   of
business   and   have   long   been   accepted   in
116

Source PDF page 117

View this page in the original PDF
banking   and   other   important   record­keeping
fields.   The   conditions   have   been   widely
criticised, and it has been said that they
are aimed at operations based on the type
of   mainframe   operations   common   in   the
mid 1960s, which were primarily intended
to process in batches thousands of similar
transactions on a daily basis .
3.15  So   far   as   the   statutory   conditions   are
concerned,   there   is   a   heavy   reliance   on   the
need   to   prove   that   the   document   has   been
produced in the normal course of business and
in an uninterrupted course of activity.   It is at
least   questionable   whether   these
requirements provide any real safeguards
in   relation   to   the   reliability   of   the
hardware   or   software   concerned .   In
addition,   they   are   capable   of   operating   to
exclude   wide   categories   of   documents,
particularly   those   which   are   produced   as   the
result of an original or a “one off” piece of work.
Furthermore, they provide no protection against
the inaccurate inputting of data.
3.16  We have already referred to the overlap
between   sections   4  and   5.   If  compliance   with
section   5   is   a   prerequisite,   then   computer­
generated   documents   which   pass   the
conditions   setout   in   section   5(2)   “shall”   be
admissible, notwithstanding the fact that they
originated from a chain of human sources and
that   it   has   not   been   established   that   the
persons   in   the   chain   acted   under   a   duty.   In
other words, the record provisions of section 4,
which exist to ensure the reliability of the core
information, are capable of being disapplied. In
the context of our proposed reforms, we do not
117

Source PDF page 118

View this page in the original PDF
consider   that   this   apparent   discrepancy   is   of
any significance, save that it illustrates the fact
that   section   5   was   something   of   an
afterthought.
3.17   Computer­generated   evidence   falls
into   two   categories.   First,   there   is   the
situation   envisaged   by   the   1968   Act,
where   the   computer   is   used   to   file   and
store information provided to it by human
beings. Second, there is the case where the
record   has   itself   been   produced   by   the
computer,  sometimes   entirely   by   itself   but
possibly   with   the   involvement   of   some   other
machine.   Examples   of   this   situation   are
computers   which   are   fed   information   by
monitoring   devices.   A   particular   example   is
automatic   stock   control   systems,   which   are
now   in   common   use   and   which   allow   for
purchase orders to be automatically produced.
Under   such   systems   evidence   of   contract
formation   will   lie   solely   in   the   electronic
messages   automatically   generated   by   the
seller’s   and   buyer’s   computers.   It   is  easy   to
see how uncertainty as to how the courts
may deal with the proof and enforceability
of such contracts is likely to stifle the full
development   and   effective   use   of   such
technology.   Furthermore,   uncertainty   may
deter parties from agreeing that contracts made
in this way are to be governed by English law
and litigated in the English courts.
3.18  It is interesting to compare the technical
manner in which the admissibility of computer­
generated   records   has   developed,   compared
with   cases   concerning   other   forms   of
sophisticated   technologically   produced
118

Source PDF page 119

View this page in the original PDF
evidence,   for   example   radar   records   (See
Sapporo   Maru   (Owners)   v.   Statue   of   Liberty
(Owners) [1968] 1 W.L.R. 739). In the Statue of
Liberty   case   radar   records,   produced   without
human   involvement   and   reproduced   in
photographic form, were held to be admissible
to   establish   how   a   collision   of   two   ships   had
occurred.   It   was   held   that   this   was   “real”
evidence, no different in kind from a monitored
tape recording of a conversation. Furthermore,
in these cases, no extra tests of reliability need
be   met   and   the   common   law   rebuttable
presumption is applied, that the machine was
in   order   at   the   material   time.   The   same
presumption   has   been   applied   to   intoximeter
printouts   (Castle   v.   Cross   [1984]   1   W.L.R.
1372).
3.19  There   are   a   number   of   cases   which
establish the way in which courts have sought
to   distinguish   between   types   of   computer­
generated   evidence,   by   finding   in   appropriate
cases   that   the   special   procedures   are
inapplicable because the evidence is original or
direct evidence. As might be expected, case law
on computer­generated evidence is more likely
to   be   generated   by   criminal   cases   of   theft   or
fraud, where the incidence of such evidence is
high   and   the   issue   of   admissibility   is   more
likely   to   be   crucial   to   the   outcome   and   hence
less liable to be agreed. For example, even in
the   first   category   of   cases,   where   human
involvement   exists,   a   computer­generated
document may not be considered to be hearsay
if the computer has been used as a mere tool,
to produce  calculations  from  data  fed  to  it by
humans,   no   matter   how   complex   the
calculations,   or   how   difficult   it   may   be   for
119

Source PDF page 120

View this page in the original PDF
humans   to   reproduce   its   work,   provided   the
computer   was   not   “contributing   its   own
knowledge”  (R  v.  Wood  (1983) 76 Cr.  App.  R.
23).
3.20 There was no disagreement with the
view   that   the   provisions   relating   to
computer records were outdated and that
there   was   no   good   reason   for
distinguishing   between   different   forms   of
record keeping or maintaining a different
regime   for   the   admission   of   computer­
generated documents . This is the position in
Scotland under the 1988 Act. Furthermore, we
were informed of fears that uncertainty over the
treatment   of   such   records   in   civil   litigation   in
the   United   Kingdom   was   a   significant
hindrance to commerce and needed reform.
3.21   Consultees   considered   that   the   real
issue   for   concern   was   authenticity   that
this   was   a   matter   which   was   best   dealt
with   by   a   vigilant   attitude   that
concentrated   upon   the   weight   to   be
attached   to   the   evidence,   in   the
circumstances   of   the   individual   case,
rather than by reformulating complex and
inflexible conditions as to admissibility .
(emphasis supplied)
33. In Part IV of the 1993 Report, titled ‘Recommendations 
for Reform’, Paragraph 4.43 dealt with the 
recommendations of the Law Commission in relation to
computer records. Paragraph 4.43 of the Law 
120

Source PDF page 121

View this page in the original PDF
Commission’s report along with Recommendation Nos. 
13, 14 and 15 are reproduced for easy reference:
(b) Computerised records
4.43 In the light of the criticisms of the present
provisions   and   the   response   on   consultation,
we have decided to recommend that no special
provisions be made in respect of computerised
records. This is the position in Scotland under
the   1988   Act   and   reflects   the   overwhelming
view of commentators, practitioners and others.
That is not to say that we do not recognise that,
as   familiarity   with   and   confidence   in   the
inherent reliability of computers has grown, so
has   concern   over   the   potential   for   misuse,
through the  capacity  to hack,  corrupt,  or  alter
information,  in  manner   which is undetectable.
We   do   not   underestimate   these   dangers.
However the current provisions of section 5 do
not afford any protection and it is not possible
to   legislate   protectively.   Nothing   in   our
proposals   will   either   encourage   abuse,   or
prevent a proper challenge to the admissibility
of   computerised   records,   where   abuse   is
suspected.   Security   and   authentication   are
problems that experts in the field are constantly
addressing and it is a fast evolving area. The
responses from experts in this field, such as the
C.B.I., stressed that, whilst computer­generated
information should be treated similarly to other
records,   such   evidence   should   be   weighed
according   to   its   reliability,   with   parties   being
encouraged   to   provide   information   as   to   the
security of their systems. We have proposed a
wide   definition   for   the   word   "document".   This
will   cover   documents   in   any   form   and   in
121

Source PDF page 122

View this page in the original PDF
particular   will   be   wide   enough   to   cover
computer­generated information.
We therefore  recommend that:
13.  Documents,  including   those  stored  by
computer, which form part of the records
of a business or public authority should be
admissible   as   hearsay   evidence   under
clause 1 of our draft Bill and the ordinary
notice   and   weighing   provisions   should
apply.
14.   The   current   provisions   governing   the
manner   of   proof   of   business   records
should   be   replaced   by   a   simpler   regime
which   allows,   unless   the   court   otherwise
directs, for a document to be taken to form
part of the records of a business or public
authority,   if   it   is   certified   as   such,   and
received in evidence without being spoken
to in court. No special provisions should be
made in respect of the manner of proof of
computerized records.
15.   The   absence   of   an   entry   should   be
capable   of   being   formally   proved   by
affidavit   of   an   officer   of   the   business   or
authority to which the records belong.
(emphasis in original)
34. The   above   recommendations   of   the   Law   Commission
(U.K.) made in 1993, led to the repeal of Section 5 of
the   1968   Act,   under   the   1995   Act.   The   rules   of
evidence in civil cases, in so far as electronic records
122

Source PDF page 123

View this page in the original PDF
are concerned, thus got liberated in U.K. in 1995 with
the   repeal   of   Section   5   of   the   U.K.   Civil   Evidence
Act,1968. 
35. But   there   is   a   separate   enactment   in   the   U.K.,
containing   the   rules   of   evidence   in   criminal
proceedings   and   that   is   the   Police   and   Criminal
Evidence   Act,   1984.   Section   69   of   the   said   Act   laid
down   rules   for   determining   when   a   statement   in   a
document   produced   by   a   computer   shall   not   be
admissible   as   evidence   of   any   fact   stated   therein.
Section 69 of the said Act laid down three conditions
(there are too many negatives in the language employed
in   Section   69).   In   simple   terms,   they   require   that   it
must be shown (i) that there are no reasonable grounds
for   believing   that   the   statement   is   not   inaccurate
because of improper use of the computer; (ii) that at all
material   times   the   computer   was   operating   properly
and (iii) that the additional conditions specified in the
rules made by the court are also satisfied. 
123

Source PDF page 124

View this page in the original PDF
36. The   abovementioned   Section   69   of   the   Police   and
Criminal   Evidence   Act,   1984   (PACE)   was   repealed   by
Section 60 of the Youth Justice and Criminal Evidence
Act,   1999.   This   repeal   was   also   a   sequel   to   the
recommendations   made   by   the   Law   Commission   in
June 1997 under its report titled “Evidence in Criminal
Proceedings:   Hearsay   and  Related   Topics”.  Part   13  of
the   Law   Commission’s   Report   dealt   with   computer
evidence in   extenso. The problems with Section 69 of
the   1984   Act,   the   response   during   the   Consultative
Process and the eventual recommendations of the U.K.
Law Commission are contained in paragraphs 13.1 to
13.23. They are usefully extracted as follows:
13.1  In   Minors   ([1989]   1   WLR   441,   443D–E.)
Steyn J summed up  the major  problem posed
for the rules of evidence by computer output:
Often   the   only   record   of   the
transaction,   which   nobody   can   be
expected   to   remember,   will   be   in   the
memory   of   a   computer…   If   computer
output   cannot   relatively   readily   be
used   as   evidence   in   criminal   cases,
much   crime   (and   notably   offences
involving dishonesty) would in practice
be   immune   from   prosecution.   On   the
124

Source PDF page 125

View this page in the original PDF
other   hand,   computers   are   not
infallible.   They   do   occasionally
malfunction.   Software   systems   often
have “bugs”. …Realistically, therefore,
computers   must   be   regarded   as
imperfect devices.
13.2  The   legislature   sought   to   deal   with   this
dilemma by section 69 of PACE, which imposes
important additional requirements that must be
satisfied before computer evidence is adduced
– whether it is hearsay or not (Shephard [1993]
AC 380).
13.3  In   practice,   a   great   deal   of   hearsay
evidence is held on computer, and so section 69
warrants careful attention. It must be examined
against   the   requirement   that   the   use   of
computer evidence should not be unnecessarily
impeded,   while   giving   due   weight   to   the
fallibility of computers.
PACE, SECTION 69
13.4  In   the   consultation   paper   we   dealt   in
detail   with   the   requirements   of   section   69:   in
essence it provides that a document produced
by a computer may not be adduced as evidence
of any fact stated in the document unless it is
shown   that   the   computer   was   properly
operating and was not being improperly used.
If   there   is   any   dispute   as   to   whether   the
conditions   in   section   69   have   been   satisfied,
the   court   must   hold   a   trial   within   the   trial   to
decide whether the party seeking to rely on the
document   has   established   the   foundation
requirements of section 69.
125

Source PDF page 126

View this page in the original PDF
13.5 In essence, the party relying on computer
evidence must first prove that the computer is
reliable – or, if the evidence was generated by
more than one computer, that each of them is
reliable   (Cochrane   [1993]   Crim   LR   48).   This
can   be   proved   by   tendering   a   written
certificate, or by calling oral evidence . It is
not   possible   for   the   party   adducing   the
computer   evidence   to   rely   on   a   presumption
that   the   computer   is   working   correctly
(Shephard   [1993]   AC   380,   384E).   It   is   also
necessary for the computer records themselves
to be produced to the court (Burr v DPP [1996]
Crim LR 324).
The problems with the present law
13.6  In the consultation paper we came to the
conclusion   that   the   present   law   was
unsatisfactory, for five reasons.
13.7 First, section 69 fails to address the major
causes of inaccuracy in computer evidence. As
Professor   Tapper   has   pointed   out,   “most
computer error is either immediately detectable
or results from error in the data entered into the
machine”.
13.8   Secondly,   advances   in   computer
technology   make   it   increasingly   difficult
to comply with section 69: it is becoming
“increasingly impractical to examine (and
therefore   certify)   all   the   intricacies   of
computer operation” . These problems existed
even before networking became common.
13.9  A   third   problem   lies   in   the   difficulties
confronting   the   recipient   of   a   computer­
produced document who wishes to tender it in
126

Source PDF page 127

View this page in the original PDF
evidence: the recipient may be in no position to
satisfy   the   court   about   the   operation   of   the
computer.   It   may   well   be   that   the   recipient’s
opponent is better placed to do this.
13.10  Fourthly,   it   is   illogical   that   section   69
applies   where   the   document   is   tendered   in
evidence   (Shephard   [1993]   AC   380),   but   not
where it is used by an expert in arriving at his
or   her   conclusions   (Golizadeh   [1995]   Crim   LR
232), nor where a witness uses it to refresh his
or   her   memory   (Sophocleous   v   Ringer   [1988]
RTR 52). If it is safe to admit evidence which
relies on and incorporates the output from the
computer,   it   is   hard   to   see   why   that   output
should not itself be admissible; and conversely,
if it is not safe to admit the output, it can hardly
be safe for a witness to rely on it.
13.11   At   the   time   of   the   publication   of   the
consultation   paper   there   was   also   a   problem
arising from the interpretation of section 69. It
was held by the Divisional Court in McKeown v
DPP ([1995] Crim LR 69) that computer evidence
is inadmissible if it cannot be proved that the
computer   was   functioning   properly   –   even
though the malfunctioning of the computer had
no   effect   on   the   accuracy   of   the   material
produced.   Thus,   in   that   case,   computer
evidence could not be relied on because there
was   a   malfunction   in   the   clock   part   of   an
Intoximeter machine, although it had no effect
on   the   accuracy   of   the   material   part   of   the
printout   (the   alcohol   reading).   On   appeal,   this
interpretation   has   now   been   rejected   by   the
House   of   Lords:   only   malfunctions   that   affect
the way in which a computer processes, stores
or   retrieves   the   information   used   to   generate
127

Source PDF page 128

View this page in the original PDF
the statement are relevant to section 69 (DPP v
McKeown; DPP v Jones [1997] 1 WLR 295).
13.12  In   coming   to   our   conclusion   that   the
present   law   did   not   work   satisfactorily,   we
noted   that   in   Scotland,   some   Australian
states,   New   Zealand,   the   United   States
and Canada, there is no separate scheme
for   computer   evidence,   and   yet   no
problems   appear   to   arise.   Our   provisional
view   was   that   section   69   fails   to   serve   any
useful purpose, and that other systems operate
effectively and efficiently without it.
13.13  We   provisionally   proposed   that   section
69   of   PACE   be   repealed   without   replacement.
Without section 69, a common law presumption
comes into play (Phipson, para 23­14, approved
by the Divisional Court in Castle v Cross [1984]
1 WLR 1372, 1377B):
In   the   absence   of   evidence   to   the
contrary, the courts will presume that
mechanical instruments were in order
at the material time.
13.14  Where   a   party   sought   to   rely   on   the
presumption, it would not need to lead evidence
that the computer was working properly on the
occasion in question unless there was evidence
that it may not have been – in which case the
party would have to prove that it was (beyond
reasonable doubt in the case of the prosecution,
and on the balance of probabilities in the case
of the defence). The principle has been applied
to   such   devices   as   speedometers   (Nicholas   v
Penny   [1950]   2   KB   466)   and   traffic   lights
(Tingle Jacobs & Co v Kennedy [1964] 1 WLR
638), and in the consultation paper we saw no
reason why it should not apply to computers.
128

Source PDF page 129

View this page in the original PDF
The response on consultation
13.15  On   consultation,   the   vast   majority   of
those who dealt with this point agreed with us.
A   number   of   those   in   favour   said   that
section 69 had caused much trouble with
little benefit.
13.16  The   most   cogent   contrary   argument
against   our   proposal   came   from   David
Ormerod. In his helpful response, he contended
that the common law presumption of regularity
may   not   extend   to   cases   in   which   computer
evidence is central. He cites the assertion of the
Privy Council in Dillon v R ([1982] AC 484) that
“it  is  well  established   that  the   courts   will  not
presume   the   existence   of   facts   which   are
central to an offence”. If this were literally true
it would be of great importance in cases where
computer   evidence   is   central,   such   as
Intoximeter   cases   (R   v   Medway   Magistrates’
Court, ex p Goddard [1995] RTR 206). But such
evidence has often been permitted to satisfy a
central  element  of  the  prosecution  case.  Some
of these cases were decided before section 69
was introduced (Castle v Cross [1984] 1 WLR
1372);   others   have   been   decided   since   its
introduction, but on the assumption (now held
to be mistaken) (Shephard [1993] AC 380) that
it   did   not   apply   because   the   statement
produced   by   the   computer   was   not   hearsay
(Spiby (1990) 91 Cr App R 186; Neville [1991]
Crim LR 288). The presumption must have been
applicable; yet the argument successfully relied
upon   in   Dillon   does   not   appear   to   have   been
raised.
129

Source PDF page 130

View this page in the original PDF
13.17  It should also be noted that Dillon was
concerned not with the presumption regarding
machines   but   with   the   presumption   of   the
regularity   of   official   action.   This   latter
presumption   was   the   analogy   on   which   the
presumption   for   machines   was   originally
based; but it is not a particularly close analogy,
and   the   two   presumptions   are   now   clearly
distinct.
13.18  Even where the presumption applies, it
ceases   to   have   any   effect   once   evidence   of
malfunction has been adduced. The question is,
what sort of evidence must the defence adduce,
and   how   realistic   is   it   to   suppose   that   the
defence will be able to adduce it without any
knowledge of the working of the machine? On
the   one   hand   the   concept   of   the   evidential
burden   is   a   flexible   one:   a   party   cannot   be
required   to   produce   more   by   way   of  evidence
than   one   in   his   or   her   position   could   be
expected   to   produce.   It   could   therefore   take
very little for the presumption to be rebutted, if
the   party   against   whom   the   evidence   was
adduced   could   not   be   expected   to   produce
more. For example, in Cracknell v Willis ([1988]
AC   450)   the   House   of   Lords   held   that   a
defendant   is   entitled   to   challenge   an
Intoximeter   reading,   in   the   absence   of   any
signs of malfunctioning in the machine itself, by
testifying (or calling others to testify) about the
amount of alcohol that he or she had drunk.
13.19  On the other hand it may be unrealistic
to   suppose   that   in   such   circumstances   the
presumption would  not  prevail.  In Cracknell  v
Willis Lord Griffiths ([1988] AC 450 at p 468C–
D) said: 
130

Source PDF page 131

View this page in the original PDF
If   Parliament   wishes   to   provide   that
either   there   is   to   be   an   irrebuttable
presumption   that   the   breath   testing
machine   is   reliable   or   that   the
presumption can only be challenged by
a   particular   type   of   evidence   then
Parliament   must   take   the
responsibility of so deciding and spell
out   its   intention   in   clear   language.
Until  then  I  would  hold  that  evidence
which,   if   believed,   provides   material
from   which   the   inference   can
reasonably be drawn that the machine
was unreliable is admissible.
But his Lordship went on:
I   am   myself   hopeful   that   the   good
sense   of   the   magistrates   and   the
realisation by the motoring public that
approved breath testing machines are
proving reliable will combine to ensure
that   few   defendants   will   seek   to
challenge   a   breath   analysis   by
spurious evidence of their consumption
of   alcohol.   The   magistrates   will
remember that the presumption of law
is that the machine is reliable and they
will no doubt look with a critical eye on
evidence   such   as   was   produced   by
Hughes v McConnell ([1985] RTR 244)
before   being   persuaded   that   it   is   not
safe   to   rely   upon   the   reading   that   it
produces ([1988] AC 450, 468D–E).
13.20  Lord   Goff   did   not   share   Lord   Griffiths’
optimism   that   motorists   would   not   seek   to
challenge the analysis by spurious evidence of
131

Source PDF page 132

View this page in the original PDF
their consumption of alcohol, but did share his
confidence in 
the   good   sense   of   magistrates   who,
with   their   attention   drawn   to   the
safeguards   for   defendants   built   into
the   Act   …,   will   no   doubt   give   proper
scrutiny to such defences, and will be
fully   aware   of   the   strength   of   the
evidence provided by a printout, taken
from   an   approved   device,   of   a
specimen   of   breath   provided   in
accordance   with   the   statutory
procedure ([1988] AC 450 at p 472B–
C).
13.21  These   dicta   may   perhaps   be   read   as
implying   that   evidence   which   merely
contradicts the reading, without directly casting
doubt   on   the   reliability   of   the   device,   may   be
technically   admissible   but   should   rarely   be
permitted to succeed. However, it is significant
that Lord Goff referred in the passage quoted to
the safeguards for defendants which are built
into   the   legislation   creating   the   drink­driving
offences. In the case of other kinds of computer
evidence, where (apart from section 69) no such
statutory   safeguards   exist,   we   think   that   the
courts   can   be   relied   upon   to   apply   the
presumption in such a way as to recognise the
difficulty   faced   by   a   defendant   who   seeks   to
challenge the prosecution’s evidence but is not
in a position to do so directly. The presumption
continues   to   apply   to   machines   other   than
computers   (and   until   recently   was   applied   to
non­hearsay statements by computers) without
the   safeguard   of   section   69;   and   we   are   not
aware   of   any   cases   where   it   has   caused
injustice because the evidential burden cast on
132

Source PDF page 133

View this page in the original PDF
the   defence   was   unduly   onerous.   Bearing   in
mind that it is a creature of the common law,
and a comparatively modern one, we think it is
unlikely   that   it   would   be   permitted   to   work
injustice.
13.22  Finally   it   should   not   be   forgotten   that
section 69 applies equally to computer evidence
adduced by the defence. A rule that prevents a
defendant   from   adducing   relevant   and   cogent
evidence,   merely   because   there   is   no   positive
evidence that it is reliable, is in our view unfair.
Our recommendation
13.23   We   are   satisfied   that   section   69
serves   no   useful   purpose.   We   are   not
aware   of   any   difficulties   encountered   in
those   jurisdictions   that   have   no
equivalent.  We   are   satisfied   that   the
presumption of proper functioning would apply
to   computers,   thus   throwing   an   evidential
burden on to the opposing party, but that that
burden would be interpreted in such a way as
to ensure that the presumption did not result in
a   conviction   merely   because   the   defence   had
failed to adduce evidence of malfunction which
it was in no position to adduce. We believe, as
did the vast majority  of our respondents, that
such   a   regime   would   work   fairly.   We
recommend   the   repeal   of   section   69   of
PACE. (Recommendation 50) 
(emphasis supplied)
37. Based on the above recommendations of the U.K. Law
Commission,   Section   69   of   the   PACE,   1984,   was
133

Source PDF page 134

View this page in the original PDF
declared   by   Section   60   of   the   Youth   Justice   and
Criminal   Evidence   Act,   1999,   to   have   ceased   to   have
effect. Section 60 of the 1999 Act reads as follows:
“Section 69 of the Police and Criminal Evidence
Act, 1984 (evidence from computer records 
inadmissible unless conditions relating to 
proper use and operation of computer shown to
be satisfied) shall cease to have effect”
38. It will be clear from the above discussion that when our
lawmakers   passed   the   Information   Technology   Bill   in
the  year  2000, adopting  the  language  of  Section 5 of
the UK Civil Evidence Act, 1968 to a great extent, the
said   provision   had   already   been   repealed   by   the   UK
Civil   Evidence   Act,   1995   and   even   the   Police   and
Criminal   Evidence   Act,   1984   was   revamped   by   the
1999   Act   to   permit   hearsay   evidence,   by   repealing
Section 69 of PACE, 1984.
POSITION IN CANADA
39. Pursuant   to   a   proposal   mooted   by   the   Canadian   Bar
Association   hundred   years   ago,   requesting   all
Provincial Governments to provide for the appointment
134

Source PDF page 135

View this page in the original PDF
of Commissioners to attend conferences organised for
the   purpose   of   promoting   uniformity   of   legislation
among the provinces, a meeting of the Commissioners
took place in Montreal in 1918. In the said meeting, a
Conference   of   Commissioners   on   Uniformity   of   Laws
throughout Canada was organised. In 1974, its name
was   changed   to   Uniform   Law   Conference   of   Canada.
The objective of the Conference is primarily to achieve
uniformity in subjects covered by existing legislations.
The   said   Conference   recommended   a   model   law   on
Uniform Electronic Evidence in September 1998. 
40. The   above   recommendations   of   the   Uniform   Law
Conference   later   took   shape   in   the   form   of
amendments   to   the   Canada   Evidence   Act,   1985.
Section 31.1 of the said Act deals with authentication
of electronic documents and it reads as follows:
Authentication of electronic documents
31.1  Any person seeking to admit an electronic
document as evidence has the burden of 
proving its authenticity by evidence capable of 
135

Source PDF page 136

View this page in the original PDF
supporting a finding that the electronic 
document is that which it is purported to be.
41. Section   31.2   deals   with   the   application   of   ‘best
evidence rule’ in relation to electronic documents and it
reads as follows:
Application of best evidence rule — 
electronic documents
31.2(1) The best evidence rule in respect of an 
electronic document is satisfied
(a) on proof of the integrity of the electronic 
documents system by or in which the electronic
document was recorded or stored; or
(b) if an  evidentiary  presumption  established  
under section 31.4 applies.
Printouts 
(2) Despite subsection (1), in the absence of 
evidence to the contrary, an electronic 
document in the form of a printout satisfies the 
best evidence rule if the printout has been 
manifestly or consistently acted on, relied on or
used as a record of the information recorded or 
stored in the printout.
42. Section   31.3   indicates   the   method   of   proving   the
integrity  of  an electronic  documents system,  by or  in
which   an   electronic   document   is   recorded   or   stored.
Section 31.3 reads as follows:
136

Source PDF page 137

View this page in the original PDF
Presumption of integrity
31.3  For the purposes of subsection 31.2(1), in
the absence of evidence to the contrary, the 
integrity of an electronic  documents  system  
by  or  in  which  an  electronic document is 
recorded or stored is proven
(a)  by evidence capable of supporting a finding
that at all material times the computer system 
or other similar  device  used  by  the  electronic
documents  system was operating properly or, 
if it was not, the fact of its not operating 
properly did not affect the integrity of the 
electronic document and there are no other 
reasonable grounds to doubt the integrity of the
electronic documents system;
(b)  if  it  is  established  that  the  electronic  
document was recorded or stored by a party 
who is adverse in interest to the party seeking 
to introduce it; or
(c)  if  it  is  established  that  the  electronic  
document was  recorded  or  stored  in  the  
usual  and  ordinary course of business by a 
person who is not a party and who did not 
record or store it under the control of the party 
seeking to introduce it.
43. Section 31.5 is an interesting provision which  permits
evidence   to   be   presented   in   respect   of   any
standard, procedure, usage or practice concerning
the manner in which electronic documents are to
be   recorded   or   stored .   This   is   for   the   purpose   of
137

Source PDF page 138

View this page in the original PDF
determining   under   any   rule   of   law   whether   an
electronic document is admissible. Section 31.5 reads
as follows:
Standards may be considered
31.5  For the purpose of determining under any
rule of law whether an electronic document is 
admissible, evidence may be presented in 
respect of any standard, procedure,  usage  or  
practice  concerning  the  manner  in which 
electronic documents are to be recorded or 
stored, having regard to the type of business, 
enterprise or endeavour that used, recorded or 
stored the electronic document and the nature 
and purpose of the electronic document.
44. Under   Section   31.6(1),   matters   covered   by   Section
31.2(2), namely the printout of an electronic document,
the   matters   covered   by   Section   31.3,   namely   the
integrity   of   an   electronic   documents   system,   and
matters   covered   by   Section   31.5,   namely   evidence   in
respect of any standard, procedure, usage or practice,
may be established by affidavit. Section 31.6 reads as
follows:
Proof by affidavit
138

Source PDF page 139

View this page in the original PDF
31.6(1)  The   matters   referred   to   in   subsection
31.2(2)   and   sections   31.3   and   31.5   and   in
regulations   made   under   section   31.4   may   be
established by affidavit.
Cross­examination
(2)   A party may cross­examine a deponent of
an   affidavit   referred   to   in   subsection   (1)   that
has been introduced in evidence
(a)   as   of   right,   if   the   deponent   is   an   adverse
party   or   is   under   the   control   of   an   adverse
party; and
(b)   with leave of the court, in the case of any
other deponent.
45. Though   a   combined   reading   of   Sections   31.3   and
31.6(1)   of   the   Canada   Evidence   Act,   1985,   gives   an
impression as though a requirement similar to the one
under Section 65B of Indian Evidence Act, 1872 also
finds   a   place   in   the   Canadian   law,   there   is   a   very
important   distinction   found   in   the   Canadian   law.
Section 31.3(b) takes care of a contingency where
the electronic document was recorded or stored by
a   party   who   is   adverse   in   interest   to   the   party
seeking   to   produce   it.   Similarly,   Section   31.3(c)
gives   leverage   for   the   party   relying   upon   an
139

Source PDF page 140

View this page in the original PDF
electronic   document   to   establish   that   the   same
was recorded or stored in the usual and ordinary
course of business by a person who is not a party
and   who   did   not   record   or   store   it   under   the
control of the party seeking to introduce it .
IV. Conclusion
46. It   will   be   clear   from   the   above   discussion   that   the
major   jurisdictions   of   the   world   have   come   to   terms
with   the   change   of   times   and   the   development   of
technology and fine­tuned their legislations. Therefore,
it   is   the   need   of   the   hour   that   there   is   a   relook   at
Section 65B of the Indian Evidence Act, introduced 20
years ago, by Act 21 of 2000, and which has created a
huge judicial turmoil, with the law swinging from one
extreme to the other in the past 15 years from  Navjot
140

Source PDF page 141

View this page in the original PDF
Sandhu31  to  Anvar   P.V. 32  to  Tomaso   Bruno 33  to
Sonu34  to Shafhi Mohammad .35   
47. With   the   above   note,   I   respectfully   agree   with
conclusions   reached   by   R.   F.   Nariman,   J.   that   the
appeals are to be dismissed with costs as proposed.
   
...…..………......................J.
                (V. RAMASUBRAMANIAN)  
JULY 14,  2020
NEW DELHI
31  State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600
32  Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 
33  Tomaso Bruno vs. State of UP, (2015) 7 SCC 178
34  Sonu vs. State of Haryana, (2017) 8 SCC 570
35  Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801
141