MANU/SC/0521/2020

Equivalent/Neutral Citation: AIR2020SC 4908, 2021(3)ALLMR621, 2020(5)BLJ28, 2021(5)BomC R630, 2020 (2) C C C 370 , 2020(2)C rimes301(SC ),
2020(5)C TC 200, (2021)2GLR1479, 2020 (3) Him. LR. 1890, 2021(2)IC C 705, 2020 INSC 453, 2020(3)J.L.J.R.361, 2020(4)JKJ398[SC ], 2020(4)JLJ193,
2020 (4) KHC 101, 2020-5-LW908, 2020-2-LW(C rl)705, 2021(3)MhLj83, 2020(II)OLR341, 2020(3)PLJR311, 2021(1)PLJR221, (2020)199PLR472,
2020(3)RC R(C ivil)256, 2021(2)RLW1376(SC ), 2020(8)SC ALE735, (2020)7SC C 1, (2020)2SC C (LS)587, [2020]7SC R180

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 20825-20826 of 2017, 2407 and 3696 of 2018
Decided On: 14.07.2020
Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors.
Hon'ble Judges/Coram:
Rohinton Fali Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ.
Counsels:
For Appearing Parties: Meenakshi Arora, Pravin M. Shah, Sr. Advs., Ravindra Keshavrao
Adsure, Haribhau Damodar Zol, Pratik Arvind Bhosle, Prashant R. Katneshwarkar, Ajit B.
Kale, Sagar N. Pahune Patil, Shashibhushan P. Adgaonkar, Aditya Sikchi, Jakalwar, Gagan
Deep Sharma, Gautam Talukdar, Vikas Upadhyay and Ashwin Kumar Nair, Advs.
JUDGMENT
Rohinton Fali 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 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 and Ors. MANU/SC/0834/2014 : (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
MANU/SC/0058/2018 : (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 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.

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 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 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
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.
Sd/- Sd/-
Asst. Returning Officer Returning Officer
101 Jalna Legislative Assembly 101 Jalna Legislative Assembly
Constituency/Tahsildar Constituency/Tahsildar
Jalna Jalna
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
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 Issues Findings
6 . Whether the Petitioner proves that Affirmative. (nomination papers
the nomination papers at Sr. Nos. 43 at Sr. Nos. 43 and 44 were not
and 44 were not presented by presented by RC before 3.00
Respondent/Returned candidate p.m. of 27.9.2014.)
before 3.00 p.m. on 27/09/2014?
7. Whether the Petitioner proves that Affirmative. (A, B forms were
the Respondent/Returned candidate presented after 3.00 p.m. of
submitted original forms A and B 27.9.2014)
along with nomination paper only on
27/09/2014 after 3.00 p.m. and along
with nomination paper at Sr. No. 44?
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 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

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 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 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 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 MANU/SC/0057/2015 : (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 MANU/SC/0331/2018 :
(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 MANU/TN/0112/2016 : (2016) Crl. L J
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
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.
1 0 . 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
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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 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 3 pm). 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
were therefore improperly accepted, as a result of which, the election of the Appellant
was correctly set aside.
1 1 . 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.
1 2 . 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
Singh v. State 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
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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:
"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.
1 5 . Section 45A of the Evidence Act, on the opinion of the Examiner of Electronic
Evidence, then states:
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
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 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 information for the purposes of any activities
regularly carried on over that period by the person having lawful control
over the use of the computer;
(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so contained
is derived was regularly fed into the computer in the ordinary course of
the said activities;
(c) throughout the material part of the said period, the computer was
operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record or the accuracy
of its contents; and
(d) the information contained in the electronic record reproduces or is
derived from such information fed into the computer in the ordinary
course of the said activities.
(3) Where over any period, the function of storing or processing information for
the purposes of any activities regularly carried on over that period as mentioned
in Clause (a) of Sub-section (2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over
that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that period shall be
treated for the purposes of this Section as constituting a single
computer; and references in this Section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by
virtue of this section, a certificate doing any of the following things, that is to
say, -
(a) identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of
that electronic record as may be appropriate for the purpose of showing
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 that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in
Sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and for the purposes of
this Sub-section it shall be sufficient for a matter to be stated to the best
of the knowledge and belief of the person stating it.
(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 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,
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

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 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 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 proved once admissible into
evidence. With these prefatory observations let us have a closer look at Sections 65A and
65B.
2 0 . 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".
2 1 . 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 included in conditions 65B(2(a)) to
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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 331 and Om
Parkash v. Union of India MANU/SC/0092/2010 : (2010) 4 SCC 172). 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, 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

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 (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;
(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 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
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 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 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 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
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 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.
2 5 . 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 Sub-section (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 anybody,
whether corporate or not, or by any individual;
(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
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 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
Sub-section (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 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
Sub-section (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 Sub-section
it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.
(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;
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 (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 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 Sub-section (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 changes3. The definition of "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 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 September, 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:
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--
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 (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.
(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 anybody (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

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 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 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.
31. T he 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.
3 2 . 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 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.
3 3 . In fact, in Vikram Singh and Anr. v. State of Punjab and Anr.
MANU/SC/0758/2017 : (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

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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 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 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.
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 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
[ MANU/SC/0681/2012 : (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
MANU/SC/0465/2005 : (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.
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, MANU/SC/0176/1985 :
1985 Supp SCC 611], a three-Judge Bench considered the said issue. English
judgments in R. v. Maqsud Ali [R. v. Maqsud Ali, MANU/UKCR/0026/1965 :
(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 [ MANU/SC/0086/2010 :
(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 has to be more stringent than other documentary evidence.
23. In Tomaso Bruno v. State of U.P. [ MANU/SC/0057/2015 : (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

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 this Court in Mohd. Ajmal Amir Kasab v. State of Maharashtra
[ MANU/SC/0681/2012 : (2012) 9 SCC 1] andState (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 [ MANU/SC/0176/1985 : 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
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;
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
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 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.
3 7 . 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
contained in electronic records. Likewise, the judgment cited in paragraph 22, namely
Tukaram S. Dighole v. Manikrao Shivaji Kokate MANU/SC/0086/2010 : (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, 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.
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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:
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 Code of Civil Procedure, 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.
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.
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 (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 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.
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.
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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.
4 4 . Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court
reported as MANU/SC/0331/2018 : (2018) 5 SCC 311, in following the law incorrectly
laid down in Shafhi Mohammed (supra), must also be, and is hereby, overruled.
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, Code of Civil Procedure or Code of
Criminal Procedure. 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 law is excused. This was well
put by this Court in Re: Presidential Poll MANU/SC/0047/1974 : (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 caused
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 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.
MANU/SC/0594/1999 : (1999) 8 SCC 266 (at paragraphs 17 and 21);Special
Reference 1 of 2002 MANU/SC/0891/2002 : (2002) 8 SCC 237 (at paragraphs 130
and 151) and Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
MANU/SC/0194/2005 : (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
MANU/SC/0220/1965 : (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:
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 cogit 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 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
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 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, 19595.5
47. In Raj Kumar Dubey v. Tarapada Dey and Ors. MANU/SC/0018/1987 : (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 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 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

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 the award which the court declined to give to them.
4 8 . These maxims have also been applied to tenancy legislation - see M/s. B.P.
Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr. MANU/SC/1015/1987 :
(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. MANU/SC/0337/2004 : (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.
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 Code of Criminal Procedure.
51. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R.
Hiremath MANU/SC/0807/2019 : (2019) 7 SCC 515, after referring toAnvar 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 [ MANU/SC/0404/2018 : (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 [ MANU/SC/0835/2017 : (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
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 stage that the necessity of the production of the certificate would arise.
5 2 . 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 documents which are entered in the charge-
sheet/final report have to be given to the Accused. Section 207 of the Code of Criminal
Procedure, 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.
5 3 . 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 MANU/SC/0246/2002 : (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 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 Code of Criminal Procedure 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.
5 5 . The High Court of Rajasthan in Paras Jain v. State of Rajasthan, 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 Under Section 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

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 the prescribed form and such certificate cannot be filed subsequently.
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 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-section (1) of Section 91 Code of Criminal Procedure
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

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 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 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 producement 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 Section 311 Code of Criminal Procedure, 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) Code of Criminal Procedure 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
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 Code of Criminal Procedure, 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.
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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
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
Code of Criminal Procedure or, at the appellate stage Under Section 391 Code of
Criminal Procedure. 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 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.
6 0 . 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 the requisite certificate Under Section 65B(4)
of the Evidence Act is also an incorrect statement of the law and is, accordingly,
overruled.
6 1 . 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

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year7. 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 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.
6 2 . 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.
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 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

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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 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).
6 7 . 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
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.
6 9 . 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

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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 MANU/SC/1163/2016 : (2016) 10 SCC 715, wherein an election petition was
filed 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 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.
7 0 . On the other hand, Ms. Meenakshi Arora cited a Division Bench judgment in
Mairembam Prithviraj v. Pukhrem Sharatchandra Singh MANU/SC/1361/2016 :
(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. MANU/SC/0246/1973 : 1973(2) SCC 45 andJagjit Singh v.
Dharam Pal Singh MANU/SC/0929/1995 : 1995 Supp (1) SCC 422, this Court then
referred to a three-Judge Bench judgment in Vashist Narain Sharma v. Dev Chandra
MANU/SC/0101/1954 : 1955 (1) SCR 509 as under:
25. It was held by this Court in Vashist Narain Sharma v. Dev Chandra
[ MANU/SC/0101/1954 : (1955) 1 SCR 509] as under:

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 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 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 down the law correctly. Also, the
judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad
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 (supra) and the judgment dated 03.04.2018 reported as MANU/SC/0331/2018 :
(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 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.
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.
V. Ramasubramanian, J.
74. 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) 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
7 5 . 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
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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 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.
76. 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 Section 136. But certain provisions of law place the cart
before the horse and Section 65B appears to be one of them.
7 7 . 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 last-mentioned 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.
78. 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.
79. Illustration (b) Under Section 136 provides an easy example of the second part of
Section 136. Illustration (b) reads as follows:

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 (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.
80. 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.
81. 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 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.
82. 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.
83. But Section 65B(1) starts with a non-obstante Clause excluding the application of the
other provisions and it makes the certification, a precondition for admissibility. While
doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read
together, mix-up 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.
84. 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 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
85. 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.
8 6 . It is no doubt true that the felicity with which courts adapted themselves to
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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 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.
87. 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 in
an Article titled 'Electronic evidence and the meaning of "original"',9 by Stephen
Mason (Barrister and recognised authority on electronic 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 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.
88. 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 v. Mason [1940] 2 KB 590 in proving fraud on the part of the Plaintiff.
W hi l e Harry Parker was a civil proceeding, the principle laid down therein found
acceptance in a criminal trial in R. v. Burr and Sullivan [1956] Crim LR 442. The High
Court of Judiciary in Scotland admitted in evidence, the tape record of a conversation
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between the complainant and a black mailer, in Hopes and Lavery v. H.M. Advocate
[1960] Crim LR 566. A conversation recorded in police cell overheard without any
deception, beyond setting up a tape recorder without warning, was admitted in evidence
in R. v. Mills [1962] 3 All ER 298.
89. Then came R. v. Maqsud Ali MANU/UKCR/0026/1965 : [1965] 2 All ER 464 where
Marshall J. drew an analogy between tape-recordings 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 be proved and the voices recorded
properly identified.
90. Following the above precedents, this Court also held in S. Pratap Singh v. State of
Punjab MANU/SC/0272/1963 : (1964) 4 SCR 753,Yusaffalli Esmail Nagree v. State
of Maharashtra MANU/SC/0092/1967 : (1967) 3 SCR 720,N. Sri Rama Reddy v.
V.V. Giri MANU/SC/0333/1970 : AIR 1972 SC 1162,R.M. Malkani v. State of
Maharashtra MANU/SC/0204/1972 : AIR 1973 SC 157,Ziyauddin Burhanuddin
Bukhari v. Brijmohan Ramdass Mehra MANU/SC/0277/1975 : (1976) 2 SCC 17,
Ram Singh v. Col. Ram Singh MANU/SC/0176/1985 : AIR 1986 SC 3,Tukaram S.
Dighole v. Manikrao Shivaji Kokate MANU/SC/0086/2010 : (2010) 4 SCC 329, 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 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.
91. 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) v. Steam Tanker Statute of
Liberty (Owners) [1968] 2 All ER 195, 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.
92. 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.
v. Pettigrew [1980] 71 Cr. App. R. 39. 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 Smith10 considered the evidence in this case as direct and not hearsay,
Professor Tapper 11 took the view that the printout was partly hearsay and partly not.
Professor Seng12 thought that both views were plausible.
93. 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 should be taken as direct. This is how the position was
explained in Castle v. Cross [1984] 1 WLR 1372, 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
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being processed through a human brain.
94. In R v. Robson Mitchell and Richards [1991] Crim LR 360, 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".
95. 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
96. 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 self-authentication Under Rule
902 whereunder a 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
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 speaker.
(6) Evidence About a Telephone Conversation. For a telephone
conversation, evidence that a call was made to the number
assigned at the time to:
(A) a particular person, if circumstances, including self-
identification, 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:
(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
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 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 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.
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 (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.
(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).
97. An important decision in the American jurisprudence on this issue was delivered by
Chief Magistrate Judge of District of Maryland in Lorraine v. Markel American
Insurance Co. 241 FRD 534 (2007). 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.13
This decision was rendered in 2007 and the FRE were amended in 2017.
98. Sub-rules (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 sub-rules (11) and (12) of Rule
902). It means that the benefit of self-authentication was not available until then [until
the advent of sub-rules (13) and (14), except in cases covered by sub-rules (11) and
(12)]. Nevertheless, the introduction of sub-rules (13) and (14) in Rule 902 did not
completely exclude the application of the general provisions of Rule 901.
99. 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 self-authenticating. Records

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generated by an electronic process or system and data copied from an electronic device,
storage medium or file, are included in sub-rules (13) and (14) of Rule 902 of the Federal
Rules of Evidence.
100. But FRE 902 does not exclude the application of FRE 901. It is only when a party
seeks to invoke the benefit of self-authentication that Rule 902 applies. If a party chooses
not to claim the benefit of self-authentication, he is free to come Under Rule 901, even if
the evidence sought to be adduced is of an electronically stored information (ESI).
1 0 1 . In an Article titled 'E-Discovery: Authenticating Common Types of ESI Chart',
authored by Paul W. Grimm (the Judge who delivered the verdict in Lorraine) and co-
authored 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 'Grimm-Brady Chart'
(referring to Paul W. Grimm and Kevin F. Brady) on the website "complexdiscovery.com",
a condensed chart is provided 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 sub-rules of Rules 901 and 902 of the Federal Rules of Evidence
as follows:
S. No.Type of ESI Potential Authentication
Methods
Email, Text • Witness with personal
Messages, and knowledge (901(b)(1))
Instant Messages
• Expert testimony or
comparison with
a u t h e n t i c a t e d examples
(901(b)(3))
• Distinctive characteristics
i n c l u d i n g 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 • Witness with personal
Postings, Blogs, knowledge (901(b)(1))
Wikis, and Other
Social Media• Expert testimony or

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 Conversations comparison with
a u t h e n t i c a t e d examples
(901(b)(3))
• Distinctive characteristics
i n c l u d i n g 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• Witness with personal
(Facebook, knowledge (901(b)(1))
LinkedIn, Twitter,
I n s t a g r a m , and • Expert testimony or
Snapchat) comparison with
a u t h e n t i c a t e d examples
(901(b)(3))
• Distinctive characteristics
i n c l u d i n g 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• Witness with personal
Data and Internetknowledge (901(b)(1))

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 of Things • 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))
• 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 • Witness with personal
Processes, knowledge (901(b)(1))
Animations,
Virtual Reality, • Expert testimony or
and Simulations comparison with
a u t h e n t i c a t e d 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 • Witness with personal
Photographs 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))
102. 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

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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
Sub-rules (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 sub-rules (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.
POSITION IN UK
103. 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
Sub-sections (2), (3), (4) and (5) of Section 65B is almost in pari materia (with minor
differences) with Sub-sections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968.
However, Sub-section (1) of Section 65B is substantially different from Sub-section (1) of
Section 5 of the UK Civil Evidence Act, 1968. But it also contains certain additional words
in Sub-section (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 Sub-section (1) of Section 5 of UK Civil Evidence Act, 1968 are presented in a tabular
form as follows:
Section 65B(1), IndianSection 5(1), Civil
Evidence Act, 1872 Evidence Act, 1968 [UK]
Notwithstanding anything In any civil proceedings a
contained in this Act, any statement contained in a
information contained in an document produced by a
electronic record which is computer shall, subject to
printed on a paper, stored, rules of court, be
recorded or copied in admissible as evidence of
optical or magnetic media any fact stated therein of
produced by a computer which direct oral evidence
(hereinafter referred to as would be admissible, if it
the computer output) shall is shown that the
be deemed to be also a conditions mentioned in
document, if the conditions Sub-section (2) below are
mentioned in this section satisfied in relation to the
are satisfied in relation to statement and computer in
the information and question.
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
s t a t e d therein of which
direct evidence would be
admissible.
104. 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
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the 1968 Act containing Sections 1-10 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. statute book, as a result of its repeal under the 1995 Act.
105. 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. Twenty-five years later, technology has developed to
an extent where computers and computer-generated documents are relied on in
every area of business and have long been accepted in banking and other
important record-keeping 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 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 Computer-generated 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

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 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 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
computer-generated 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 computer-generated 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 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.
106. In Part IV of the 1993 Report, titled 'Recommendations for Reform', Paragraph 4.43

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dealt with the recommendations of the Law Commission in relation to computer records.
Paragraph 4.43 of the Law 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 computer-generated 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 particular will be wide enough to cover
computer-generated 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.
107. 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 are concerned, thus got liberated in U.K. in 1995
with the repeal of Section 5 of the U.K. Civil Evidence Act, 1968.
108. 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
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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.
1 0 9 . 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 (MANU/UKCR/0010/1988 : [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 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.
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,
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 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 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 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 23-14, approved by the Divisional Court in Castle v. Cross [1984]
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 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
MANU/UKWA/0088/1964 : [1964] 1 WLR 638), and in the consultation paper we
saw no reason why it should not apply to computers.
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, exp Goddard MANU/SCCN/0037/1995 :
[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.
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
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 ([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:
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
(MANU/UKWQ/0038/1985 : [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 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 drink-
driving 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 non-hearsay
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 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
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 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)
110. Based on the above recommendations of the U.K. Law Commission, Section 69 of
the PACE, 1984, was 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.
111. 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
112. Pursuant to a proposal mooted by the Canadian Bar Association hundred years ago,
requesting all Provincial Governments to provide for the appointment 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.
113. 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 supporting a finding that

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 the electronic document is that which it is purported to be.
1 1 4 . 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 Sub-section (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.
1 1 5 . 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:
Presumption of integrity
31.3 For the purposes of Sub-section 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.
116. 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 determining under any Rule of law whether an electronic document is
admissible. Section 31.5 reads as follows:
Standards may be considered

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 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.
117. 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
31.6(1) The matters referred to in Sub-section 31.2(2) and Sections 31.3 and
31.5 and in Regulations made Under Section 31.4 may be established by affidavit.
Cross-examination
(2) A party may cross-examine a deponent of an affidavit referred to in Sub-
section (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.
118. 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 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
119. 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
fine-tuned 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 Sandhu14 to Anvar P.V.15 to Tomaso Bruno16
to Sonu17 to Shafhi Mohammad.18
120. 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.

1 3. The first contention is based on an assumption that the word "any one" in Section 76
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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 everyone of the shareholders of a private company owning the mine, and
every one of the directors of a public 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 MANU/DE/0593/1987 : AIR 1987 Del 239] would clearlyindicate 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)
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 Sub-section (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:
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;
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(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.
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).
5 MANU/SC/0220/1965 : (1965) 3 SCR 187, at 193.
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.
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.
8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv
Narain Raina and R.K. Gauba, JJ.
9 Stephen Mason, Electronic evidence and the meaning of "original", 79 Amicus Curiae 26
(2009)
10 Professor Smith was a well-known authority on criminal law and law of evidence; J.C.
Smith, The admissibility of statements by computer, Crim LR 387, 388 (1981).
11 Professor Tapper is a well-known authority on law of evidence; Colin Tapper, Reform of
the law of evidence in relation to the output from computers, 3 Intl. J L & Info Tech 87
(1995).
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12 Professor Seng is an Associate Professor at the National University of Singapore; Daniel
K B Seng, Computer output as evidence, Sing JLS 139 (1997).
13 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.
14 State (NCT of Delhi) v. Navjot Sandhu, MANU/SC/0465/2005 : (2005) 11 SCC 600
15 Anvar P.V. v. P.K. Basheer, MANU/SC/0834/2014 : (2014) 10 SCC 473
16 Tomaso Bruno v. State of UP, MANU/SC/0057/2015 : (2015) 7 SCC 178
17 Sonu v. State of Haryana, MANU/SC/0835/2017 : (2017) 8 SCC 570
18 Shafhi Mohammad v. The State of Himachal Pradesh, MANU/SC/0058/2018 : (2018) 2
SCC 801
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