Information Technology Act, 2000 :
The following two sections , namely, sections 65A and 65B have been added
by the information technology act 2000
S. 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.
S. 65B. Admissibility of electronic records. (1) Notwithstanding
anything contained in this Act, any information contained in an electronic
record which is printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer (hereinafter referred to as the
computer output) shall be deemed to be also a document, if the conditions
mentioned in this section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings, without
further proof or production of the original, as evidence of any contents of the
original or of any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer
output shall be the following, namely :-
(a) the computer output containing the information was produced by the
computer during the period over which the computer was used regularly to
store or process information for the purposes of any activities regularly
carried on over that period by the person having lawful control over the use
of the computer;
(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so contained is
derived was regularly fed into the computer in the ordinary course of the
said activities;
(c) throughout the material part of the said period, the computer was
operating properly or, if not, then in any 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) This section defines a computer as a single device used for a specific
purpose, including successive operation of one or more computers and
combinations of computers, and all computers used during that period are
considered a single computer, and references to a computer are interpreted
accordingly.
(4) In any proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things, that is to say, -
(a) identifying the electronic record containing the statement and describing
the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
electronic record as may be appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-
section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate; and for the purposes of this
sub-section it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.
(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) If information is provided to a computer for storage or processing during
official activities, it is assumed to be provided to the computer during those
activities if it is duly supplied to it. This ensures that the information is
processed appropriately.
(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.
Evidence relating to electronic records
Section 65-A, provides that the contents of electronic records may be proved
in accordance with the provisions of S. 65-B. This prescribes the mode for
proof of contents of electronic records. The primary purpose is to sanctify
proof by secondary evidence. This facility of proof by secondary evidence
would apply to any computer output, such output being deemed as a
document. A computer output is a deemed document for the purposes of
proof. Sub-section (1) provides that 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 and to be referred to as
computer output, is also to be deemed as a document. The section lays
down certain conditions which have to be satisfied in relation to the
information and the computer in question. Where those conditions are
satisfied, the electronic record becomes admissible.
Requirements as to relevancy of computer output [S. 65-B(2)]
The conditions which have to be satisfied so as to make a computer output
as primary evidence are stated in sub-section (2). They are as follows :-
(a) It is necessary that the computer output containing the information was
produced by the computer which was used regularly to store or process the
information for the purposes of any activities being regularly carried on by
the person having lawful control over the use of the computer.
(b) the information is of the kind which was regularly fed into the computer
in the ordinary course of its activities;¹
(c) the computer should have been operating properly during the period of
the data feeding. If it was not operating properly during that period or was
out of operation, it is necessary that the gap was not such as to affect the
electronic record or the accuracy of its contents;
(d) the information contained in the electronic record was derived or was
reproduced from the information fed into the computer in the ordinary
course of its activities.
Where the information was processed or fed into the computer on inter-
linked computers or one computer after the other in succession, all the
computers so used are to be treated as one single computer. [S. 65-B(3)].
When a statement has to be produced in evidence under this section, it
should be accompanied by a certificate which should identify the electronic
record containing the statement. It should describe the manner in which it
was produced; give the particulars of the device involved in its production
showing that the same was produced by a computer and showing
compliance with the conditions of sub-section (2). The statement should be
signed by a person occupying a responsible official position in relation to the
operation or management of the relevant activities. Such statement shall be
evidence of the matter stated in the certificate. It should be sufficient for this
purpose that the statement is made to the best of knowledge and belief of
the person making it. [S. 65-B(4)].
An Explanation to the section declares that for the purposes of S. 65-B any
reference to information being derived from other information is to be taken
to mean derived by calculation, comparison or any other process [S. 65-B
(Explanation).
Audio C.D.: In a matrimonial proceedings for dissolution of marriage, the
wife was alleged to have abused and threatened her husband on his cell-
phone and the same was recorded in it. The matter was recorded by the
husband in an audio C.D. The cell-phone was not produced. Only the C.D.
was exhibited. The wife objected alleging fabrication. The Court ordered the
C.D. to be marked as an exhibit subject to the condition that whenever it
was played, opportunity for cross-examination should be given to the wife.
Video-Conferencing : Examination of witnesses in criminal cases, through
video conferencing was approved by the Supreme Court in a judgment in
State of Maharashtra v. Dr. Praful B. Desai.
Permission for recording of evidence through process of video conferencing,
such facility is accorded in criminal cases although there cannot be any
plausible objection for adopting same procedure, in civil cases also.
However, necessary precautions must be taken, both as to identity of
witnesses and accuracy of equipment used for purpose.
In Twentieth Century Fox Film Corporation v. NRI Film Production
Associates (P) Ltd., and Amitabh Bagchi v. Ena Bagchi, High Courts of
Karnataka and Calcutta held that recording of evidence through video
conferencing is permissible in law, provided that necessary precautions
must be taken, both as to the identity of the witnesses and accuracy of the
equipment, used for the purpose. Certain guidelines were indicated therein.
The party, who intends to avail such facility, shall be under obligation to
meet the entire expenditure. In State (N.C.T. of Delhi) v. Navjot
Sandhu, it was held by Apex Court that the call records relating to cellular
phones are admissible and reliable and rightly made use of by the
prosecution.
