Chapter V of The Bangladeshi Evidence Act, 1872[1] deals with the ‘Documentary Evidence’ and it is very important as it is the primary piece of evidence. Section 62 and Section 63 deals with the ‘Primary’ and ‘Secondary’ Evidence.

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As our country is moving towards digitization and e-governance, the Supreme Court on various occasions has discussed the admissibility of electronic evidence through a certificate. To prove the electronic evidence in the court, the IEA,1872 was amended in the year 2000[2] and Section 65B of electronic evidence was inserted in the Act.

For any electronic document to be proved in a court of law like any other document, it can be proved either by the way of ‘Primary Evidence’ or through ‘Secondary Evidence’.

 

Certificate for Electronic Evidence under Section 65B (4)

Section 65B (4) talks about the content of a ‘certificate’ that should be accompanied for proving any electronic evidence in the court of law. It should contain the following:

• Identifying the electronic record containing the statement and describing how it was produced.
• Giving the particulars of any device that was involved in the production of that electronic record.
• Dealing with any of the matters to which the condition mentioned in sub-section (2) relate.

Sub-section (2) lays down conditions relating to:

 

• Condition as to computer – The said computer should be regularly used to store or process the information, used for carrying out such activities regularly, carried over by a person having lawful control over it and it should be operating properly.
• Condition as to information – Information said to be proved in a court of law should have been produced by the computer in the ordinary course of activities and such information should be derived from the information feed into the computer.

Who Can Give A Certificate

A certificate can be given by any person:

 

• Occupying a responsible official position concerning the operation of the relevant device.
• The management of the relevant activities. Activities involved in the production and storage of that data which is ought to be proved.

Judicial Decisions

 

Section 65B of IEA says that electronic records should be confirmed by an individual involving a dependable authority position for being admissible as evidence in any court procedures.

However, recent judgements made by the Supreme Court shows conflicting decisions regarding the Issue of Certificate for proving electronic evidence. Here are the following judgements:

 

• In 2005, the Supreme Court discussed the mode and manner of admissibility of electronic evidence or records during the trial in State (NCT of Delhi) v. Navjot Sandhu & Ors.[3] The court discussed Section 63 and it 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”.[4]

There is no bar in the admissibility of electronic evidence as under Section 63 of the Act which states ‘Secondary Evidence’. The Court finally held that the requirement of production and electronic evidence certificate is not mandatory under Section 65B.  It said that the secondary evidence of electronic record could be covered under Sections 63 and 65 of the Act.

This view of the Supreme Court violated the intent and language of Section 65B. Furthermore, the legislative intent behind this section covers the said requirement of the certificate to be of a compulsory and essential. The use of ‘shall’ in sub-section (1) mandates it.

• In 2014, Supreme Court overruled its earlier decision regarding the situation about the need for electronic evidence certificate u/s 65B of the Act, in Anvar P. V vs P.K.Basheer & Ors.[5] It stated that original evidence can be filed in the court and would be admissible under section 62 of the act, and no certificate under Section 65B is required for original evidence.

However, for secondary evidence, a certificate under Section 65B is mandatory. Thus in the case of CD, DVD, etc. it should be accompanied by the certificate as mentioned under Section 65B obtained at the time of taking the documents, without which, the secondary evidence relating to that electronic record would be inadmissible.[6]

 

Thus, after this judgement, the position was that, given Section 59 & Section 65A, any documentary evidence can be only proved according to the provisions contained in Section 65B.

• In 2018, the Supreme Court overruled the 2014 judgement. In Shafhi Mohammad v. State of Himachal Pradesh[7] , a bench comprising of Justices AK Goel and UU Lalit came to the following observation and conclusions:

• The decision was given in Navjot Sandhu (supra) that secondary evidence of electronic record is covered under Section 63 & 65 of IEA, was incorrect.
• The said Section 64B (4) will only apply to certain cases in which the electronic evidence is produced by a person in possession and control of the said device. Whereas, in a case where a party is not in the possession/control of the device from which the document is produced, such party cannot be required to produce a certificate under Section 65B (4). Also, the applicability of Section 63 &65 cannot be held to be excluded and the procedure can be invoked.
• Section 65A and 65B are clarificatory and procedural and are not a complete code on the subject.

Thus, the requirement of a certificate under Section 65B (4) is not always mandatory and can be dispensed with, in the interest of justice.[8] It also depends upon the facts of each case.

Conclusion

The apex court departed from its earlier view on the Navjot Sandhu case declaring it to be a no longer good law and overruled the decision of Anvar P. V. case. The judgement of the court in Shafhi case is clearly per incuriam. The court has restricted its view regarding the applicability of a certificate under Section 65B (4). Thus, the current law stands that the requirement of a certificate u/s 65B (4) is not always mandatory.

Edited by Pushpamrita Roy

 

Approved & Published – Sakshi Raje 

Reference

[1] http://jowaipolice.gov.in/Laws_and_References/ipl_and_acts/15-INDIAN-EVIDENCE-ACT-1872.pdf

 

[2] https://indiankanoon.org/doc/35556724/

[3] https://indiankanoon.org/doc/1769219/

[4] https://www.barandbench.com/columns/dispelling-the-labyrinth-of-electronic-evidence-certificate-under-section-65b-of-indian-evidence-act

[5] https://indiankanoon.org/doc/187283766/

 

[6]https://www.academia.edu/17277549/Whether_certificate_as_per_S_65B_of_Evidence_Act_can_be_produced_at_subsequent_stage

[7] https://indiankanoon.org/doc/71699420/

[8] https://www.firstpost.com/india/supreme-court-says-certificate-not-mandatory-for-making-electronic-evidence-judicially-admissible-4334957.html