Judgments on digital Evidence u/s 65 b of IE act

ELECTRONIC EVIDENCE BY A. P. RANDHIR
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USEFUL
ARTICLE
ON
ELECTRONIC (DIGITAL) EVIDENCE
&
ADMISSIBILITY
WITH HON'BLE SC & HC JUDGMENT
Complied by
ARJUN. P. RANDHIR
B.COM, LLM, D.L.P

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TABLE OF CONTENT
Sr.
No.
Name Page
No.
1. INTRODUCTION
(i) The five separate foundations
(ii) Steps for handling digital evidence
(iii) Six stages of the cyber forensic process
(iv) Common investigation mistakes
(v) E-evidence is found in
(vi) Analysis of digital evidence
(vii) Difference between primary documentary and
secondary documentary electronic evidence.
2 INFORMATION TECHNOLOGY ACT 2000
3 INDIAN EVIDENCE ACT 1972
4 BANKER'S BOOK EVIDENCE ACT, 1891
A. Statement of account
B. Extract from the bankers' books evidence act,
1891
C. Changes in Indian penal code, 1860
5 Mode of proof of electronic records
6. COMPARATIVE STUDY UK AND INDIAN LAWS
7. Secondary Evidence Require Section 65B
Certificate.
(i) Sections 65-A and 65-B of the Evidence Act
8. Discussion on Latest Judgment of Hon’ble SC and HC
 Certificate not required if original document
is produced
 Certificate Under Section 65b (4) Of The
Evidence Act, A Condition Precedent For
Admissibility Of Electronic Evidence
 Application to be filed in court if person/
authority refuses to give certificate
 When can the objections related to the electronic
evidence be raised?
 Who gives this certificate?

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 Indian Evidence Act, 1872
 Code of Civil Procedure, 1908
 Code of Criminal Procedure, 1973
 Civil trials
 Criminal trials
 Directions issued by supreme court to cellular
and internet service providers
 Discretion upon the judge to decide as to the
admissibility of evidence
 Contents of converted into mirror copy/ clone
copy/ FSL copy
 How to seek second expert opinion from an
independent agency like CFSL
 How accused can inspect the contents of the
memory card /pen drive in question?
 How to seek second expert opinion from an
independent agency like CFSL
 Tape-recorded conversation
 Admissibility of intercepted phone in CD and
CDR
 Video recording of evidence
 Examination on ‘Skype’ technology for recording
evidence in the divorce petition of the petitioner
 Data copied from hard disk to CD
 Clone copy of CCTV footages
 How to recover mobile phone?
 Admissibility of e-mail as evidence
 Leakage of electronic evidence (in the form of
WhatsApp chats)
 Mode of proof, objection regarding admissibility
of electronic record as secondary evidence, and
prospective ruling.
 Retrospective operation of law
 Digital charge sheet

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 Contemporaneous certificate
 Summary Of Topic S.65(B)
9 OVERRULED JUDGMENT

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1. INTRODUCTION:
“Technology is defined an essential element of
change in all spheres of life. The element involved
also is an important factor. If technology is properly
used, it can bring about tremendous changes for the
betterment of life. Any change we contemplate is for
speedy justice mechanism keeping in focus the
quality, transparency and public accountability”.
(Former President of India-Bharat Ratna, Dr.A.P.J.Abdulkalam Sirangai Shoba @ Shoba Munnuri
rep. by her General Power of Attorney, M. Narayana Rao VS Sirangi Muralidhar Rao, rep. by his
Power of Attorney Sirangi Vijayalakshmi, 2017 0 AIR(AP) 88; )
The Law of Evidence and the Criminal Procedure Code that had
been enacted long ago have also been amended from time to time to
try and cater to the tremendous technological improvements, apart
therefrom the Information Technology Act, 2000 (IT Act) has been
enacted and amended from time to time to cater to these
technological improvements. In the past, when any document was
marked in evidence, it was more often than not, restricted to a
document in a physical format viz., one either written or printed on
a paper. Today a document could be both physical and electronic, in
any form or formats in different combination like binary, encrypted,
etc.
Juxtaposing the above to the definitions of an electronic form
and electronic record under the IT Act, it can be seen that the
definition of these two phrases seek to encompass and cover all
kinds of methodology of storing data, documents as an image,
photographs, documents or otherwise. Essentially all kind of images,
documents, etc. can be classified as data inasmuch as the data

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being information stored in a particular kind of media. Though even
earlier documents were referred to and used for the purpose of
evidence, essentially even at that point of time what it referred to
was the data in the said document viz., the printed or written word
in the document, therefore whether documentary evidence or
electronic evidence essentially what one is dealing with is data. It is
this data that is required to be accessed by an Investigating officer
for the purposes of carrying out an investigation; this data is
required for the purposes of being referred to while a charge sheet is
being laid, it is the data that would be considered by a Court of Law
during the course of evidence and/or rendering of the Judgment.
In the past, letters, postcards, Island letters, telex, fax were
used for the purpose of communication. This communication
essentially resulted in a hard copy being sent or printed at the
recipient’s end. This document, in its physical form, was considered,
relied upon as original document during the investigation process
and later-on produced and marked during the course of evidence
being led in a proceeding and considered by a Court. Smartphones
and/or computer equipment are becoming ubiquitous, hard
copies/print outs/ books, filing cabinets; essentially anything on
paper is becoming obsolete. As afore stated, today this physical
document has taken on an electronic appearance, and these
electronic documents/data could be stored on the mobile phone,
computer or the like. More often than not, these smart phones,
computers, servers, etc., are accessed only by using a
password/passcode, including that by biometrics technology, facial
recognition, iris recognition etc. Thus without having the said
password, passcode, biometric, no one can access a mobile phone,

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computer or server. Sometimes even safes, filing cabinets, etc., are
also locked using the above methodology.
The foundation for digital evidence is based on the established
principles of authentication and admissibility that originated with
the use of paper evidence. Today technology has become all-
pervasive, a telephone which was used in the past for
communication now called a landline has given way to sophisticated
instruments like smartphone which have computing powers
probably thousand times more than that of computers of 90’s
leading to the mobile phone or a smartphone becoming the central
device for running the affairs of the person. The mobile phone, now
called a smartphone, is truly smart and today is used for all
purposes, one of which is as a phone for conversing with people. It
may also not be wrong to say that the usage of a smartphone as a
phone is the least used of its features. The smartphone is being used
today for various activities, including sending messages, conversing
on social media like WhatsApp, Facebook, Twitter, Instagram,
Telegram, Signal etc., sending and receiving e-mails from various
accounts, be their personal or official. Usage of the smartphone for
the purpose of accessing the internet, browsing world wide web, etc.
carrying out online transactions, online purchases either by internet
browser or through specified and specific applications, storage of
photographs, documents, retrieval of the documents stored in the
cloud or on a remote server etc., etc., the list could go on and on.
Essentially today, a smartphone, in many cases, has replaced the
laptop, which had replaced the office, and the smartphone by itself
is an office for several persons.
Now days the societal communication happens through the
transfer of thoughts form physical world to electronic world. The

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virtual world revolves around the use of information and
communication technological devices such as computers, mobile
phones, printers, digital cameras etc. Unlike, real world, the virtual
world, causes many opportunities for the commission of offences,
such as phishing, identity theft, child pornography and hacking etc.
Electronic information is often relevant in proving or disproving a
fact or fact at issue, the information that constitutes evidence before
the court.
According to Black‟s Law Dictionary, evidence is
“something that tends to prove or disprove the existence of an
alleged fact.” Electronic evidence, for the purpose of this paper, may
simply be defined as a piece of evidence generated by some
mechanical or electronic processes. It inculcates but not restricted
to emails, text documents, spreadsheets, images, graphics, database
files, deleted files, data back-ups, located on floppy disks, zip disks,
hard drives, tape drives, CD-ROMs, PDAs, cellular phones ,
microfilms, pen recorders and faxes etc
As far as Indian Law of Evidence is concerned, the main issue
of the 13- 14 year old Evidence Act 1872 is that it did not have
specific provisions recognizing admissibility and appreciation of
digital evidence. Substantially, it was not at par with modern
technological development. Hence, to recognize transactions that are
carried out through electronic data interchange and other means of
electronic communication, law was required to be amended.

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(i) The Five Separate Foundations Are.
1. Relevance.
2. Authenticity
3. hearsay.
4. Best evidence
5. Probative value
(ii) Steps For Handling Digital Evidence
 Identification
 Collection
 Preservation
 Chain of custody :
 Transportation & Storage
 Reporting
 Information= Stored + Sent + Received
(iii) Six Stages Of The Cyber Forensic Process
1. Identification: To know the digital evidence
2. Acquire : logical backup, copy the directories & files of a logical
volume, not to capture deleted files, physical backup, i.e., disk
imaging/ cloning/mirror image, Exhibit Computer. he Government
hard disk is to be used to store the Image of the exhibit HDD. By
using Write Protection device, the original hard disk can be free from
contamination, The original should be exhibited.
3. Authenticate: If the hash value is justified, the duplicate is
authentic. Hash value is an Alphanumeric number, it’s a digital
fingerprint. For the acquisition and verification of hash value , the
software Md5 is replaced with SHA2 to calculate hash value
4. Analyze: Extract, Process, Interpret

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5. Document: Report should clearly list: software‟s used and
versions, contain hash results, all storage
media numbers, model make, supported by photographs.
6. Testimony: Expert Opinion
(iv) Common Investigation Mistakes
1. Failure to collect and preserve the electronic evidence
 The electronic files which are part of „captured computer,
devices or media are isolated in a sanitized environment.
 The replica/mirror image of the hard disks of computers, which
have been seized by the investigating authorities to be
deposited with the court.
 The Hon’ble Court may take an appropriate decision with
regard to such replica/mirror image would also be supplied to
the accused under s.207 of Cr.P.C.,
2. Failure to label the electronic devices/media etc.
3. Failure to calculate the hash function [or value? of the collected
electronic data.
4. Failure to record details of computer forensic examination(s) in
the charge sheet may lead to discharge or even acquittal of the
accused
(v) E-Evidence is found in:
1. E-Mails
2. Digital Photographs
3. Atm
4. Atm Transaction Logs
5. Word Processing Documents
6. Instant Message Histories
7. Files Saved From Accounting Programs
8. Spreadsheets

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9. Internet Browser Histories
10. Databases
11. Contents of Computer Memory
12. Computer Backups
13. Computer
14. Computer Printouts
15. Global Positioning System Tracks
16. Logs From A Hotel’s Electronic Door
17. Locks
18. Digital Video or Audio Files.
(vi) Analysis of Digital Evidence-
 Tools
 Copying the hard drive
 Viewing the data
 Recovering data
 Passwords and encryption
 Chain of custody
 Standard of proof
 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4
SCC 329 – “Standard of proof ” in the form of electronic
evidence should be “more accurate and stringent” compared to
other documentary evidence

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(vii) Difference Between Primary Documentary And Secondary
Documentary Electronic Evidence.
P
Pr
ri
im
ma
ar
ry
y
Documentary
Electronic Evidence
S
Se
ec
co
on
nd
da
ar
ry
y Documentary Electronic
Evidence
Nature 1. Normal
form, single
Nature : 1 the computer was used
regularly to store or process
information
2 for the purposes of any activities
regularly carried on over the period
Only in Soft Form It may be in Hard copy or Soft copy
Authentication -
Hash value
Certificate U/s 65B(4)

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2. INFORMATION TECHNOLOGY ACT 2000
The following definitions under IT Act would be relevant for
consideration of the present discussion:
This section deals with the principles governing admissibility of
electronic evidence within the legal framework of the Indian law of
evidence. In the year 2000, Parliament enacted the Information
Technology Act 2000 (IT Act) to allow for the admissibility of digital
evidence, which amended the Indian Evidence Act 1872 (IEA), the
Indian Penal Code, 1860 (IPC) and the Banker's Book Evidence Act
1891. In order to make the electronic evidence admissible, the
definition of 'evidence' has been amended to include electronic
records. The term 'electronic records‟ provides for data, record or
data generated, image or sound stored, received or sent in an
electronic form or microfilm or computer-generated microfiche. The
term “Electronic form “means any information generated, sent,
received or stored in media, magnetic, optical, computer memory,
micro film, computer generated micro fiche or similar device;
whereas the term “Information” includes data, text, images, sound,
voice, codes, computer programmes, software and databases or
micro film, or computer generated micro fiche.
2(ha) “Communication device” means cell phones, personal digital
assistance or combination of both or any other device used to
communicate, send or transmit any text, video, audio or image;]
(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,

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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;
(k) “Computer resource” means computer, computer system,
computer network, data, computer data base or software;
(l) “computer system” means a device or collection of devices,
including input and output support devices and excluding
calculators which are not programmable and capable of being used
in conjunction with external files, which contain computer
programmes, electronic instructions, input data and output data,
that performs logic, arithmetic, data storage and retrieval,
communication control and other functions;
(o) “data” means a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have been
prepared in a formalised manner, and is intended to be processed, is
being processed or has been processed in a computer system or
computer network, and may be in any form (including computer
printouts magnetic or optical storage media, punched cards,
punched tapes) or stored internally in the memory of the computer;

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(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;
(v) “Information” includes [data, message, text,] images, sound,
voice, codes, computer programmes, software and data bases or
micro film or computer generated micro fiche;
8.7. The following definitions in the interpretation clause of Section
3 of the Indian Evidence Act would be relevant:
3. Interpretation clause. —In this Act the following words and
expressions are used in the following senses, unless a contrary
intention appears from the context:
“Fact”. —“Fact” means and includes:-
(1) Anything, state of things, or relation of things, capable of being
perceived by the senses;
(2) Any mental condition of which any person is conscious.
“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”:- “Evidence” means and includes—

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(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.
Three types of evidence i.e. the “Oral” and “Documentary” and
“Electronic Form”.
1) Sections 59 and 60 of the Act deal with the “Oral
Evidence”,
2) Sections 61 to 90-A deal with the “Documentary Evidence”
3) Sections 65A and 65B of the Act deals with the “Statement
Evidence Contained in Electronic Form.
 Original Evidence is Electronic Record which is always in the
binary form. Electronic Record may be referred as the Original
Copy.
 Computer Output may be referred as the Second or Clone Copy
 What is Electronic Evidence?
As per the Explanation to Section 79A of the IT Act,
Electronic form of evidence‘ means any information of probative
value that is either stored or transmitted in electronic form and
includes computer evidence, digital audio, digital video, cell
phones, digital fax machines. Courts can thus permit the use of
digital evidence such as e-mails, digital photographs, word
processing documents, instant message histories, spread sheets,
internet browser histories, data bases, contents of computer
memory, computer backup, secured electronic records and
secured electronic signatures, Global Positioning System tracks,

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Logs from a hotel’s electronic door, Digital video or audio etc.,
during the course of trials of a civil or criminal case.
3. INDIAN EVIDENCE ACT 1972
Presumptions Regarding Electronic Evidence:
A fact which is relevant and admissible need not be construed
as a proven fact. The judge must appreciate the fact in order to
conclude that it is a proven fact. The exception to this general rule is
the existence of certain facts specified in the Evidence Act that can
be presumed by the court as mentioned below:
Admissions:
Now, as per section 17 of IE Act, the term „admission‟ includes a
statement in oral, documentary or electronic form which suggests an
inference to any fact at issue or of relevance
Section 22A of the Act reads as under...
When oral admission as to contents of Electronic Records is
relevant: - “Oral admissions as to the contents of Electronic Records
are not relevant, unless the genuineness of the Electronic Record
produced is in question.”
S.39 what evidence to be given when statement forms part of a
conversation, document, electronic record, book or series of
letters or papers?
When any statement of which evidence is given forms part of a
longer statement, or of a conversation or part of an isolated
document, or is contained in a document which forms part of a
book, or is contained in part of electronic record or of a connected
series of letters or papers, evidence shall be given of so much and no
more of the statement, conversation, document, electronic record,

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book or series of letters or papers as the Court considers necessary
in that particular case to the full understanding of the nature and
effect of the statement, and of the circumstances under which it was
made.
 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.
 Section 45A of the Act provides for opinion of Examiner of
Electronic Evidence referred to in Section 79A of the Information and
Technology Act, 2000 (hereinafter referred as 'the I T Act').
 Section 59 of the Act speaks about the proof of facts by oral
evidence and reads as under. “All facts, except the contents of
documents or Electronic Records, may be proved by oral evidence.
 Section 92 of IT Act 2000 made the amendments to the Indian
Evidence Act, 1872 and inserted certain presumptions of electronic
evidence.
• Gazettes in electronic form: Under the provisions of Section 8l A of
the Evidence Act, the court presumes the genuineness of electronic
records purporting to be from the Official Gazette or any legally
governed electronic record, provided that the electronic record is kept
substantially in the form required by law and is produced from
proper custody.

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• S. 85-A There is a presumption that every electronic record
purporting to be an agreement containing the digital signatures of
the parties was so concluded by affixing the digital signature of the
parties.
 Electronic agreements:
Section 84A provides for the presumption that a contract has been
concluded where the parties' digital signatures are affixed to an
electronic record that purports to be an agreement.
 S. 85-B Creation of a presumption of authenticity of secured
digital signatures unless proven otherwise.
Section 85B of the Evidence Act provides that where a security
procedure has been applied to an electronic record at a specific
time, the record is deemed to be a secure electronic record from
such time until the time of verification. Unless the contrary is
proved, the court is to presume that a secure electronic record
has not been altered since obtaining secure status. The provisions
relating to a secure digital signature are set out in Section 15 of
the IT Act. It is presumed that by affixing a secure digital
signature the subscriber intends to sign or approve the electronic
record. In respect of digital signature certificates (Section 8 of the
Evidence Act) , it is presumed that the information listed in the
certificate is correct, with the exception of information specified as
subscriber information that was not verified when the subscriber
accepted the certificate
 S. 85-C Creation of a presumption of authenticity of secured DSC
unless proven otherwise.

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 Electronic messages: S. 88-A Creation as to the contents of
electronic messages, but not the originator of the electronic
messages.
Under section 88A, it is presumed that an electronic message
forwarded by a sender through an electronic mail server to an
addressee corresponds with the message fed into the sender's
computer for transmission. However, there is no presumption
regarding the person who sent the message.
• Five-year old electronic records:
The provisions of Section 90A of the Evidence Act makes it clear
that where an electronic record is produced from the custody which
the court considers to be proper and purports to be or is proved to be
five years old, it may be presumed that the digital signature affixed to
the document was affixed by the signatory or a person authorized on
behalf of the signatory. An electronic record can be said to be in
proper custody if it is in its natural place and under the care of the
person under whom it would naturally be. The same rule also applies
to evidence presented in the form of an electronic copy of the Official
Gazette.

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4. BANKER'S BOOK EVIDENCE ACT, 1891:
Now, the definition of 'banker's book' under Section 2(3) includes the
printout of data stored on a floppy disc or any other electro-magnetic
device. Section 2A provides that the printout of an entry or a copy of a
printout must be accompanied by a certificate stating that it is a
printout of such entry or a copy of such printout by the principal
accountant or branch manager, together with a certificate from a
person in charge of the computer system, containing a brief
description of the computer system and the particulars of its
safeguards.
A. Statement of Account: Statements of Accounts are governed by
Sections 2(8), 2A and 4 of the Banker's Book Evidence Act, 1891
("Banker's Book Act"). Section 2(8)(c) of the Banker's Book Act
also provides that the print-out of an entry in the book of an
account should ensure the accuracy of such print-out and contain
the certificate in accordance with provisions of Section 2A of the
Banker's Book Act. The Reserve Bank of India ("RBI") vides its
order no. RPCD.CO.RF.BC.No. 100/07.38.03/2008-09 dated 24
April 2009 has also directed all State and Central Co-operative
Banks to comply with the provisions of the Banker's Book Act while
furnishing certified copies and computer printouts to
courts.https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=4954
&Mode=0
B. Extract from the Bankers' Books Evidence Act, 1891
2A. Conditions in the printout

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A printout of entry or a copy of printout referred to in sub-section (8)
of section 2 shall be accompanied by the following, namely:-
(a) A certificate to the effect that it is a printout of such entry or a
copy of such printout by the principal accountant or branch manager;
and
(b) A certificate by a person in-charge of computer system containing
a brief description of the computer system and the particulars of –
(A) The safeguards adopted by the system to ensure that data is
entered or any other operation performed only by authorised persons;
(B) The safeguards adopted to prevent and detect unauthorized
change of data;
(C) The safeguards available to retrieve data that is lost due to
systemic failure or any other reasons.
(D) The manner in which data is transferred from the system to
removable media like floppies, discs, tapes or other electromagnetic
data storage devices;
(E) The mode of verification in order to ensure that data has been
accurately transferred to such removable media;
(F) The mode of identification of such data storage devices;
(G) The arrangements for the storage and custody of such storage
devices;
(H) The safeguards to prevent and detect any tampering with the
system; and

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(I) any other factor, which will vouch for the integrity and accuracy of
the system
 Section 2 (8) "Certified Copy" means when the books of a bank,-
(a) are maintained in written form, a copy of any entry in such books
together with a certificate written at the foot of such copy that it is a
true copy of such entry, that such entry is contained in one of the
ordinary books of the bank and was made in the usual and ordinary
course of business and that such book is still in the custody of the
bank, and where the copy was obtained by a mechanical or other
process which in itself ensured the accuracy of the copy, a further
certificate to that effect, but where the book from which such copy
was prepared has been destroyed in the usual course of the bank's
business after the date on which the copy had been so prepared, a
further certificate to that effect, each such certificate being dated and
subscribed by the principal accountant or manager of the bank with
his name and official title; and
(b) Consist of printouts of data stored in a floppy, disc, tape or any
other electro-magnetic data storage device, a printout of such entry
or a copy of such printout together with such statements certified in
accordance with the provisions of section 2A.
(c) a printout of any entry in the books' of a bank stored in a micro
film, magnetic tape or in any other form of mechanical or electronic
data retrieval mechanism obtained by a mechanical or other process
which in itself ensures the accuracy of such printout as a copy of
such entry and such printout contains the certificate in accordance
with the provisions of section 2A.
What is permissible as evidence?

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A certified copy of any entry in a banker's book shall in all legal
proceedings be received as evidence of the original entry itself
(Section 4)
Is banker‟s book in electronic form?
Any record stored in a micro film, magnetic tape or in any other form
of mechanical or electronic data retrieval mechanism, either onsite or
at any offsite location including a backup or disaster recovery site of
both {Section 2(3)}.
How a certified copy of electronic record be obtained? {Section
2(8)}
 –A copy obtained through mechanical process can be certified, if it
is a certified by the principal accountant or the manager of the
bank.
 –A printout containing a certificate in accordance with Section 2A.
Nature of certificate for a copy obtained through mechanical
process:
–A certificate from principal accountant or manager of the branch
that the mechanical or other process adopted to obtain the copy has
ensured the accuracy of the copy.
–Authenticity certificate from principal accountant or branch
manager, and
–Certificate from person- in-charge of computer system regarding
safeguard to protect computer system.

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C. CHANGES IN INDIAN PENAL CODE, 1860:
With the adoption of the IT Act, 2000, a number of offences were
introduced under the provisions of the First Schedule of the IT Act,
and amended the Indian Penal Code (IPC) with respect to offences for
the production of documents that have been amended to include
electronic records. The range of additional offences includes
absconding to avoid the production of a document or electronic record
in a court (section 172, IPC); intentionally preventing the service of
summons, notice or proclamation to produce a document or
electronic record in a court (section 173, IPC); intentionally omitting
to produce or deliver up the document or electronic record to any
public servant (section 175, IPC); fabricating false evidence by making
a false entry in an electronic record or making any electronic record
containing a false statement, intending the false entry or statement to
appear in evidence in judicial proceedings (sections 192 and 193,
IPC); the destruction of an electronic record of a person‟s secrets or
destroys an electronic record, or obliterates or renders illegible the
whole or part of electronic record with an intention of preventing the
record from being produced or used as evidence (section 204, IPC);
making any false electronic record (section 463 and 465, IPC)

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5. MODE OF PROOF OF ELECTRONIC RECORDS
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.
It requires:-
 Integrity of the data: That is the data as sent or recorded was
intact and not tampered with.
 Integrity of the hardware/software: The hardware and software
used to reading, downloading, interpreting, seeing or storing was
functioning according to set standards and there was no deviation
or its corruption. Security of the system: The system used to
access such electronic record was secured, and during the
particular course of period it was not accessed by any
unauthorized person, so as to rule out the possibility of its
tampering or malfunctioning.
 Presumption as to telegraphic messages: The Court may
presume that a message, forwarded from a telegraph office to the
person to whom such message purports to be addressed,
corresponds with a message delivered for transmission at the office
from which the message purports to be sent; but the Court shall
not make any presumption as to the person by whom such
message was delivered for transmission.
 Presumption as to electronic messages: It includes emails, SMS,
MMS etc. of messages sent via social networking sites, like
Whatsapp, Twitter etc. Under Section 88A of the IT Act, there is a
presumption as to such messages, which enables the Court to
presume that an electronic message forwarded by the originator
through an electronic mail server to the addressee to whom the
message purports to be addressed corresponds with the message

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as fed into his computer for transmission; but the Court shall not
make any presumption as to the person by whom such message
was sent.
 Proof of SMS & MMS: If someone challenges the accuracy of an
electronic evidence or e-record on the grounds of misuse of system
or operating failure or interpolation, then the person challenging it
must prove the same beyond reasonable doubt.
 Proof of e-mail: E-mail is a computer output of electronic record
and therefore, it has to be proved in the manner prescribed in
Section 65B of the Indian Evidence Act, which requires a
certificate to be given by a person occupying responsible position
in management of the computer.
 Proof of Obscene SMS sent through Mobile Phone: As per
section 2(t) of the IT Act, 'Mobile' is a computer and SMS in the
mobile is an electronic record. So, it is to be proved as per section
65B of the Indian Evidence Act which requires a certificate issued
by a person, occupying responsible position in relation to
operation of that device or management of the relevant activities.
 Proof of Contents of the CD: The person intending to prove C.D.
is required to prove whether the disputed C.D. was prepared by a
combination of a computer operating therein or different computer
operating in succession over that period or of different
combination of computers. It is not necessary to examine the
computer expert for the proof of C.D. in addition to the compliance
of provisions of section 65B.
 E-mail : Electronic mail or e-mail is one of the most commonly
utilized electronic media for transmission of information. With
most formal interactions between people taking place through e-
mails, the Courts in India have allowed such e-mails to be

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admissible in evidence upon filing of a printout of the e-mails
along with the certificate under Section 65B of the Evidence Act.
 The certificate under Section 65B of the Evidence Act ought to
specify that the computer during the relevant period was in the
lawful control of the person proving the e-mail and that
information was regularly fed into the computer in the ordinary
course of the activities. Further, it is also important to state that
the computer was operating properly and the contents printed on
paper are derived from the information fed into the computer in
the ordinary course of activities.
 Upon satisfying the aforementioned criteria, e-mails can be read
into evidence in view of the presumption under Section 88A of the
Evidence Act regarding the veracity of the contents of an
electronic message, until specifically rebutted. However, this
Section does not provide for any presumption as to the sender of
the e-mail. Therefore, until and unless a party establishes as to
who was the sender, a print out of an email cannot be given much
importance.
 SMS / instant messaging applications such as WhatsApp
 In contrast to e-mails, which are usually utilised for official
communications, the use of short messaging service (SMS) or
instant messaging applications such as WhatsApp are common in
both official as well as unofficial communications. However,
unlike the issue with traditional computers, a mobile phone being
handy can be led in evidence. Therefore, in cases where the device
containing the message and/or instant message exchanged on
WhatsApp or any other such application are led in evidence, there
would be no requirement to file a certificate under Section 65B of
Evidence Act. However, in such cases, it is essential to ensure

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that there is no dispute regarding the custody of the device or any
alterations in the content.
 The Hon'ble High Court of Telangana while drawing a comparison
between a computer and a mobile phone has held that by the very
definition of computer and computer network as defined in IT Act,
a cell phone is a computer which is programmed to do among
others the function of receiving digital audio signals, shall be
construed to be a computer. Therefore, in cases where the mobile
phone containing the SMS or WhatsApp cannot be led into
evidence, a certificate under Section 65B would be required to be
filed by the person, who has received or sent the SMS / WhatsApp
message. While the Courts in India are yet to independently
adjudicate upon the admissibility of WhatsApp messages into
evidence, it is prudent to ensure proper custody of the mobile
phone. Since such messages shall be subject to judicial scrutiny,
it is also important to ensure that there is no tampering of data,
which may otherwise undermine the evidentiary value of these
messages.
 Hard-disk
 A hard disk of a computer is the fundamental source of all
information. Therefore, while recognising its importance as an
electronic evidence, the Hon'ble Delhi High Court has clarified
that as long as nothing at all is written on to a hard disk and it is
subjected to no change, it will be a mere electronic storage device
like any other hardware of the computer. However, once a hard
disk is subject to any change, then even if it restored to the
original position by reversing that change, the information
concerning the two steps, viz., the change and its reversal will be

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stored in the subcutaneous memory of the hard disk and can be
retrieved by using software designed for that purpose.
 Therefore, a hard disk that is once written upon or subjected to
any change is itself an electronic record even if does not contain
any accessible information at present. In this regard, the Courts
have noted that there could also be active information available
on the hard disk which is accessible and convertible into other
forms of data and transferable to other electronic devices. The
active information would also constitute an electronic record.
 Call Records
 Most criminal investigations often commence from an analysis of
the call records of the accused. Such call records are often useful
as a starting point for also establishing conspiracy with other
individuals. While noting that call records are stored in huge
servers which cannot be easily moved and produced in the court,
the Hon'ble Supreme Court has held that 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. Further, irrespective of the compliance with
the requirements of Section 65B of the Evidence Act, there is no
bar to adduce secondary evidence under Sections 63 and 65 of
the Evidence Act.
 Tape Recordings: Often parties record conversations with others,
in order to utilise the same as evidence in trials. While the Courts
have consistently held that such recordings shall constitute a
'document' under Section 3 of the Evidence Act, it is important
that the voice of the person alleged to be speaking is duly

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identified by the maker of the record or by others who know it. In
addition, the accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory evidence,
direct or circumstantial, has to be there so as to rule out
possibilities of tampering with the record.
However, while dealing with a case of transcription of
recorded conversations, the Courts have clarified that without the
actual audio recording being made susceptible to analysis, no
reliance can be placed on transcriptions of audio recordings.
 Photographs: In most of the cases, the digital camera itself is not
produced before the court and a party either takes recourse to a
printout or some other storage media such as CDs, USB Drives,
etc. So a person who was responsible for handling of the digital
camera who also took the photograph and transferred it to the
storage media needs to certify that how the printout or storage
was done. This is has been further clarified by the Hon'ble Delhi
High Court by stating that when the party deposes that he took
the photographs himself, got them developed and filed them in the
Court; the non-filing of negatives cannot be a ground to reject
them, especially when the photographs so relied upon are digital
photographs.
 Compact Disc (CD): The Courts while dealing with the
admissibility of a compact disc containing audio recordings have
held that amended definition of "evidence" in Section 3 of the
Evidence Act read with the definition of "electronic record" in
Section 2(1)(t) of the IT Act, include a compact disc. Therefore,
upon filing a certificate under Section 65B, a CD is admissible in
evidence. However, in the absence of filing such evidence, the CD
cannot be read into evidence.

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 The Hon'ble Delhi High Court has held that in a case where a CD
is a copy obtained by the mechanical/electronic process of having
the original tape recorded conversation uploaded on a computer
from the original electronic record and copied on the CD, it shall
constitute secondary evidence under section 63 of the Evidence
Act and therefore, can be used only upon production of the
original record of such taped conversation under section 65B of
the Evidence Act. Similarly, the Hon'ble Punjab & Haryana High
Court has held that in a case where there is no link between the
CD and memory chip that was said to have been the source for
replication of data in CD; if the CD cannot stand test of
authenticity by its comparison with its hash value with source,
then transcript of what had been obtained through its audio
footage shall not be of any value.
 Statement of Account: Interestingly, a printout of statement of
account, duly certified by a responsible official of the bank along
with a certificate under Section 65B of the Evidence Act has also
been recognised by Courts as sufficient proof to lead such
statements into evidence. It has been further clarified that merely
because the printout is being filed as secondary evidence along
with the necessary certificate, does not make it any less valid. In
case of Bank statements, the certificate given by the authorised
representative of the bank under Section 65B of the Evidence Act
is adequate and supports the statement of account relied upon by
banks.

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6. COMPARATIVE STUDY UK AND INDIAN LAWS
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.
SUBJECT INDIAN EVIDENCE ACT UK CIVIL EVIDENCE ACT
1968
Section 65B(1), Indian
Evidence Act, 1872
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
Section 5(1), Civil
Evidence Act, 1968 [UK]
In any civil proceedings a
statement contained in a
document produced by a
computer shall, subject to
rules of court, be admissible
as evidence of any fact
stated therein of which
direct oral evidence would
be admissible, if it is shown
that the conditions
mentioned in subsection (2)
below are satisfied in
relation to the statement
and computer in question.

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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.
Section 65 B
(a to d) Pari
Materia
 Section 65B has its
genesis Admissibility of
statements produced
by computers
 any proceedings.
 conditions mentioned
in subsection 65 B (a
to d)
 Section 5 of the Civil
Evidence Act 1968
Admissibility of
statements produced by
computers,
 any civil proceedings
 be admissible as
evidence of any fact
stated therein of which
direct oral evidence
would be admissible,.
 conditions mentioned in
subsection (2)
Section 65 2
to 5( Pari
Materia
 sub-sections (2) to (5)
of Section 65B of the
Evidence Act
reproduction with
minor changes
 Section 5 of the Civil
Evidence Act, 1968, with
minor changes
The
definition of
Section 2(i) of
the Information
 The definition of computer
Section 5(6) of the Civil

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computer
Total
difference
Technology Act, 2000 , is
a means and includes
definition of a much more
complex and intricate
nature.
Evidence Act, 1968.
essence,
maintains
the
dichotomy
between
proof by
primary and
secondary
evidence
Nil  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.
person
granting the
certificate
Nil  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.
strict rule as
to hearsay
evidence was
 These sections 6(1), 6(5), 5
(4) have since been
repealed by the Civil

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relaxed, and
hearsay
evidence was
made
admissible in
the
circumstances
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,
 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.
Definition of
document
Section 3 Document.--
"Document" means any
matter expressed or
described upon any
substance by means of
 Section 13 of this Act
defines document as
follows:
 document means anything
in which information of

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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
any description is
recorded, and copy , in
relation to a document,
means anything onto
which information
recorded in the document
has been copied, by
whatever means and
whether directly or
indirectly;

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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.

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7. SECONDARY EVIDENCE REQUIRE SECTION 65B
CERTIFICATE
It would also be worth pointing out here that the very fact that
these two sections i.e. Section 65A and 65B, have been inserted after
Section 65 which deals with secondary evidence makes it clear that
the legislature in its wisdom has added an extended definition of
secondary evidence and laid down the mandatory procedure,
irrespective of the device on which the data is stored.
The Supreme Court proceeded to further clarify Section 65B to
hold that “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.”
The Court held that this necessarily shows that Section 65B
differentiates between the original information contained in the
“computer” itself which forms primary evidence and copies made
therefrom the former being primary evidence, and the latter being
secondary evidence.
The various categories of electronic evidence such as CD, DVD,
hard disk/ memory card data, website data, social network
communication, e-mail, instant chat messages, SMS/MMS and
computer generated documents poses unique problem and
challenges for proper authentication and subject to a different set of
views. The Indian Evidence Act has been amended by virtue of

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Section 92 of Information Technology Act, 2000 (Before amendment).
Section 3 of the Act was amended and the phrase “All documents
produced for the inspection of the Court” were substituted by “All
documents including electronic records produced for the inspection of
the Court”. Regarding the documentary evidence, in Section 59, for
the words “Content of documents” the words “Content of documents
or electronic records” have been substituted and Section 65A & 65B
were inserted to incorporate the admissibility of electronic evidence.
Under the provisions of Section 61 to 65 of the Indian Evidence
Act, the word “Document or content of documents” have not been
replaced by the word “Electronic documents or content of electronic
documents”. Thus, the intention of the legislature is explicitly clear
i.e. not to extend the applicability of section 61 to 65 to the
electronic record. It is the cardinal principle of interpretation that if
the legislature has omitted to use anyword, the presumption is that
the omission is intentional. It is well settled that the Legislature does
not use any word unnecessarily. In this regard, the Apex Court in
Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa 1987
AIR 2310 held that it is necessary to make certain general
observations regarding the interpretation of statutes. A statute is best
understood if we know the reason for it. The reason for a statute is
the safest guide to its interpretation. The words of a statute take their
colour from the reason for it. How do we discover the reason for a
statute? There are external and internal aids. The external aids are
Statement of Objects and Reasons when the Bill is presented to
Parliament, the reports of Commit- tees which preceded the Bill and
the reports of Parliamentary Committees. Occasional excursions into
the debates of Parliament are permitted. Internal aids are the

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preamble, the scheme and the provisions of the Act. Having
discovered the reason for the statute and so having set the sail to the
wind, the interpreter may proceed ahead. No provision in the statute
and no word of the statute may be construed in isolation. Every
provision and every word must be looked at generally before any
provision or word is attempted to be construed. The setting and the
pattern are important. It is again important to remember that
Parliament does not waste its breath unnecessarily. Just as
Parliament is not expected to use unnecessary expressions,
Parliament is also not expected to express itself unnecessarily. Even
as Parliament does not use any word without meaning something,
Parliament does not legislate where no legislation is called for.
Parliament cannot be assumed to legislate for the sake of legislation,
nor can it be assumed to make pointless legislation. Parliament does
not indulge in legislation merely to state what it is unnecessary to
state or to do what is already validly done. Parliament may not be
assumed to legislate unnecessarily. Again, while the words of an
enactment are important, the context is no less important. For
instance, "the fact that general words are used in a statute is not in
itself a conclusive reason why every case falling literally within them
should be governed by that statute, and the context of an Act may
well indicate that wide or general words should be given a restrictive
meaning" (see Halsbury, 4th edn. Vol. 44 para 874)
.In State of West Bengal v. Union of India, [ 1964] 1 SCR
371 at p. 382. Sinha, C.J. Observed:"It is however well settled that
the Statement of objects and reasons accompanying a bill, when
introduced in Parliament cannot be used to determine the true
meaning and effect of substantive provisions of the statute. A statute,

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as passed by Parliament, is the expression of the collective intention
of the legislature as a whole, and any statement made by an
individual, albeita a Minister, of the intention and objects of the Act
cannot be used to cut down the generality of the words used in the
Statute."
The intention of the legislature is to introduce the specific
provisions which has its origin to the technical nature of the
evidence particularly as the evidence in the electronic form cannot
be produced in the court of law owing to the size of computer/server,
residing in the machine language and thus, requiring the interpreter
to read the same. The Section 65B of the Evidence Act makes the
secondary copy in the form of computer output comprising of
printout or the data copied on electronic/magnetic media
admissible.
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.
(i) SECTIONS 65-A AND 65-B OF THE EVIDENCE ACT READ AS
FOLLOWS:
→ Computer Output → Conditions u/s 65B(2) are satisfied → shall
be admissible → without further proof or production of the original.
Electronic Record, these are:
 Data generation;
 Storage;
 Receiving.
 Sending;

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Section 65B – Admissibility of Electronic Records
Sec. 65B(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
 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.
Sec. 65B(2):
 The computer from which the record is generated was regularly
used to store or process information in respect of activity
regularly carried on by a person having lawful control over the
period, and relates to the period over which the computer was
regularly used;
 Information was fed in computer in the ordinary course of the
activities of the person having lawful control over the computer;
 The computer was operating properly, and if not, was not such
as to affect the electronic record or its accuracy;
 Information reproduced is such as is fed into computer in the
ordinary course of activity.
Sec.65B(3):

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The following computers shall constitute as single computer-
 by a combination of computers operating over that period; or
 by different computers operating in succession over that
period; or
 by different combinations of computers operating in succession
over that period; or
 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,
Sec. 65B(4):
Certificate Regarding the person who can issue the certificate and
contents of certificate, it provides the certificate doing any of the
following things:
identifying the electronic record containing the statement and
describing the manner in which it was produced;
giving the particulars of device
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.

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Sec. 65B(4): Certificate
 Regarding the person who can issue the certificate and
contents of certificate, it provides the certificate doing any of
the following things:
 identifying the electronic record containing the statement and
describing the manner in which it was produced;
 giving the particulars of device
 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.
M/S. Jaimin Jewelery Exports Pvt. ... vs The State Of
Maharasthra And Anr on Criminal Revision Application No.432
OF 2015, 14/03/ 2017 Hon’ble Bombay High Court
Section 65 B only relates to the admissibility of electronic
records and not actual correctness or proof/ genuiness of
electronic evidence.
Para 74. It has to be borne in mind that section 65B only relates to
the admissibility of electronic records. It authenticates the
genuineness of the copy/computer printout and thus absolves the
parties from producing the original. This section only makes the
computer output admissible on complying with the requirements of

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the section. It does not prove the actual correctness of the entries
and does not dispense with the proof or genuineness of entries made
in such electronic records. Furthermore, there is no presumption
regarding the genuineness of the entries in electronic records.

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8. DISCUSSION ON LATEST JUDGMENT OF HON’BLE
SC AND HC
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and
Others [ Civil Appeal Nos. 20825-20826 of 2017 ] (2020) 3 SCC
216” 3 Judge Bench of the Supreme Court consisting of Justice
R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian).
Facts of the case:
The Hon'ble High Court of Bombay while hearing election
petitions had ordered the Election Commission and concerned
officers to produce the entire record of the election including the
original video recordings to ascertain the time at which the
nomination forms were presented to the Returning Officer, Election
Commission. Pursuant thereto, the CDs/VCDs were produced
without the written certificate as required under Section 65B(4) of
the Act. The high court held that on "substantial compliance" of the
requirement of giving certificate under Section 65B of the Act, the
CDs/VCDs were admissible in evidence based upon the oral
evidence in cross examination.
The material facts of the case in brief are that CDs were
produced without the written certificate as required under Section
65B(4), which the High Court admitted in evidence while holding
that there was “substantive compliance” of the requirement under
Section 65B(4) by way of oral evidence in cross examination. It is
also pertinent to mention that all efforts to obtain the certificate
were in vain.

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Issue Of Mandatory Requirement Of Certification Under
Section 65B(4) Of The Evidence Act For Admissibility Of
Electronic Evidence.
The Supreme Court while overruling the case of Shafhi
Mohammad v. State of Himachal Pradesh[(2018) 2 SCC 801]
(“Shafhi Mohammad’s case”), reaffirmed the law laid down in
Anvar P.V. v. P.K. Basheer & Others[(2014) 10 SCC 473] (“Anvar
P.V.’s case”) which held that the certification requirement under
Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”) is
a condition precedent to the admissibility of electronic evidence.
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.
Three-Judge Bench of the Supreme Court in Anvar P.V.’s case
held that an electronic record by way of secondary evidence shall not
be admitted in evidence unless the requirements under Section 65B
of the Evidence Act are satisfied. Thus, in case of electronic evidence
stored in CDs, VCDs, chips, etc.; the same shall be accompanied
with the certificate in terms of Section 65B of the Evidence Act,
obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is
inadmissible.
DECISION:
 Para 20 It will first be noticed that the subject matter of Sections
65A and 65B of the Evidence Act is proof of information
contained in electronic records. The marginal note to Section
65A indicates that special provisions as to evidence relating
to electronic records are laid down in this provision. The

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marginal note to Section 65B then refers to admissibility of
electronic records .
 Para 21 Section 65B(1) opens with a non-obstante clause, and
makes it clear that any information that is contained in an
electronic record which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a computer shall
be deemed to be a document, and shall be admissible in any
proceedings without further proof of production of the original, as
evidence of the contents of the original or of any facts stated
therein of which direct evidence would be admissible. The
deeming fiction is for the reason that document as defined by
Section 3 of the Evidence Act does not include electronic
records.
 Para 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 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.
 Para 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

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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 (2010) 4 SCC
172). This being the case, the conditions mentioned in sub-
section (4) must also be interpreted as being cumulative.
The Supreme Court carried out an in-depth analysis of the law
governing electronic records in India and UK wherefrom Section 65B
bears its genesis and held inter alia as follows:
 The certificate required under Section 65B(4) is a condition
precedent to the admissibility of evidence by way of electronic
record and overruled the judgment passed in Shafhi. Further,
the judgment in Tomaso Bruno v. State of U.P.
[(2015)7SCC178] was declared per incuriam and the
judgment in K. Ramajyam v. Inspector of
Police [(2016)Crl.LJ1542] passed by Madras High Court was
also overruled.
 Section 65B(1) couched in a non-obstante clause clarifies that
admissibility and proof of information contained in an
electronic record must follow Section 65B, being a special
provision and Sections 62 to 65 are irrelevant with respect to
such electronic records.
 Electronic records may be the original information contained in
the “computer” itself and copies made therefrom, such
“original” being primary evidence while the copies being
secondary evidence. Therefore, the certificate in Section 65B(4)

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is unnecessary if the original document itself is produced. Such
production of the original may be by way of the owner of a
laptop, tablet or a mobile phone 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.
Such proof however cannot be adduced if the device cannot be
physically brought to Court [in such case the only means of
proving the information will be in accordance with Section
65B(1) read with Section 65B(4)].
Accordingly, the Court clarified that the last sentence in
paragraph 24 of Anvar which reads as “…if an electronic record
as such is used as primary evidence under Section 62 of the
Evidence Act…”, may more appropriately be read without the
words “under Section 62 of the Evidence Act”.
 The difficulty in obtaining a document can be overcome by
various statutory provisions: (i) Section 165 of the Act
empowers a Judge to order production of any document or
thing in order to discover or obtain proof of relevant facts; (ii)
Order XVI of the Civil Procedure Code, 1908 deals with
‘Summoning and Attendance of Witnesses’ and the Court can
issue orders for the production of documents; (iii) Sections 91
and 349 of the Code of Criminal Procedure, 1973.
 In a situation where the certificate has been applied for and the
person or authority does not comply with such request, parties
can apply to the Court to direct the person to produce the
certificate. Even if pursuant to the directions of the Court the
certificate cannot be obtained, the alleged disobedience of the
law is excused.

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 Section 65B is silent as regards when the certificate is to be
produced. Though generally the certificate must accompany the
electronic record when the same is produced in evidence,
though there is some level of discretion that may be exercised
depending on the facts of each case. Insofar as criminal trials
are concerned, though generally documents are to be filed
before commencement of the trial, the Court may exercise
discretion and allow production later if no prejudice is caused.
 General directions were also issued to cellular companies and
internet service providers to maintain CDRs and other relevant
records as per law and it has been directed that appropriate
rules and directions should be framed in exercise of the
Information Technology Act, 2000.
Para 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 (supra) and the judgment dated
03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law
correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate
under Section 65B(4) is unnecessary if the original document itself
is produced. This can be done by the owner of a laptop computer,
computer tablet or even a mobile phone, by stepping into the
witness box and proving that the concerned device, on which the
original information is first stored, is owned and/or operated by him.
In cases where the computer happens to be a part of a computer
system or computer network and it becomes impossible to physically

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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.

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Hon'blr Jst. R. F. Nariman and Hon'ble Jst. Ravindra Bhat have
observed as under but Hon'ble Jst. V. Ramasubramanian has
assigned separate reasons to conclude 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 re-look at Section
65B of the Act.
(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.
 Certificate Not Required If Original Document Is Produced:-
The Supreme Court referring to Section 65B of the Evidence
Act observed that sub-section (1) of Section 65B of the Evidence Act
begins with a non-obstante clause, and it then goes on to mention
that the information contained in an electronic record produced by a
computer becomes a “document” by deemed fiction. This deeming
fiction only takes effect if the conditions enumerated under Section
65B of the Evidence Act are satisfied in relation to both the
information and the computer/ device in question and if such
conditions are met, the “document” shall then be admissible in any
proceedings without further proof or production of the original.

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Section 65B(1) of the Evidence Act clearly 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. 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 owner, 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
certification under Section 65B(4) of the Evidence Act.
 Certificate Under Section 65b (4) Of The Evidence Act, A
Condition Precedent For Admissibility Of Electronic
Evidence: -
The Supreme Court while discussing Shafhi Mohammad’s case held
that in the light of Anvar P.V.’s case, the law laid down in Shafhi
Mohammad’s judgment is incorrect. It was observed that the
Evidence Act does not contemplate or permit the proof of an
electronic record by oral evidence if requirements under Section 65B
of the Evidence Act are not complied with. The major premise of
Shafhi Mohammad’s case that such certificate cannot be secured by
persons who are not in possession of an electronic device is wholly

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incorrect. The Supreme Court by placing reliance on the provisions
of the Evidence Act, the Code of Civil Procedure, 1908 (“CPC”) and
Criminal Procedure Code, 1973 (“CrPC”) held that an application
can always be made to a Judge for production of such a certificate
from the requisite person under Section 65B(4) of the Evidence Act.
As such, the Supreme Court held that Shafhi Mohammad’s case
does not lay down the correct position of law and is therefore
overruled.
 Application To Be Filed In Court If Person/ Authority
Refuses To Give Certificate: -
The Supreme Court further held that in circumstances where
all bonafide efforts made to get the requisite certificate under Section
65B(4) of the Evidence Act from the concerned authority or person
are exhausted, and the person or authority either refuses to give
such certificate, or does not reply/ fails to comply with such
demand, the party asking for such certificate can apply to the Court
for its production under the aforementioned provisions of the
Evidence Act, CPC or CrPC. It was further held that 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, the party asking for the certificate has
done all that he can possibly do to obtain the requisite certificate
and the said party must then be relieved from the mandatory
obligations contained in Section 65B(4) of the Evidence Act.
AT WHICH STAGE THE CERTIFICATE IS TO BE FILED ?:

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Division Bench of this Court in State of Karnataka v. M.R.
Hiremath (2019) 7 SCC 515, after referring to Anvar P.V. (supra)
held:
 16. The same view has been reiterated by a two- Judge Bench
of this Court in Union of India v. Ravindra V. Desai [(2018)
16 SCC 273]. The Court emphasised that non-production of a
certificate under Section 65-B on an earlier occasion is a
curable defect. The Court relied upon the earlier decision in
Sonu v. State of Haryana [(2017) 8 SCC 570], in which it was
held:
 32. The crucial test, as affirmed by this Court, is whether the
defect could have been cured at the stage of marking the
document. Applying this test to the present case, if an
objection was taken to the CDRs being marked without a
certificate, the court could have given the prosecution an
opportunity to rectify the deficiency.
 17. Having regard to the above principle of law, the High Court
erred in coming to the conclusion that the failure to produce a
certificate under Section 65-B(4) of the Evidence Act at the
stage when the charge-sheet was filed was fatal to the
prosecution. The need for production of such a certificate
would arise when the electronic record is sought to be
produced in evidence at the trial. It is at that stage that the
necessity of the production of the certificate would arise
On the issue of the stage at which such certificate under Section
65B(4) of the Evidence Act must be furnished to the Court, the
Supreme Court relying on Anvar P.V.’s case, observed that such
certificate must accompany the electronic record when produced as
evidence in court. It was held that it is only applicable in cases

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where such certificate could be procured by the person seeking to
rely upon an electronic record. On the other hand, 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 aforesaid circumstances. 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 with
all the documents that the prosecution seeks to rely upon before
commencement of the trial, under the relevant sections of the CrPC.
It was further held that till the hearing in a trial is not complete, the
requisite certificate can be directed to be produced by the learned
Judge at any stage, so that information contained in electronic
record can then be admitted and relied upon in evidence.
SONU V/S. STATE OF HARYANA, 2017 (8) SCC 570,
(wherein the CDRs of the mobile phone containing voice of accused
demanding ransom was produced before the trial court. An objection
at appellate stage with respect to its admissibility as evidence was
raised. It is held by Hon'ble Supreme Court that such CDRs not
admissible, unless it is accompanied by a certificate as contemplated
u/s. 65B(4) of the Act and, therefore, the objection regarding its

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admissibility can be raised at appellate stage because it is a
fundamental issue. However, the objection that CDRs are unreliable
due to violation of procedure prescribed u/s 65B(4) of the Act cannot
be permitted to be raised at the appellate stage, as objection relates
to mode or method of proof), it has been held that the failure to
produce a certificate under Section 65B(4) of the Act at the stage
when the charge sheet was filed is not 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.
State of Karnataka v/s. M.R. Hiremath, 2019 (7) SCC 515, after
referring to Anvar (supra), Union of India v/s. Ravindra V. Desai,
2018 (16) SCC 273, (wherein it has been held that non-production
of a certificate under Section 65B of the Act on an earlier occasion is
a curable defect) certain details such as the date, time, month, etc.
were missing from the Call Detail Record (CDR). Further, the Section
65-B certificate did not bear the designation of the person who had
signed the certificate. Despite this, The Armed Forces Tribunal
relied on the CDR. IN appeal the Supreme Court held that non-
production of the certificate on an earlier occasion was a curable
defect, which stood cured when a certificate was later filed by the
witness upon being summoned.
CRIMINAL TRIAL
Para 52 It is pertinent to recollect that the stage of admitting
documentary evidence in a criminal trial is the filing of the charge-
sheet. When a criminal court summons the accused to stand trial,
copies of all documents which are entered in the charge-sheet/final
report have to be given to the accused. Section 207 of the CrPC,
which reads as follows, is mandatory. Therefore, the electronic

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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.
Para 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 CrPC or Section 165 of the Evidence Act. Depending on
the facts of each case, and the Court exercising discretion after
seeing that the accused is not prejudiced by want of a fair trial, the
Court may in appropriate cases allow the prosecution to produce
such certificate at a later point in time. If it is the accused who
desires to produce the requisite certificate as part of his defence, this
again will depend upon the justice of the case - discretion to be
exercised by the Court in accordance with law.
Para 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

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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.
High Court of Rajasthan in Paras Jain v. State of Rajasthan
2015 SCC OnLine Raj 8331, decided a preliminary objection
that was raised on the applicability of Section 65B to the facts
of the case.
The preliminary objection raised was framed as follows:
Para 3. (i) Whether transcriptions of conversations and
for that matter CDs of the same filed alongwith the
charge-sheet are not admissible in evidence even at this
stage of the proceedings as certificate as required
u/Sec. 65-B of the Evidence Act was not obtained at the
time of procurement of said CDs from the concerned
service provider and it was not produced alongwith
charge-sheet in the prescribed form and such certificate
cannot be filed subsequently.
Para 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 chargesheet 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.
Para 19. Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides
that whenever any Court considers that the production of any
document is necessary or desirable for the purposes of any trial

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under the Code by or before such Court, such Court may issue a
summons to the person in whose possession or power such
document is believed to be, requiring him to attend and produce it
or to produce it, at the time and place stated in the summons. Thus,
a wide discretion has been conferred on the Court enabling it during
the course of trial to issue summons to a person in whose
possession or power a document is believed to be requiring him to
produce before it, if the Court considers that the production of such
document is necessary or desirable for the purposes of such trial.
Such power can be exercised by the Court at any stage of the
proceedings before judgment is delivered and the Court must
exercise the power if the production of such document is necessary
or desirable for the proper decision in the case. It cannot be
disputed that such summons can also be issued to the
complainant/informer/victim of the case on whose instance the FIR
was registered. In my considered view when under this provision
Court has been empowered to issue summons for the producment of
document, there can be no bar for the Court to permit a document
to be taken on record if it is already before it and the Court finds
that it is necessary for the proper disposal of the case irrespective of
the fact that it was not filed along with the charge-sheet. I am of the
further view that it is the duty of the Court to take all steps
necessary for the production of such a document before it.
20. As per Sec. 311 Cr.P.C., any Court may, at any stage of any trial
under the Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or recall
or re-examine any person already examined; and the Court shall
summon and examine or recall and re-examine any such person if
his evidence appears to it to be essential to the just decision of the

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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.
Para 21. As per Section 173(8) Cr.P.C. carrying out a further
investigation and collection of additional evidence even after filing of
charge-sheet is a statutory right of the police and for that prior
permission of the Magistrate is not required. If during the course of
such further investigation 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.
Para 22. As per Section 231 Cr.P.C., the prosecution is entitled to
produce any person as a witness even though such person is not
named in the charge-sheet.
Para 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

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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.
 When can the objections related to the Electronic Evidence
be raised?
 According to the Hon’ble Supreme Court in Sonu alias Amar v.
State of Haryana, the challenge on the ground of electronic
evidence can be related to its inadmissibility or its mode of proof.
In the former case, the objection can be raised at any stage.
However, in the latter case, the objection cannot be raised at
Appellate stage, if the same was not raised at the time of trial.
Since, the non-production of certificate under Section 65B falls
under the category of “mode of proof”, therefore, the same cannot
be raised at the Appellate stage, if the same had not been raised
at the trial stage.
 Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke
[MANU/SC/0040/2015] :
 Relying upon the judgment of Anvar P.V. supra, while considering
the admissibility of transcription of recorded conversation in a
case where the recording has been translated, the Supreme Court
held that as the voice recorder had itself not subjected to analysis,
there is no point in placing reliance on the translated version.
Without source, there is no authenticity for the translation.
Source and authenticity are the two key factors for electronic
evidence.
 The evidence relied upon was a voice recording obtained during a
sting operation. The Director, State Forensic Science Laboratory
reported that the conversation was inaudible and therefore, it was

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not considered for spectographic analysis. The counsel for the
prosecution argued that the conversation had been translated and
it had been verified by the panch witnesses. However, the voice
recorder was not subjected to examination and therefore, the
Supreme Court refused to place any reliance on the translations
of the conversation. The Court held that “source and authenticity
are the two key factors for an electronic evidence”.
 Who gives this certificate?
Para 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).
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.

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Question : What are the powers of the Court if Certificate is not
produced?
 If the electronic record is filed in evidence in the Court and
Certificate mandated by Section 65 B is not filed because it was
demanded but it was refused or not issued by the concerned
authority, then the Court is not powerless.
 First, it is mandatory for “person occupying a responsible
official position” to issue the Certificate.
 Secondly, there are ample provisions of law which confer power
on the Court to require the party concerned to produce the
same.
 Indian Evidence Act, 1872
Section 165 which reflects inquisitorial nature confers
extensive powers on the Court to ask any question to any party
and to produce any document at any stage of the proceedings if
it appears to the Court necessary.
It is 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.

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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.
 Code Of Civil Procedure, 1908
Order XVI Rule 6 requires
“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.
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

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agent, as the case may be, who has effected service, or cause him to
be so examined by any Court, touching the service or non-service of
the summons.
(2) Where the Court sees reason to believe that such evidence or
production is material, and that such person has, without lawful
excuse, failed to attend or to produce the document in compliance
with such summons or has intentionally avoided service, it may
issue a proclamation requiring him to attend to give evidence or to
produce the document at a time and place to be named therein; and
a copy of such proclamation shall be affixed on the outer door or
other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any
time afterwards, the Court may, in its discretion, issue a warrant,
either with or without bail, for the arrest of such person, and may
make an order for the attachment 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.”
 Code Of Criminal Procedure, 1973
 Section 91 of the Code of Criminal procedure, 1973 empowers the
Court conducting criminal trial to pass an order directing any
person to produce a document or any other thing which may be
necessary for an investigation, inquiry or trial of any case. Section
91(1) is as follows:
 “Whenever any Court or any officer in charge of a police station
considers that the production of any document or other thing is

Judgments on digital Evidence u/s 65 b of IE act

Judgments on digital Evidence u/s 65 b of IE act

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