The document discusses amendments made to Sections 59 and 65B of the Indian Evidence Act regarding electronic records and electronic evidence. Section 65B provides that electronic records, if printed or stored on a device, can be considered documents if certain conditions are met. This includes the computer regularly processing information and the electronic record being an accurate reproduction of the information entered. The document also discusses court cases related to electronic evidence and the need for a certificate under Section 65B to authenticate electronic records in order to admit them as evidence in court proceedings. Failure to provide such a certificate can result in electronic evidence like audio/video recordings being inadmissible.

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2. By Neeraj Aarora
FCMA, CISA, CEH, CCNA, CFCE, LLB, MBA (IT)

3.  The explanation to Section 79 provides
that, "Electronic Form 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".
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4.  Section 59 was amended to include ‘Electronic Record’
 No amendment in Section 60 to Section 65.
 Section 60 – Oral Evidence must be direct.
 Section 61 - Proof of Contents of documents.
 Section 62 – Primary Evidence
 Section 63 – Secondary Evidence
 Section 64 – Proof of Documents by primary evidence
 Section 65 – Cases in which secondary evidence
relating to the document may be given
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5.  Primary Evidence
 Secondary Evidence
 State (NCT OF Delhi) Vs. Navjot Sandhu (AIR
2005 SC 3820)
 The SC observed that irrespective of the compliance of
requirement of Section 65B there is no bar to adducing
secondary evidence under Section 63 & 65 of the
Evidence Act.
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6. Sec. 65B(1): Notwithstanding anything contained in this
Act, any information contained in an electronic record
o which is printed on a paper, stored, recorded or
o copied in optical or magnetic media
o produced by a computer
 shall be deemed to be also a document, if the conditions
mentioned in this section are satisfied
o in relation to the information and
o 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.
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7. Sec. 65B(2):
1. 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;
2. Information was fed in computer in the ordinary course of
the activities of the person having lawful control over the
computer;
3. The computer was operating properly, and if not, was not
such as to affect the electronic record or its accuracy;
4. Information reproduced is such as is fed into computer in
the ordinary course of activity.
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8. Sec.65B(3): 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,
 Printout from LAN/WAN
 Change of technology
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9. Sec. 65B(4):Contents of certificate may contain any of the
following
 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,
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10. 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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11. The Supreme Court held:-
 Any electronic evidence be proved by virtue of procedure
prescribed U/S 65B Evidence Act
 Non obstante Clause - Any information contained in an
electronic record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a computer
shall be deemed to be a document only if the conditions
mentioned Under Subsection (2) are satisfied.
 Section 65 B (2) Conditions:
 Computer used to regularly store or process information.
 Information regularly fed into the computer in the ordinary course
 Computer should be operating properly, if not the operation must not
affect either the record or the accuracy of its contents.
 Information should be a reproduction or derivation from the information
fed into the computer in the ordinary course
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12. The Supreme Court held:-
 Certificate U/S 65B Evidence Act shall ensure safeguard as to
the source and the authenticity of the electronic evidence.
 Who will issue Certificate ?
 What to be mentioned to identify the electronic record and device
information?
 Only if the above conditions are satisfied expert opinion of
examiner U/S 45A Evidence Act is admissible on the said
electronic evidence.
 If the electronic evidence is admissible only then the oral
evidence can be resorted otherwise not.
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13.  The Hon’ble High Court of Delhi has held that:
 That the impugned order is silent about there being any certificate
under Section 65B Evidence Act w.r.t. the Audio/ Video CDs
during the course of hearing at the lower court.
 Respondent-CBI failed to show that the certificate has been filed
along with the charge sheet.
 No certificate w.r.t. seven CDs in packet ‘B’ which is solely relied
upon by the prosecution.
 The certificate filed is doubtful as the date of the was 18/12/2009
and the case was registered on 23/11/2009.
 The audio and video CDs in question are clearly inadmissible in
evidence and the trial court has erroneously relied upon them to
conclude a strong suspicion arises regarding petitioners
criminally conspiring with co-accused to commit the offence in
question.
 Thus, there is no material on the basis of which, it can be
reasonably said that there is strong suspicion of the complicity of
the petitioners in commission of the offence in question.
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14.  The Hon’ble Apex Court has held that:
 The conversation has been translated and the same has
been verified by the panch witnesses.
 That the panch witnesses have not heard the conversation,
since they were not present in the room.
 The voice recorder is itself not subjected to analysis, there is
no point in placing reliance on the translated version.
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15.  We are in respectful agreement with the view taken by the
Delhi High Court in the aforesaid judgment. Section 65B
provides that any electronic data which is printed on a paper,
stored, recorded or copied in optical or magnetic image
produced by a computer shall be deemed to be a document. The
document is admissible in any proceedings, without further
proof or production of the original, as evidence of any contents
of the original, if the conditions mentioned in the Section are
satisfied.
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16. Contd…
 The learned Counsel has then submitted that even assuming
the e-mails sent or received by Akib Ali are admissible in
evidence unless they are proved like any other document, they
cannot be relied on by the Court to convict Akib Ali. He argued
that secondary evidence relating to the contents of the
documents is admissible if it is proved in consonance with
sections 63 and 65 of the Indian Evidence Act. The secondary
evidence must be authenticated by foundational evidence that
the alleged copy is in fact true copy of the original. The Court is
required to decide the question of admissibility of a document
in secondary evidence before accepting the evidence.
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17. Contd…
 This submission of the learned Counsel is fallacious. The Indian
Evidence Act contains special provisions with regard to proving
electronic evidence. These provisions have been inserted by Act
21 of 2000 with effect from 17-10-2000 by way of sections 65A
and 65B. Electronic evidence is admissible and is required to be
proved only under these provisions. Section 65B starts with a
non obstinate clause and appears to be a complete code in itself
governing the proof of electronic evidence. The question of
proving the printed mails as secondary evidence therefore does
not arise.
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18. E-mails: neeraj@hazenlegal.com
Websites: www.hazenlegal.com, www.neerajaarora.com
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