Now a days if we compare ourselves from earlier times, it has completely changed, as in today’s world use of computers became a necessity in everyone’s lives. People start switching to computers for their home and business needs. Perhaps nothing symbolises the start of the Indian digital revolution better than the introduction of the Information Technology Act, 2000. The Information Technology Act, 2000 inserted section 65A and 65B in the Indian Evidence Act, 1872. These sections deal with electronic evidence and its admissibility. Before discussing electronic evidence it is extremely important to understand the meaning definition of evidence. 

Meaning of Evidence

Evidence in simple meaning means “any proof presented for the purpose of inducing belief in the mind”. Section 3 of the Indian Evidence Act defines the term evidence as-

  • 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.
  • All documents including electronic records produced for the inspection of court such documents are called as documentary evidence.

Moreover, evidence can be divided in to following types-

  • Oral or documentary
  • Primary or secondary

Primary evidence which is produced before court for inspection directly whereas secondary evidence means and includes certified copies, copies made from the original by mechanical processes, copies made from or compared with the originals, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it.

Now coming to the current topic of electronic evidence, naturally a question would arise whether electronic evidence is a primary evidence or a secondary evidence?

When we talk about electronic evidence, it is secondary evidence. Electronic evidence or digital evidence is any evidence that is transmitted digitally.

Section 65 of Indian Evidence Act, 1872 defines a situation when a party may lead secondary evidence. Section 65B (1) dals with the admissibility of electronic evidence and it says that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, subject to certain conditions and such document shall be admissible in any proceedings, without further proof or production of the original, as evidence or any content of the original or of any fact. The conditions mentioned in sub section (1) are listed in sub section (2).

Essentially an electronic evidence must satisfy these three conditions-

  1. It should be produced by a computer which has been used regularly to store or process the information, for the purposes of any activity regularly carried on over that period by a person having lawful control over the use of the computer.
  2. The information so derived was regularly fed into the computer in the ordinary course of activities.
  3. The computer was operating properly.

However, the judiciary is also not crystal clear about section 65B of Indian Evidence Act. But in the case of anvar P.v. Vs P.K. Basheer (18.04.2014- SC) 2014 (9) SC J 1 supreme court held that electronic evidence can be proved only in accordance with the procedure prescribed under section 65B. Further it held that the purpose of these provisions is only to sanctify electronic evidence and a requirement of giving an electronic certificate under section 65B pertaining to any electronic evidence or electronic record is mandatory for treating such an evidence as admissible in law.

Commercial courts Act, 2015

The act made several amendments in the CPC including substitution of previous order XI with a new order XI. The new order deals with electronic records.

Rule 6 sub rule (3) states that where electronic records form part of the documents disclosed, the party shall file a declaration on oath stating the- 

  1. The parties to such electronic records.
  2. The manner in which such electronic records were produced and by whom.
  3. The dates and time of the preparation or storage or issuance or receipt of each such electronic record.
  4. The source of such electronic record and date and time when electronic record was printed.
  5. In case of email ids, details of ownership, custody and access to such email ids.
  6. In case of documents stored in a computer or computer resource (including an external server or cloud), details of ownership, custody and access to such data on the computer or computer resource.
  7. Deponent’s knowledge of contents ad correctness of content
  8. Whether a computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the documents stored.
  9. That the print out or copy furnished was taken from the original computer or computer resource.

This order encompasses every requirement of section 65B of Indian Evidence Act, 1872. 

The question here arises whether the party needs to file section 65B certificate even after submission of the declaration under order XI rule 6 (3). Here the answer is yes in Delhi high court both the certificates and declarations are mandatory, while declaration form is submitted at the time of institution of the suit and a section 65B certificate is filed when the electronic evidence is adduced as evidence during the trial. It is pertinent to mention here that the documents filed at the time of institution of suit do not become evidence till they are tendered as evidence during the trial. 

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