whether Certificate under Section 65B(4) of Evidence Act necessary requirement for Admissibility of electronic evidence ?

 Admissibility of electronic evidence and Certificate under Section 65B(4) of Evidence Act.

The Hon’ble Supreme Court: In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

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The High Court then set out Sections 65-A and 65-B of the Evidence Act, and referred to this Court’s judgment in Anvar P.V. (supra).

The Court held in paragraph 65 of the impugned judgment that the CDs that were produced by the Election Commission could not be treated as an original record and would, therefore, have to be proved by means of secondary evidence. Finding that no written certificate as is required by Section 65-B(4) of the Evidence Act was furnished by any of the election officials, and more particularly, the RO, the High Court then held:

“69. In substantive evidence, in the cross examination of Smt. Mutha, it is brought on the record that there was no complaint with regard to working of video cameras used by the office. She has admitted that the video cameras were regularly used in the office for recording the aforesaid incidents and daily VCDs were collected of the recording by her office. This record was created as the record of the activities of the Election Commission. It is brought on the record that on the first floor of the building, arrangement was made by keeping electronic gazettes like VCR players etc. and arrangement was made for viewing the recording. It is already observed that under her instructions, the VCDs were marked of this recording.

Thus, on the basis of her substantive evidence, it can be said that the conditions mentioned in section 65-B of the Evidence Act are fulfilled and she is certifying the electronic record as required by section 65-B (4) of the Evidence Act. It can be said that Election Commission, the machinery avoided to give certificate in writing as required by section 65-B (4) of the Evidence Act. But, substantive evidence is brought on record of competent officer in that regard. When the certificate expected is required to be issued on the basis of best of knowledge and belief, there is evidence on oath about it of Smt. Mutha. Thus, there is something more than the contents of certificate mentioned in section 65-B (4) of the Evidence Act in the present matters. Such evidence is not barred by the provisions of section 65-B of the Evidence Act as that evidence is only on certification made by the responsible official position like RO. She was incharge of the management of the relevant activities and so her evidence can be used and needs to be used as the compliance of the provision of section 65-B of the Evidence Act. This Court holds that there is compliance of the provision of section 65-B of the Evidence Act in the present matter in respect of aforesaid electronic record and so, the information contained in the record can be used in the evidence.” Based, therefore, on “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence, and based upon this evidence it was found that, as a matter of fact, the nomination forms by the RC had been improperly accepted. The election of the RC was therefore was declared void in the impugned judgment.

9. Shri Ravindra Adsure, learned advocate appearing on behalf of the Appellant, submitted that the judgment in Anvar P.V. (supra) covered the case before us. He argued that without the necessary certificate in
   writing and signed under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence. He referred to Tomaso Bruno and Anr. v.

State of Uttar Pradesh (2015) 7 SCC 178, and argued that the said judgment did not notice either Section 65B or Anvar P.V. (supra), and was therefore per incuriam. He also argued that Shafhi Mohammad (supra), being a two-Judge Bench of this Court, could not have arrived at a finding contrary to Anvar P.V. (supra), which was the judgment of three Hon’ble Judges of this Court. In particular, he argued that it could not have been held in Shafhi Mohammad (supra) that whenever the interest of justice required, the requirement of a certificate could be done away with under Section 65B(4). Equally, this Court’s judgment dated 03.04.2018, reported as (2018) 5 SCC 311, which merely followed the law laid down in Shafhi Mohammad (supra), being contrary to the larger bench judgment in Anvar P.V. (supra), should also be held as not having laid down good law. He further argued that the Madras High Court judgment in K. Ramajyam v.

Inspector of Police (2016) Crl. LJ 1542, being contrary to Anvar P.V.

(supra), also does not lay down the law correctly, in that it holds that evidence aliunde, that is outside Section 65B, can be taken in order to
make electronic records admissible. In the facts of the present case, he contended that since it was clear that the requisite certificate had not been issued, no theory of “substantial compliance” with the provisions of Section 65B(4), as was held by the impugned judgment, could possibly be sustained in law.

10. Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the Respondents, has taken us in copious detail through the facts of this case, and has argued that the High Court has directed the Election Commission to produce before the Court the original CDs/VCDs of the video-recording done at the office of the RO, along with the necessary certificate. An application dated 16.08.2016 was also made to the District Election Commission and RO as well as the Assistant RO for the requisite certificate under Section 65B. A reply was given on 14.09.2016, that this certificate could not be furnished since the matter was sub-judice. Despite this, later on, on 26.07.2017 her client wrote to the authorities again requesting for issuance of certificate under Section 65B, but by replies dated 31.07.2017 and 02.08.2017, no such certificate was forthcoming.

Finally, after having run from pillar to post, her client applied on 26.08.2017 to the Chief Election Commissioner, New Delhi, stating that the authorities
were refusing to give her client the necessary certificate under Section 65B and that the Chief Election Commissioner should therefore ensure that it be given to them. To this communication, no reply was forthcoming from the Chief Election Commissioner, New Delhi. Given this, the High Court at several places had observed in the course of the impugned judgment that the authorities deliberately refused, despite being directed, to supply the requisite certificate under Section 65B, as a result of which the impugned judgment correctly relied upon the oral testimony of the RO herself.

According to Ms. Arora, such oral testimony taken down in the form of writing, which witness statement is signed by the RO, would itself amount to the requisite certificate being issued under Section 65B(4) in the facts of this case, as was correctly held by the High Court. Quite apart from this, Ms. Arora also stated that – independent of the finding given by the High Court by relying upon CDs/VCDs – the High Court also relied upon other documentary and oral evidence to arrive at the finding that the RC had not handed over nomination forms directly to the RO at 2.20 p.m (i.e. before 3pm). In fact, it was found on the basis of this evidence that the nomination forms were handed over and accepted by the RO only after 3.00 p.m. and
were therefore improperly accepted, as a result of which, the election of the Appellant was correctly set aside.

11. On law, Ms. Arora argued that it must not be forgotten that Section 65B is a procedural provision, and it cannot be the law that even where a certificate is impossible to get, the absence of such certificate should result in the denial of crucial evidence which would point at the truth or falsehood of a given set of facts. She, therefore, supported the decision in Shafhi Mohammad (supra), stating that Anvar P.V. (supra) could be considered to be good law only in situations where it was possible for the party to produce the requisite certificate. In cases where this becomes difficult or impossible, the interest of justice would require that a procedural provision be not exalted to such a level that vital evidence would be shut out, resulting in manifest injustice.
12. Shri Vikas Upadhyay, appearing on behalf of the Intervenor, took us through the various provisions of the Information Technology Act, 2000 along with Section 65B of the Evidence Act, and argued that Section 65B does not refer to the stage at which the certificate under Section 65B(4) ought to be furnished. He relied upon a judgment of the High Court of Rajasthan as well as the High Court of Bombay, in addition to Kundan
    Singh v. State 2015 SCC OnLine Del 13647 of the Delhi High Court, to argue that the requisite certificate need not necessarily be given at the time of tendering of evidence but could be at a subsequent stage of the proceedings, as in cases where the requisite certificate is not forthcoming due to no fault of the party who tried to produce it, but who had to apply to a Judge for its production. He also argued that Anvar P.V. (supra) required to be clarified to the extent that Sections 65A and 65B being a complete code as to admissibility of electronic records, the “baggage” of Primary and Secondary Evidence contained in Sections 62 and 65 of the Evidence Act should not at all be adverted to, and that the drill of Section 65A and 65B alone be followed when it comes to admissibility of information contained in electronic records.
13. It is now necessary to set out the relevant provisions of the Evidence Act and the Information Technology Act, 2000. Section 3 of the Evidence Act defines “document” as follows:

“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” 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 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.

14. Section 22-A of the Evidence Act, which deals with the relevance of oral admissions as to contents of electronic records, reads as follows:

“22A. When oral admission as to contents of electronic records are relevant. — Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”

15. 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.”

16. Sections 65-A and 65-B of the Evidence Act read as follows:

“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.” “65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) 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, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and
whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

17. The following definitions as contained in Section 2 of the Information Technology Act, 2000 are also relevant:

“(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, 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;” “(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;” “(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;”

18. Sections 65A and 65B occur in Chapter V of the Evidence Act which is entitled “Of Documentary Evidence”. Section 61 of
    the Evidence Act deals with the proof of contents of documents, and states that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act defines primary evidence as meaning the document itself produced for the inspection of the court. Section 63 of the Evidence Act speaks of the kind or types of secondary evidence by which documents may be proved. Section 64 of the Evidence Act then enacts that documents must be proved by primary evidence except in the circumstances hereinafter mentioned. Section 65 of the Evidence Act is important, and states that secondary evidence may be given of “the existence, condition or contents of a document in the following cases…”.
19. Section 65 differentiates between existence, condition and contents of a document. Whereas “existence” goes to “admissibility” of a document, “contents” of a document are to be proved after a document becomes admissible in evidence. Section 65A speaks of “contents” of electronic records being proved in accordance with the provisions of Section 65B. Section 65B speaks of “admissibility” of electronic records which deals with “existence” and “contents” of electronic records being
    proved once admissible into evidence. With these prefatory observations let us have a closer look at Sections 65A and 65B.
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 marginal note to Section 65B then refers to “admissibility of electronic records”.
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.
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.
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 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 1 “3. The first contention is based on an assumption that the word “any one” in Section 76 means only “one of the directors, and only one of the shareholders”. This question as regards the interpretation of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word “any one” should be interpreted there as “every one”. Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public 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.
24. It is now appropriate to examine the manner in which Section 65B was interpreted by this Court. In Anvar P.V. (supra), a three Judge Bench of this Court, after setting out Sections 65A and 65B of the Evidence Act, held:

“14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence 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 a document only if the conditions mentioned under sub-section (2) are satisfied, company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises.” 2 “70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v. Union of India, AIR 1987 Del 239] would clearly indicate with regard to interpretation of the word “any” in Explanation 1 to the first proviso to Section 6 of the Act which expands the scope of stay order granted in one case of landowners to be automatically extended to all those landowners, whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the fact whether there was any separate order of stay or not as regards their lands. The logic assigned by the Full Bench, the relevant portions whereof have been reproduced hereinabove, appear to be reasonable, apt, legal and proper.” (emphasis added)
without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2).

Following are the specified conditions under Section 65- B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. 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.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A—opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.

xxx xxx xxx

20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions
    under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi) v. Navjot Sandhu a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerised records of the calls pertaining to the cellphones, it was held at para 150 as follows: (SCC p. 714) “150. According to Section 63, “secondary evidence” means and includes, among other things, ‘copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies’. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para
22. Hence, 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. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is
    not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.” It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65-B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65-B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.”
23. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. 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. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of
    taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

. Section 31.3 indicates the method of proving the integrity of an electronic documents system, by or in which an electronic document is recorded or stored.

Section 31.3 reads as follows:

Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or

(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

43. Section 31.5 is an interesting provision which permits evidence to be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored. This is for the purpose of

determining under any rule of law whether an electronic document is admissible. Section 31.5 reads as follows:

Standards may be considered 31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

44. Under Section 31.6(1), matters covered by Section 31.2(2), namely the printout of an electronic document, the matters covered by Section 31.3, namely the integrity of an electronic documents system, and matters covered by Section 31.5, namely evidence in respect of any standard, procedure, usage or practice, may be established by affidavit. Section 31.6 reads as follows:

Proof by affidavit

31.6(1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit.

Cross­examination (2) A party may cross­examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

(a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and

(b) with leave of the court, in the case of any other deponent.

45. Though a combined reading of Sections 31.3 and 31.6(1) of the Canada Evidence Act, 1985, gives an impression as though a requirement similar to the one under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law, there is a very important distinction found in the Canadian law.

Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon an
electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

Conclusion

It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine­tuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot
Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad.

1. With the above note, I respectfully agree with conclusions reached by R. F. Nariman, J. that the appeals are to be dismissed with costs as proposed.

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Cases referred : Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal 

         CIVIL APPEAL NOS. 20825-20826 OF 2017       

   Supreme Court of India.