The 21st century ushered in a digital revolution where the use of computers became extremely important and common. People were increasingly switching to computers as a digital storage solution for their home and business needs. Perhaps nothing symbolizes the start of the Indian digital revolution better than the introduction of the Information Technology Act, 2000. The Information Technology Act inserted Section 65A & Section 65B in the Indian Evidence Act, 1872. These sections deal with electronic evidence and its admissibility. Before discussing electronic evidence it is necessary to first understand the definition of evidence.

Meaning of Evidence

Evidence in simple terms is any species of proof presented for the purpose of inducing belief in the mind. The statutory definition of the term Evidence has been given in Section 3 of The Indian Evidence Act, 1872. Section 3 defines the word “Evidence” to mean and include-

  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.

Moreover, Evidence can be divided into the following types

  • Oral, or Documentary
  • Primary, or Secondary

Primary evidence means the document itself produced for the inspection of the Court 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. 

Coming to the current topic at hand, naturally the question arises whether electronic evidence is primary or secondary.

Electronic Evidence: Primary or Secondary?

Electronic evidence or digital evidence is any information that is stored or transmitted digitally. Electronic evidence is secondary evidence.

Section 65 of the Indian Evidence Act provides for situations when a party may lead secondary evidence. Section 65B(1) deals 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 documents 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. The conditions mentioned in sub-section (1) are listed in sub-section (2).

Essentially the electronic evidence should satisfy the following conditions-

  1. It should be produced by a computer which has been 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;
  2. The information so derived was regularly fed into the computer in the ordinary course of activities
  3. The computer was operating properly

Judicial Interpretation

Judicial interpretation of Section 65B is not exactly crystal-clear. Many Courts around the country including the Supreme Court have attempted to give structure to the practical implications of Section 65B. Probably none is more important than the case of Anvar P.V. Vs. P.K. Basheer (18.09.2014- SC) 2014 (9) SC J 1.

The Supreme Court opined in the Anvar P.V. case that any electronic evidence can be proved only in accordance with the procedure prescribed under Section 65B. The Supreme Court held that the purpose of these provisions is to sanctify electronic evidence and the 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. This understanding was a departure from the previous landmark case of State (NCT of Delhi) v. Navjot Sandhu, 8 (2005) 11 SCC 600 wherein the Supreme Court had held that that the requirement of certificate under Section 65B is not always mandatory and irrespective of the compliance of the requirements of Section 65B, there is no bar to adducing secondary evidence under other provisions of the Evidence Act. The judgement in the Navjot Sandhu case was in line with the settled and well-established judicial principle that procedure is the handmaid of justice and the object of prescribing the procedure is to advance the cause of justice, not to make it subservient to procedure.

However, the decision of the Supreme Court in Anvar P.V case is not against the principles of natural justice, in fact if anything it sought to advance the cause of justice. It is common understanding that information stored digitally is more vulnerable to manipulation and/or tampering. In light of the existence of such circumstances, the requirement of the procedure laid down under Section 65B becomes necessary. The object of the procedure laid down in Section 65B is to legitimize electronic evidence.         

Commercial Courts Act, 2015

The legislation threw in its hat and along came the Commercial Courts Act, 2015. The Commercial Courts Act, 2015 made several amendments to the Code of Civil Procedure, 1908 including the substitution of previous Order XI with a new Order XI. Rule 6 of the new Order XI deals with electronic records.   

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

  1. the parties to such Electronic Record;
  2. the manner in which such electronic record was produced and by whom;
  3. the dates and time of preparation or storage or issuance or receipt of each such electronic record;
  4. the source of such electronic record and date and time when the 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 on a computer or computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
  7. deponent’s knowledge of contents and correctness of contents;
  8. whether the 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 document stored;
  9. that the printout or copy furnished was taken from the original computer or computer resource

The declaration sought by Order XI Rule 6(3) in its essence encompasses all the requirements sought by Section 65B. It in fact does Section 65B one better as now it required the declaration pertaining to the electronic documents to be on oath and well detailed.

The question that necessarily follows is that whether the party needs to file a Section 65B certificate even if it has filed the declaration under Order XI Rule 6(3).

The practice being followed currently, at least in the Delhi High Court, is to file both. The declaration under Order XI Rule 6(3) is filed at the time of the institution of the suit and a Section 65B certificate is filed when the electronic evidence is adduced as evidence during

the trial. The argument in favour of this contention is that documents filed at the institution of the suit do not become evidence till they are tendered as evidence during trial.

The Delhi High Court in ELI Lilly and Company and Ors. vs. Maiden Pharmaceuticals Limited (09.11.2016 - DELHC) interpreted the judgement of the Supreme Court in Anvar P.V. case to say that the certificate under Section 65B of the Evidence Act is required to accompany the electronic record when produced in Court. The Delhi High Court although allowed the party to file the certificate under Section 65B of the Evidence Act subsequent to the filing of the electronic record in the Court, it proceeded to add a word of caution by stating that such certificate/affidavit/s under Section 65B of the Evidence Act and/or under Order XI Rule 6 of CPC though can be filed subsequently, as any other document may be, but only if the party wanting to file the same makes out a case for reception thereof, as for late filing of documents beyond the prescribed time.

Although the Delhi High Court in ELI Lilly case has used the words certificate under Section 65B and Affidavit under Order XI Rule 6 of CPC in the same breath almost interchangeably, the proposition that a declaration under Order XI Rule 6(3) in effect makes a certificate under Section 65B redundant remains to be seen.