Electronic evidence admissible only with certificate

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In Harpal Singh (Chhota) v State of Punjab, the Supreme Court has held that secondary evidence in the form of electronic records cannot be admitted in evidence unless a certificate under section 65B(4) of the Evidence Act, 1872, is produced.

This section requires the production of a certificate that is issued by a senior person responsible for the computer on which the electronic record was created, or is stored. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the device that created it, and certify compliance with the technological conditions of section 65B(2) of the Evidence Act.

Gavel_with_computer_technology_themeThe prosecution in the case had produced a printed copy of computer-generated call records stored on hard disks of servers of mobile phone services providers, to correlate calls made between the mobile phones involved. The trial court and the high court had held it admissible even though a certificate as required under section 65B(4) was not presented.

Despite upholding the conviction delivered by the trial court and the high court, the Supreme Court observed that the secondary evidence in the form of a printed copy of the call details was inadmissible, even assuming that section 65B(2) of the Evidence Act had been complied with, in the absence of a certificate under section 65B(4).

Section 65B of the Evidence Act details the special procedure for adducing electronic records in evidence. Section 65B(2) lists technological conditions under which a duplicate copy (including a print-out) of an original electronic record may be used. In making this ruling the Supreme Court referred to an earlier ruling it made in Anvar PV v PK Basheer and others (2014).

The judgment is significant as by bypassing the special law on electronic records, Indian courts have continued to apply the provisions pertaining to documents to electronically stored information.

The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at lbhasin@bhasinco.in or lbhasin@gmail.com. Readers should not act on the basis of this information without seeking professional legal advice.