ELECTRONIC

EVIDENCE
By Adv. Nagnath Gorwadkar
Information & Technology Act, 2000
(amended in 2008)

Section 2: Definitions
(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 interconnection of one or more computers
through
(i) the use of satellite, microwave, terrestrial line or other
communication media; and
(ii) terminals or a complex consisting of two or more
interconnected computers whether or not the interconnection is
continuously maintained;
(k) "computer resource" means computer, computer system, computer network,
data, computer database or software;
(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;
(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;
(s) "Electronic Gazette" means the Official Gazette published in the electronic
form;
(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;
 THE INDIAN EVIDENCE ACT, 1872

Special provisions as to evidence relating to electronic record.

65A. The contents of electronic records may be proved in accordance with the
provisions of section 65B.
Admissibility of electronic records.
65B. (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 of 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 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.
(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
bycalculation, comparison or any other process.
In short:

Sec. 65B (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
•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 of any contents of the original or of any fact stated therein of which direct
evidence would be admissible.
Sec. 65B(2):
• 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;
• Information was fed in computer in the ordinary course of the activities of the person
having lawful control over the computer;
• The computer was operating properly, and if not, was not such as to affect the electronic
record or its accuracy;
• Information reproduced is such as is fed into computer in the ordinary course of
activity.

Reliability of the source of electronic record

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,

Limiting the source

Sec. 65B(4):
Regarding the person who can issue the certificate and contents of certificate, it provides
the certificate doing any of the following things:

•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, 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.

Authorisation of the source

 Proof as to digital signature.
"67A. Except in the case of a secure digital signature, if the digital signature of any
subscriber is alleged to have been affixed to an electronic record the fact that such digital
signature is the digital signature of the subscriber must be proved.".

Proof as to verification of digital signature.

'73A. In order to ascertain whether a digital signature is that of the person by whom it
purports to have been affixed, the Court may direct—
(a) that person or the Controller or the Certifying Authority to produce the Digital
Signature Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate
and verify the digital signature purported to have been affixed by that person.
Explanation.—For the purposes of this section, "Controller" means the Controller
appointed under sub-section (1) of section 17 of the Information Technology Act,
2000'.
Presumption as to Gazettes in electronic forms.

"81 A. The Court shall presume the genuineness of every electronic record
purporting to be the Official Gazette, or purporting to be electronic record directed by
any law to be kept by any person, if such electronic record is kept substantially in the
form required by law and is produced from proper custody.".
Presumption as to electronic agreements.

"85A. The Court shall presume that every electronic record purporting to be an
agreement containing the digital signatures of the parties was so concluded by affixing
the digital signature of the parties.
 Presumption as to electronic records and digital signatures.
85B. (1) In any proceedings involving a secure electronic record, the Court shall
presume unless contrary is proved, that the secure electronic record has not been
altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure digital signature, the Court shall presume
unless the contrary is proved that—
(a) the secure digital signature is affixed by subscriber with the intention of signing
or approving the electronic record;
(b) except in the case of a secure electronic record or a secure digital signature,
nothing in this section shall create any presumption relating to authenticity and
integrity of the electronic record or any digital signature.
Presumption as to Digital Signature Certificates.
85C. The Court shall presume, unless contrary is proved, that the information listed
in a Digital Signature Certificate is correct, except for information specified as
subscriber information which has not been verified, if the certificate was accepted by
the subscriber.".
Presumption as to electronic messages.
'88A. The Court may presume that an electronic message forwarded by the
originator through an electronic mail server to the addressee to whom the
message purports to be addressed corresponds with the message as fed into his
computer for transmission; but the Court shall not make any presumption as to
the person by whom such message was sent.
Explanation.—For the purposes of this section, the expressions "addressee" and
"originator" shall have the same meanings respectively assigned to them in
clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology
Act, 2000.'.
Presumption as to electronic records five years old.
"90A. Where any electronic record, purporting or proved to be five years old, is
produced from any custody which the Court in the particular case considers proper,
the Court may presume that the digital signature which purports to be the digital
signature of any particular person was so affixed by him or any person authorised by
him in this behalf.
Explanation.—Electronic records are said to be in proper custody if they are in the
place in which, and under the care of the person with whom, they naturally be; but no
custody is improper if it is proved to have had a legitimate origin, or the circumstances
of the particular case are such as to render such an origin probable.
This Explanation applies also to section 81A.".
Section 131,
Production of documents or electronic records which another person, having
possession, could refuse to produce.
"131. No one shall be compelled to produce documents in his possession or
electronic records under his control, which any other person would be entitled to
refuse to produce if they were in his possession or control, unless such last-mentioned
person consents to their production.".
Bankers’ Books Evidence Act,1891
1. In section2,-
(8) "certified copy" means when the books of a bank,-
(a) are maintained in written form, a copy of any entry in such books together with a
certificate written at the foot of such copy that it is true copy of such entry, that such
entry is contained in one of the ordinary books of the bank and was made in the
usual and ordinary course of business and that such book is still in the custody of the
bank, and where copy was obtained by a mechanical or other process which in itself
ensured the accuracy of the copy, a further certificate to that effect, but where the
book from which the copy had been so prepared, a further certificate to that effect,
each such certificate being dated and subscriber by the principal accountant or
manger of the bank with his name and official title; and
(b) consist of printouts of data stored in a floppy, disc, tape or any other electro-
magnetic data storage device, a printout of such entry or a copy of such entry or a
 copy of such printout together with such statements certified in accordance with the
provisions of section 2A;

"2A".Conditions in the printout.-

A printout of entry or a copy of printout referred to in sub-section (8) of section 2
shall be accompanied by the following, namely:-
(a) a certificate to the effect that it is a printout of such entry or a copy of such printout
by the principal accountant or branch manager; and
(b) a certificate by a person in-charge of computer system containing a brief description
of the computer system and the particulars of-
(A) the safeguards adopted by the system to ensure that data is entered or any other
operation performed only by authorized person;
(B) the safeguards adopted to prevent and detect unauthorized change of data;
 (C) the safeguards available to retrieve data that is lost due to systemic failure or any
other reasons;
(D) the manner in which data is transferred from the system to removable media
like floppies, discs, tapes or other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that data has been accurately
transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such storage devices;
(H) the safeguards to prevent and detect any tampering with the system; and
(I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person in-charge of the computer system to the effect
that to the best of his knowledge and belief, such computer system operated properly at
the material time, he was provided with all the relevant data and the printout in question
represents correctly, or is appropriately derived from, the relevant data."
Remember:

Section 65B deals with only Secondary

Evidence
Development of law relating to Electronic Evidence:
Anvar P. V. vs P. K. Basheer & Ors
decided on 18 September, 2014 by Supreme Court
The evidence consisted of three parts –

(i) electronic records,

(ii) documentary evidence other than electronic records, and

(iii) oral evidence.

Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections
59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.
Section 65B 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.
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 65B(2).
Under Section 65B(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 65B(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.
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.
It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary
evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic
record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in
evidence, without compliance of the conditions in Section 65B of the Evidence Act.
Ctr Manufacturing Industries Ltd vs Sergi Transformer Explosion ... on
28 June, 2016
Matter under O 39 Rule 2A and 11 CPC

The Affidavit in Reply denies that these web pages are of the dates or times alleged. Now if CTR expects so
exacting a standard, then it must itself conform to that standard. These are printouts of digital or electronic
documents, and they require, the Supreme Court tells us, the necessary certifications under Section 65B of the
Evidence Act.2 I do not find those. If, absent those certificates, the material is inadmissible in evidence -- or
even if there is the slightest doubt about admissibility -- then I do not see how I can make an order in contempt
on that basis. After all, these proceedings are as close to the standard of beyond reasonable doubt that one can
find in civil law.

Arvind S/O Abhilash Singh (In ... vs The State Of Maharashtra, Through
... on 5 May, 2016
refers SC
Mrs.Havovi Kersi Sethna vs Mr.Kersi Gustad Sethna on 28 January,
2011
CD is obtained by mechanical/electronic process of having the original tape recorded conversation uploaded
on a computer from the original electronic record and copied on the CD.
Such copy is, therefore, secondary evidence under Section 63 of the Evidence Act and, therefore, can be used
only upon production of the original record of such taped conversation under Section 65B of the Evidence Act.

Avadut Waman Kushe vs The State Of Maharashtra on 3 March, 2016

The certificate need not be filed at the time of production of the electronic record. It can be filed at the time, the
record is tendered in evidence. The subsequent filing of the certificate cannot reduce it's effectiveness as a
safeguard against tampering etc. Hence, the writ petition is dismissed.
QUESTIONS
Thank you !!!