In Section 61 to 65 Indian Evidence Act, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the omission of the word, “Electronic Records” in the scheme of Section 61 to 65 signifies the clear and explicit legislative intention, i.e. not to extend the applicability of Section 61 to 65 to the electronic record in view of overriding provision of Section 65-B Indian Evidence Act dealing exclusively with the admissibility of the electronic record which in view of the compelling technological reasons can be admitted only in the manner specified under Section 65-B Indian Evidence Act.
The main objective to introduce the specific provision has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same. The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media. It provides:-
Section 65B – Admissibility of Electronic Records
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.
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,
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.
65B Certificate can be given by person in charge of the digital asset. He/She can be the System/Network Administrator or the police inspector who hands you a copy of an e-FIR.
Reference : http://www.neerajaarora.com/admissibility-of-electronic-evidence-challenges-for-legal-fraternity/
