1 For example, South Africa, USA, Ireland, Singapore etc.

See generally Murdoch Watney,

Admissibility of Electronic Evidence in Criminal Proceedings: An Outline of the South African
Legal Position, 1 Int'l JL & IT. (2009); J.S Givens, The Admissibility of Electronic Evidence at
Trial: Courtroom Admissibility Standards, Cumberland Law Rev. 95 (2003-04); Law Reform
Commission, Ireland, Documentary and Electronic Evidence, LRC CP 57-2009, 2009;
Technology Law Development Group: Singapore University of Law, Computer Output as
Evidence,

September,

2003,

available

https://www.agc.gov.sg/DATA/0.Docs/PublicationFiles/Sep_03_ComputerOutput.pdf

at
(Last

visited on February 8, 2016.

2 Information Technology Act, 2000, Schedule II, Entry 9.

3 See generally Indian Evidence Act, 1872, 65B.

4 Id.

5 See Apar Gupta, How to rely upon an email in court, December 14, 2011, available at
http://www.iltb.net/2011/12.how-to-rely-upon-an-email-in-court/ (Last visited on January 20,
2016); Bhairav Acharya, Anvar v. Basheer and the New (Old) Law of Electronic Evidence,
September 25, 2014, available at http://cis-india.org/internet-governance/blog/anvar-v-basheernew-old-law-of-electronic-evidence (Last visited on January 20, 2016); Aradhya Sethia, Where
do we stand on secondary electronic evidence?, October 16, 2014, available at
http://spicyip.com/2014/10.guest-post-where-do-we-stand-on-secondary-electronicevidence.html (Last visited on January 20, 2016).

1 | Page

6 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473.

7 Id.

8 This can be inferred from the Preamble to the IT Act, 2000, which reads: An Act to provide
legal recognition for transactions carried out by means of electronic date interchange and other
means of electronic communication, commonly referred to as electronic commerce The 2008
amendments to the Act, however, expanded the scope of the statute significantly.

9 Information Technology Act, 2000, Schedule II, Entry 9.

10 It is interesting to note that 65A states: Special provisions as to evidence relating to

electronic record The contents of electronic records may be proved in accordance with the
provisions of 65B. (emphasis added). This could arguably be interpreted as permitting the
proving of the contents of electronic records in any other manner, including under 61-65.

11 Indian Evidence Act, 1872 65B (It States:

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
2 | Page

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 | Page

(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;
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(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 by calculation, comparison
or any other process.).
5 | Page

12 Indian Evidence Act, 1872, 65B(1).

13 This can be compared to 65(d), Indian Evidence Act, 1872, which allows secondary
evidence where the original is of such a nature as not to be easily movable.

14 This is also known as the best evidence rule. See Halsbury's Laws of England, Vol. 17, 138
(4th ed., 1973); Ratanlal and Dhirajlal, Law of Evidence (23rd ed., 2014); Bank of India v.
Alibhoy Mohammed, 2008 SCC OnLine Bom 91 : AIR 2008 Bom 81; Bimla Rohal v. Usha,
(2002) 2 Shim LC 341 (In our Evidence Act, this principle is codified in 64 and 65 for
physical documents).

15 Indian Evidence Act, 1872, 65B(2).

16 Id., 65B(2)(a).

17 Id., 65B(2)(b).

18 Id., 65B(2)(c).

19 Id., 65B(2)(d).

20 See infra Part IV (A) for more discussion on the nature of 65B(2).
6 | Page

21 Indian Evidence Act, 1872, 65B(4).

22 Id., 65B(4). See Part IV (B) for more discussion on who this person occupying a
responsible official position can be.

23 See infra Part II (B), III & IV.

24 Indian Evidence Act, 1872 65B(3) & (5).

25 Id., 65.

26 Id., 63.

27 Id., 65.

28 Supra note 1; J. Hofman, \Electronic Evidence in Criminal Cases, 19(3) SACJ 257, 258
(2006).

29 See infra Part V.

30 South Africa Electronic Communications and Transactions Act, 2002, Preamble.

7 | Page

31 State v. Mohd. Afzal, (2003) 107 DLT 385.

32 Id., 266.

33 Id., 276.

34 Id. That the 65B(4) certificate was an alternative method was approved by the Delhi High
Court in Rakesh Kumar v. State, (2009) 163 DLT 658. This in turn has been used as authority to
waive certification. See Vijay v. State (Govt. of NCT of Delhi), 2014 SCC OnLine Del 4585 :
(2014) 4 JCC 2494; Om Prakash v. State, (2014) 143 DRJ 349; Sun Pharmaceuticals Industries
Ltd. v. Mukesh Kumar P., 2013 SCC OnLine Del 2713.

35 Id. (The Court states:

The normal rule of leading documentary evidence is the production and proof of the original
document itself. Secondary evidence of the contents of a document can also be led under 65 of
the Evidence Act. Under sub-clause (d) of 65, secondary evidence of the contents of a
document can be led when the original is of such a nature as not to be easily movable.
Computerised operating systems and support systems in industry cannot be moved to the court.
The information is stored in these computers on magnetic tapes (hard disc). Electronic record
produced there from has to be taken in the form of a print out.)

36 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.

8 | Page

37 Id.

38 Id., 150.

39 Id.

40 A.M Perumal v. Star Tours and Travels (India) Ltd., 2010 Cri LJ 3732; Devender Kumar
Yadav v. State (NCT of Delhi), 2012 SCC OnLine Del 3771; Vijay v. State (Govt. of NCT of
Delhi), 2014 SCC OnLine Del 4585 : (2014) 4 JCC 2494; Om Prakash v. State, (2014) 143 DRJ
349; Sun Pharmaceuticals Industries Ltd. v. Mukesh Kumar P., 2013 SCC OnLine Del 2713;
Achchey Lal Yadav v. State, 2014 SCC OnLine Del 4539; Gajraj v. State, ILR 2009 Supp (2) Del
477; Babu Ram Aggarwal v. Krishan Kumar Bhatnagar, 2013 SCC OnLine Del 324 : (2013) 2
AD Del 441; Brij Kishore v. State, 2010 SCC OnLine Del 1892 : ILR 2010 Supp (1) Del 279;
Mohd. Wasim v. State, 2012 SCC OnLine Del 5378 : (2012) 7 AD Del 599; Parminder Kaur v.
State, 2014 SCC OnLine Del 3918; Shubha v. State of Karnataka, Criminal Appeals Nos. 722,
757 and 856 of 2010 (Kar)(Unreported); Devesh Kumar v. State, ILR (2010) 2 Del 798.

41 Societe Des Products Nestle SA v. Essar Industries, (2006) 33 PTC 469 (Del).

42 Pradeep Kumar v. State of Bihar, 2014 SCC OnLine Pat 483; Aniruddha Bahal v. CBI, (2014)
210 DLT 292.

43 Chetan Gupta v. CIT, ITA Nos. 1891, 1892 & 1893.Del/2012 (Del)(Unreported).

9 | Page

44 Mohd. Tahir Mohmed Arif Bakaswala v. State of Gujarat, 2010 SCC OnLine Guj 4829.

45 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473.

46 Id.

47 Indian Evidence Act, 1872, 59 (It must be noted that this is an inaccurate reference to 59.
59 is inapplicable in light of 22A of the Indian Evidence Act, 1872, which is a special
provision introduced at the same time as 65B. Applying the principle of generalia specialibus
non derogant, 22A prevails. However, it must be noted that the effect is largely the same: 22A
also bars the use of oral evidence. This is subject to the crucial exception of genuineness of the
electronic record however See infra Part IV(A) for greater discussion on the use of oral
evidence).

48 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 13.

49 Id. (The Supreme Court holds: Any documentary evidence by way of an electronic record
under the Evidence Act, in view of 59 and 65A, can be proved only in accordance with the
procedure prescribed under 65B.

(emphasis added)).

50 Id., 22.
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51 See Blacks' Law Dictionary (9th ed., 2009)(This latin maxim translates literally as general
things do not detract from specific things. It enshrines the principle that a special law, or a law
enacted to cover specific situations, will always prevail over a more generally applicable law).

52 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 13. This has been noted once prior to Anvar.
See Abdul Rahaman Kunji v. State of W.B, 2014 SCC OnLine Cal 18816.

53 See supra Part II (A).

54 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 14 (The Supreme Court states:

under 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;

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(d) The certificate must deal with the applicable conditions mentioned under 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.).

55 Id., 14(a).

56 Id., 14(b)-(e).

57 Id., 14.

58 Indian Evidence Act, 1872, 65B(4).

59 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 14(a)-(c).

60 Indian Evidence Act, 1872, 65B(4)(c).

61 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 14(d).

62 Id., 14(d).

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63 Id., 14(c).

64 Id., 14(e).

65 G.P Singh, Principles of Statutory Interpretation (2004); P. St. J. Langan, Maxwell on the
Interpretation of Statutes (12th ed., 1969).

66 Given the nature of 65B and the specific reasons for its introduction, legislative intent could
very likely have been to make the certificate and all of the details mentioned in the provision
mandatory. Poor drafting, which affects all provisions introduced through the Information
Technology Act, 2000, is more likely to be the culprit. On this basis, it may have been possible to
make an appeal to either the Golden Rule or the Mischief Rule in statutory interpretation to
justify a deviation from the literal rule. In all fairness, the lack of extrinsic sources (statement of
objects and reasons, standing committee reports etc.) on 65B means that the Supreme Court did
not have any guidance on the matter. This argument merely goes to the glibness with which the
Supreme Court deviates from the literal interpretation, without even making an attempt at an
explanation.

67 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 22.

68 Id., 21.

69 Id., 23.

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70 See infra Part IV(B).

71 Ankur Chawla v. CBI, 2014 SCC OnLine Del 6461.

72 Id. But see Paras Jain v. State of Rajasthan, 2015 SCC OnLine Raj 8331 (The Rajasthan HC
had the opportunity to consider a situation where the prosecution had not produced the certificate
at the time of filing the charge-sheet; they had produced it during the course of the trial. The
court dismissed a challenge against this delayed filing by the accused on the grounds that in
Anvar the question of stage at which such electronic record is to be produced was not before the
Hon'ble Court. Such creative reading of Anvar enabled the prosecution to bring on record
crucial electronic evidence).

73 Jagdeo Singh v. State, 2015 SCC OnLine Del 7229, 68-79 (Interestingly, the Delhi HC
held: Since PW-17 can speak only about the computer which he was using and what he was
listening to on it are copies made of the originals, no part of 65-B EA can be said to have been
complied with, much less substantially complied with (emphasis added). Applying Anvar, the
oral evidence as a method of authentication ought to have been ab initio insufficient, regardless
of whether the conditions of 65B(2) were satisfied or not. That is, the discussion of substantial
compliance is unnecessary in the absence of a certificate).

74 Id.

75 Id.

76 Indian Evidence Act, 1872, 3.

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77 See supra Part III.

78 Indian Evidence Act, 1872, 22.

79 Id.

80 Id., 65B(2)(c).

81 Id.

82 Id., 65B(2)(b).

83 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 16.

84 Id., 15.

85 See Id., 18 (The Supreme Court does not cite authority for this proposition of law. Instead, it
points vaguely to the American Federal Rules of Evidence to support its point that reliability is
considered only at the stage of weight).

86 Indian Evidence Act, 1872, 136.

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87 See Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517 : 1998 Cri LJ 2515, 2517; Sarkar's
Law of Evidence 86, 88 (S. Sarkar and V. Manohar, 15th ed., 1999)(It is interesting to note that
this jurisprudence had been brought to the notice of the court of first instance i.e the Kerala High
Court. It is however unclear what the argument advanced by counsel was. Anvar P.V v. P.K
Basheer, (2012) 247 KLR 933, 68-69).

88 R.M Malkani v. State of Maharashtra, (1973) 1 SCC 471, 23.

89 See Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147, 6; Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, 18-22 : AIR 1975 SC
1788; Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329, 23-27.

R. v. Maqsud Ali, (1966) 1 QB 688 : (1965) 3 WLR 229 : (1965) 2 All ER 464 (CCA); But see S.
Pratap Singh v. State of Punjab, AIR 1964 SC 72 : (1964) 4 SCR 733, 16.

90 But see Law Commission of India, Review of the Indian Evidence Act, 1872, Report No. 185,
Part II, 19, 2003.

91 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 15.

92 The Supreme Court's order in Anvar has binding force of law. See Article 142, Constitution of
India, 1950.

16 | P a g e

93 See Law Commission of India, Evidence obtained illegally or improperly: Proposed Section
166A, Indian Evidence Act, 1872, Report No. 94, 1983; Yusufalli Esmail Nagree v. State of
Maharashtra, AIR 1968 SC 147; R.M Malkani v. State of Maharashtra, (1973) 1 SCC 471.

94 Indian Evidence Act, 1872, 65B(2)(a).

95 See Indian Penal Code, 1860, 191-200.

96 See Indian Evidence Act, 1872, 65B(2).

97 See generally Uniform Electronic Evidence Act, 1998 (Canada).

98 See generally South Africa Electronic Communications and Transactions Act, 2002 (South
Africa).

99 See generally Federal Rules of Evidence, 2015 (U.S).

100 See generally Civil Evidence Act, 1995 (U.K); Criminal Justice Act, 1988 (U.K).

101 Uniform Electronic Evidence Act, 1998, 3-7 (Canada).

102 South Australian Evidence Act, 1929, 59B (South Australia).

17 | P a g e

103 Federal Rules of Evidence, 2015, 901, 902 (U.S).

104 South Africa Electronic Communications and Transactions Act, 2002, 15 (South Africa).

105 See generally Civil Evidence Act, 1995 (U.K); Criminal Justice Act, 1988 (U.K); See UK
Law Commission, The Hearsay Rule in Civil Proceedings, Report No. 216, 1993; UK Law
Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, Report No 245,
1997; Law Reform Commission, Ireland, supra note 1, 5.74-5.86; Technology Law
Development Group, Singapore, supra note 1, 2.25-2.43.

106 See Acharya, supra note 5.

107 Civil Evidence Act, 1968, 5 (U.K).

108 South Australian Evidence Act, 1929, 59B (It states:

(2) The court must be satisfied

(a) that the computer is correctly programmed and regularly used to produce output of the same
kind as that tendered in evidence pursuant to this section; and

18 | P a g e

(b) that the data from which the output is produced by the computer is systematically prepared
upon the basis of information that would normally be acceptable in a court of law as evidence of
the statements or representations contained in or constituted by the output; and

(c) that, in the case of the output tendered in evidence, there is, upon the evidence before the
court, no reasonable cause to suspect any departure from the system, or any error in the
preparation of the data; and

(d) that the computer has not, during a period extending from the time of the introduction of the
data to that of the production of the output, been subject to a malfunction that might reasonably
be expected to affect the accuracy of the output; and

(e) that during that period there have been no alterations to the mechanism or processes of the
computer that might reasonably be expected adversely to affect the accuracy of the output; and

(f) that records have been kept by a responsible person in charge of the computer of alterations to
the mechanism and processes of the computer during that period; and

(g) that there is no reasonable cause to believe that the accuracy or validity of the output has been
adversely affected by the use of any improper process or procedure or by inadequate safeguards
in the use of the computer.

(3)

19 | P a g e

(4) A certificate under the hand of a person having prescribed qualifications in computer system
analysis and operation or a person responsible for the management or operation of the computer
system as to all or any of the matters referred to in subsection (2) or (3) of this section shall,
subject to subsection (6) of this section, be accepted in any legal proceedings, in the absence of
contrary evidence, as proof of the matters certified.

(5) An apparently genuine document purporting to be a record kept in accordance with

subsection (2) of this section, or purporting to be a certificate under subsection (4) of this section
shall, in any legal proceedings, be accepted as such in the absence of contrary evidence.

(6) The court may, if it thinks fit, require that oral evidence be given of any matters comprised in
a certificate under this section, or that a person by whom such a certificate has been given attend
for examination or cross-examination upon any of the matters comprised in the certificate).

109 Federal Rules of Evidence, 2015; Lorraine v. Markel American Insurance Co., 241 FRD
534, 901, 902.

110 Civil Evidence Act, 1968, 5 (U.K).

111 65B appears to have been copied almost to the word from 5 of the Civil Evidence Act,
1968. It is interesting (and appalling) to note that this happened in 2000, about 5 years after the
UK repealed the 1968 Act and replaced it with the UK Civil Evidence Act, 1995.

112 South Australian Evidence Act, 1929, 59B(2)(e).

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113 Id., 59B(2)(f).

114 Id., 59B(2)(g).

115 Id., 59B(6).

116 Id., 59B(5).

117 Federal Rules of Evidence, 2015, 901, 902.

118 Lorraine v. Markel American Insurance Co., 241 FRD 534.

119 J.D Frieden and L.M Murray, The Admissibility of Electronic Evidence under the Federal
Rules of Evidence, XVII (2) Rich. J.L & Tech. 5 (2011); M. Gifford, Admitting Electronic
Evidence in Federal Court: I've Got All This Electronic Data Now What Do I Do With It?, 2
ABA J. 8 (2008); Rashbaum et al, Admissibility of Non-US Electronic Evidence, XVIII (3) Rich.
J.L & Tech. 9 (2012); Lexis Nexis, Lorraine v. Markel: Electronic Evidence 101, 2007, available
at
https://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorrainevMar
kel.pdf (Last visited on January 30, 2016).

120 Federal Rules of Evidence, 2015, Advisory Committee's note to Rule 901(b).

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121 See South Australian Evidence Act, 1929, 59B(2)(g)(This emulates the South Australian
provision, strengthening the safeguards provided for in 65B(2) by protecting against improper
processes or procedures in the production of the output).

122 See supra Part IV(B).

123 Federal Rules of Evidence, 2015, Rules 901, 902.

124 See M. Gifford, supra note 119; J. Isaza, Metadata in Court: What RIM, Legal and IT Need
to Know, 2010, available at http://www.armaedfoundation.org/pdfs/Isaza_Metadata_Final.pdf
(Last visited on February 8, 2016).

125 Anvar P.V v. P.K Basheer, (2014) 10 SCC 473, 16-17.

126 Manoj Kumar S. v. State of Karnataka, Criminal Appeal No. 1419 of 2012, decided on 30-62015 (Kar)(Unreported); Ankur Chawla v. CBI, 2014 SCC OnLine Del 6461; S.K Saini v. CBI,
2015 SCC OnLine Del 11472; Balasaheb Gurling Todkari v. State of Maharashtra, (2015) 3 Bom
CR (Cri) 51; Harish v. State of Delhi, 2015 SCC OnLine Del 10552; Indian Micro Electronics
(P) Ltd. v. Chandra Industries, 2015 SCC OnLine Del 10076 : (2015) 6 AD Del 52; Bonanzo
Portfolio Ltd. v. State of Assam, (2015) 1 GLT 339; S.M Katwal v. Virbhadra Singh, 2015 SCC
OnLine HP 1155; Hosamanera Prakash v. State of Karnataka, (2015) 2 AIR Kant R 710; Naveen
v. State, (2015) 5 Kant LJ 574 (DB); Vikas Verma v. State of Rajasthan, (2015) 2 WLN 494
(Raj).

22 | P a g e

127 Tomaso Bruno v. State of U.P, (2015) 7 SCC 178 (4 months after Anvar, the Supreme Court
held that in cases involving electronic evidence, secondary evidence may be adduced under 65.
Astonishingly, Kurien, J. was also a part of the bench deciding this case, although he did not
deliver the opinion of the Supreme Court. P. Banumathi, J. in 25 held:

Sub-section (1) of 65B makes admissible as a document, paper printout of electronic records
stored in optical or magnetic media produced by a computer, subject to the fulfilment of the
conditions specified in sub-section (2) of 65B. Secondary evidence of contents of document can
also be led under 65 of the Evidence Act

(emphasis added).

W.B National University Of Juridical Sciences.

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