CD, pen drive could be valid evidence in court

SC lays down nine conditions for admission of electronic records in CDs, pen drives and computer printouts as secondary proof in cases

New Delhi

The Supreme Court has laid down nine conditions for admission of electronic records in CDs, pen drives and computer printouts as ‘secondary evidence’ in the court cases.

The 3-judge Bench of Chief Justice R M Lodha prescribed the conditions while dismissing an election petition against Eranad MLA P K Basheer elected in the Kerala Assembly elections in Apri 2011.

The Bench, comprising Justices Kurian Joseph and Rohinton Fali Nariman, also overruled a ‘wrong’ conclusion on the admissibility of computer printouts in the case against Navjot Sandhu alias Afsan Guru in the Parliament attack case.

“The statement of law on admissibility of secondary evidence pertaining to electronic records as stated by this court in Navjot Sandhu case does not lay down the correct legal position,” it said while overruling the 2005 verdict of a 2-judge Bench on the printouts of the computerised records of the mobile calls.

“An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B (of Evidence Act) are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible,” said the court in the judgment written by Justice Kurian Joseph.

It goes on to lay down five conditions for permitting the electronic record under the Evidence Act and explained them.

Section 65B incorporated in the Evidence Act in lieu of the information Technology Act lays down admissibility of the electronic record printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer, without further proof or production of the original. The Court said admissibility of such a computer output will be on four other conditions that it was produced by the computer by the person having lawful control over its use, that information presented in the electronic record was regularly fed into that computer, that the computer was operating properly and its non-functioning was not such to affect accuracy of the electronic record, and that the information in the electronic record was fed into the computer in the ordinary course.

Noting that all these safeguards are to ensure the source and authenticity, the two hallmarks pertaining to electronic record sought to be used as evidence, the Court said the whole trial based on the proof of electronic records can lead to travesty of justice as they are more susceptible to tampering, alteration, transposition, excising, etc. without such safeguards.

Conditions for permitting the electronic record under the Evidence Act

a) There must be a certificate which identifies the electronic record containing the statement and accompanies it

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 65 [B(2)] of the Evidence Act

e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device

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