SECTION 65-A AND 65-B OF INDIAN EVIDENCE ACT: A BRIEF OVERVIEW

INTRODUCTION

After the enactment of the “IT Act, 2000” Parliament has inserted Section 65-A and 65-B under chapter V of Indian Evidence Act, 1872.  Chapter V of Evidence Act deals with documentary evidence. To deal with the admissibility of electronic evidence section 65-A and 65-B inserted by the Parliament in the year 2000.

POSITION BEFORE 2001 

Before the insertion of these sections, section 61-65 used to deal with the electronic evidence.  Electronic evidence is a kind of documentary evidence that is proved either by primary evidence or secondary evidence.  When the document itself is produced before the court is called primary evidence. If one does not produce the original document, he can produce the secondary evidence of the content of the document. But subject to the conditions of section 65.  Section 63 of the act enlists what will be the secondary evidence. According to section 63(2), copies made from the original mechanical process and copies compared with such copies are secondary evidence. Hence, the legal luminaries considered section 65-A and section 65-B secondary evidence before their insertion.

POSITION AFTER 2001

After the Parliament inserted Section 65A and 65-B, section 61-65 does not govern the admissibility of electronic evidence. Earlier section 61-65 governed the proving of electronic evidence while now section 65-B does the job. Section 65-B states that any information printed on paper, stored, recorded, or copied in optical or magnetic media; produced with the use of a computer is a document. But subject to the conditions mentioned under section 65-B.  So now the legislature has made the computer produce as primary documentary evidence by giving it a legal fiction.

CONTROVERSY OVER SECTION 65-B(4)

Section 65-B (4) of the evidence act requires a certificate as a precondition for the admissibility of electronic evidence. A controversy arose that the requirement of certificate for the admissibility of electronic evidence is mandatory or not.  In  2005, the Supreme Court held that the requirement of the certificate as pre-condition to the admissibility of electronic evidence is not mandatory. If one does not produce the certificate, he can prove it under section 63 read with section 65 as secondary evidence. By upholding this view the Supreme Court has defeated the intent of the legislature behind the insertion of section 65-A and Section 65-B.

For almost a decade this ruling had followed by the courts. But in 2014, the Supreme Court took a progressive view and held that section 65-B is a special provision and overrides section 65 which is a general provision. And the court also mandates the requirement of the certificate as a pre-condition for admissibility of electronic evidence.  In 2017 again Supreme Court took a contrary view to its earlier judgment of the year 2014 and held that the requirement of certificate is merely procedural and can be relaxed in the interest of justice.

Now in 2020, the abovesaid controversy referred to Supreme Court larger bench. In response to this reference; the Supreme Court mandates the requirement of the certificate  for the admissibility of evidence by way of electronic evidence. In the absence of this certificate, the electronic evidence will be inadmissible.

 

Hence now it is very clear that for the admissibility of evidence by way of electronic evidence the certificate under section 65-B is mandatory and there is a complete bar on the party to produce electronic evidence without a certificate.