India: Admissibility & Evidentiary Value of Electronic Records

Last Updated: 12 July 2019
Article by Vijay Pal Dalmia, Partner

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email Id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
Facebook: https://www.facebook.com/vpdalmia
Twitter: @vpdalmia

AND

Udit Tewari

Vivekananda Institute of Professional Studies

udittewari25@gmail.com

Technology has changed and evolved rapidly over a period. Hence it becomes the need of the hour to adapt and change according to the change in technology. This need to change has been very well recognized by the courts as well as the legislature in India.

Electronic records as Evidence

Electronic record has been recognized and explained under the IT Act 2008[1]. As per the Act, electronic records include data, sound, image generated or recorded and sent or received in electronic form. Indian Evidence Act permits the admissibility of electronic records[2].

Primary and Secondary Evidence

It is a well-recognized principle of law that where Primary Evidence is available, it is given priority over the Secondary Evidence. Sometimes the data relating to Primary Evidence which is in electronic form is stored on virtual platforms like cloud, Google drives, big servers, etc. and also on hard drives, CPU, etc., which makes it practically impossible to present all these resources in court, every time a dispute arises. Hence, now it has become a standard procedure [3] (M/S ASHOKA CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD))) to allow Secondary Evidence, in cases where Primary Evidence which is in electronic form could not be produced. Secondary Evidence could be printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer[4]. These computer outputs will only be admissible after satisfying conditions under section 65(B). These conditions are only to be complied with in case of Secondary Evidence, which is in electronic form, and not in case of Primary Evidence [5]( Anvar P.V Versus P.K. Basheer and others.).

Different types of electronic records and their admissibility

Electronic records as per the definition under IT Act 2008 cover a wide range of formats in which data or media can be presented. Some of which are CD, DVD, pen drives, hard drives, telephonic recordings, video recordings, sound recordings, e-mails, pictures, etc. Each of such electronic records deals with different conditions relating to their admissibility in a court of law.

  1. CD, DVD, chip, Hard-Drive, Memory Chip, Pen Drive. – These kind of electronic records are admissible as Primary Evidence [6]( State Of Gujarat vs. Shailendra Kamalkishor Pande) as well as Secondary Evidence. For example, if the CD in question is Primary Evidence, then it is admissible without a doubt. For a CD/DVD/Hard-Drive/Memory Chip/Pen Drive to be Primary Evidence, it is necessary that the data, picture, video or anything which is to be presented to the court for Evidence is generated or recorded in that CD/DVD/ Hard-Drive/Memory Chip/ Pen Drive at the source. In other words, original media should be stored or recorded directly in that CD/DVD/hard drive/Hard-Drive/Memory Chip/ Pen Drive that was self-generated and created without any human intervention[7](Kishan Tripathi @ Kishan Painter vs. The State). Whereas if a CD is a Secondary Evidence, i.e., if it is a copy of the original and is a duplicated version, then it has to pass the test of authenticity, by complying with the conditions under section 65(B)[8]( Anvar P.V Versus P.K. Basheer and others). These conditions help to ensure the computer output is authentic, reliable, accurate, and exclusion of the possibility of tempering the Evidence. A certificate under section 65B(4) was held mandatory to be issued. Otherwise, the Secondary Evidence in electronic form will not be considered by the court as valid Evidence[9]( Sharadendu Tiwari vs. Ajay Arjun Singh and Ors).

In the case of CCTV footage, the virtual platforms like Cloud, Servers, or the storage device present in the computer recording and storing it will be considered as Primary Evidence. When a video is transferred to a CD/DVD/Hard-Drive/Memory Chip/ Pen Drive with the help of a computer which was originally recorded through a video camera or any other medium, then the memory card of that video camera will be considered as Primary Evidence and the CD/DVD/Hard-Drive/Memory Chip/ Pen Drive in which it was transferred, later on, will be admissible as Secondary Evidence.

Hence, it is pretty clear that in cases where the data is self-generated/created/directly recorded in a CD, DVD, Hard-Drive, Memory Chip, and Pen Drive without any human intervention, the same will be considered as Primary Evidence. However, when any such data is transferred or copied to another electronic device such as CD, DVD, Hard-Drive, Memory Chip, Pen Drive etc., with some human intervention leading to even an iota of possibility of someone tampering with the data, in such scenario such Evidence copied or retransferred on a different CD, DVD, chip, memory card, etc., will be considered and admissible as Secondary Evidence, requiring stringent proof to make the same admissible as Evidence.

  1. Audio and Video Recordings – Original audio and video recordings are accepted as a valid source of Evidence. Tape recordings are recognized as res gestae, meaning they are considered relevant to the case and also as admissible Evidence [10](Shri N. Sri Rama Reddy Etc vs. Shri V. V. Giri). Admissibility of tape recording is settled long before in multiple case laws, and these are taken as "documents" under section 3 of the Indian Evidence Act 1872[11](Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra AND ORS).

As audio tapes could be altered, erased and re-recorded, hence, while accepting them as Evidence, there are various factors to be considered [12](Ram Singh & Ors vs Col. Ram Singh). These factors involve establishing the voice of the speaker, its accuracy, relevancy, exclusion of the possibility of tempering or manipulation, appropriate custody, and clarity of the audio in question. If a tape recording is good enough to pass all these tests then, there remains no grey area pertaining to its admissibility. Some of the cases, which considered audio tape recording as valid Evidence, are:

a) Rup Chand vs. Mahabir Parshad And Anr. on 15 May 1956[13]

b) Dr. Partap Singh Vs. The State Of Punjab on 4 April 1962[14]

c) Yusufalli Esmail Nagree vs. The State Of Maharashtra on 19 April 1967 [15]

d) R. M. Malkani vs. State Of Maharashtra on 22 September 1972[16]

As much as video recordings are concerned, they hold the same evidentiary value[17] as that of an audio recording[18]( Alagaapuram R. Mohanraj & Others Versus Tamil Nadu Legislative Assembly Rep. by its Secretary & Another). Video recording could be in the form of a media file generated by a Handycam or it could be in the form of CCTV footage, but there is no doubt pertaining to its admissibility. When a video recording is to be submitted in a court of law, it can be submitted as Primary Evidence[19](Sidhartha Vashisht @ Manu Sharma Versus State (NCT of Delhi)), if the Memory-Chip/ CD/DVD/Hard-Drive along with the video camera through which the file was generated, are tendered in Evidence[20]( K. Ramajayam alias Appu v. Inspector of Police ). In cases where Primary Evidence is not available or not practically possible to be submitted in court, a copy of such video recording created through a computer program is admissible as Secondary Evidence subject to conditions mentioned under section 65(B).

Evidence admissible through video conferencing – Judiciary over time with an aim to dispense justice and speed up the process allowed taking Evidence by way of video conferencing [21]( V. Rama Naidu And Another vs Smt. V.Ramadevi). Judiciary gave an opinion to adapt a pragmatic view while accepting Evidence through video conferencing [22]( International Planned Parenthood Federation (IPPF) v/Madhu Bala Nath ). There are certain conditions which are to be followed while accepting video conferencing, which are highlighted in the case of In Twentieth Century Fox Film Corporation Vs. NRI Film Production Associates (P) Ltd[23]. These conditions ensure that the procedure laid out in relevant laws regarding admissibility of Evidence is followed properly, ensuring a fair trial.

  1. Evidence in the form of emails, media, and calls generated through mobile phone- There is a presumption under section 88-A Evidence Act which the court follows while taking emails as Evidence. This presumption is only pertaining to the data fed into the computer and not in relation to the originator of the e-mail. Emails are very well recognized as a valid source of Evidence [24](Abdul Rahaman Kunji vs. The State Of West Bengal). E-mails are generally submitted by way of print outs along with the certification under section 65B(4)[25] (Ark Shipping Co. Ltd. vs. GRT Shipmanagement Pvt. Ltd).

Mobile phones can be a very useful resource when it comes to evidentiary value. Mobile phones can be used for tracing location [26](Omprakash vs. State Of M.P), call records, submitting media like pictures and videos. If media files which are generated through mobile phones are to be submitted in court as Evidence, then in those cases that mobile phone along with the memory card if any which was used to store those files is to be submitted in court [27] (State (Nct Of Delhi) vs. Firoz Khan & Anr). Media generated through mobile phones can also be submitted like other Secondary Evidence, which is by transferring data to a CD/DVD/ Hard-Drive, Memory Chip, Pen Drive etc., with the help of a computer and submitting it with a certificate in accordance with section 65B(4)[28] ( Kamal Patel vs Ram Kishore Dogne).

Conclusion

Electronic records are admissible in Primary as well as in Secondary form of Evidence, subject to the fact that they are accurate, exclusion of the possibility of tempering or manipulation, appropriate custody, are relevant and reliable. An important condition which cannot be over looked is the certificate under section 65B(4), without which an electronic record in the form of Secondary Evidence is not admissible.

[1] Section 2(t) IT Act 2000

[2] Section 65A IE Act 1872

[3] http://lobis.nic.in/ddir/dhc/RKG/judgement/27-02-2018/RKG19022018CMM1932018.pdf M/S ASHOKA CHEMICALS (INDIA) V/S M/S BHARTIYA HINDU SHUDHI SABHA TRUST ( REGD) CM(M) 193/2018 & CM Nos.6332-6334/2018(HIGH COURT OF DELHI)

[4] Section 65(B) IE Act 1872

[5] https://www.sci.gov.in/jonew/judis/41931.pdf Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF 2012 (Supreme Court of India)

[6] 2008 CriLJ 953 State Of Gujarat vs Shailendra Kamalkishor Pande:Gujrat High Court CNR No : GJHC240426142007 http://gujarathc-casestatus.nic.in/gujarathc/ 2007 SCC OnLine Guj 255 : 2008 Cri LJ 953 : (2008) 3 All LJ (NOC 574) 178 Cri. Revn. Appln. No. 228 of 2007 Decided on June 29, 2007

[7] 2016 SCC OnLine Del 1136 : (2016) 230 DLT (CN) 3 (DB) : 2016 Cri LJ (NOC 274) 106 : (2016) 2 DLT (Cri) 666(HIGH COURT OF DELHI)

[8] https://www.sci.gov.in/jonew/judis/41931.pdf Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF 2012 (Supreme Court of India)

[9] Sharadendu Tiwari vs. Ajay Arjun Singh and Ors. (16.01.2018 - SC Order) : MANU/SCOR/03864/2018, EP-1-2014 https://mphc.gov.in/judgement-orders EP 1/2014 (Madhya Pradesh High Court)

[11] 1975 SCR 453 https://www.sci.gov.in/jonew/judis/5980.pdf (ZIYAUDDIN BURHANUDDIN BUKHARI Vs. BRIJMOHAN(Supreme Court of India) RAMDASS MEHRA & ORS)

[12] 1986 AIR, 3 1985 SCR Supl. (2) 399https://www.sci.gov.in/jonew/judis/9228.pdf (Supreme Court of India) Ram Singh & Ors vs Col. Ram Slngh(Supreme Court of India)

[13] AIR 1956 P H 173(Punjab and Haryana High Court) 1956 SCC OnLine P&H 82 : ILR (1956) 1 P&H 1351 : PLR (1956) 58 P&H 441 : AIR 1956 P&H 173 Civil Revision Application No. 400-D of 1955 Decided on May 15, 1956 Rup Chand vs Mahabir Parshad And Anr

[14] AIR 1963 P H 298 1962 SCC OnLine P&H 96 : ILR (1962) 2 P&H 642 : AIR 1963 P&H 298(Punjab and Haryana High Court)

[15] 1968 AIR 147, 1967 SCR (3) 72 https://www.sci.gov.in/jonew/judis/2376.pdf (Supreme Court of India)

[16] 1973 AIR 157, 1973 SCR (2) 417 https://www.sci.gov.in/jonew/judis/6708.pdf (Supreme Court of India)

[17] In Halsbury's Laws of England, Fifth Edition, Vol. 11, at page 723

[18] (2016) 6 SCC 82 : 2016 SCC OnLine SC 134, W.P.(C) No.-000455-000455 – 2015 https://www.sci.gov.in/jonew/judis/43393.pdf

[19] , Crl.A. No.-000179-000179 - 2007 https://www.sci.gov.in/jonew/judis/36237.pdf (Supreme Court of India) (Sidhartha Vashisht @ Manu Sharma Versus State (NCT of Delhi))(Delhi High Court)

[21] V. Rama Naidu And Another vs Smt. V.Ramadevi on 31 January, 2018: CIVIL REVISION PETITION No.6089 of 2016 http://hc.ap.nic.in/

[22] International Planned Parenthood Federation (IPPF) v/sMadhu Bala Nath FAO(OS) No. 416 of 2015 & CM No. 13475 of 2015 http://lobis.nic.in/ddir/dhc/SAS/judgement/08-01-2016/SAS07012016FAOOS4162015.pdf (Delhi High Court)

[23] AIR 2003 Kant 148 AIR 2003 Kant 148, 2003 (5) KarLJ 98 (Twentieth Century Fox Film ... vs Nri Film Production Associates)http://judgmenthck.kar.nic.in/judgments/bitstream/123456789/344354/1/CRP4636-02-09-01-2003.pdf (Karnataka High Court)

[25] 2008 (1) ARBLR 317 Bom MANU/MH/0510/2007 (Bombay High Court)

(Ark Shipping Co. Ltd. vs. GRT Shipmanagement Pvt. Ltd). (26.07.2007 - BOMHC) : MANU/MH/0510/2007

[27] State (Nct Of Delhi) vs Firoz Khan & Anr. on 12 January, 2016 CRL. L. P. 23/2016 http://lobis.nic.in/ddir/dhc/SDS/judgement/08-02-2016/SDS12012016CRLMP232016.pdf (Delhi High Court)

[28] Kamal Patel vs Ram Kishore Dogne on 4 January EP-24-2014 https://mphc.gov.in/ https://mphc.gov.in/upload/jabalpur/MPHCJB/2014/EP/24/EP_24_2014_Order_04-Jan-2016.pdf( Madhya Pradesh High Court)

© 2018, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Vaish Associates Advocates
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Vaish Associates Advocates
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions