Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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Vivekananda Institute of Professional Studies
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. 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.
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  (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. 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 ( 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.
- CD, DVD, chip, Hard-Drive, Memory Chip, Pen Drive. – These kind of electronic records are admissible as Primary Evidence ( 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(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)( 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( 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.
- 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 (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(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 (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
b) Dr. Partap Singh Vs. The State Of Punjab on 4 April 1962
c) Yusufalli Esmail Nagree vs. The State Of Maharashtra on 19 April 1967 
d) R. M. Malkani vs. State Of Maharashtra on 22 September 1972
As much as video recordings are concerned, they hold the same evidentiary value as that of an audio recording( 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(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( 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 ( V. Rama Naidu And Another vs Smt. V.Ramadevi). Judiciary gave an opinion to adapt a pragmatic view while accepting Evidence through video conferencing ( 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. These conditions ensure that the procedure laid out in relevant laws regarding admissibility of Evidence is followed properly, ensuring a fair trial.
- 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 (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) (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 (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  (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) ( Kamal Patel vs Ram Kishore Dogne).
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.
 Section 2(t) IT Act 2000
 Section 65A IE Act 1872
 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)
 Section 65(B) IE Act 1872
 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
 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)
 1971 AIR 1162, 1971 SCR (1) 399http://jajharkhand.in/wp/wp-content/judicial_updates_files/13_Evidence_Act/27_tape_recorded_conversation/Shri_N._Sri_Rama_Reddy_Etc_vs_Shri_V._V._Giri_on_27_April,_1970.PDF(Shri N. Sri Rama Reddy Etc vs Shri V. V. Giri)(Supreme Court of India)
 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
 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)
 In Halsbury's Laws of England, Fifth Edition, Vol. 11, at page 723
 K. Ramajayam alias Appu v. Inspector of Police 2016 Cri. L.J. 1542 https://hcservices.ecourts.gov.in/hcservices/cases/display_pdf.php?filename=oVz058q2ZLjDVEITM0Vw1EFEwXGzAWF8VVN1fUzLICt2cQLkXismJaz1M3Foo51f&caseno=RT/1/2015&cCode=1&appFlag= (Madras High Court)
 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)
 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)
http://odishapolicecidcb.gov.in/sites/default/files/Abdul%20Rahaman%20Kunji_vs_TheState%20Of%20West%20Bengall_on_14_November%2C_2014-E-MAIL.PDF (Abdul Rahaman Kunji vs The State Of West Bengal) (Kolkata High Court)
 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
 CRR 879/2013https://mphc.gov.in/upload/gwalior/MPHCGWL/2013/CRR/879/CRR_879_2013_Judgement_18-Nov-2014.pdf (Madhya Pradesh High Court)( Omprakash vs State Of M.P)
 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)
 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)
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