In the case of Ram Singh and Ors v. Col. Ram Singh, (1985 (Supp) SCC 611) the Indian Judiciary for the first time dealt about the admissibility of the electronic record. In this case, the court took reference from the English case laws namely R. v. Maqsudali ([1975] 2 All E.R.464) and B. v. Robson ([1972] 2 All E.R. 699) wherein they would have examined a cassette as an evidence and laid guidelines on how a new technology should be made admissible.  As aforementioned, in the case of Ram Singh, the court held that new technologies and new devices should be considered as an evidence when they are gaining advantage to a party. Furthermore, the court held that these admissions should be subject to the Test of Accuracy and only those evidence can be made admissible.

The Highest court of the nation in the case of State (N.C.T. of Delhi) v. Navjot Sandhu, generally known as Parliament Attack Case, first considers the applicability of the procedural provision 65B of the Evidence Act.In the instant case, the phone call records of the accused were adduced in the court without compliance of a special provision regarding the admissibility of electronic evidence i.e., certificate under 65B was not produced by the prosecution at the stage of trial. The court in this case clearly states that even though the evidence produced could not satisfy the conditions under 65B, on the other hand, it satisfies the condition under section 63 (Section 63 of the Evidence Act, 1872 - Secondary evidence) and the contents of the same will be proved under Section 65 (Section 65 of the Evidence Act, 1872 - Cases in which secondary evidence relating to documents may be given) of the said act.

The Supreme Court in the case of Tukaram S. Dighole v. ManikraiShivajiKokate, (2010 4 SCC 329) observed that “There is no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium. The tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution.” This case was filed against the result of the parliamentary election. The appellant of this case, had adduced a VHS Cassette, which alleged to contain the voice of the accused wherein the contents were with regards to the communal and racial things. The apex court in this matter made a stringent scrutiny to admit the electronic record. The part that involved in proving the content need to satisfy the court in a strict manner coupled with accuracy.

The Landmark judgment on electronic evidence in the parliamentary bomb attack case (State (NCT of Delhi) vs Navjot Sandhu) gives a particular way of interpretation to it. In this case the phone call transcripts provided from the mobile service providers were the only document which is available to prove the link between the terrorists and the masterminds of the attack. The court held that primary evidence of electronic record can be covered under Section 62 of the Indian Evidence Act, 1872 and secondary evidence under Section 63 and 65 of the said act. As per the dictum in this judgment, if a party wants the court to admit an electronic evidence then it should satisfy the conditions as prescribed in Section 62 and 65 for primary and secondary evidence respectively. This judgment further affected the mandatory compliance of Section 65B. The impact of the judgment is that the application of Section 65B for admitting an evidence during the trial procedure is not a mandatory.

The apex court in P.V.Anwar V. P.K.Basheer (2014 10 SCC 473) a three judge bench took a contrary view to the aforementioned Parliamentary bomb attack case. In this case, the court in paragraph 24 of its judgment held that the electronic evidence which is a primary document can be admitted without producing certificate and there is no obligation to satisfy the condition laid down in Section 65B. If that electronic record satisfies the condition under Section 62 then it can be unequivocally admitted as an evidence .The same will not be covered either under Section 65A or 65B. A primary evidence is a ‘document’ which is defined under Section 3.

Per contra for a secondary evidence, the Court held that the party need to satisfy the conditions under Section 65B. Additionally,the secondary evidence of electronic record will not come under the ambit of Section 63 or Section 65 of the Indian Evidence Act, 1872.

The modus operandi is, an electronic evidence in the nature of secondary evidence should be admitted only with the submission of a Certificate under Section 65B(4). As per the words of the said provision, only the person who is in possession of the electronic device can produce a Certificate.

The Supreme court in the case of TomashoBruno v. State of U.P, ((2015) 7 SCC 178) held that the electronic record have to be seen in stricto sensu should be admitted as material evidence.

Subsequently,in the case of Shafi Mohammad v. State of Himachal Pradesh (SLP(Crl.) No.2302 of 2017), the apex court clarified the legal position regarding the production of certificate for secondary evidence. The Court held that persons who were having the possession of the electronic record in the nature of secondary record should produce a certificate. The Court decided that a party who is not in possession of the device when the document is extracted or produced is not required to produce the certificate in the interest of justice.The person who is having the possession of the device has to produce the certificate.

“Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Indian Evidence Act, 1872” (Ibid).

In the opinion of the author, the recent judgment is not in contrary to the P.V.Anvar’s case. In the latter judgment, the court draws a thin silver lining between primary and secondary evidence pertaining to the production of certificate regarding electronic evidence. This judgment overrules the apex court’s decision in Navjotsingh’s case.

Contrary to the ShafiMohammad’s case, the court clarified something which the apex court failed to dwell with in P.V.Anvar’s case. In the case of Shafi Mohamed, the court bifurcated the Secondary evidence of electronic record. The first one was with respect to the person producing the electronic evidence in the nature of secondary evidence,who is in the possession of the same and the second one was associated with the person producing the electronic evidence in the nature of secondary evidence, who is not in the possession of the same.

The aforesaid demarcation within the secondary evidence was not dealt by the apex court in P.V.Anvar’s case. Hence, this distinction need to be viewed as a clarification and not as a contradictory judgment. Generally, the Electronic record that is purported to be admitted need to be done in the light of production of certificate, in case of secondary document. For primary document there is no need for production of certificate under provision 65B (4).

The provision is read as follows:

(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;

(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.

The provision in Section 65B mandates the production of Certificate, but nowhere in the provision has it elucidated regarding the stage of production of certificate. If the prosecution is solely charging the accused based on an electronic evidence.The question that arises is,under what circumstance that certificate need to be produced in the trial? Can the prosecution’s case be discharged as the prosecutor fails to produce the certificate during the filing ofcharge sheet?

It is available in the hands of the defence that the sole star evidence produced against the accused in the chargesheet should be a verified one. If the prosecution fails in adducing the certificate at this stage then they need to produce the certificate in the near future. If the party failed to produce the certificate before the beginning of the arguments then the evidence will not be taken into consideration.

Every evidence will be examined during the trial stage or before the argument stage. To admit any electronic record as an evidence it should have the authenticity. For a primary record it will be scrutinized closely to make that record admissible and it need to satisfy the conditions in Section 62. Whilst for a secondary record the certificate need to be submitted in the court.

Hitherto generally any document which is adduced in a trial need to be produced before the commencement of the arguments or during the evidentiary stage. The court has the discretion to provide time to produce the certificate during the trial stage. When there is any kind of objection in a document during the stage of trial then the document will be admitted with a method to seek the mode of proof of the same. The admissibility of the document isclassified into two.They are:

(i)                 An objection that the document which is sought to be proved is itself inadmissible in evidence; and

(ii)               Where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient (PC PurshothamaReddiar v. S Perumal, (1972) 1 SCC 9).

The provision 65B is there to scrutinize the electronic evidence.Sub-section 4 of the act explains that valid proof has to be produced for admitting the secondary evidence in the court.

At the same time the court should not exercise its discretion to discharge a case on the sole ground that the certificate was not produced along with the charge sheet. The apex court held in the case of State of Karnataka v. M.R.Hiremath (Crl. App No. 819 of 2019) that,non-filing of the certificate for electronic evidence under section 65B (4) will not be fatal to the case in any way. The Court further stated that the need for the certificate will arise only when the part sought to produce that electronic evidence.