Admissibility of secondary electronic evidence- Section 65B of the Evidence Act.
Maintainability of Electronic records in the form of Videography, e-mails, WhatsApp, chat etc- Land mark judgement of three judges bench of Apex court
In the case of Arjun Panditrao Khotkar Vs Kailash Kushanrao Ghorantyal & Ors, the apex court on 14th July, 2020 in Civil Appeal No 20825-826 of 2017 was dealing with a landmark case regarding maintainability of electronic evidence without the certificate as required u/s 65B of the Evidence Act dealing with the production of electronic evidence. The matter related to election of a Shiv Sena MLA who election was challenged on the ground that the nomination forms were submitted by him before the Returning officer after the prescribed time for filing the nomination and this was proved with the help of Video Film of that day by the election officer. However, the video film was not accompanied with the certificate as mandatorily required in case reliance was being placed on secondary evidence in the form of copies of the electronic evidence like Video Film in the instant case. The oral evidence of the person who had made the video film was placed . The court dealt with the Evidence Act, Information technology Act including CrPC, CPC and finally held that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
The court gave other directions as well.
This is a landmark judgement which will far reaching implications in the day to day functioning of all government offices, courts, income-tax , GST , ED, CBI etc which day in and out deal with electronic evidence. It will also be helpful for the public at large to insist on the certificate as required u/s 65B before a secondary electronic evidence can be relied upon.