Anvar P.V. v. P.K. Basheer (2014)

Every modern file is electronic — the contract by e-mail, the settlement recorded on a phone, the CD of a meeting, the screenshot of a transfer. A law office that produces those in court without knowing how they are proved loses on admissibility before the merits are reached. This module teaches the lawyer's tools, and this is the case that tells you what must accompany an electronic record when it is produced.

It is also the case with the shortest route into a viva: what must accompany a CD produced in evidence?

The question before the Court was a question of proof, not of commercial fact: how is an electronic record — a CD, a printout and the like — proved in evidence?

An electronic record can be proved only in accordance with s. 65B. Section 65B is a non obstante provision: computer output is deemed to be a document and is admissible without production of the original only if the four conditions in s. 65B(2) are satisfied —

1. the output was produced during the regular use of the computer by the person lawfully controlling it;
2. information of that kind was regularly fed in in the ordinary course of activities;
3. the computer was operating properly, or any malfunction did not affect the record; and
4. the information reproduces or derives from what was fed in.

The certificate under s. 65B(4) must: identify the electronic record; describe the manner of its production; give particulars of the device; deal with the s. 65B(2) conditions; and be signed by a person occupying a responsible official position in relation to the device, to the best of his knowledge and belief. It must accompany the record when the record is produced.

1. Start from the vulnerability of the medium. Electronic records are far more susceptible to tampering, alteration, transposition and excision than paper. Without safeguards a trial resting on electronic records could become a travesty of justice.
2. Read s. 65B as a complete and exclusive code. Because it begins with a non obstante clause and supplies its own conditions and certificate, it displaces the general secondary-evidence route; compliance is the price of admissibility.
3. Separate admissibility from genuineness. Only once the record is duly produced under s. 65B does the question of its genuineness arise, and it is then that the opinion of the Examiner of Electronic Evidence under s. 45A becomes relevant.
4. Refuse oral substitutes. Oral evidence that the record is authentic cannot substitute for compliance with s. 65B; if it could, the safeguards would be optional.

It opens the electronic evidence limb of the technology question, whose plan is: authentic websites and databases; SIL Import on notice by fax — Parliament, requiring notice in writing, must be presumed aware of modern devices, and the same reasoning supports e-mail, whose delivery can be proved by a delivery report; Praful B. Desai on recording evidence by video conferencing, which satisfies the requirement that evidence be recorded in the accused's presence so long as the accused or his pleader is present, with the prudential suggestion that it be used where the witness is in a country with an extradition treaty and where contempt and perjury are punishable; and this case on the s. 65B certificate. Note that the criminal procedure code has since been replaced, so read the presence requirement with the corresponding provision of the current code.

Always add the currency caution. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) is a later Supreme Court decision on s. 65B, and the Bharatiya Sakshya Adhiniyam, 2023 now contains the corresponding provisions. Read both before advising; this course does not set out the holding of the later decision, so do not state one.

It disposes of the practice of producing a CD, printout or screenshot with an affidavit of authenticity and nothing more, and the belief that a record is reliable merely because it was created and stored in a computer.

It does not decide the weight of an electronic record once admitted, and it does not touch the substantive law of any offence. Because the report reference is not settled in this course and the law has moved twice since, this is a case to cite carefully: name, date, section, and then the current provision.