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Page 1: Neeraj aarora cyber_lawyer_section 65b_evidence act

N e e r a j A a r o r a

Page 2: Neeraj aarora cyber_lawyer_section 65b_evidence act

By Neeraj Aarora

FCMA, CISA, CEH, CCNA, CFCE, LLB, MBA (IT)

Page 3: Neeraj aarora cyber_lawyer_section 65b_evidence act

The explanation to Section 79 provides

that, "Electronic Form Evidence"

means any information of probative

value that is either stored or transmitted in Electronic Form and

includes Computer Evidence, Digital Audio, Digital Video, Cell

Phones, Digital Fax Machines".

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Section 59 was amended to include ‘Electronic Record’

No amendment in Section 60 to Section 65.

Section 60 – Oral Evidence must be direct.

Section 61 - Proof of Contents of documents.

Section 62 – Primary Evidence

Section 63 – Secondary Evidence

Section 64 – Proof of Documents by primary evidence

Section 65 – Cases in which secondary evidence

relating to the document may be given

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Primary Evidence

Secondary Evidence

State (NCT OF Delhi) Vs. Navjot Sandhu (AIR

2005 SC 3820)

The SC observed that irrespective of the compliance of

requirement of Section 65B there is no bar to adducing

secondary evidence under Section 63 & 65 of the

Evidence Act.

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Sec. 65B(1):Notwithstanding anything contained in thisAct, any information contained in an electronic record

o which is printed on a paper, stored, recorded or

o copied in optical or magnetic media

o produced by a computer

shall be deemed to be also a document, if the conditionsmentioned in this section are satisfied

o in relation to the information and

o computer in question and

shall be admissible in any proceedings, without further proofor production of the original,

as evidence of any contents of the original or of any factstated therein of which direct evidence would be admissible.

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Sec. 65B(2):

1. The computer from which the record is generated wasregularly used to store or process information in respect ofactivity regularly carried on by a person having lawfulcontrol over the period, and relates to the period over whichthe computer was regularly used;

2. Information was fed in computer in the ordinary course ofthe activities of the person having lawful control over thecomputer;

3. The computer was operating properly, and if not, was notsuch as to affect the electronic record or its accuracy;

4. Information reproduced is such as is fed into computer inthe ordinary course of activity.

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Sec.65B(3): The following computers shall constitute assingle computer-

by a combination of computers operating over that period;or

by different computers operating in succession over thatperiod; or

by different combinations of computers operating insuccession over that period; or

in any other manner involving the successive operation overthat period, in whatever order, of one or more computers andone or more combinations of computers,

Printout from LAN/WAN

Change of technology

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Sec. 65B(4):Contents of certificate may contain any of thefollowing

identifying the electronic record containing the statement anddescribing the manner in which it was produced;

giving the particulars of device

dealing with any of the matters to which the conditionsmentioned in sub-section (2) relate,

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and purporting to be signed by a person

occupying a responsible official position in relation to theoperation of the relevant device or

the management of the relevant activities (whichever isappropriate)

shall be evidence of any matter stated in the certificate; and for thepurposes of this sub-section it shall be sufficient for a matter to bestated to the best of the knowledge and belief of the person statingit.

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The Supreme Court held:-

Any electronic evidence be proved by virtue of procedureprescribed U/S 65B Evidence Act

Non obstante Clause - Any information contained in anelectronic record which is printed on a paper, stored, recordedor copied in optical or magnetic media produced by a computershall be deemed to be a document only if the conditionsmentioned Under Subsection (2) are satisfied.

Section 65 B (2) Conditions: Computer used to regularly store or process information.

Information regularly fed into the computer in the ordinary course

Computer should be operating properly, if not the operation must notaffect either the record or the accuracy of its contents.

Information should be a reproduction or derivation from the informationfed into the computer in the ordinary course

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The Supreme Court held:-

Certificate U/S 65B Evidence Act shall ensure safeguard as tothe source and the authenticity of the electronic evidence. Who will issue Certificate ?

What to be mentioned to identify the electronic record and deviceinformation?

Only if the above conditions are satisfied expert opinion ofexaminer U/S 45A Evidence Act is admissible on the saidelectronic evidence.

If the electronic evidence is admissible only then the oralevidence can be resorted otherwise not.

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TheHon’ble High Court of Delhi has held that:

That the impugned order is silent about there being any certificateunder Section 65B Evidence Act w.r.t. the Audio/ Video CDsduring the course of hearing at the lower court.

Respondent-CBI failed to show that the certificate has been filedalong with the charge sheet.

No certificate w.r.t. seven CDs in packet ‘B’ which is solely reliedupon by the prosecution.

The certificate filed is doubtful as the date of the was 18/12/2009and the case was registered on 23/11/2009.

The audio and video CDs in question are clearly inadmissible inevidence and the trial court has erroneously relied upon them toconclude a strong suspicion arises regarding petitionerscriminally conspiring with co-accused to commit the offence inquestion.

Thus, there is no material on the basis of which, it can bereasonably said that there is strong suspicion of the complicity ofthe petitioners in commission of the offence in question.

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TheHon’ble Apex Court has held that:

The conversation has been translated and the same hasbeen verified by the panch witnesses.

That the panch witnesses have not heard the conversation,since they were not present in the room.

The voice recorder is itself not subjected to analysis, there isno point in placing reliance on the translated version.

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We are in respectful agreement with the view taken by theDelhi High Court in the aforesaid judgment. Section 65Bprovides that any electronic data which is printed on a paper,stored, recorded or copied in optical or magnetic imageproduced by a computer shall be deemed to be a document. Thedocument is admissible in any proceedings, without furtherproof or production of the original, as evidence of any contentsof the original, if the conditions mentioned in the Section aresatisfied.

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Contd…

The learned Counsel has then submitted that even assumingthe e-mails sent or received by Akib Ali are admissible inevidence unless they are proved like any other document, theycannot be relied on by the Court to convict Akib Ali. He arguedthat secondary evidence relating to the contents of thedocuments is admissible if it is proved in consonance withsections 63 and 65 of the Indian Evidence Act. The secondaryevidence must be authenticated by foundational evidence thatthe alleged copy is in fact true copy of the original. The Court isrequired to decide the question of admissibility of a documentin secondary evidence before accepting the evidence.

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Contd…

This submission of the learned Counsel is fallacious. The IndianEvidence Act contains special provisions with regard to provingelectronic evidence. These provisions have been inserted by Act21 of 2000 with effect from 17-10-2000 by way of sections 65Aand 65B. Electronic evidence is admissible and is required to beproved only under these provisions. Section 65B starts with anon obstinate clause and appears to be a complete code in itselfgoverning the proof of electronic evidence. The question ofproving the printed mails as secondary evidence therefore doesnot arise.

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