Admissibility of Electronic Evidence : Challenges for Legal Fraternity

Neeraj Aarora-Admissibility of Electronic Evidence-1

Due to enormous growth in e-governance throughout the Public & Private Sector, Electronic Evidence have involved into a fundamental pillar of communication, processing and documentation. These various forms of electronic evidence are increasingly being used in both Civil & Criminal Litigations. During trials, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The various categories of electronic evidence such as website data, social network communication, e-mail, SMS/MMS and computer generated documents poses unique problem and challenges for proper authentication and subject to a different set of views.

The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the phrase “All documents produced for the inspection of the Court” were substituted by “All documents including electronic records produced for the inspection of the Court”. Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence.

In Section 61 to 65, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to use any word, the presumption is that the omission is intentional. It is well settled that the Legislature does not use any word unnecessarily. In this regard, the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa[1] held that “…Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily.”

On the other hand, in Section 61 to 65 Indian Evidence Act, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the omission of the word, “Electronic Records” in the scheme of Section 61 to 65 signifies the clear and explicit legislative intention, i.e. not to extend the applicability of Section 61 to 65 to the electronic record in view of overriding provision of Section 65-B Indian Evidence Act dealing exclusively with the admissibility of the electronic record which in view of the compelling technological reasons can be admitted only in the manner specified under Section 65-B Indian Evidence Act.

The main objective to introduce the specific provision has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same. The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media. It provides:-

Section 65B – Admissibility of Electronic Records

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

  • which is printed on a paper, stored, recorded or
  • copied in optical or magnetic media
  • produced by a computer
  • shall be deemed to be also a document, if the conditions mentioned in this section are satisfied
  • in relation to the information and
  • computer in question and
  • shall be admissible in any proceedings, without further proof or production of the original,
  • as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

Sec. 65B(2):

  • The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
  • Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;
  • The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
  • Information reproduced is such as is fed into computer in the ordinary course of activity.

Sec.65B(3):

The following computers shall constitute as single computer-

  • by a combination of computers operating over that period; or
  • by different computers operating in succession over that period; or
  • by different combinations of computers operating in succession over that period; or
  • in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

Sec. 65B(4):  

Regarding the person who can issue the certificate and contents of certificate, it provides the certificate doing any of the following things:

  • identifying the electronic record containing the statement and describing the manner in which it was produced;
  • giving the particulars of device
  • 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.

This contention is further strengthened by the insertion of Section 65A & 65B and the words “Notwithstanding anything contained in this Act” which is a non-obstante clause, further fortifies the fact that the legislature has intended the production or exhibition of the electronic records by Section 65A & 65B only. A non-obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over the provision in the same or other act mentioned in the non-obstante clause. It is equivalent to saying that despite of the provisions or act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs.[2]

The aforesaid principles of interpretation with respect to the non-obstante clause in form of “Notwithstanding anything contained in this Act” is further supported by the Hon’ble Apex Court in Union of India and Anr., v. G.M. Kokil and Ors.[3] observed “It is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.” Further, the Hon’ble Apex Court in the case cited as Chandavarkar Sita Ratna Rao v. Ashalata S. Guram[4], explained the scope of non-obstante clause as “…It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation…

ANVAR P.V. VERSUS , P.K. BASHEER AND OTHERS [5]

In this significant judgment, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to make such electronic evidence admissible.

The judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anticorruption where the reliance is being placed on the audio-video recordings which are being forwarded in the form of CD/DVD to the Court. In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment. It was further observed that all these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic records sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

In the anticorruption cases launched by the CBI and anticorruption/Vigilance agencies of the State, even the original recording which are recorded either in Digital Voice Recorders/mobile phones are not been preserved and thus, once the original recording is destroyed, there cannot be any question of issuing the certificate under Section 65B(4) of the Evidence Act. Therefore in such cases, neither CD/DVD containing such recordings are admissible and cannot be exhibited into evidence nor the oral testimony or expert opinion is admissible and as such, the recording/data in the CD/DVD’s cannot become a sole basis for the conviction.

In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act. The Constitution Bench of the Supreme Court overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this Court, does not lay down correct position and required to be overruled.

The only options to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or it’s copy by way secondary evidence U/s 65A/65B of Evidence Act. Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

Other Important Judgments

Relying upon the judgment of Anvar P.V. supra, while considering the admissibility of transcription of recorded conversation in a case where the recording has been translated, the Supreme Court held that as the voice recorder had itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for electronic evidence.

Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke [6]

The Hon’ble High Court of Delhi, while deciding the charges against accused in a corruption case observed that since audio and video CDs in question are clearly inadmissible in evidence, therefore trial court has erroneously relied upon them to conclude that a strong suspicion arises regarding petitioners criminally conspiring with co-accused to commit the offence in question. Thus, there is no material on the basis of which, it can be reasonably said that there is strong suspicion of the complicity of the petitioners in commission of the offence in question. Ankur Chawla Vs. CBI [7]

The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication. Abdul Rahaman Kunji Vs. The State of West Bengal [8]

In the recent judgment pronounced by Hon’ble High Court of Delhi, while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s 65B Evidence Act, the court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever. Jagdeo Singh Vs. The State and Ors.[9]

Conclusion

The admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made witness against himself as it would be violative of the Article 19 of the Constitution of India.


  1. Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa reported as AIR 1987 SC 1454
  2. See ‘Principles of Statutory Interpretation, 9th Edition by Justice G.P. Singh – Chapter V, Synopsis IV at pages 318 & 319
  3. Union of India and Anr., v. G.M. Kokil and Ors. [(1984)SCR196]
  4. Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986)3SCR866]
  5. ANVAR P.V. VERSUS , P.K. BASHEER AND OTHERS [MANU/SC/0834/2014]
  6. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [MANU/SC/0040/2015]
  7. Ankur Chawla v. CBI [MANU/DE/2923/2014]
  8. Abdul Rahaman Kunji v. The State of West Bengal [MANU/WB/0828/2014]
  9. Jagdeo Singh v. The State and Ors. [MANU/DE/0376/2015]

79 comments

  • Jasvinder Singh /

    Kudos Niraj,
    There can not be a better and more enlightening explanation of the position of law on he subject of admissibility of Electronic Evidence. Keep it up.

  • Krishna SASTRY Pendyala /

    Dear Neeraj Arora,
    Congratulations for producing a very good article and thanks for enlightening. Keep on writing such articles and please share.
    With regards
    Krishna Sastry Pendyala
    Ex.Cyber Forensic Scientist,
    CFSL, Govt of India, Hyderabad.

  • pawan kumar mittal /

    Dear Sir

    very valuable information.

    Reagrds
    Pawan Kumar Mittal
    Advocate

  • Sir, that was a very apt and detailed view. Extremely helpful in understanding position of Indian Courts on Electronic Evidence for students of Law interested in Cyber Laws like me.
    Thanks a lot. 🙂

  • Meesam ali /

    Interestingly in my case, the recording produced by CBI and rechecked by cfsl, through their voice recorder exhibits 6months back date than the date of said recording. Moreover there was nowhere my voice but in chargesheet, they write a fake transcript.
    The above issue also come in my case.
    Tnx for writing a clear order.

  • Inspector Jitender Singh Kundu /

    Keep it up bro. Good going.

  • AnilKumarKatarey /

    Valuableartical

  • Can somebody advise who would be required to certify the downloaded and printed pages of the web information such as Case status, Orders etc published by the Hon. High Courts on their web, so as to make them admissible in the connected cases in the lower courts.

    Thanks

  • Sir. Plz advoice on following case. My self and my friend have started a business by investing 12lakhs each. After 2 months my friend sent a mail for relieving him with his settlement. I have relieved him with 8.5 laks with clear ac. He had sent an SMS as a acknowledgement. Then after I have taken full responsibilities and yielded a good profit. After 3 months he had reentered into the project by using muscle power. I scared by his roedism and allowed him to rejoin. But he had not given back the amount which I have settled but started to threaten me. He had taken the complete control of the project and started to show loss in all months actually there is no loss. He had kidnapped me once for questioning him and looted my 1.5 lakhs through rowdies. Finally he had told me to quit the project forcefully. I am also tired and requested him to make my final settlement. But he has refused to make my settlement and again used to threaten me. Finally on 9th of this month I have approached the police station with complaint letter and relevant documents. But police not registered my case and supported him. But all of them knew that he is a fraud and used muscle power to threaten me. Moreover every time he came to police station with 10+ goondas. Now iam helpless and don’t know whom to approach. I have trusted law but not supported. I have plenty of electronic evidence to prove fraud. Please guide me. My no 9035199762. Email . anandkanchan30@gmail.com

  • Why go to police. Go to court

  • vanga yadagiri /

    Can somebody advise who would be required to certify the downloaded and printed pages of the web information such as Case status, Orders etc published by the Hon. High Courts on their web, so as to make them admissible in the connected cases in the lower courts.

    Thanks

    • Dear Vanga,
      There is no such procedure of Certifying the downloaded information. The best way is to summon the concerned registry of the High Court who being in possession of original data can prove the information and also render the certificate u/s 65B Evidence Act.

      Neeraj Aarora
      Cyber Lawyer

  • a. m.kuruvilla /

    The act says when the details are developed by the prosecution. Where CBI take over a case from Local police who had not done such certification initially, what can happen to telephonic call details already collected but not certified under SCc. After 3 years what CBI can do to get it regularised

    • Dear A.M. Kuruvilla,

      The certificate is required regarding the conditions to be complied as mentioned in Section 65B(2) regarding the information and computer. The person producing the secondary evidence of the electronic record can always produce it again and give a certificate. Even the certificate can be given regarding the previous copy and can be filed at any stage as mentioned in the Judgment of Paras Jain Vs. State of Rajasthan by Hon’ble High Court of Rajasthan. However, the defence always during the cross examination challenge the correctness, process and compliance and convince the court regarding non-compliance condition u/s 65B. Further, after knowing the exact facts of the case concrete opinion can be given.

      Regards

      Neeraj Aarora
      Cyber Laywer
      https://en.wikipedia.org/wiki/User:Neeraj_Aarora

  • Aaditya Pandey /

    Sir.If Certificate u/s signed after 4 months of producing document by operator who deal with computer.would this certificate valid for admissibility of secondary evidence in court.

    • Dear Aaditya Pandey,

      Section 65B(4) clearly provides that the certificate can be given by the incharge of the computer and as such the certificate would be admissible in the law and further, the person is also author of the document then, his credibility stands at a higher footing as compare to the person who did not have a personal knowledge and merely producing the output. Regarding signing after 4 months, the issue can be raised during cross examination which may also include whether during these 4 months, the person was incharge of the computer or not and then, indepth cross examination can be on the issues raised under Section 65B(2). However, the exact reply can be given only after going through the facts in detail.

      Regards

      Neeraj Aarora
      Cyber Laywer
      https://in.linkedin.com/in/neerajcyberlawyer

  • Musroor mushtaq /

    I presented a video cd in the sessions court along with certificate u/s 65B evidence act signed by the person who recorded the video and made the cd but the sessions judge rejected my application to adduce the cd saying that a private person cannot certify under the said section Cz the words used in the section are- a responsible official person.now I’m before the high court plz help with some case law that says as to who is required to give the certificate as I could find no direct authority on this point.
    With due regards.

    • The word responsible official person are in context with some organizations/company. In case of individual, the owner of the electronic device can issue a certificate u/s 65B however, the same could be challenged regarding authenticity and compliance of condition in 65B(2). Let me know the outcome of proceedings in High Court at cyber.nk@gmail.com

      Regards
      Neeraj Aarora

  • Advocate Neelima Mysore /

    Sir,
    I want to submit recordings between husband and wife, husband’s messages, photos , emails in the court . I have submitted Cyber expert’s certificate in the case alongwith the affidavit of the Husband. Is that enough ? Does this satisfy the requirements of S. 65B (4)? Or do I need to give any other certificate? If yes, by whom?

    • For each type of electronic evidence, you need to submit the certificate u/s 65B. The expert certificate regarding authenticity would help meeting the challenges during cross examination and also proving the electronic documents in the court of law.

      Regards
      Neeraj Aarora

  • Please inform me whether e-mails produced in the court as evidance also required to be certified as explained under sec 65b.

  • Jeevesh Mehta /

    Dear All,

    I my case, I filed email communication along with the suit and filed 65 B certificate/ affidavit after 1 month at the stage of admission itself.

    Judge says that i did not file 65B along with suit , then how is it admissible.

    Kindly throw light on this.

    Regards

  • Hi,

    I am challenging the false allegation through 498a and DV by my wife. I have submitted photos / audio and video as evidence in the court. My lawyer is saying that we have to prove these electronic evidence to be consider by the court.

    How can i prove this? I have capture these things using my camera and transferred into a CD.

    Kindly help.

  • Dear Sir,
    As stated that in case of individual the owner (individual himself) can issue certificate, if certain accusations are levelled against that individual then would it (issuing certificate by individual) not amount to self incrimination? Kindly through light on this.
    Regards.

    • In such cases, it is better to file original evidence or you can keep original evidence ready at the time when the evidence is being exhibited or cross examination of the witness producing the evidence.

  • Williammibe /

    Great article.Much thanks again. Great.

  • ASIM SHAIKH /

    Dear sir,
    . whether a memory card on which a call on mobile phone is recorded and saved be treated as primary evidence?

  • A case under section 312 IPC is made on girl and we have submitted all the evidence including a cd along with trascripted conversion of the same and the same is exibited later. Judge finds our evidence relevant and make a case against the girl.
    Further, during our cross examination , opp consel says that 65b is not given regarding the cd and trascripted conversion and hence inadmissible evidence. One witness is still remain to be crossed and then case will move on charge.
    plz advise can we now submit the 65B certificate as per Paras jain vs Rajasthan High court but the case is in Haryana. Although the original Mobile phone is still in our possession from whom we have made a cd and exibited in court.

    • You can file an application for adducing additional evidence for proving & submitting certificate 65B as per judgment of Paras Jain and also the judgment of Kundan Singh which is by Division Bench of Delhi High Court. The other option is you can produce the original mobile phone and the evidence would be admissible as primary evidence u/s 62 of the evidence act (Anwar PV).

  • Suresh Chandra Bhandari /

    Great article.Much thanks again. Great.

  • SUDHIR KAPUR /

    For submitting Electronic records (under section 65 B of Indian Evidence Act) towards a partition suit for the joint ancestral property, would the court require any other proof than a printed copy of following records that have been downloaded from the official websites of Estate office and Election commission:
    1. ownership details of the property (downloaded from official website of Estate office)
    2. Voter list as a proof of continued occupancy (downloaded from the official website of election commission)
    Thanks

    Sudhir Kapur

  • What else if tlo kept recordings 3 days in his office. Did not submitted to malkhana.
    What is remedy if cfsl tests voices of accused and leaves complaints voice. What about their report if it is without their own prepared transcripts.

    • There are few judgments which provides that the recording should be immediately sealed and deposited in the Malkhana. However, any irregularity on the part of IO, may not be sufficient to discard the evidence until during the cross examination. You may be able to put some dent into the prosecution case on this technical evidence

  • The respondents have submitted an email of conversation between themselves and xyz co and have produced the same saying about my employment with xyz co. They have sought to reopen evidence just before final arguments and have produced the same u/s 65b certified by HR personnel who was also respondents witnesses. How can we argue against this in labour court. Also xyz co was summoned by labour court. But they did not come to court. Just conversation regarding my joining date and resignation date and name means any evidence between respondents and xyz co

  • in india cell phone recordings such as call recording and vedios are valid or not pls inform me

  • Suhas Gaonkar /

    it is sad that even after repeated inquiries there is no convincing explanation on Evidence Certification. can anyone please tell me, who is the right person to get the Electronic Evidence (Video recorded on CD\Memory Card) certified.
    Is there any precise details available on this?

    Many Thanks in advance..

    • For admissibility of electronic evidence, two important considerations before the court are, admissibility & relevancy and genuineness and reliability . An electronic evidence may be original and admissible u/s 62 of the Evidence Act and still may not be genuine/reliable. A simple example is, in one of the case one party produce email alongwith attachment from the outlook express configured in a laptop and contrary to it, the opposite party open the original sent mail alongwith the attachment. The question is which is more reliable and certainly, the email alongwith attachment in the webmail account is more reliable as it cannot be tempered with and on the other hand email alongwith the attachment in the outlook express in a laptop can be manipulated. Thus, admissibility and relevancy is looked into as per provision of the evidence act and on the other hand genuineness and reliability can be ascertained by analyzing the specific type of evidence, chain of custody, search & seizure procedure, probabilities of manipulation, cross examination etc.

  • Suhas Gaonkar /

    Dear Neeraj Ji! many thanks for your swift response.
    here is the concern..
    I am trying to help a Gentleman who has suffered a lot in his marriage relationship. Let me call him as Mr X. here
    Mr X got married in year 2008. On very first night his wife told him that she is in love with another person. On Mr X’s assurance of giving proper divorce to her so that she can marry with her boyfriend she denied and promised to forget the past and continue with this marriage life. Later Mr X found that she has still continued relationship with her Ex and He caught them red handed at their meeting point. Once again she repeated the same drama, she cried and pledged for forgiveness promising not to repeat it. Mr X took both of them at police station and got a written statement from them in front of Police that both of them are going to stay away from each other and that she will not keep any kind of contact with her Ex.
    Now after 3 to 4 years, as Mr X from his sources got to know that she is now in affair with another person. Mr X planted a mobile camera at suspected place to capture them in video. And he was succeeded in it. In captured video both of them are appearing in compromising position. Now that he has already given 2 chances to her, he do not wish to continue with any relationship with his wife and wanted to go for Divorce.
    Mr X has already spent more than 4 lakh on her on medical treatment so that she can conceive a baby and it has failed due to her negligence.
    Now as proof he got..
    > Above said Signed statement.
    > Medical Bills.
    > Video captured in mobile camera.

    When he consulted a lawyer, he asked him to get the Authentication Certificate from local Cybercafe. I did not found this as right suggestion because most of the Cyber Cafe owners are not technically skilled to get the video certified. Also as this is going to be a legal matter people will not be willing to give anything in written.
    I am still looking for help to get this video certified. Any help in this regard can be a savor for someone.
    Thanks..

  • manoj kumar bhaskar /

    Sir,
    I have some dispute with my wife and he always threatened me to falsely implicate in Dowry and domestic violence case. But i have some call recording of her with me, in which she threatened me. I copied that call recording to my pc and later saved them on email. The phone on which recording were made has been lost. Now can i produce that call recording in court in pen drive/CD as an evidence and how? will court admit it as an evidence along with 65(B) Certificate and who will give 65(B) Certificate? is original phone required in court for evidence? a

  • Sir, I am challenging false DVC case. During the evidence state I have produced couple of call recordings between me and my wife, a video recording where she was working as a lead anchor in a TV channel and couple of photos when she was giving stage performances with her boy friend. Judge dismissed my evidence petition as I have not submitted with 65b certificate. When I contacted True labs, the charges are too high ( per photo they quoted 3K and videos and call recording tariffs are really high).
    In this position I cannot afford so much money on obtaining 65(B). She is purposely denying all the call recording and videos. Please suggest if there is any way to get the respondent verify the memory card from their expenses.
    Somehow I want to showcase all of them as it will clearly depicts the behavior my wife.

    Thanks,
    Santosh

  • My Divorce case going on in court, where I submitted as a evidence a hardcopy of photograph downloaded from Facebook on my official laptop. This photograph was posted from another Facebook account but after submitted as evidence the photograph was deleted by account holder.

    Now court has directed me to authenticate this photograph from forensic lab, this require the computer from which the photograph has been downloaded to be submitted in forensic lab.

    My official laptop where I download the photograph in 2013 has been changed and formatted.

    plz advise how can we get the 65B certificate

  • Thanks Neeraj Arora for this awesome explanation I hope I can use this in some manners.

    I want to talk to you about an ACB case against my father. The complainant is a lawyer who filed complaint against my father in ACB. They set trap and all the stuff. Later, chargesheet was filed and currently the case is in progress.

    My father is in land survey department and the complainant came with some work my father is responsible for but as Government officials want lots of documents here also it happened. And there raised grudge for my father and the complainant did this due to his hurt ego.

    The case is in progress and 2 years had been passed. The complainant gave 3 different answers in different hearings.
    1) IO had not included the CD I provided to him.
    2) IO had not asked for any CD before filing chargesheet.
    3) Under section 173/8 need re-investigation and include the CD (by complainant) in chargesheet.

    So, here the complainant gave 3 different answers which are contradictory and finally he wants to submit some CD in which he says he has recorded my father had demanded bribe. Anyways, this is fearful to me, especially. How this person can vary and after such a long period of filing chargesheet, he comes with some CD? Can this kind of CD be considered valid as 2 years is long period I think. And if this person has recorded anything why IO had not recovered it before filing chargesheet? Can you suggest me here anything?

  • Plz help me

    My wife has submitted application to the SP OFFICE and alleged that i and my parents have been beating her so many times .. My parents never beaten her.. But actually I slapped her only once. My Then she went to her parents house.

    Then her parents talked me over phone and during conversations, i accepted tht i slapped her only one time on her big mistake.

    Now it is learnt that my father-in-law had recorded that conversation..

    Can this mobile recording go against me for evidence of DV..?

    Can i refuse and say that someone has mimicking in my voice?

    PLZ HELP ME..?

  • danish ahmed /

    Neeraj Sir,
    What if the company gets the Original hard copies of documents scanned and then store them in the electronic form. And wishes not to retain the original hard copies further. Then in future if any dispute arises, will the company be able to take the printouts of scanned documents which was stored in electronic form and then submit it in the court along with the Certificate u/s 65B of the Evidence. kindly give your valuable comment and it would be great if you can support this with any latest Judgement.

    • Scanned copies are not admissible even with a certificate u/s 65B of the evidence act. The original creation is physical documents and hence has to be proved as per section 63/65 of the evidence act.

  • sir congrats regarding this detailed article on this domain of evidence but just to correct that the principle of self incrimination in the conclusion is article 20(3) and not article 19.

  • Please suggest whether 65 b is applicable to investigating agency if their recording has following irregularities…
    The date of recording shows date back 6 months from incident.
    Witness says some recording was not done.
    Proper to translation was not done.
    Search of complainant was not done in press trap.
    Nothing disclosed on malkhana issues.

  • S P Srivastava /

    Please advise as produced CD audio during Departmental inquiry and without 65B certificate as admissible or reject from DE and FSL as are mandatory required or no

    • The evidence act is not applicable to inquiry and the proceedings are governed by principles of natural justice and guided by the principles laid down in the evidence act. The purpose of 65B is admissibility of electronic evidence and same can be challenged on the facts in the inquiry instead of referring to 65B.

  • nitin gupta /

    My mobile got formatted and my memory card is also corrupted but if i am able to restore data in memory card will it be considered as evidence

  • nitin gupta /

    also i want to know do i need to keep the mobile also as evidence or only original memory card will be enough as evidence

  • Neeraj Sharma /

    I recorded in phone, transferred into laptop and the deleted the one’s in phone. Would that be admissible in court?

  • Can several news telecasts be used as evidence?

  • Hello Sir,
    I had a query .

    My wife has given the gchat print out as evidence in a criminal case. I want to file objection on that.

    First of all she has stated that she has the computer from where it was generated and has submitted an affidavit. But whatever some chats had happened , it happened on office PC. How come she is showing it as home PC where both me and my wife were using? It doesn’t meet the condition under 65B(2) right?

    Also the chats are fabricated, but that needs to be proved later I guess right?

    If she says its office PC then it would not be used by a single person and also she needs to get signed by a person occupying a responsible official person in relation to the operation of the relevant device on how it was transferred right?

    But from my analysis 65B(4) conditions have to be met which she hasn’t.

    Also these points under 65B (2) are not satisfied
    1) What the specifications of the computer? Whether mentioned or not? How was it transferred?
    2) Whether it was exclusively used by you?
    3) Regularly fed into the computer in the ordinary course of the said activity?
    – I need to know the meaning of the above question

    “Mail Chat is forwarded from Miss X to Mr.Y
    Name is mentioned as me, so who is me? Nowhere is it mentioned as Mr. Y” Is this admissible
    From the above we can infer that there is no proof that Mr Y chatted with Miss X right?

    It would be great if you can guide me here.
    Awaiting your reply

    Thanks
    Your sincerely
    Siddarth

  • Nikhil Kumar /

    Sir, kindly clear my doubt. Whether a printed photograph is admissible in evidence? If no, then when it will be admissible? Is the certificate of the photographer required u/s.65B?

  • I recorded a phone call conversation with the help of an application and I copied the same on my personal computer, however my original got corrupted , now I want use the copy in court, will it be admissible

    • Neeraj Aarora /

      You can file it with the forensic report so that allegation of tempering can be taken care for. You can rely upon the judgment of Supreme Court in the matter of Shafi Mohammad and prove it as per section 63/65 of the evidence act.

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