Guest Post: Where Do We Stand on ‘Secondary Electronic Evidence’?

We’re happy to present to our readers a useful guest post by Aradhya Sethia, a student at NLSIU, Bangalore. In this post, Aradhya looks at a recent Supreme Court case’s take on Secondary Electronic Evidence and some of its implications.

The Case of Anvar P.V. v. P.V. Basheer and Others: Where Do We Stand on ‘Secondary Electronic Evidence’?

The role of Secondary Electronic Evidence and the Structure of Section 65B of the Evidence Act

stock-footage-bible-study-animationAlbeit in varying degrees, we all continuously leave the traces of our activities on our computers. In fact, in many cases, the computers act as the sole repository of our illegal activities or of the denials/rebuttals thereof . Law on electronic evidence is equally important for IPR issues. For instance, if someone has violated any Intellectual Property Right by downloading a song, book, video etc. that has some form of IP protection, the evidence that will have to be adduced to prove such violation or rebut such allegations will have to be in electronic form. To introduce the electronic evidence in its primary form, the computer device itself may have to be presented in the court. Carrying the computer device itself to the court, everytime some evidence has to be presented may cause great inconvenience. Therefore, Information Technology Act, 2000 introduced section 65B of the Evidence Act, 1872, which deals with secondary electronic evidence. The secondary electronic evidence is also called ‘computer output’ and is defined as: 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”. Further, the section also lays down a detailed set of conditions in Clause (2) to Clause (5) that any ‘computer output’ should fulfill before it is admitted.

Over-ruling Parliament Attack Case

In Parliament Attack case [NCT of Delhi v. Navjot Sandhu, (2005) 11 SCC 600], while considering the printouts of the computerized records of the calls pertaining to the cell-phones, the court held that even if the evidence does not fulfill the conditions specified in Section 65B, it can be adduced under Section 63 and Section 65 of the Evidence Act, 1872. Therefore, section 65B was held to be only one of the ways in which a computer output can be adduced.

In Anvar P.V. v. P.V. Basheer and Others, a recently delivered judgement by a three-judge bench of the Supreme Court (consisting of Lodha C.J., Joseph J. and Nariman J.), the Parliament attack case has been partially over-ruled. In the instant case, some CDs were presented as evidence which contained certain songs, speeches and announcements that proved the corrupt practices under Representation of Peoples Act, 1951. However, section 65B(4) requires a certificate to be accompanied with any computer output that is to be introduced as a secondary evidence. The CDs were not accompanied with any such certificate. Therefore, the CDs, which were computer output for the purpose of Section 65B, did not fulfill the necessary conditions laid down in Section 65B. According to the proposition laid down in Parliament Attack case, even if the certificate containing the details as required under Section 65B(4) is not filed in the instant case, the evidence could be adduced if the law permits such evidence to be given under other relevant provisions, namely, Sections 63 and 65.

This case marked a shift from the earlier position expounded by the Parliament Attack case. The court held that Section 65B of the Evidence Act, 1872 is a complete code in itself for secondary electronic evidence (computer output) and that the conditions mentioned under Section 65B have to be fulfilled before any computer output can be introduced as secondary evidence. Therefore, the case limited the scope of the admissibility of computer output as secondary electronic evidence. However, apart from such express over-ruling, the case also poses two serious issues, which will be discussed in the following sections.

Section 65B: The Limited Context of E-commerce

The conditions laid down in Section 65B are not limited to just the requirement of a certificate. They also extend to conditions like: the computer output should be “produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer and that the “information of the kind contained in the electronic record… was regularly fed into the computer in the ordinary course of the said activities”[Emphasis supplied].

The implication of the proposition laid down in PV Basheer is that even if any minute detail as required in Section 65B is not fulfilled, the output becomes inadmissible. Section 65B lays down strict requirements like the ones mentioned above. The context in which these requirements were introduced in the Evidence Law was e-commerce. The guidance for this proposition can be taken from the statement of objects and reasons to the IT Act: “New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business.” [Emphasis supplied]

However, we have a common evidence law for all kinds of disputes, including criminal cases. Therefore, for evidence adducement in the disputes that do not deal with e-commerce, say cyber crimes, satisfying all such requirements may not be possible.  For example, in case of cyber-crimes, it may not be possible to prove that the information of the kind was regularly fed into the computer or that the computer output is produced by the computer which was used regularly to store or process information by the person having lawful control over the use of the computer. Cyber-crime may just be one-off incident and may not involve such regularity either in feeding the information to the computer or the usage of the computer to that end. Therefore, these conditions may drastically reduce the utility of electronic evidence when it comes to cases of cyber crimes or other disputes such as election malpractices, violation of IPR where such regularity may not exist at all. Such requirement of regularity can only be fulfilled in the context of e-commerce, where the computers are constantly used to that single hand.

Whilst the court held that Section 65B is a self contained code for computer output, the consequence of the same is that a great many evidences may be rendered useless, when being introduced in the context of one time violation of IPR, criminal offences etc. Therefore, section 65B needs to be looked into, both on the levels of policy and judicial construction.

Not Every CD, Printout etc. is Secondary Evidence

The second interesting aspect, which largely went unnoticed is in paragraph 24 of the Judgement, where the court distinguished between a CD, printout etc. that may be a primary evidence in itself and a CD, printout etc. that becomes secondary evidence. To quote from the judgement:

“The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs….That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification.”

Therefore, contrary to popular understanding that CDs, printouts etc. will always form secondary evidence, the court drew the distinction between the CDs used for announcements and the CDs which were made once the announcements were fed into the computer. The court held that if the CDs presented themselves were used for announcements and speeches, then they will form primary evidence. However, if the CDs presented were made from the computer which already contained the information, then it will become secondary evidence.

However, the court did not explain the textual justification for drawing any such distinction. Section 65B defines the computer output as: “an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer.”[Emphasis supplied] The definition, in itself, does not distinguish between a CD, ‘which itself was being used for such speech and announcement’ and, a CD which was ‘made from the information fed into the computer’ as both may be produced by a computer. Does it mean that the amendment to IT Act intended that a ‘computer output’ in the form of CD, printout etc. will always be secondary evidence? At least from the text of the section, this appears to be the position.

P.S. A detailed article written on this by the author is available here.

Swaraj Paul Barooah

Swaraj Paul Barooah

Follow @swarajpb Swaraj has a deep interest in IP, Innovation and Information policy, especially when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms, Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons) from Nalsar Univ of Law, Hyderabad, he went on to do his LLM from UC Berkeley in 2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a consultant on various IP matters, and is a visiting faculty member at Nalsar Univ of Law. He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy" focused think-tank.

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