Submitting an Email or Electronic Record as Evidence in an Indian Court

This article deals with the law on submitting an electronic record or email or CCTV Footage or Video Evidence or electronic document as evidence in a court of law in India.

Can an email or electronic receipt or electronic document be used as “evidence” in any judicial proceeding in a court in India?

Before we go into the aspect of electronic records, we need to see what is “evidence” and what is a “document”.

As per section 2 of the Indian Evidence Act 1872:

“Evidence”
“Evidence” means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

We now need to see the definition of “document(s)” as per the Act.

As per section 2 of the Indian Evidence Act 1872:

“Document”
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.

Further, section 2 of the Act states that:

the expressions “Certifying Authority”, “digital signature”, “Digital Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000.

The Indian Evidence Act also deals with the Admissibility of Electronic Records.

65B. Admissibility of electronic records:
(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 (hereinafter referred to as the computer output)

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.

Hence, the print-out of an email or CD or DVD of a document will be admitted as evidence by a court, just like any other document, provided that the “conditions” mentioned in the section are complied with.

Can CCTV Camera Footage or recording be submitted in an Indian Court as Evidence?

Yes. The same rules apply for CCTV Camera Camera footage and recordings, as they also form a part of “electronic records”.

How must the email or electronic evidence be submitted in court? Does the electronic evidence need to be accompanied by any other documents?

The conditions for admissibility of electronic evidence as per section 65 B (1) are stated in part (2) of the same section and are as follows:

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –

(a) the computer output containing the information was

• 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;(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

An electronic record needs to be accompanied by a certificate as per section 65 B of the Indian Evidence Act 1872

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) 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.

What should the “Certificate” under section 65 B of the Indian Evidence Act 1872 contain?

The certificate should:

1. describe the manner in which the electronic record was produced
2. furnish the particulars of the device involved in the production of that record
3. deal with the applicable conditions mentioned under Section 65 B(2) of the Evidence Act
4. be signed by a person occupying a responsible official position in relation to the operation of the relevant device

The person giving the certificate only needs to state in the certificate that the same is to the best of his knowledge and belief.

Who can give the certificate under section 65B?

The certificate under section 65 B can be given by “any person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities”.

This could include:

• A Director of a company
• A Network Administrator of the company
• A Systems Administrator of the company
• The user or computer operator of the computer during that period

Does the computer or computer resource need to be produced in court as evidence?

No. Only the print-out or data on a CD or DVD needs to be produced.

Case Law

Anvar PV v. PK Basheer and others (CIVIL APPEAL NO. 4226 OF 2012) Supreme Court of India

• “Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. “
• “Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.”

Ark Shipping Co. Ltd. v. GRT Ship Management Pvt. Ltd. (2008 (1) ARBLR 317 Bom) Bombay High Court

Sample of Affidavit filed under section 65 B which was accepted by the High Court as sufficient:

“The petitioners, therefore, have filed an affidavit dated 3rd May, 2007 alongwith hard/ printed copies of the print outs/ emails duly certified by the concerned officer/employees, which read as under:

1. I state that I was employed in the chartering division of Sahi Oretrans (Pvt) Ltd. (hereinafter for the sake of brevity referred to as Sahi), a company having its office at 30 Western India House, 3rd Floor, Sir. P.M. Road, Mumbai 400 001. I state that Sahi acted as the ship broker in respect of the charter-party concluded between the petitioners and respondents, abovenamed.

2. I state that being employed in the chartering division of Sahi, I was personally involved in the transaction. I state that being ship brokers all emails were forwarded to the petitioners and the respondents through computer terminals in Sahi’s office, by me. In fact, my name appears in almost all the email correspondence.

3. I state that by virtue of my employment I was authorized to use the computer terminals in Sahi’s office. Further, the computer terminals used by me were functioning normally at all times. Further, since I was personally involved in the transaction, I in fact personally authored/saw the email correspondence exchanged between the petitioners and the respondents.

4. I hereby produce hard copies of the emails which represent the contract entered into between the parties. The said emails are annexed hereto as Exhibit “A”. I crave leave to refer to and rely upon typed/clear copies of the same at the time of hearing, if necessary.

5. I confirm that the contents of the hard copies of the emails are identical to the emails exchanged through the computer terminals operated by me. I further state and confirm that the contents of the hard copies of the emails at Exhibit “A” are identical to the hard copies of the emails filed before the arbitrator, a compilation of which I have perused.

6. Accordingly, I am making this present affidavit to certify that the hard copies of the emails annexed at Exhibit “A” to “A4” hereto are a “true copy”/ reproduction of the electronic record which was regularly fed into/transmitted through my computer terminal in Sahi’s office in the ordinary course of activities. I further state that at all times the computer terminals utilized by me were operating properly and there is no distortion in the accuracy of the contents of the hard copies of the emails.”