Sections 65A and 65B of the Indian Evidence Act 1872: Electronic Records

Sections 65A and 65B created the special statutory framework for proving electronic records under the Indian Evidence Act, 1872. Section 65A directs that the contents of electronic records may be proved in accordance with Section 65B, while Section 65B governs the admissibility of specified computer output.

Section 65A: Special provisions for electronic records

Section 65A provides that the contents of electronic records may be proved in accordance with Section 65B. It therefore directs the proof of electronic records to the special regime prescribed by Section 65B rather than treating electronic output exactly like an ordinary paper document.

Section 65B: Admissibility of electronic records

Section 65B(1) provides, notwithstanding anything contained in the Evidence Act, that information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer is treated as a document when the statutory conditions are satisfied. Such computer output may then be admissible without further proof or production of the original as evidence of the contents of the original or of a fact stated in it for which direct evidence would be admissible.

Conditions under Section 65B(2)

The computer output must satisfy the statutory conditions. In substance:

1. The computer output must have been produced during a period when the computer was regularly used to store or process information for activities regularly carried on by the person having lawful control over its use.
2. Information of the relevant kind must have been regularly fed into the computer in the ordinary course of those activities.
3. During the material part of the period, the computer must have operated properly; any period of malfunction or non-operation must not have affected the electronic record or the accuracy of its contents.
4. The information in the electronic record must reproduce or be derived from information fed into the computer in the ordinary course of those activities.

Multiple computers under Section 65B(3)

Section 65B(3) addresses situations in which storage or processing functions were regularly performed by a combination of computers, by different computers operating successively, by successive combinations of computers, or in another arrangement involving successive operation. For the purposes of Section 65B, the computers used for that function during the relevant period are treated as constituting a single computer.

Section 65B(4) certificate

Where a statement is sought to be given in evidence by virtue of Section 65B, sub-section (4) prescribes a certificate addressing the electronic record and its production. The certificate should:

• identify the electronic record containing the statement and describe how it was produced;
• give appropriate particulars of the device involved in producing the electronic record so as to show that it was produced by a computer;
• deal with the matters relating to the conditions in Section 65B(2); and
• purport to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or management of the relevant activities, as appropriate.

For this purpose, Section 65B(4) permits a matter to be stated to the best of the knowledge and belief of the person making the statement.

Supreme Court position on the Section 65B certificate

The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) reaffirmed the special character of Section 65B for electronic records and clarified the certificate requirement for electronic evidence produced by way of computer output. The judgment should be read with the statutory distinction between an original electronic record itself and secondary electronic output sought to be admitted under Section 65B.

Meaning of information supplied to and produced by a computer

Section 65B(5) gives the provision a functional application. Information may be supplied to a computer in an appropriate form, directly or through suitable equipment and with or without human intervention. It also addresses information supplied for official activities to a computer operated outside those activities, and provides that computer output may be produced directly or through appropriate equipment.

The Explanation to Section 65B treats information derived from other information as including derivation by calculation, comparison or another process.

Sections 65A and 65B in practical terms

Related provisions of the Evidence Act

For the general rules on documentary evidence, see Sections 61, 62 and 63 on proof of contents, primary evidence and secondary evidence and Sections 64 and 65 on proof by primary evidence and cases permitting secondary evidence. The provisions following Section 65B deal with notice to produce, proof of signatures and handwriting, digital signatures and attested documents.

This article is general legal information concerning the Indian Evidence Act, 1872 immediately before commencement of the Bharatiya Sakshya Adhiniyam, 2023. Applicability in a particular proceeding depends on the relevant dates, facts and statutory transitional provisions.