Disks, Pen-drives & Other Electronic Proof Can be Produced Sans Certificates: SC Clarifies Law

The Supreme Court on Tuesday ruled that it is not mandatory to obtain a certificate every time before an electronic evidence can be adduced in a court of law.

It held no certificate will be required to produce an electronic evidence, such as disks, pen drives etc, if the original device can be produced in the court.

Clarifying the law on Section 65 of the Evidence Act, a three-judge bench, headed by Justice Rohinton F Nariman, said that certificate is not a must in each and every case before an electronic evidence can be produced in a court of law.

The bench maintained that if a person can step in the witness box with the original device, such as a laptop or a phone, there is no pre-requisite of a certificate under Section 65B(4) of the Act.

It said that the authenticity of the electronic evidence can be proved in the witness box with production of the originator of the electronic evidence.

About such evidence being stored in a network or in a severe that cannot be produced in a court, the bench said that the certificate will be required in those cases.

The bench also said that appropriate rules require to be framed under the Information Technology Act for recording and preservation of the meta-data, given the fact that more and more electronic evidence are likely to be involved in criminal trials.

Justice Nariman read out the operative part of the judgment on behalf of himself and Justice Ravindra Bhat. Justice V Ramasubramanian has also authored a concurring judgment on this point.

The three-judge bench was answering a reference made by a division bench in July 2019 on the point of law.

The larger bench's decision was called in view of the conflict between Shafhi Mohammad Vs State of Himachal Pradesh (2017) and Anvar PV Vs PK Basheer (2012), on the question: “Is requirement of certificate under Section 65B(4) of Indian Evidence Act mandatory for production of electronic evidence?”

The 2017 judgment had held that requirement of certificate under Section 65B (4) is not always mandatory even though the previous judgment had said that electronic evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.