BREAKING; General Law relating to Secondary Evidence is not applicable to Electronic Evidence; Ratio in Parliament Attack Case [State v. Navjot Sandhu alias Afsan Guru (2005)11 SCC 600] overruled to that extent [Read the Judgment]

A three Judge Bench of the Supreme Court today in Ansar P.V. vs. P.K.Basheer & Ors., overruled the the statement of law on admissibility of secondary evidence in Parliament Attack Case [State v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600] to the extend pertaining to electronic record. The Bench comprising of Chief Justice Lodha, Justice Kurian Joseph and Justice Rohinton Nariman held that "the evidence relating to electronic record, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so".The bench explained the position of law by holding that "An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., 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."The releavnt portions of the Judgment is extracted below, 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. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence 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 a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:(a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc...

BREAKING; General Law relating to Secondary Evidence is not applicable to Electronic Evidence; Ratio in Parliament Attack Case [State v. Navjot Sandhu alias Afsan Guru (2005)11 SCC 600] overruled to that extent [Read the Judgment]

M.A.Rashid

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