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Introduction

As governance, commerce, and industry move into the 21st century and
onto the digital age, it is imperative for the law to keep pace with its
subject, and progress congruently. Due to the existence of businesses,
transactions, and communications occurring in digital form, both in the
public and private sector, there has been a parallel rise in the number of
legal conflicts and clarifications before the Indian courts that concern
electronic evidence. These cases are both of civil and criminal nature,
and the nature and admissibility of evidence put before the court therein
are of utmost importance to their ultimate result. There exist several new
challenges before the courts when addressing electronic evidence – its
unique character, coupled with its vulnerability to easy fabrication and
falsification, as well as its various new sources (emails, SMS/MMS,
social media, website data, etc.) and their ambiguous status in law.
Until recently, electronic documentary evidence was clubbed together
with ordinary documentary evidence and was to be adduced under
Sections 61-65 of the Indian Evidence Act.i It was subject to the same
provisions as physical documents were, and this created scope for great
manipulation and abuse. Equally importantly, as will be discussed
further in this essay, it violated the hearsay rule, which is an essential
tenet of evidence law. Thus, to rectify this, and bridge the generally
widening gap between the law and the digital age, the Information
Technology Act of 2000 (hereafter ‘the IT Act’) was enacted. This act
not only defined ‘electronic record’ii, but also amended Section 59 of the
Evidence Actiii, excluding these electronic records, much like
documents, from the probative force of oral evidence. However, instead
of simply subjecting them to Sections 63 and 65iv, which expound the
conditions for adducing documents as secondary evidence, the IT Act
inserted Sections 65A and 65Bv, created specifically to address the
evidentiary rules for electronic records.
Thus, this essay will aim to discuss the overarching concepts of primary
and secondary evidence, with reference to electronic records. It will
discuss the status and character of electronic evidence in the Indian legal
system, and the need for special provisions to address it separately from
ordinary documentary evidence. The essay will then explore the courts’
evolving position on electronic records and the process for their
adduction as evidence over the years, before finally describing the
current position of law, as laid down by the landmark Anvar P.V. v. P.K.
Basheervi judgment. The author will finally seek to critically analyse
said judgment, and discuss the gaps left in the law by the same, despite
its many accomplishments.

The Concept of Primary and Secondary Evidence


The Hearsay Rule
Before understanding the concept of primary and secondary evidence in
Indian law, it is essential to under why there exists a need for such a
distinction. The Indian Evidence Act has created this distinction through
its provisionsvii in Chapter V of the Act, specifically for documentary
(and now electronic documentary) evidence. It is a traditionally principle
of common law that oral evidence (that is direct) may be employed to
prove all forms of factsviii. Documentary evidence alone has been
excluded from being adduced by oral evidence in Section 59ix, and all
other facts may be proved by oral evidence. The reason for the creation
of such a distinction is the Hearsay Rule. Simply explained, the hearsay
rule bars the “use of out of court statements to prove a fact from being
admitted as evidence because of the inability of the opposing party to
cross-examine the maker of the statement”.x One of the landmark cases
that laid down this principle in common law countries worldwide was
that of R v. Sharpxi, where it was described as ‘Any assertion other than
one made by a person while giving oral evidence in the proceedings is
inadmissible as evidence of any fact or opinion asserted’xii. The reason
hearsay evidence is not recognized in common law is the fact that it is
impossible to determine the accuracy and veracity of such evidence,
which is usually done by way of cross-examination. Because the person
who made the statement in question is not present in the trial
proceedings, it is impossible to cross-examine him, and therefore such
evidence is excluded from consideration. The hearsay rule in itself is
complex and layered, and there exist several caveats and exceptions, but
it is unnecessary to delve into them in the context of this essay.
What is pertinent to understand for the purpose of this essay, is that
whilst the hearsay rule is relatively direct and straightforward in its
application to oral evidence, the same cannot be said for documentary
evidence. The reason oral evidence cannot be used to adduce
documentary facts, is because it would violate this aforementioned rule.
Since a particular document is absent, the veracity and accuracy of the
oral evidence regarding the same cannot be verified using the document,
and thus, is hearsay evidence. Therefore, the Indian Evidence Act
provides for the use of primary and secondary evidence to adduce
documentary facts and electronic records.

Distinction between Primary and Secondary Evidence:

Primary evidence under the Indian Evidence Act, is what is deemed to


be highest form of evidence, in terms of accuracy and value. With regard
to documents and electronic data, primary evidence of the contents of a
particular document is the document itself. It is governed by Section 62
of the Evidence Act, which dictates the nuances of the same.
Secondary evidence, in contrast, is what is presented in the absence of
primary evidences, thus the name. Section 63 defines and governs
secondary evidences in Indian Law. It is an inferior quality of evidence
as compared to the former. However, it an essential means of reconciling
the hearsay rule with the often occurring impossibility of securing
primary evidences, for there may exist several situations where the
original document or electronic record cannot be produced before court.
Secondary evidence
Secondary evidence is a report or an oral account of the original evidence
or copy of a document or a model of the original thing. It is always given
under certain circumstances, in the absence of that better evidence which
the law requires to be given first. Public documents are generally provable
by the production of secondary evidence.

 Certified copies. It means an attested copy obtained from the


custodian of public record in his official capacity.
 Copies made by mechanical process i.e. photocopy.
 Copies made from or compared with the original.
 Evidence against the non-executing party in case of conterparts.
 Evidence of a person who has himself seen the original document.

Reasons for giving secondary evidence


Secondary evidence should not be accepted without a sufficient reason
being given for non-production of the original. Such reason must come
strictly within the ambit of law.

Right of waiver
Whenever secondary evidence is presented before a court it is the right of
the adverse party to object the same in the court of first instance.
Otherwise this right will not be available in the appellate court. In this
case that right would be deemed to be waived.

Rule of preference and its exceptions


A document must be preferred to be proved by Primary Evidence. It is
because the contents of a document can best be proved by the document
itself. However there are certain exceptions to the above rule, mentioned
as under;

When the original is in the possession of opposite party, or person beyond


the reach of court or person not subject of law or person failing to produce
the same after the notice of court.

 When the original is lost or destroyed


 When the original is voluminous document
 When the production of original is physically impossible.

In the following instances certified copies of document is admissible;

 When original is public document.


 When the law has allowed it be produced.
 When original consists of numerous accounts.
 When original is part of judicial record.

When Secondary Evidence is Admissible?

According to Section 65.of the Indian Evidence Act, 1872


Secondary evidence may be given of the existence, condition or contents
of a document in the following cases:

a) When the original is shown or appears to be in the possession or


power of the person against whom the document is sought to be proved,
or of any person out of reach of, or not subject to, the process of the
Court, or of any person legally bound to produce it, and when, after the
notice mentioned in Section 66, such person does not produce it.

b) When the existence, condition or contents of the original have been


proved to be admitted in writing by the person against whom it is proved
or by his representative in interest.

c) When the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not arising
from his own default or neglect, produce it in reasonable time;

d) When the original is of such a nature as not to be easily movable;

e) When the original is a public document within the meaning of Section


74.

f) When the original is a document of which a certified copy is permitted


by Evidence Act, or by any other law in force in India to be given in
evidence.

g) When the originals consist of numerous accounts or other documents


which cannot conveniently be examined in Court, and the fact to be
proved is the general result of the whole collections. In cases (a), (c) and
(d), any secondary evidence of the contents of the documents is
admissible. In case (b), the written admission is admissible. In case (e)
or (f), a certified copy of the document, but no other kind of secondary
evidence, is admissible. In case (g), evidence may be given as to the
general result of the documents by any person who has examined them,
and who is skilled in the examination of such documents.

Secondary Document is the document which is not original


document. Giving secondary evidence is exception to the general rule.
Notice is required to be given before giving secondary evidence. The
value of Secondary evidence is not as that of primary Evidence
Case Laws:

Anvar v. Basheer

This position of law was finally overturned in 2014, in Anvar v.


Basheerxiii, where the Supreme Court overruled its previous ruling
regarding the admissibility of electronic records as secondary evidence –
as made in the Navjot Sandhuxiv case. The court held that any electronic
record can only be adduced as evidence in accordance with the
procedure prescribed under Section 65B of the Evidence Act.
The facts of the case in Anvar, revolved around the allegation of corrupt
practices in a particular election, that were to be proved using CDs that
contained the certain speeches, songs and announcements made by the
candidate, that were in violation of the laws under the Representation of
Peoples Act.xv However, these CDs were not produced with the
certificate mandated under Section 65B (4), and thus, could not be
adduced into evidence as per that provision. It was contended that the
CDs in question could be proved as evidence through other provisions
(Sections 63 and 65) as held in Navjot Sandhu. However, this contention
was rejected by the Supreme Court, who held that that Sections 65A and
65B were a complete code in themselves for adduction for secondary
electronic evidence, and that non-compliance with their provisions
would lead to inadmissibility of the evidence in question.
The Supreme Court further substantiated this unequivocal return to the
special law created using two explanations. The first was the legal
maxim of ‘generalia specialibus non derogant’, which states that special
law will always prevail over general law. Using this principle, the court
held that electronic evidence would be wholly and solely governed by
the new provisions inserted specifically for this purpose by the IT Act,
and not the conventional provisions used for general secondary
documentary evidence.
The Supreme Court also observed that Section 65B begins with a non-
obstante clause, which means that it overrules all other provisions that
contradict or clash with the same in the Indian Evidence Act. The bench
observed, “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.”

Yusuf Ali Esmaeel VS State of Maharastra

The supreme court discussed the admissibility in evidence of a tape


purporting to have a recorded conversation. It was held that if the
statement made in the recording was relevant per the provisions of the
evidence act and the accuracy, time and place of the tape bearing such
recorded statement is proved by a competent witness and the voices
therein are properly identified, the tape recording shall be relevant and
admissible in evidence.
State of Maharashtra v. Praful B. Desai

. The provisions of the Code of Criminal Procedure, 1973 were


interpreted by the Supreme Court in a manner so as to include recording
of evidence of a witness residing in a foreign country through video
conferencing. Quoting Justice Bhagwati’s words that ‘law must change
with changing social values’, The Supreme Court held that in favour of
updating construction of on-going statutes like the Code of Criminal
Procedure Code in the light of changing technology.
i
The Indian Evidence Act, 1872.
ii
S. 2(1)(t), The Information Technology Act, 2000 - which defines electronic record as ‘data, record or data
generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro
fiche’.
iii
Supra 1.
iv
Ss. 63 & 65, The Indian Evidence Act, 1872.
v
Ss. 65A & 65B, The Indian Evidence Act, 1872.
vi
Anvar P.V. v. P.K. Basheer and Ors., (AIR 2015 SC 180).
vii
Chapter V, The Indian Evidence Act, 1872.
viii
Bhairav Acharya, Anvar v. Basheer and the New (Old) Law of Electronic Evidence, The Centre for Internet &
Society, http://cis-india.org/internet-governance/blog/anvar-v-basheer-new-old-law-of-electronic-evidence, last seen
on 22/08/2016.
ix
S. 59, The Indian Evidence Act, 1872.
x
Hearsay Rule, Legal Information Institute – Cornell University Law School,
https://www.law.cornell.edu/wex/hearsay_rule, last seen on 23/08/2016
xi
R v. Sharp, [1988] 1 All ER 65.
xii
Ibid.
xiii
Supra 6.
xiv
Supra 14.
xv
The Representation of Peoples Act, 1951.

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