Other ‘information’ like photo, audio/video CD, etc. cannot be proved by ‘Certificate’.

Saji Koduvath, Advocate, Kottayam.

Introspection

No.	Analysis of the author	Law rendered by the Supreme Court [Arjun Panditrao, (2020)3 SCC 216]
1	Sec. 65B deals with ‘Admissibility’ (alone) of a Computer Output (copy).** If ‘truth’ (of information in an electronic record) is in question, it must be proved, as in the matter of any other fact.	“31. The non-obstante clause (in Sec. 65B) … makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B…..”
2	The non-obstante clause (‘Notwithstanding anything’) in Sec. 65B does not exclude application of Sec. 62 to 65.  It is an (additional) enabling provision to prove copy ‘notwithstanding anything contained’ in the Evidence Act.	“31.  … Sec. 65B, … is a special provision in this behalf – Sec. 62 to 65 being irrelevant for this purpose (admissibility and proof). “34. … the special provisions of Sec. 65A and 65B of the Evidence Act are a complete Code in themselves when it comes to admissibility of evidence of information contained in electronic records …. a written certificate under Sec. 65B(4) is a sine qua non for admissibility of (such evidence)….”
3	Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit (except for ‘Statements’.  ‘STATEMENTS’ alone can be PROVED by ‘Certificate’ under S. 65B(4).	“59. .. the certificate required under Sec. 65B(4) is a condition precedent to the admissibility of EVIDENCE by way of ELECTRONIC RECORD … Oral evidence in the place of such certificate cannot possibly suffice as Sec. 65B(4) is a mandatory requirement of the law. … Sect. 65B(4) … clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.”
4	Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B. •The computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is: •(i) USED REGULARLY to STORE or process information •(ii) activities REGULARLY CARRIED ON •(iii) BY THE PERSON having lawful control, •(iv) information was REGULARLY FED •(v) in the ORDINARY COURSE, •(vi) information is REPRODUCED in the ORDINARY COURSE of the SAID ACTIVITIES.	Apex Court accepted – CCTV footage in: Navjot Sandhu, (2005); Tomaso Bruno (2015), CDs/VCDs in: Arjun Panditrao (2020) CDs in: Anvar PV (2014). CDR in: Sonu (2017) Tape recorded conversation in: Vikram Singh (2017) Videography of the scene of crime in: Shafhi (2018).

** Note: Sec. 65B Certificate is needed only for proving ‘computer output’ – secondary evidence; and not for original ‘electronic evidence’. The distinction between original and copy (secondary evidence) is maintained in Sec. 65B so also in the Supreme Court decision , Arjun Panditrao.

Contents in a Nutshell

What is brought about by Section 65B, Evidence Act?

1. It enables a litigant to prove computer output (secondary evidence)
   • ‘without further proof or production of electronic record’ (original), and
   • by producing a ‘certificate’ (as provided in this Section).
2. Presumption is provided as to the correctness of the computer output (copy or print out) under Sec. 65B(5)(c).

I. Does the duo by Sec. 65A & 65B Evid. Act Oust the Operation of Sec. 63 & 65?

In other words, whether ‘computer output’ (secondary evidence of the ‘ electronic record’) can be proved only by Sec. 65B, and it Constitute a ‘Complete Code’?

The Answer is No.

What does the non-obstante clause (‘Notwithstanding anything’ in the Act ….’) denote?

In short, compliance of this enabling provision is not an invariable or imperative condition precedent to the admissibility’ of ‘computer output’ (secondary evidence); and it does not stand in the way of proving a secondary evidence of the contents of the ‘electronic record’, invoking the usual method laid down in Sec. 65 read with Sec. 63 of the Evidence Act – that is, satisfying the conditions laid down in Sec. 65, by oral evidence or affidavit. (Note: Contra view in: Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216).

2. ‘STATEMENTS’ alone can be ‘PROVED’ by ‘CERTIFICATE’ under Sec. 65B

Thus it appears that the statements entered in a personal-computer (by DTP), bank-account-statements etc. alone can be proved as ‘statements’. And, it is clear that the ‘statement’ does not pertain to other ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD. (Note – contra view in Supreme Court decisions).

4. ‘Statement‘ in S. 65B(4) is the STATEMENT  ‘CONTAINED‘ in the “ELECTRONIC RECORD” and NOT that GIVEN IN COURT

Now, the potential question that arises for consideration is the following:

• Whether the ‘statement’ mentioned in Sec. 65B(4) is
  • (i) that given in court, to support the copy or printout, or
  • (ii) that is contained in the electronic record?

It is beyond doubt that the ‘statement’ mentioned in Sec. 65B(4) is not the one that is given in court; but, the statement ‘CONTAINED‘ in “the electronic record“. Because:

• The “statement” referred to in Sec. 65B (4) is one that may be:
  • “desired to give” “in evidence by virtue of this section” (Sec. 65B(4) first clause); and
• The “certificate” must be one that
  • “identifying the ELECTRONIC RECORD CONTAINING THE STATEMENT and describing the manner in which it was produced” [Section 65B(4)(a)].

The above view is fortified by the following:

1. Sec. 65B(4) (c) says that the certificate must state, among other things, facts as to “dealing with any (?) of the matters to which the conditions mentioned in sub-section (2) relate”.
   • Note: Proving matters with ’certificate’ under Sec. 65B(4) is a species and proving the conditions laid down in Sec. 65B(2) is genus.
2. The certificate could be signed by a person who has
   • “a responsible official position in relation to the operation of the relevant device or the management of the relevant activities” (Section 65B(4)(c).

Thus, the formal assertions like statements of witnesses, bank-account-statements, etc. alone can be proved as ‘statements’, by virtue of section 65B; and not ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD.

5. Photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc. cannot be used under Sec. 65B.

• It is clear that the computer output (copy) is ‘deemed to be (also) a document’ if only the conditions mentioned in S. 65B(2) are fulfilled, that is:
  • S. 65B(2)(a) – computer was USED REGULARLY to STORE or process information
    • of the activities REGULARLY CARRIED ON
    • BY THE PERSON having lawful control,
  • S. 65B(2)(b) – information was REGULARLY FED
    • in the ORDINARY COURSE,
  • S. 65B(2)(d) – the information is REPRODUCED in the
    • ORDINARY COURSE of the SAID ACTIVITIES.
  • (For example – Computer Account statements in a Bank.)
• For all other computer outputs (copies of, photo or video captured in a mobile phone, ‘trap-video’, CCTV footage, etc., as stated below), one has to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65.
• Therefore, it is beyond any doubt that the following computer outputs (copies) cannot be used under Sec. 65B:
  1. CCTV footage – For
     • (i) not used to store or process information BY any PERSON and
     • (ii) not reproduced in the ordinary course.
  2. CDs containing speech – For
     • (i) not used REGULARLY to store or process information,
     • (ii) not regularly fed in the ORDINARY course and
     • (iii) not reproduced in the ordinary course.
  3. Videograph of the scene of crimeor trap-video – For
     • (i) not used REGULARLY to store or process information,
     • (ii) not regularly fed in the ORDINARY course and
     • (iii) not reproduced in the ordinary course.
  4. Call Detail Records – CDR – of mobile phones – For
     • (i) not used to store or process information BY any PERSON and
     • (ii) not reproduced in the ordinary course.

• But, the Supreme Court dealt with CCTV footage (copy) in the following landmark cases:
  • State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
  • Tomaso Bruno v. State of UP, (2015-7 SCC 178),
• CDs/VCDs in respect of video recording by the Election Commission
  • Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
• CDs containing election speeches and songs, in:
  • Anvar PV v. PK Basheer, (2014-10 SCC 473).
• Call Detail Records – CDR – of mobile phones, in:
  • Sonu v. State of Haryana (2017-8 SCC 570)
• Tape recorded conversation on the landline phone, in
  • Vikram Singh v. State of Punjab, (2017) 8 SCC 518
• Propriety of videography of the scene of crime or scene of recovery during investigation, in:
  • Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ).

6. ‘Computer output’ can be got produced by ‘any computer‘ and no evidence/certificate required

A ‘Computer Output’ can be got copied or printed by ‘any‘ computer. It need not be the part of the device that was “used regularly to store or process information”. It is clear from the phrase – shall be taken to have been produced by “a” computer – in 65B(5)(c). It stands contradistinct to “the” computer in Sec. 65B(2).

7. Anomaly between the Heading and the Sub Section in Sec.65B

If we go by the heading of the Sec. 65B, we find that it deals about ‘ADMISSIBILITY’ alone; and not proof. But, there is an anomaly – for, it appears from Sec. 65B(4)(c) that Sec. 65B deals with proof also.

• Because, it is laid down in Sec. 65B(4)(c)
  • (i) that the certificate “shall be evidence of any(?) matter stated” therein, and
  • (ii) that 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.”
• It is legitimate to take that Sec. 65B deals with ‘admissibility’ alone, and not as to ‘proof of contents’; and that the anomaly has come out of a ‘callous drafting’.

8. Presumption on ‘Computer output’ (print or copy)

From the very wordings in Sec. 65B(5)(c), the ‘proof’ (through witnesses or certificate) as to the involvement of the computer which (finally) produced the computer output (print or copy) need not be furnished. Because, the legislature contemplated a presumption as to correctness of the computer output (not truth of contents), under Sec. 65B(5)(c), as it reads:

• ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

It is similar to Sec. 63 clause (2) which reads as under:

• “Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy …. …”

Sec. 63 lays down the sorts of secondary evidence accepted by the Evidence Act. It is seen that Sec. 65B(5)(c) expressly says also as to presumption on correctness, as stated above.

• Mere marking– not dispense with proof (of truth of contents):
• See Blog: EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION

9. Admissibility and Presumption as to correctness of Computer Output

• Sec. 65B does not deal with ‘truth’ of the contents of the electronic record; it deals with only ‘admissibility of copy’.
• The electronic record mentioned in Sec. 65B is – that is ‘relevant‘; for, it must be one “of which direct evidence would be admissible”.
• Therefore, if truth is in question, it must be proved according to other provisions of the evidence act; ie. by oral, documentary (such as admission) or presumptive (including circumstantial) evidence.
  • See Blog: Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevant portions of 65A & 65B read as under:
  • Sec. 65A: Special provisions as to evidence relating to electronic record:
    • The contents of electronic records MAY BE proved in accordance with the provisions of section 65B. 
  • Sec. 65B: Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”

Sec. 65B declares and expressly lays down that computer output (copy or print)

• (i) 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
• (ii) 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.

If the conditions mentioned in this Section Sec. 65B(2) are satisfied, by necessary implication, it will bring a presumption under Sec. 114 with respect to regularity of the computer output . Because, admissibility of ‘any fact stated therein‘ ‘without further proof’ is nothing but ‘presumption’ of its regularity and correctness. The net result is that (if the conditions in sub-sec. 2 of Sec. 65B are satisfied) the burden to prove ‘otherwise’ is cast on the person who opposes it.

The requirement in Sec. 65B(2) as to ‘proof’ (through witnesses or certificate) for ‘regularity‘ of ‘feeding information into the computer’ in the ‘ordinary course‘ eloquently support this proposition.

• Note:
  • (i) ‘Statements’ alone can be proved by ‘certificate’ under Sec. 65B(4); other ‘information’ are to be proved by proper evidence.
  • (ii) Presumption of ‘regularity’ under Sec. 114 Evd. Act can be applied in Sec. 65B.
  • (iii) Presumption of a ‘fact or regularity’ under Sec. 114 Evd. Act is, essentially presumption of ‘Truth’ and ‘Correctness’.
    • Here, it is limited to the correctness of the copy or ‘computer output’.

Presumption of Fact Means Truth/Correctness of Fact

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

• “Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

Read Blog: Presumptions on Documents and Truth of its Contents

10. Section 65B is a borrowed provision

Section 65B is brought to Indian law from Section 5 of the UK Civil Evidence Act, 1968. It remains a sheer fact that by the time we borrowed this provision (2000) from the UK law, they repealed (1995) it. (It is pointed out in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216.)

The present UK Act (Civil Evidence Act 1995) does not make any special provision for Electronic Evidence or Computerised Records. It deals this matter under the head ‘hearsay evidence’ and makes ‘safeguards’ with respect to the hearsay evidence.

11. Conclusions

1. Sec. 65B is invoked only when a computer output (copy) is used in evidence.
   • Sec. 65B pertains to ‘admissibility'(not truth) of a computer output/copy.
   • It deals with computer output/copy alone; and it does not deal with (original) electronic record.
2. Non-obstante clause does not oust S. 63 and 65.
   • The non-obstante clause in Sec. 65B does not oust operation of Secs. 63 & 65 of the Evidence Act; and, therefore, secondary evidence of an electronic record can be given in evidence, invoking Sec. 65, read with Sec. 63.
   • Sec. 65B is an added and enabling provision to prove the copy or print out (otherwise than by proving the conditions laid down in Sec. 65, such as loss of original, original with other side).
   • It relates to relevant matters alone “of which direct evidence would be admissible”.
3. Conditions in S. 65B(2) are to be satisfied through oral evidence or affidavit.
   • The computer output (copy) containing the information, such as CCTV footage, photo or video in a CD, can be admitted in evidence under S. 65B if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly) mentioned in S. 65B(2) are satisfied, through oral evidence or affidavit.
   • A computer output (copy) cannot be used under Sec. 65B if the computer was one not used regularly, or the information was one not ‘regularly fed’ into the computer in the ordinary course, etc., (as in the case of a photo or video captured in a mobile phone; ‘trap-video’, etc.).
   • In such a case (photo or video captured in a mobile phone; ‘trap-video’, etc.), we have to resort other provisions of the Evidence Act, by producing the original or by producing the copy after satisfying the circumstances under Sec. 65; because, if only the conditions (such as: computer was used regularly, information was regularly fed in the ordinary course, computer was operating properly)  mentioned in S. 65B(2) are fulfilled, then only the computer output (copy) is ‘deemed to be (also) a document’.
4. Statements alone can be proved by ‘certificate’ under S. 65B(4).
   • The statements (such as e-mail, call records of phones, bank account statements) alone can be admitted in evidence under S. 65B, through a ‘certificate’ provided under S. 65B(4). 
   • Sec. 65B(2) conditions are to be satisfied for ADMISSIBILITY; and not authenticity. Provision in Sec. 65B(4) that deals with authenticity/proof stands as an anomaly.
5. Presumption as to correctness of the copy or print-out ‘produced by a computer’ under S. 65B(5)(c). 
   • S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put, inasmuch as S. 65B(5)(c) lays down that ‘a computer out-put shall be taken to have been produced by a computer’. 

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End Notes – 1

What is brought about by Section 65B, Evidence Act?

1. Sec. 65B of the Evidence Act enables a litigant to prove computer output (derived from original – secondary evidence) ‘without further proof or production of electronic record’ (original), provided the conditions laid down in Sec. 65B(2) are fulfilled (such as: the computer was operating properly, the electronic record is derived from such information fed into the computer in the ordinary course of the activities, etc.). Sec. 65B declares that the computer output (copy or print out) ‘shall be deemed to be also a document‘.
   • The (general) provision, in the Evidence Act, to admit a copy of a document is Sec. 65. Under Sec. 65, it must be proved by evidence – oral evidence or affidavit – that one of the conditions laid down in the section, for production of copy, is satisfied (that is: loss of original, original with other side and notice given, etc.). Sec. 63, Evidence Act lays down the sorts of admissible copies (such as: certified copies, copies made from the original by mechanical processes etc.).
   • The non-obstante clause (‘notwithstanding anything’) in Sec. 65B, Evidence Act does not oust Sec. 63 and 65; Sec. 65B is only an added provisionto prove copy or print out.
     • Note: If the computer was one not used regularly, or the information was one not ‘regularly fed’ into the computer in the ordinary course, etc., Sec. 65B cannot be invoked (‘without further proof or production of the original’). E.g. photo or video captured in a mobile phone; ‘trap-video’. In such a case, we have to resort other provisions of the Evidence Act.
2. Still simpler provisions are introduced to prove ‘statements‘ (call-records of phones, bank-account-statements, etc.), inasmuch as:
   • ‘Statements’ can be proved by a mere ‘certificate‘ provided under Sec. 65B(4).
     • [Note: It is not made applicable to ‘information’ like CCTV Footage, photo in a pen-drive or video in a CD (Contra view in Court decisions) ].
3. There is presumption as to correctness (not truth) of the computer output (copy or print out) under Sec. 65B(5)(c), as it provides:
   • ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.

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What is ‘certificate’, in law

• The usual method to prove documents (both, existence and truth of contents) is giving oral evidence or furnishing affidavit. A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), especially in the light of ‘best evidence rule’, no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)
• Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

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End Notes – 2

Landmark Decisions

1. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,  two- judge bench decision. It is held:
   • “Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”
2. Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision. It is held:
   • “That (Sections 65A & 65B) is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”
   • But finally held: “It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
3. Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
   • It is held, as to make CCTV footage admissible, as under:
   • “Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
4. Sonu v. State of Haryana (2017-8 SCC 570): two- judge bench decision. It is held:
   • “The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
5. Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ), two- judge bench decision. Tomaso Bruno (2015) was followed in. It was held as under:
   • “(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
   • (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
6. Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216, three-judge bench decision. It substantially followed PV Anwar (2014) with a ‘clarification’.
   • Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’  ”.
   • In Arjun Panditrao v. Kailash Kushanrao it is found – Tomaso Bruno v. State of UP is per-incurium as under:
   • “What is clear from this judgment (Tomaso Bruno) is that the judgment of Anvar P. V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P. V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra) following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible would be in the teeth of Anvar P. V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

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End Notes – 3

Sec. 65A and Sec. 65B of the Evidence Act reads:

Sec. 65A: Special provisions as to evidence relating to electronic record:

The CONTENTS of electronic records may be PROVED in accordance with the provisions of section 65B. 

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.

(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 (sic?) or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

• (a) by a combination of computers operating over that period; or
• (b) by different computers operating in succession over that period; or
• (c) by different combinations of computers operating in succession over that period; or
• (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(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.

(5) For the purposes of this section,—

• (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
• (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
• (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

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Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

• Civil Procedure & CPC
• Civil Rights and Jurisdiction of Civil Courts
• Pleadings Should be Specific; Why?
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Power of attorney
• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• Stamp Act
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Title, ownership and Possession
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Practice and Procedure
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Notary-Attested Documents: Presumption, Rebuttable
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Evidence Act – General
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Documents
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Contract Act
• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Easement
• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

Book No. 3: Common Law of CLUBS and SOCIETIES in India

• General
• General Features
• Bye Laws Fundamental
• Effect of Registration of Societies and Incorporation of Clubs
• Societies and Branches
• Property & Trust
• Vesting of Property in Societies and Clubs
• Juristic Personality of Societies and Clubs
• Incidents of Trust in Clubs and Societies
• Legal Personality of Trustees and Office Bearers
• Suits
• Suits By or Against Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs
• How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
• Amendment of Bye laws of Societies and Clubs
• Dissolution of Societies and Clubs
• Rights and Management
• Rights & Liabilities of Members of Clubs and Societies
• Individual Membership Rights in Societies & Clubs
• Management – Powers of General Body and Governing Body
• Expulsion of Members & Removal of Office-Bearers
• Law on Meetings: An Overview
• Election
• Election & Challenge in Societies and Clubs
• Court Interference in Election Process
• State Actions
• State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
• What is Trust in Indian Law?
• Public & Private Trusts in India.
• Trust is ‘An Obligation’; Not a Legal Entity
• Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
• Dedication of Property in Public Trusts
• Vesting of Property in Trusts
• Incidents of Trust in Clubs and Societies
• Trustees and Management
• Trustees and Administration of Public Trusts
• Alienation of Public Trust Property
• Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
• Breach of Trust and Removal of Trustees
• Suits by or against Trusts
• Suits By or Against Trusts and Trustees
• Remedies Under Sec. 92 CPC
• Law on Religious Trusts & Trustees
• Philosophy of Idol Worship
• Is an Idol a Perpetual Minor?
• Hindu Temples & Law of Trusts
• Law of Mutts and Other Hindu Endowments
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Shebaits & Mahants and Law of Trustees
• Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
• Parsi Women Excommunication, Unconstitutional.
• General
• State & Court – Protectors of All Charities
• Public Trusts and (State) Endowments/Trusts Acts
• Public Trusts and Indian Trusts Act – An Overview
• Business by Charitable Trusts & Institutions