In this era of the digital realm, as the implementation of computers became more widely known, technology growth has increased. The development of IT has introduced us to a cyber-world in which the internet allows equality of opportunity for all citizens to obtain any information, data storage, analysis, etc. using advanced technology. This growing dependence on methods of communications, e-commerce and digital protection of data has most definitely led to a need to amend the rules on cybersecurity and the laws on the acceptance of electronic evidence in both criminal and civil matters in India. The expansion of technology and the impact of IT on community overall, combined with the capacity to store and collect information or data, provide enabled the requisite changes in national law to implement requirements on the recognition of electronic corroboration. With changes in legislation, Indian courts have recognized legal precedents on the dependency on electronic evidence.

Electronic Evidence under IEA

Judges have provided insight into the actual ‘electronic’ nature of the information, which requires insight into the permissibility of such proof and the application of the law in reference to the form in which digital evidence may be presented and placed before the courts. Electronic Evidence is “documentation of evidentiary value which is collected or transferred in electronic code. Evidence not only is restricted to that discovered on computer systems, but may also apply to proof on electronic devices such as telecommunications or digital multimedia devices. Digital Evidence can be found in mails, images, ATM transaction information, internet browsing, notes, online messaging history, data saved from accounting systems, spreadsheet applications, internet user history archives, computer storage material, computer archives, computer photocopies, hotel digital door locks, videos or audio files.

The IEA had been revised in compliance with regard to Section 92 of the IT Act, 2000. Section 3 was revised and the term “All documents produced for inspection by the Court” was replaced by the phrase “All documents including electronic records produced for inspection by the Court.” As regards photographic corroboration, the terms “Material of documents” were replaced by “Content of documents or electronic records” in Section 59 and Sections 65A & 65B has been added to accommodate the enforceability of digital evidence. Under the terms of Sections 61 to 65 of the IEA, the term “document or content of records” is not substituted by the term “electronic records or the substance of electronic records.

The aim of the legislative body is therefore incredibly clear, i.e. not to broaden the validity of section 61 to 65 to the electronic record. It is the key pillar of analysis that, if the legislative body has excluded to use a phrase, the assumption is that the exclusion is purposeful. It is well established that the legislative body does not use an unnecessary word. The primary intent of the legislative body is to implement specific clauses which originate from the complex nature of information, especially since the evidence in digital manner cannot be placed in the trial room by reason of the size of the computer / server, which resides in the machine code and therefore requires the translator to peruse the very same. Section 65B of the Evidence Act authorizes a supplementary copy in the nature of a device output consisting of a printed copy or of data replicated to an electronic / magnetic medium.

Section 65 of Evidence Act & its Constituents

The requirements of Section 65B would be that the data was produced during the normal manner of actions of the individuals holding legal command over the use of computer. The details were routinely updated in the computer during the regular days of that activity. All throughout material part of that session, the desktop was working properly or was operating incorrectly as not having an impact on the function of the system. The data stored in digital records replicates or derives from that information which is transmitted to the system in the normal course of its actions. The main objective is to sanctify the facts by means of secondary data. This secondary proof facility will extend to any outcome from a computer, such outcome being considered as a document. Computer outcome is displayed to be a document for the reason of evidence. Where the data has been analyzed or transmitted to the system on interconnected systems or one system after the other in sequence, all the systems used shall be considered as one system. Section 65B also provides that, for the aim of evidence, a credential setting out the digital records usually containing the declaration and explaining the method in which it was created by a computer and complying with the terms set out above and approved by an officer in charge of the project.

Conundrums Regarding its Admissibility

Due to the immense rise of e-government across the public and private sector, digital evidence has become an important aspect in interaction, refining and authentication. Such different digital proofs are widely found in civil and criminal matters. In the hearings, jurors get questioned about the governance and the acceptance of digital evidence and have a major impact on the results of the civil suit or guilty verdict / releasing of the suspect. The Court continues to cope with the new digital barrier as peculiar existence of e-proof, as well as the simplicity with the help of which it could be manipulated or disproved, poses a barrier to the permissibility of other facts. Different kinds of digital information, such as web page data, social networking, mails, Messages / Multimedia messaging and computer-generated records, present new challenges and obstacles to successful authentication, subject to state set of views.

By incorporating all types of computer proof in the umbrella of primary evidence, the law has essentially diminished the line existing in main and supplementary kinds of evaluation. Although the disparity is also supposed to exist with regard to several other types of evidence, an exception was generated with regard to systems. Nevertheless, it is crucial, given the sheer complexity of the digital evidence, in that it is not easily produced in a concrete medium. In the wake of the latest outbreak of terrorism around the world, including terrorists using extremely advanced technology to launch attacks, this is of great benefit to the prosecutor to be capable of producing electronic corroboration as specific and supplementary evidence in the trial, because it is much easier to prove the accused is guilty than to search for conventional sources of proof to replace electronic documents.

Ambit of S.65 vis-a-vis Indian Constitution

Although requiring all types of system output be permissible as valid evidence, the law ignored the possibility of exploitation. Interfering in the digital evidence is also not very hard, and miscreants can find it much easier to alter the documents to be presented to the court. New technologies itself, however, has solutions to the issues. Data forensics has evolved enough even to figure out ways to cross-check if the electronic document has been fiddled with, when and under what way. Computers are currently the most commonly used device. A lot of many other devices include electronic components in their operation. Thus, the scope of Sections 65A and 65B is wide. Strictly speaking, any gadget that included a mechanical device should be available to the court as evidence. However, both practical and ethical factors must be kept in mind before allowing the scope of such parts to flow so far. For example, the Apex Court has ruled the findings of the narco-analysis to be invalid as they infringe Article 20(3) of the Constitution.


 The Apex court in the case of Anvar PV v PK Basheer held that conflicts arising from the numerous contradictory rulings as well as the procedures which have been pursued in the numerous subordinate courts as regards with the validity of digital evidence have been resolved. The Judiciary has defined Section 65A & 65B of the IEA and has ruled that supplementary information on CD / DVD / Pen Drive is not permissible without a credential under section 65 B(4) of the IEA. It is also clarified that digital corroboration under section 65B certificate will not be established by verbal proof and that point of view under section 45A of IEA will not be used to submit digital corroboration that is permissible. After all, there are certain discrepancies that remain unanswered, such as the fate of supplementary digital information seized by the accused, in which the document under section 65B of IEA could not be accepted as the suspect could not be forced to be a testimony against oneself, as it is in violation of Article 19.

About the Author: Muskaan [2018-23] is pursuing B.A.LL.B (Hons.) National Law University, Odisha.

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