SC examines admissibility of uncertified digital records

The issue whether electronic records like uncertified receipts pertaining to business transactions with a bank can be relied upon as evidence in judicial proceedings, is being examined by the Supreme Court.
With the growing number of electronic evidence being relied upon in judicial proceedings, the apex court today said it needed to be examined whether digital documents can be treated as primary evidence or secondary evidence which are admissible only after certification.
A bench of Justices A K Goel and U U Lalit also asked whether the court could brush aside electronic evidence saying it will not acknowledge as it is not certified, even if it is credible and reliable.

It issued notice to Attorney General K K Venugopal and sought his assistance in the matter.
"One of the questions raised for consideration is whether the only mode of proof of electronic evidence is as per Section 65(A) read with Section 65(B) or whether the said provisions are additional permissible mode of proof of an electronic record," the bench had said earlier while framing a question.
Section 65(B) of Indian Evidence Act says that electronic records needs to be certified by a person occupying a responsible official position for being admissible as evidence in any court proceedings.

Senior advocate Meenakshi Arora, who has been appointed as amicus curiae by the court, said she needed time to respond on the issue.

"We could have referred it to larger bench as there are various judgements in this regard. Despite apex court verdicts, various high courts and trial courts are proceedings ahead with seeking the certification as under 65B of Indian Evidence Act," the bench said.
It said referring it to larger bench will be like pushing the matter into cold storage as it will take ten years for the issue to be taken up for hearing.
"This issue can't wait to be adjudicated. Therefore this matter needs to be heard," the bench said.
It illustrated the issue by saying that if there is a saving bank account and a transaction is made through mobile banking, then the online transaction receipt is in the mobile phone. Can that electronic receipt be relied upon in court without any certification, the bnench asked.

"Do I need certification under 65(B) of Evidence Act or I can use it independently as evidence," the bench asked.
Similarly, if you take a loan from a bank and make online payment of the amount, the receipt of transaction is in the personal computer of an individual, it said.
"Can the receipt from a personal computer be relied upon in the court as evidence even after the bank refuses to certify it under section 65(B)," the bench asked.
It said these were questions the court needs to deliberate upon as recently another bench of the top court had passed a verdict in the Sonu versus Haryana case, upholding conviction for offences of kidnapping and murder.

In that case, the apex court had rejected his ground of appeal that the Call Detail Records produced by the police as evidence were electronic documents and not certified under the Evidence Act and hence cannot be relied upon.
The court said in 2014, a three-judge bench had given a verdict holding that an electronic record by way of secondary evidence shall not be admissible as evidence unless the requirements of Section 65B are satisfied.