Electronic Evidence and Video Conferencing in Criminal Proceedings

📖 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

Facts: Electronic records were relied upon in evidence without the certificate required by the special provision governing the admissibility of such records, on the footing that they could be proved in the ordinary way like any other document. The question was whether the certificate is optional.

Held: The Supreme Court held that an electronic record is admissible only on satisfaction of the conditions of the special provision, and that the certificate is mandatory where the record is tendered as secondary evidence — that is, where a copy or printout is produced rather than the original device. The Court held that the special provision is a complete code for the admissibility of such records and operates as a special law overriding the general provisions on documentary evidence, so that an electronic record cannot be proved by the general route simply because the certificate is inconvenient to obtain. Where the original — the computer or device itself — is produced and proved by the person who operated it, no certificate is needed; the requirement attaches to the copy. The Court held that electronic records produced without the certificate are inadmissible, and that admissibility cannot be cured by the fact that nobody objected to the genuineness of the contents.

Ratio: An electronic record tendered as secondary evidence is admissible only with the statutory certificate, the provision being a complete code that overrides the general rules of documentary proof. No certificate is required where the original device is produced.

📖 Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570

Facts: The admissibility of electronic records admitted at trial without the statutory certificate was challenged for the first time in appeal, the objection not having been taken when the records were exhibited. The question was whether such an objection can be raised at the appellate stage.

Held: The Supreme Court drew the distinction between an objection going to the mode or method of proof and one going to the inherent admissibility of the evidence. An objection that a document has been proved by the wrong method — for example, that a certificate was not filed — must be taken when the document is tendered, so that the party relying on it has the opportunity to cure the defect by producing what is required. If it is not taken then, it is waived, and it cannot be raised for the first time in appeal. An objection that the evidence is inherently inadmissible, on the other hand, may be taken at any stage, because no amount of proof can make inadmissible material admissible. The Court held that the absence of the certificate fell into the first category, and declined to entertain the objection raised for the first time in appeal.

Ratio: An objection to the mode of proof, including the absence of the statutory certificate, must be taken when the record is tendered so that the defect can be cured. Taken first in appeal, it is waived.

⚠ What has changed under the Bharatiya Sakshya Adhiniyam

The substance of the certificate requirement is carried forward: an electronic record tendered without production of the original still requires a certificate, and the case law on why it is required continues to apply.

What has changed is the form and the signatories. The Adhiniyam prescribes the certificate in the form of a Schedule, and requires it to be signed both by the person in charge of the computer or communication device and by an expert. The earlier provision required a certificate signed by a person occupying a responsible official position.

The definition of an electronic record has also been widened to reflect current technology, covering information stored in semiconductor memory, communication devices and the cloud.

The practical consequence for a litigant is unchanged: obtain the certificate when the record is collected, not when the objection is taken. Section 330 of the BNSS, requiring the parties to admit or deny the genuineness of documents within thirty days, is the stage at which the question should surface.

Section 530, BNSS 2023

All trials, inquiries and proceedings under this Sanhita, including —

(i) the issuance, service and execution of summons and warrants;

(ii) the examination of complainant and witnesses;

(iii) the recording of evidence in inquiries and trials; and

(iv) all appellate proceedings or any other proceeding,

may be held in electronic mode, by use of electronic communication or use of audio-video electronic means.

⚠ Two things section 530 does not do

It does not dispense with the presence of the accused. Section 308 still requires evidence to be taken in the presence of the accused, or of his advocate where his personal attendance is dispensed with. What the courts had already held — that presence does not mean actual physical presence, provided the accused can see and hear the witness and instruct his advocate — is what makes an electronic proceeding compatible with the section.

It does not alter the rules of evidence. A proceeding held in electronic mode is subject to the same rules as one held in a courtroom: the oath, cross-examination, the recording and reading over of the deposition under section 313, the interpretation of evidence under section 314, and the remark on demeanour under section 315.

The position stated shortly

1. Two distinct questions: proving an electronic record (Bharatiya Sakshya Adhiniyam) and taking evidence electronically (BNSS). They are frequently confused and have almost nothing to do with one another.

2. Section 61 of the Adhiniyam: the admissibility of an electronic or digital record shall not be denied merely because it is electronic, and it has the same legal effect as a paper record.

3. Section 63 of the Adhiniyam corresponds to section 65B of the Indian Evidence Act: it governs the admission of an electronic record as a document and requires a certificate.

4. The certificate is mandatory where the record is tendered as secondary evidence — a copy or printout. Where the original device is produced and proved, no certificate is required: Anvar P.V.

5. The Adhiniyam prescribes the certificate in the form of a Schedule, signed both by the person in charge of the device and by an expert.

6. An objection to the absence of the certificate goes to the mode of proof and must be taken when the record is tendered, so that the defect can be cured. Taken first in appeal, it is waived: Sonu @ Amar.

7. Section 530 of the BNSS: all trials, inquiries and proceedings — including the issue, service and execution of summons and warrants, the examination of witnesses, the recording of evidence and all appellate proceedings — may be held in electronic mode.

8. Sections 310 and 311 permit evidence in warrant cases and Sessions trials to be recorded by audio-video electronic means.

9. Evidence by video-conferencing requires the ordinary safeguards: identification of the witness, an oath, the ability of the accused to see and hear and to instruct his advocate, an effective cross-examination, and a proper record.

10. Section 530 does not dispense with the presence of the accused under section 308, and does not alter the rules of evidence. An electronic proceeding is subject to the same rules as one held in a courtroom.