Admissibility of Emails as Evidence in India

It is an interesting question that how Emails could be made admissible as evidence in India. There are a lot of conflicting judgments in this respect. However, recently on 14.07.2020, the Hon’ble Supreme Court of India pronounced a Judgment, namely, Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others, reported as 2020 OnLine SC 571. In the said Judgment, a bare perusal of its Para 80 would be profitable: -

 

“80. The reference is thus answered by stating that:

 

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

 

(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act…”, With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

 

(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

 

(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016.”

 

The highlighted portion of the abovementioned excerpt contemplates two conditions: -

1. No Certificate under S. 65-B (4) of the Evidence Act is required when the originator/author of the document steps into the witness box and proves that the “concerned device, on which the original information is first stored, is owned and/or operated by him.” This is certainly not an uphill task and any originator/author can easily do so by recording his/her testimony.

 

2. “In cases where the ‘computer’ happens to be a part of a ‘computer system’ or ‘computer network’ and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65B(4).”

 

Now, let us for a moment peruse Section 65-B (1) which states as under: -

 

“(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.”

 

Thus, all the above-mentioned electronic media/record is deemed to be a document for the purposes of Section 65-B (1). Let us again hop on to a different provision of law, namely, Section 88-A of the Indian Evidence Act, 1872. It is stated as under: -

 

“88. Presumption as to electronic messages.—The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Explanation —For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.”

 

According to S. 88, the presumption is in favour of the Originator of the Electronic Message/Email/SMS that the said message corresponds with the message as was typed or fed into his computer/device for the purposes of transmission. S. 88 ends with a caveat that the Courts shall not make any presumption as to the person by whom such message was sent. Hence, from the point of view of evidentiary value of such electronic messages/Emails, following are the important aspects: -

 

1. Since the presumption that the electronic messages/Emails corresponds with what was typed in the computer/device, is in favour of the Originator, therefore, to prove otherwise the burden of proof will be on the person alleging that said message did not originate from the concerned computer/device.

 

2. Since the Courts shall not make any presumption as to the person by whom such message was sent, the onus to prove the same rests on the person who claims to be the Originator of such message. In this regard, compliance of Section 65-B of the Indian Evidence Act, 1872 would be useful for the person. He could submit an Affidavit under Section 65-B (4) to signify that he is the Originator and the manner in which such Electronic Message was composed.

 

In my humble opinion, if such formalities are completed, the same should suffice for the purposes for proving the Email/Electronic Message before the Court. Further,even though considerable legislative vacuum with respect to the law relating to the evidentiary value of Electronic Message and Devices, the Judgment passed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Others, is a much needed one and at least, it provides some respite to the people who are not in a position to produce the Certificate under Section 65-B from the Email Providers or other such entities.