I. INTRODUCTION:

A three-judge bench of the Hon’ble Supreme Court of India (“Supreme Court”) delivered its judgment in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors.[1], settling the procedure for admission of electronic record into evidence, under Section 65B of the Indian Evidence Act, 1872 (the “Evidence Act”). The Supreme Court answered a reference made, by the two-judge bench of the Supreme Court which was previously hearing the said case, to resolve the conflicting views taken by the Supreme Court in the case of Anvar P.V. v. P.K. Basheer & Ors.[2], and Shafhi Mohammad v. State of Himachal Pradesh[3].

This note analyses the decision, impact, and application of the ratio in Arjun to the existing and future cases dealing with electronic evidence, and the obligation casted by the Supreme Court on ‘intermediaries’ and the stakeholders in a trial.

II. ANSWER TO THE REFERENCE:

Answering the reference, the Supreme Court held that:

• Anvar.P.V., as clarified in Arjun shall be the law governing Sec. 65B of the Evidence Act;
• the decision in Tomaso Bruno and Anr. v. State of Uttar Pradesh[4] is per incuriam for being inconsistent with decision in Anvar.P.V.,and judgment in Shafhi Mohammad v. The State of Himachal Pradesh [5] has been overruled, for not laying down the law correctly;
• the certificate under Section 65B of the Evidence Act is not necessary if the original electronic record is produced along with the electronic device, however, such certificate is necessary if the electronic device is impossible to be produced before the court;
• In the event of a certificate under Section 65B of Evidence Act produced being defective or a person who is in possession of the electronic device not providing such certificate, then the Trial Court(s) can issue summons to concerned person for producing such certificate;
• Trial Court(s) must issue directions for preservation of electronic evidence, and production of certificate at appropriate stage, until Rules are framed under Section 67C of the Information Technology Act, 2000 (the ‘IT Act’);
• Rules and Guidelines under Section 67C of IT Act to be framed, and for retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping, retrieval, preservation and maintenance, and preservation of meta-data.

III. CAUSE OF CONFUSION:

Briefly put, a 2014 decision of a three-judge bench of the Supreme Court of India in Anvar P.V.; which laid down inter alia that an electronic record by way of secondary evidence shall not be admitted into evidence unless the requirements under Section 65B of the Evidence Act are satisfied, was not followed by a division bench of the Supreme Court in its decision rendered in 2018 in Shafhi Mohammed, which decision followed a 2015 judgment of another three-judge bench of the Supreme Court of India in Tomaso Bruno wherein the Apex Court inter alia held that Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act (following a 2005 decision of division bench of the Supreme Court in the State v. Navjot Sandhu[6]   – that was specifically overruled by Anvar P.V.). The controversy, therefore, is the conflict between Anvar P.V. (subsequently followed in Vikram Singh & Ors. v. State of Punjab & Ors.[7]), and Shafhi Mohammed (confirming Tomaso Bruno), which was sought to be reconciled through the reference.

IV. RECONCILING ALL THE PREVIOUS JUDGMENT:

In Anvar P.V., a three-judge bench of the Supreme Court held that the procedure set forth by Section 65B of the Evidence Act is mandatory to admit and prove contents of an electronic record on a computer output. On the contrary, in Tomaso Bruno, a three-judge bench of the Supreme Court permitted admission of contents of an electronic record as secondary evidence under Section 65 of the Evidence Act. Since, the two benches of equal strength had held conflicting views on admissibility of electronic records into evidence, the Supreme Court in Arjun, was compelled to deal with the same even though reconciliation between Anvar P.V. and Tomaso Bruno was not specifically sought for in the said reference.

In Arjun, the Supreme Court held that Tomaso Bruno has not stated that law correctly and that the said judgment, despite not referring to decision in Anvar P.V., has held a view contrary to the decision in Anvar P.V. In view of the same, the Supreme Court overruled the view taken by the court in Tomaso Bruno, and, rightly so, held the decision in Tomaso Bruno to be per incuriam. This dictum begs the question: does the court have power to hold a decision of a co-equal bench as per incuriam for being contrary to the decision of another co-equal bench?

A ratio of a bench or court can be per incuriam, if it is contrary to or cannot be reconciled with the ratio of a co-equal or larger bench of the same court, or with ratio of a superior court[8]. In the unlikely event of a decision of a court being per incuriam to ratio of earlier decision, then a subsequent bench has powers to lay down the law afresh[9]. Therefore, the ratio of Tomaso Bruno, for having not referred to and being contrary to the ratio of Anvar P.V. delivered by co-equal bench, is per incuriam. The three-judge bench of the Supreme Court in Arjun has the power to resolve this conflict, and has rightly done so[10]. Applying the same proposition, the ratio of Shafhi Mohammad delivered by bench of two-judges of the Supreme Court, being contrary to the ratio of Anvar P.V., has also rightly been overruled. Therefore, ratio in Navjot Sandhu, Tomaso Bruno, and Shafhi Mohammad, have been declared as bad law.

In case of conflict between two prior decisions of co-equal bench, a subsequent bench of same strength or higher strength has the power to lay down the law afresh[11]. Thus, the Supreme Court in Arjun was empowered to not just reconcile the conflict between ratio of the previous benches, but also settle the position law afresh. Using these powers, in Arjun, the Supreme Court has deleted a portion of a particular statement under paragraph no. 24[12], and gave additional guidelines pertaining to production and admission of electronic record into evidence.

V. SECTION 65A AND 65B AS A COMPLETE CODE:

In Arjun, the Supreme Court has accepted with the ratio of Anvar P.V. that Section 65A and 65B of the Evidence Act, are a complete code in itself pertaining to the admission of the electronic record into evidence. On strength of the non-obstante clause of Section 65B (1) of the Evidence Act, the Supreme Court in Arjun has held that an electronic record’s admissibility and proof must satisfy the requirements under Section 65B, which is a special provision pertaining to the same and that the applicability of Sections 62 to 65 shall stand excluded. This view is fortified by the language of Section 65A Evidence, which states that “contents of electronic records may be proved in accordance” with Section 65B of the Evidence Act. Per Section 61 of the Evidence Act, contents of a document can be proved by adducing primary or secondary evidence. It is pertinent to note that Section 65B encompasses the admission of electronic contents of an electronic record as both primary evidence and secondary evidence. The language of Section 65A of the Evidence Act coupled with the non-obstante Clause used in Section 65B of the Evidence Act, shows that the intention of the legislature is to have contents of all the electronic records pass through the test of only Section 65B of the Evidence Act and nothing else. Therefore, the Supreme Court in Anvar P.V. and Arjun, has rightly held the said provisions are a complete code in itself.

VI. DISSECTING SECTION 65B OF EVIDENCE ACT:

In Arjun, the Supreme Court has held that Section 65B (1) of the Evidence Act, differentiates between the ‘original’ electronic record, containing the information, contained in the computer and the copies of information contained in an electronic record transferred on paper or other medium (‘Computer Output’). The Supreme Court further held that the ‘original’ electronic record contained in the computer is a ‘primary evidence’, and the Computer Output is a ‘secondary evidence’. The ‘original’ electronic record is an original ‘document’ under the Evidence Act. Per Section 65B (1) the Evidence Act, the Computer Output, on satisfying the requirement of Sections 65B (2) to 65B (4) of the Evidence Act, is deemed to be a ‘document’.

Per Section 65B (1) of the Evidence Act, a Computer Output shall be admissible into evidence without further proof or production of original, as evidence of its contents, i.e. on production of the Computer Output, and on satisfying requirements of Section 65B (2) of the Evidence Act and along with the Certificate under Section 65B (4) of the Evidence Act, the information contained in the said Computer Output is admissible into the evidence without production or proof of the Computer / electronic device from which such Computer Output was derived.

In Arjun, the Supreme Court, following Anvar P.V., has held that if the ‘original’ electronic record is sought to be adduced into evidence i.e. ‘primary evidence’, then a certificate under Section 65B (4) of the Evidence Act is not required. However, where a Computer Output is sought to be adduced into evidence i.e., ‘secondary evidence’, then a certificate under Section 65B (4) of the Evidence Act is mandatory. It is pertinent to note that the certificate under Section 65B (4) of the Evidence Act is to verify source and authenticity of the information, and to ensure the information is not tampered with. Therefore, the requirement under Section 65B (4) of the Evidence Act is required only for admitting a Computer Output into evidence.

This interpretation of the Supreme Court is in consonance with its view that Sections 65A and 65B of the Evidence Act are a complete code in itself for the purpose of electronic evidence, as Section 65B of the Evidence Act has been interpreted to deal with information contained in an electronic record as ‘primary evidence’ and ‘secondary evidence’.

Curiously, while trying to suggest that the requirement of producing a certificate under Section 65B (4) of the Evidence Act could be dispensed with where the original record (i.e., loosely, the primary evidence) is sought to be produced, the Supreme Court in Arjun hastens to clarify that Anvar P.V., requires to be clarified in the last sentence in Anvar P.V. which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” to be read without the words “under Section 62 of the Evidence Act,…”.

Effectively, the Supreme Court in Arjun has removed reference to ‘primary evidence’ under Section 62 of the Evidence Act in Anvar P.V., but has however, retained the crux of the said prescription that where the original electronic record is produced as evidence, the certificate under Section 65B (4) of the Evidence Act may be dispensed with. Although this clarification has been made with due care and attention to the possibility of an electronic record being readily categorised as a ‘document’, this still, however, leaves open a technical glitch as explained in the following.

Section 61 of the Evidence Act relates to proof of contents of documents. Section 62 of the said Act relates to primary evidence and Section 63 deals with secondary evidence. It cannot be lost sight that there is a legislative basis to produce the original document (to prove the contents thereof) as a ‘primary evidence’ under Section 62 of the Evidence Act. While the certificate under Section 65B (4) of the Evidence Act in respect of an electronic record may have the recognition of a ‘secondary evidence’, the construct of the Evidence Act requires that there be a specific provision to accept electronic record as a primary evidence; akin to Section 62 of the Evidence Act, and within the confines of Section 65A and Section 65B of the Evidence Act, viz., the complete code as regards electronic evidence. However, with no such provision to be availed for assistance, the authoritative basis for the Supreme Court’s prescription that production of the electronic record directly so as to not require the production of the certificate under Section 65B of the Evidence Act, may require a clarification.

VII. INABILITY TO OBTAIN THE CERTIFICATE UNDER SECTION 65B (4) OF THE EVIDENCE ACT:

In Arjun, the Supreme Court, as a solution to a scenario wherein the person producing the Computer Output is owner of or not in possession of the electronic device that produced the Computer Output, held that such person shall prefer an application to the respective Trial Court seeking direction to the person possessing the electronic device to produce the certificate under Section 65B (4) of the Evidence Act. Powers to adjudicate such Application has been traced to Section 165 of the Evidence Act, Section 91 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), and Order XVI of the Code of Civil Procedure, 1908 (‘CPC’). Supreme Court does not, however, stipulate the stage at which such application can be made. For example, in a civil case the documents are collected before the preferring the Plaint, and assuming the Plaintiff is not in possession of the electronic device but only the Computer Output, will she / he be able to prefer the said Application remains unanswered.

The Supreme Court was attempting to resolve the premise behind the ratio in Shafhi Mohammad viz. the inability of a person to secure  a certificate under Section 65B (4) of the Evidence Act because such person does not possess the electronic device. In this regard, the only scenario considered by the Supreme Court appears to be such inability caused due to the refusal of the person in possession of the electronic device to produce the requisite certificate. This scenario was accordingly answered.

However, the Supreme Court has not considered other possible scenarios that may lead to the said situation including mental illness or death of the only person capable of issuing the said certificate, inability to reach the person capable of issuing the said certificate, or loss of electronic device. These are few of the possible circumstances where a person proposing to adduce a Computer Output into evidence may not be able to procure or produce the required certificate. In such cases, the Latin maxims lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused – as used by the Supreme Court in Arjun, could be pressed into service. It is pertinent to note that Supreme Court has not stipulated the threshold and the procedure for application of doctrine of impossibility of performance. Therefore, as for the threshold to identify if procurement of certificate is indeed impossible, it would be logical to conclude that the respective Trial Courts must decide on case by case basis. Further, as for the procedure to decide on the impossibility of procuring require certificate, it would advisable for the respective Trial Court to record, under oath, the statement of the person claiming impossibility.

One scenario which could be resolved by Arjun is where a police officer, during a search operation in furtherance to an investigation into the commission of an offence, seizes a Computer Output containing essential piece of evidence, from the custody of the accused person. The police officer cannot ask the accused person, who was in possession of the Computer Output, to issue a certificate under Section 65B (4) of the Evidence Act nor can seek the details of the person who can issue such certificate, since the response of the accused person could be deemed to be ‘testimonial’ confession. Therefore, the law as it stands today, does not appear to provide a solution for such situation.

Quite apart from the suggestion to the Trial Courts to enforce their authority to compel production of the certificate under Section 65B of the Evidence Act, the Supreme Court takes a step forward in trying to ascertain the methods and modes of preserving and protecting electronic record, particularly by third party intermediaries[13], viz., cellular companies and telecom/internet service providers, by requiring them to carefully preserve electronic record identified in a given investigation, for the purposes of its production, if necessary, at a subsequent stage during a trial in the matter.

VIII. STAGE FOR PRODUCING THE CERTIFICATE:

Section 65B of the Evidence Act does not stipulate a stage at which the certificate under Section 65B (4) of the Evidence Act is required to be produced. However, the Supreme Court in Anvar P.V., has clarified that the certificate under Section 65B (4) of the Evidence Act, ‘must’ accompany the Computer Output when the same is produced into evidence. Though the court did not explain any basis for arriving at such procedure, the same is justified in view of the fact that Section 65B of the Evidence Act deals with admission of the evidence and as such it is sufficient that the certificate is produced during production of evidence. Arjun adopts this procedure, but restricts it to a situation where the person proposing to produce the Computer Output is able to procure the said certificate.

It is further held that in civil cases, in situations where the person proposing to produce Computer Output has produced a defective certificate or the person concerned is not providing the certificate despite demand, the respective Trial Court can summon the person concerned capable of issuing the said certificate and require her / him to produce such certificate. It is pertinent to note that the Supreme Court has not, however, stipulated as at whose instance should the respective Trial Court issue summons to concerned person. While answering the premise of Shafhi Mohammad, the Supreme Court in Arjun held that a person not in possession of the electronic device from which a certain electronic record is required to be adduced into evidence can apply to the Court seeking issuance of summons to the concerned person for production of the certificate. Therefore, a harmonious construction of the decision could be used to state that in civil cases, where a person has, at the time of recording evidence, produced a defective certificate and the same has been brought to the notice of the respective Trial Court then such court, on the application preferred by the person producing the evidence, can summon the concerned person to produce proper certificate. Similarly, when a person proposing to produce Computer Output into evidence is unable to procure the said certificate as the person concerned is not providing the same, then the former has to prefer an Application, seeking for issuance of summons to the person concerned to produce proper certificate.

In criminal trials, the Supreme Court holds, that the stage for admitting documentary evidence is the filing of charge-sheet. Since, the accused has to be produced with copies of all the documents relied upon by the prosecution, the accused is also required to be provided with the certificate accompanying Computer Output, if any. Therefore, in Arjun, the Supreme Court holds that Computer Output and the accompanying certificate under Section 65B (4) of the Evidence Act must be produced before the trial begins. The Supreme Court holds that permitting the prosecution to provide the said certificate at later stage may cause prejudice to the accused. However, the Supreme Court grants discretion to the respective Trial Court to permit prosecution to produce the said certificate at a later stage, if such production does not prejudice the right of the accused for fair trial.

It is pertinent to note that the stage of production of certificate under Section 65B of the Evidence Act, in criminal trials, has been premised on the assumption of the Supreme Court that the stage of admitting documentary evidence in a criminal trial is the filing of the charge-sheet. Under criminal procedure, after framing of charges, the prosecution leads evidence and until that stage there is no evidence tendered under Section 3[14] of the Evidence Act[15]. The relevancy and admissibility of a documentary evidence, is a matter for trial[16]. Further, during the pre-trial / inquiry stage, the Trial Court sifts through the documents and material produced by the prosecution for identifying sufficiency of materials or prima facie case against the accused persons, and does not evaluate the materials so produced for admissibility or proof till commencement trial. Therefore, as opposed to what has been held by the Supreme Court in Arjun, it may be sufficient for the prosecution to produce said certificate even at a later stage, and not necessarily at the stage of filing of charge-sheet.

IX. Sonu AND ITS IMPACT:

In Sonu, the Supreme Court, amongst other, following ratio in Anvar P.V. held that electronic record is not admissible unless it is accompanied by certificate under Section 65B (4) of the Evidence Act, and that objection regarding non-production of the said certificate relates to mode or method of proof, and therefore, has to be raised at the time such electronic record is being adduced into evidence. In Sonu, the Supreme Court further analyzed the nature of overruling of Anvar P.V.  vis-à-vis prospective or retrospective, and left it to be decided by a bench of three-judges.

It is our view in Arjun, the Supreme Court considered all its earlier relevant decisions on the admissibility of electronic record into evidence, except the ratio in Sonu, and answered the reference. It is pertinent to note that the Supreme Court referred to and extracted relevant paragraphs from the its decision in State of Karnataka v. M.R. Hiremath[17], but however, did not proceed to discuss the validity of the same. One question that lingers on everyone’s mind is the applicability of ratio in Anvar P.V. and Arjun to theelectronic evidence inpending trials and appeals. Arjun, neither discusses nor provides any answer to the same.

Anvar P.V. and Arjun hold that the Sections 65A and 65B of the Evidence Act are a complete code in itself, for admissibility of electronic record into evidence. Section 65A of the Evidence Act states that, an electronic record “…may be proved in accordance with…” Section 65B of the Evidence Act. Anvar P.V. observes that the purpose of a certificate under Section 65B of the Evidence Act is to add sanctity to the secondary evidence in electronic form.

It is not out of place to mention that the certificate under Section 65B (4) of the Evidence Act  is intended to provide certification as to the ‘form’ i.e. ‘existence’ of the electronic record and not to its ‘substance’ i.e., ‘contents’. A conjoint reading of Sections 65A and Sections 65B of the Evidence Act and the aforementioned observation of Anvar P.V., could be interpreted to mean that the Section 65B of the Evidence Act only relates to the mode of proof. Therefore, an objection as to the production of electronic record without certificate under Section 65B (4) of the Evidence Act would necessarily tantamount to an objection as to the mode of proof of such electronic record.

In the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Ors.[18], a five-judge bench of the Supreme Court held that objections as to admissibility of documents in evidence may be classified into: (i) an object that such document is inherently inadmissible; and (ii) where the object is directed towards the mode of proof being irregular or insufficient. Further, the court states that the test to identify the nature of such objection is whether such objection, if taken at appropriate time, would have enabled the person to cure the defect and resort to such mode of proof as would be regular or sufficient. It further held that objection as to the mode of proof must be raised at the time when the document is being adduced into evidence, and not later.

Applying the ratio in R.V.E. Venkatachala Gounder, to the admissibility of an electronic record sought to be adduced into evidence without a certificate under Section 65B of the Evidence Act, it could be seen that the an objection here may be to the mode of proof being irregular. This is also supported by the ratio in Arjun, that a defective certificate or failure of the person concerned to issue the said certificate, can be cured by making an Application to the respective Trial Court seeking summons to be issued to the person concerned to issue the said certificate. Therefore, it follows that an objection as to the failure to produce the certificate under Section 65B (4) of the Evidence Act must be preferred at before the Computer Output is tendered into evidence, and if not raised at the said stage, then it cannot be raised at a later stage. Sonu, rightly so, followed the ratio in R.V.E. Venkatachala Gounder, and held that objection as to the inadmissibility of the Computer Output cannot be taken after the same is tendered into evidence at trial.

X. TAKEAWAYS:

The immediate and unambiguous takeaway from Arjun is the confirmation that Anvar P. V. – with certain clarifications, lays down the correct law as regards the manner of admissibility of electronic evidence. The Supreme Court has, in addition to answering the reference, also labored to contemplate, address and suggest options to attend to circumstances/the need to prove an electronic record (record stored in private computer/computer network and those stored in public computer network/server typically using the internet), where a certificate under Section 65B of the Evidence Act in respect thereof, is not forthcoming from the person qualified to provide the same.

Further, whilst directions to Cellular companies and internet service providers to maintain CDRs (call detail record) and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period has also been passed in  addition to answering the reference, the said direction coupled with recommendations as regards framing of necessary Rules for the preservation of electronic evidence, and production of certificate at the appropriate stage, under Section 67C of the IT Act, suggest that the ‘intermediaries’ under the IT Act may soon be required to be prepared to adopt an operating procedure for preservation/production as regards any electronic record that may become part of an ongoing investigation by appropriate legal authority. Conservatively, it is the view of the authors that the existing direction to cellular companies in respect of CDRs may be analogously extended to all other internet ‘intermediaries’ in respect of the electronic record that is subject to investigation and is maintained by them in accordance with law.        

XI. AUTHORS’ COMMENT:

It is the authors’ view that purely from the point of view of conduct of criminal proceedings, it would be ideal if the Trial Court(s) entertained applications for summoning of certificate(s) under Section 65B of the Evidence Act only in respect of an electronic record stored in a private device/computer and/or computer network and not such electronic record that may be stored in third-party/public/free-to-use servers/computer networks, so as to await the enactment of necessary rules/regulations by the appropriate government under Section 67C of the IT Act. Although the suggestions given by the Supreme Court as regards preservation and protection of electronic record, are provided in the interest of the larger public and with an obvious intent to obviate the difficulty in procuring a certificate under Section 65B of the Evidence Act, in the short term – with no clear guidelines as to the manner in which Trial Courts may endeavour to secure these certificates per force, there is bound to be confusion as regards, when and against whom, can an order seeking production of a certificate under Section 65B of the Evidence Act, be passed.

Further, following the discussion on R.V.E. Venkatachala Gounder (supra), it is likely that in the pending trials and appeals wherein Computer Output has been adduced, the same could be challenged on the basis of the ratio in Anvar P.V. and Arjun, where possible, only if an objection is raised at the time the Computer Output was tendered into evidence at trial.

It needs no emphasis that the decision in Arjun is certainly a pivotal milestone in the evolution of our understanding of electronic record as an admissible evidence and its dynamics with principles of law of evidence.

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[1] Civil Appeal Nos. 20825-20826 of 2017 with Civil Appeal No. 2407 of 2018 and Civil Appeal No. 3696 of 2018, judgment delivered on July 14, 2020, available at https://main.sci.gov.in/supremecourt/2017/39058/39058_2017_34_1501_22897_Judgement_14-Jul-2020.pdf.

[2] (2014) 10 SCC 473.

[3] (2018) 2 SCC 801.

[4] (2015) 7 SCC 178.

[5] (2018) 2 SCC 801.

[6] (2005) 11 SCC 600.

[7] (2017) 8 SCC 518

[8] Sundeep Kumar Bafna v. State of Maharashtra & Ors. (2014) 16 SCC 623, at para 15. Also See, Central Board of Dawoodi Bohra Community & Ors. v. State of Maharashtra & Ors., (2005) 2 SCC 673, at para 7: “Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law.”

[9] Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682, at para 45: “The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together.”

[10] Supra note 9. Also see, A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602: “But the point is that the circumstance that a decision is reached per-incuriam, merely serves to denude the decision of its precedent-value. Such a decision would not be binding as a judicial precedent. A co-ordinate bench can disagree with it and decline to follow it.”

[11] Supra note 9.

[12] The phrase “under Section 62 of the Evidence Act,…” has been removed from the phrase “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” in para no. 24

[13] Section 2(1)(w) of the Information Technology Act, 2000 defines an ‘intermediary’

[14] Section 3 – “Evidence.”– “Evidence” means and includes—(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.”

[15] Hardeep Singh & Ors. v. State of Punjab & Ors., (2014) 3 SCC 92, para 76.

[16] Supra note 15 at para 70.

[17] (2019) 7 SCC 515.

[18] (2003) 8 SCC 752, para no. 15.