USE OF ELECTRONIC EVIDENCE FOR CROSS-EXAMINATION WITHOUT SECTION 65B CERTIFICATE

USE OF ELECTRONIC EVIDENCE FOR CROSS-EXAMINATION WITHOUT SECTION 65B CERTIFICATE

In today’s digital age, electronic evidence has become a pivotal part of legal proceedings in both civil and criminal cases. From emails and text messages to photographs, videos, and social media content, electronic records often play a crucial role in establishing the facts of a case. However, for electronic evidence to be admissible in court, it must satisfy certain legal requirements, primarily those stipulated under Section 65B of the Indian Evidence Act, 1872.

The Law Codes, a leading law firm with over 20 years of experience practicing in Gurgaon and Chandigarh across a wide spectrum of civil and criminal matters, understands the importance of electronic evidence in modern litigation. In this article, we will explore the use of electronic evidence for cross-examination and the implications of presenting such evidence without a Section 65B Certificate.

What is Section 65B Certificate?

Section 65B of the Indian Evidence Act specifically governs the admissibility of electronic records as evidence in a court of law. It requires that electronic records (such as emails, digital photographs, videos, and other forms of digital communication) must be accompanied by a Section 65B Certificate in order to be admissible as evidence.

This certificate must confirm that:

  • The electronic record is genuine.
  • The system used to create, store, or transmit the record was regularly in operation.
  • The record has not been altered or tampered with.
  • The details regarding the creation, storage, and retrieval of the record are accurate.

The Section 65B Certificate serves to establish the authenticity and reliability of the electronic evidence, ensuring that it has not been tampered with or manipulated before being presented in court. Without this certificate, electronic evidence is generally considered inadmissible under Indian law.

Can Electronic Evidence Be Used for Cross-Examination Without a Section 65B Certificate?

The core question arises: Can electronic evidence still be used for cross-examination if it does not meet the strict requirements of Section 65B? The short answer is no—at least in terms of its admissibility as evidence. However, there are certain nuances and exceptions in practice that need to be explored.

1. Legal Framework Governing Admissibility of Electronic Evidence

Under Section 65B, the admissibility of electronic evidence is strictly conditioned on the production of the Section 65B Certificate. The section is meant to safeguard the integrity of digital records by ensuring that they are authentic and have been properly stored or maintained in accordance with the law. In Navjot Sandhu v. CBI and similar cases, the Supreme Court has made it clear that electronic evidence cannot be admitted unless accompanied by a Section 65B Certificate.

Therefore, in theory, electronic evidence without a Section 65B Certificate should not be used as evidence-in-chief in court proceedings. This would apply to the presentation of the evidence during the examination-in-chief as well as its use for any substantive purpose.

2. The Role of Electronic Evidence in Cross-Examination

Cross-examination is the stage of the trial where opposing counsel questions a witness to test the accuracy, credibility, and reliability of the testimony or evidence presented. While electronic evidence cannot be admitted without the Section 65B Certificate for substantive purposes, it can still play a role in cross-examination—but with certain limitations.

Practical Scenarios in Cross-Examination

Scenario 1: Objection Based on the Lack of a Certificate

If one party presents electronic records (such as emails, text messages, or social media posts) during cross-examination without a Section 65B Certificate, the opposing counsel is well within their rights to object to the admissibility of the evidence based on the absence of the certificate. This objection is likely to be upheld by the court, as Section 65B specifically mandates the certificate to authenticate electronic evidence.

However, the electronic record may still be used in cross-examination if it is not being submitted as evidence-in-chief but is being used to question the witness’s credibility or to impeach the witness’s testimony.

Scenario 2: Impeachment of a Witness’s Credibility

Even without a Section 65B Certificate, electronic records may be used in cross-examination if they are being used solely to impeach the credibility of the witness or to challenge the witness’s version of events. In such cases, the evidence is not being used as substantive evidence but as a tool to discredit the witness.

  • Emails presented in cross-examination can be used to highlight contradictions between what the witness is stating and the information available in the email.
  • Text messages or social media posts may be shown to a witness to question the veracity of their testimony, even if those records do not meet the requirements of Section 65B.

While the court may not admit these electronic records as proof of the facts, they can still serve as a tool of cross-examination to question the witness’s credibility.

Scenario 3: Refreshing the Memory of the Witness

Another possible use of electronic evidence during cross-examination is to refresh the memory of the witness. If a witness is having trouble recalling certain facts or details, the electronic record can be shown to them to assist with their memory. However, once again, it’s important to note that this does not make the evidence admissible unless it is properly authenticated with a Section 65B Certificate.

Judicial Perspective on the Issue

Judicial precedents suggest that Section 65B Certificate is a mandatory requirement for the admissibility of electronic evidence. However, this requirement has been subject to exceptions in certain cases, particularly in instances where cross-examination is concerned.

The court will ultimately have to decide whether the electronic record is being used for a legitimate purpose within the bounds of the law and whether it serves to challenge the credibility of the witness, without affecting the substantive nature of the evidence.

The use of electronic evidence for cross-examination without the Section 65B Certificate can be a complex issue, with various limitations and exceptions depending on the nature of the case and the purpose for which the evidence is being used. While the Section 65B Certificate is mandatory for the admissibility of electronic records in court, there are certain situations where such records can still be used to challenge the credibility of a witness or to impeach testimony during cross-examination.

Conclusion

At The Law Codes, one of the top law firms in Gurgaon and Chandigarh, we have over 20 years of experience in handling complex civil and criminal matters involving electronic evidence. Our team is adept at navigating the intricacies of Section 65B and ensuring that our clients’ evidence is presented in a manner that is legally sound and effective. Whether dealing with cross-examination, admissibility issues, or the authentication of electronic records, we provide expert legal counsel to safeguard our clients’ interests and secure a favorable outcome.

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