Should electronic records be treated as primary evidence: SC seeks AG's assistance

The Supreme Court on Tuesday wondered whether electronic records should be considered as an independent or primary source of evidence without authorisation.

The court issued a notice to the Union government, seeking assistance from Attorney General K K Venugopal to settle legal position on admissibility of electronic evidence in trial of criminal cases.

A bench of Justices Adarsh Kumar Goel and U U Lalit also said there have been several judgements from the apex court on the subject, but the matter cannot be left to a larger bench to decide, saying making such a reference may put the issue in "cold storage".

"What do you do when the evidence is in electronic form? Can such evidence be relied upon in the absence of certification from authorised persons? Should such an evidence be brushed aside merely on grounds of technicality and the truth be ignored," the court asked.

The court asked if somebody takes a loan and pays equal monthly instalments through tele-banking, should the transaction records from his or her accounts be treated as primary evidence.

"If the man is able to prove he has paid the amount, should he still require certification from somebody," the bench further asked senior advocate Meenakshi Arora, appearing as amicus curiae in a case.

According to Section 65B(4) of the Indian Evidence Act, information relating to electronic form of records can be produced as evidence only when it is accompanied with a certificate.

The court noted that several high courts have been relying upon electronic form of evidence in deciding the cases and law must be settled as early as possible to expedite pending trials in such cases. Those courts hold that there is no bar in relying upon such evidence, it said.

The court put the matter for further consideration in January.