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Electronic Evidence
By Anurag Kushwaha
Electronic evidence is an evidence that is present in the digital or electronic format. It could be the data stored in a device or shared, transferred or transmitted through an electronic/digital medium. It should be noted that such evidence should be relevant and must be collected lawfully. With the increasing use of technology for various purposes like business, communication, education, etc. the requirement for any organisation to run websites and store some data online or communicate through electronic medium is obvious. While the technology is improving at a rapid pace, a rise is also observed in the cybercrimes that are done on the internet. In a report by National Crime Records Bureau, 2017 alone witnessed a growth of 77% in the number of cybercrime cases that were reported. The cybercrimes mostly include data theft, frauds, cyber stalking, cyber bullying, etc. Hence the importance of electronic evidence and challenges related to it should be studied.
Laws Relating to Electronic Evidence in India:
The Indian Evidence Act, 1872 and the Information Technology Act, 2000 (amended 2008) mention and recognise electronic evidence. Under the Information Technology Act, 2000, the section 2(1) (t) mentions and defines what electronic record is and how is it recognised. Following are some provisions as mentioned under the Indian Evidence Act, 1872:
- Section 17: This section defines the admission of evidence, including electronic evidence.
- Section 22 A: Under this section, it is prescribed that the oral admission of an evidence, in a digital or electronic format is not relevant unless the genuine nature of it is questioned otherwise.
- Section 45 A: This section states that the opinion of an Examiner of Electronic Evidence shall be taken into account while considering any document, data, information or record that is in an electronic format to ensure its validity and to ascertain whether it is genuine.
- Section 65 A: This section prescribes that the content in any electronic record shall be as per the regulations mentioned under the subsequent section to amount for an electronic evidence.
- Section 65 B: This section specifies some conditions that an electronic evidence should qualify to be valid for presentation in the court as an admissible evidence.
- Section 85 A: Under this section, the relevance of an electronic agreement with the authorisation by a digital signature is mentioned.
- Section 88 A: This includes the presumption in regard to electronic messages. It is mentioned that the court shall not make any assumption but can presume a message which is sent by an originator, profess to correspond with the one in the computer device for transmission.
The Examiner of Electronic Evidence referred above is mentioned under section 79 A of the Information Technology Act.
It should be noted that as a secondary evidence, there is a requirement for certificate to authorise the evidence and prove its admissibility.
Electronic Evidence and Challenges:
- Admissibility: Electronic evidence, although admissible in the court during a proceeding are seemingly prone to challenges in proving their validity. This is majorly because the courts are still trying to cope up with the advent of electronic evidence and their foundation.
- Awareness: There is a lack of awareness in many who don’t know that electronic evidence and even electronic records can be used for investigation or even used to provide as evidence while filing a complaint against a cybercrime.
- Fake Evidence: The role of fraud and fake evidence through the internet or technology is increasing and it is becoming tougher to authorise or verify the role of electronic evidence.
Cases Related to Electronic Evidence in India:
In the case of Anvar P.V. v. P.K. Basheer,[1] clarity was given on the grounds of certain sections in the Indian Evidence Act relating to electronic evidence like section 22 A, section 45 A and section 17.
And in Abdul Rahaman Kunji v. State of West Bengal[2], the question before the Court was regarding the admissibility of electronic evidence in the form of an email sent through the digital medium. The Court’s positive stance towards the evidence and its admissibility was indeed strengthening the scope of such evidence.
In Jagjit Singh v. State of Haryana, electronic evidence in the form of several interview recordings for news channels was admissible in the court.
Hence, the admissibility of electronic evidence is largely and widely being accepted nowadays as technology is carrying out its role in seeking justice and also for investigation purposes.
[1] (2014) 10 S.C.C. 473.
[2] (2015) 1 Cal. LT 318.
I can imagine it must be a pain for digital forensics experts to try and make a judge understand the intricacies involved in order for them to get the correct information.
The cases and relevant case laws provided help for a better understanding of the article and how the law works
Very interesting article
It’s very well explained
The topic is also very interesting
The article was made easy by relating the evidence act and the electronic media. Easily understood and very helpful to the study work.
This article is extremely informative and helpful as it spreads awareness about laws relating to electronic evidence.
Its an informative article which helps to enhance the information about electronic evidence which can be very helpful in present time where all the things are online and the crimes done on this platform can be solved by these evidences when used correctly so this article helped to get the information about the use of electronic evidence and what are the provisions mentioned under law is also given in this article to increase the information and the cases mentioned have helped to understand the article more easily.
Well structured and informative article , a common question can an viral video be admissible in court of law ?
We nee dto protect each node and update each node when asked to do , as updates improves the security level.
Really good article it really help me to understand things easily
As the cyber crime is increasing day by day , the knowledge about the electronic evidence is a must. This article is very informative and in the easiest form the has tried to explain the meaning of electronic evidence , it’s provisions in all as well as the case laws.
This article describes the concept of electronic evidence in a nice manner. It mentions about the various provisions in various legislations in India. It explains the challenges in the cases of electronic evidence. Cybercrime is increasing day by day and we need to have a very stringent process while collecting all those evidence that no one could hamper it.
with the rise of cyber crimes in India, more and more people need to be made aware of electronic evidences. the article nicely mentions the provisions under Indian Evidence Act, challenges for admission of electronic evidence and important case laws concerning electronic evidence.
The writer here at wider level discussed the mandatory concept of electronic evidence. It is something which everyone may it be organizations, firms, etc have to face; may say be needed for future to produce certain evidences before or dealing with any matter as such. The writer has explained the challenges electronic evidence, giving suggestions as well as a note for future generations or say people who will deal and work in such fields to face the challenges and bring neccessary solutions for the same. The cases dealt here also add further interpretation to the article making readers more learn in depth about the topic…….
A very well versed , well explained , informative article . Electronic evidences have helped in a lot of modern cases . Of course it becomes difficult in cases where the accused has a sound knowledge of digital forensics or is smart enough to dispose everything he had used but there’s always a link, no matter how hard it is to find it or prove its genuineness and these are the places where challenges are unavoidable. The author has very well highlighted the challenges related to this field along with the sections of the IPC which deal with it and also stated some reference cases . Its a very good read.
A detailed and well structured explanation for Cyber evidence and respective cyber law sections.
very well explained and great Article