– By Megha Malhotra
Electronic or digital Evidence is “data of probative worth, saved or transmitted in binary form “. Evidence isn’t just constrained to that found on PCs but may also encompass evidence on digital devices like telecommunication or electronic multimedia devices. The E-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word processing, documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups, Computer printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks, Digital video or audio files. Digital Evidence in general is progressively voluminous, difficult to wreck, handily modified, easily replicated, possibly more expressive and promptly accessible. The definition of evidence as given in the Indian Evidence Act, 1872 spreads a) the evidence of witness i.e. oral evidence, and b) documentary evidence which incorporates electronic record delivered for the inspection of the court. The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000. Section 3 of the Act was revised and the phrase “All documents produced for the inspection of the Court” was substituted by “All documents including electronic records produced for the inspection of the Court”.
The Information Technology Act, 2000 and its amendment is based on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce. The Information Technology (IT) Act 2000, was amended to take into account the admissibility of electronic evidence. A revision to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 provides the legislative system for transactions in electronic world.
The term ‘electronic records‘ has been given the same meaning as that alloted to it under the IT Act. IT Act provides for “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”. The definition of ‘admission’ (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests a presumption to any fact in issue or of relevance. New Section 22-A has been inserted into The Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It states that oral admissions regarding the contents of electronic records are not relevant unless the originality of the electronic records produced is in question.
Electronic evidence under the Indian Evidence Act
Under the provisions of Section 61 to 65 of the Indian Evidence Act, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record
The principle governing primary and secondary evidence is applicable to electronic evidence too. While the device that produces the electronic record is primary evidence, any reproduction of such electronic record (print outs, soft copy) is secondary evidence. However, due to the complexities associated with adducing primary electronic evidence (since data in an electronic device is stored on magnetic medium, and in the case of data on online servers which becomes inaccessible as the servers cannot possibly be moved into court), this general rule that secondary evidence is only admissible when primary evidence is available is relaxed. .
All electronic documentation, therefore, falls under the category of secondary evidence. Owing to the nature of electronic records and their susceptibility to tampering, courts have adopted stringent measures while evaluating the authenticity, reliability, and relevance of all forms of electronic records, including chats on social messaging platforms, chat engines, and traditional electronic records such as e-mail. The slightest doubt that such record may have been tampered with is sufficient for courts to reject its admissibility altogether.
New sections 65-A and 65-B are introduced to the Evidence Act, under the Second Schedule to the IT Act. Section 65-A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic, is deemed to be a document and is admissible in evidence without further proof of the original’s production, provided that the conditions set out in Section 65-B are satisfied. The conditions specified in Section 65-B (2) are:
Initially the information was produced during the regular course of activities by the person having a lawful control over the computer’s use .
Secondly, the information has been regularly fed into the computer in the ordinary course of said activities .
Next prerequisite being throughout the material part of said period , the computer was operating properly or the improper operation as not such as to affect the electronic record or the accuracy of its contents.
And lastly information contained in the electronic records reproduces or is derived from such information fed into the computer in the ordinary course of activities .
Section 65-B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been duplicated on to a optical or magnetic media, then such electronic record that has been replicated ‘shall be deemed to be also a document’ subject to conditions set out in Section 65-B(2) being satisfied. Both corresponding to the information as well as the computer in question such document ‘shall be admissible in any proceedings when 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.’
Under Section 65-B(4) the certificate which recognizes the electronic record containing the statement and portrays the way in which it was produced giving the specifics of the device associated with the production of that record and manages the conditions referenced in Section 65-B(2) and is signed by a person occupying a responsible Authoritative position in relation to the activity of the relevant decice ‘shall be evidence of any matter stated in the certificate.’
Electronic evidence under Family courts act section 10(3)
To record evidence employing video conferencing technology, discretion has been vested in the family court itself to record proof through such procedure . By virtue of Section 10(3) , family courts are authorised to embrace their own methodology to reach a settlement or to get truth of the matter.
Because of enormous growth and development in e-governance all through the Public and Private Sector, Electronic Evidence have been included as a fundamental pillar of communication, processing and documentation. These different types of electronic evidence are progressively being utilized in both Civil and Criminal Litigations. During preliminaries/trials, Judges are frequently solicited to govern on the rule of admissibility of electronic evidence and it majorly impacts the result of common law suit or conviction/acquittal of the accused. The Court struggles with this new electronic frontier as a unique sort of e-evidence, just as the simplicity with which it can be forged or fabricated, create obstacles to admissibility not confronted with other evidences. The different categories of electronic evidence, for example, website data, interpersonal social network Communication, email, SMS/MMS and PC produced records presents exceptional issue and challenges for appropriate authentication and subject to an alternate arrangement of perspectives.
1. Som Prakash vs. State Of Delhi (1974), the Supreme Court has rightly observed that “in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.” Statutory changes are needed to develop more fully a problem solving approach to criminal trials and to deal with heavy workload on the investigators and judges.
2. In State vs. Mohd. Afzal And Ors (2003), the court held that Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
3. State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) [The question involved whether a witness can be examined by means of a video conference.] The Supreme Court observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. The legal requirement for the presence of the witness does not mean actual physical presence. The court allowed the examination of a witness through video conferencing and concluded that there is no reason why the examination of a witness by video conferencing should not be an essential part of electronic evidence.
4. TWENTIETH CENTURY FOX FILM CORPORATION Vs. NRI FILM PRODUCTION ASSOCIATES (P) LTD. (AIR 2003 KANT 148) In this case certain conditions have been laid down for video-recording of evidence:
• Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification Affidavit).
• The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
• The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
• The witness should not plead any inconvenience on account of time different between India and USA.
• Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
• Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
• Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
• After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
• The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
• The learned Judge may also impose such other conditions as are necessary in a given set of facts.
5. Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) [Sections 65-A and 65-B of Evidence Act, 1872 were analyzed.] The court held that the physical presence of person in Court may not be required for purpose of adducing evidence and the same can be done through medium like video conferencing. Sections 65-A and 65-B provide provisions for evidences relating to electronic records and admissibility of electronic records, and that definition of electronic records includes video conferencing.
6. STATE (NCT OF DELHI) Vs. NAVJOT SANDHU (AIR 2005 SC 3820) There was an appeal against conviction following the attack on Parliament on December 13 2001. This case dealt with the proof and admissibility of mobile telephone call records. While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of the Evidence Act. The Supreme Court concluded that a cross-examination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.
7. JAGJIT SINGH Vs. STATE OF HARYANA ((2006) 11 SCC 1) The speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. When hearing the matter, the Supreme Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action. The Supreme Court found no infirmity in the speaker’s reliance on the digital evidence and the conclusions reached by him. The comments in this case indicate a trend emerging in Indian courts: judges are beginning to recognize and appreciate the importance of digital evidence in legal proceedings
8. BODALA MURALI KRISHNA VS. SMT. BODALA PRATHIMA (2007 (2) ALD 72) The court held that, “…the amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in relation to the electronic record. Sections 67-A and 73-A were introduced as regards proof and verification of digital signatures. As regards presumption to be drawn about such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence.”
9. DHARAMBIR Vs. CENTRAL BUREAU OF INVESTIGATION (148 (2008) DLT 289).The court arrived at the conclusion that when Section 65-B talks of an electronic record produced by a computer referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. It distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.
10. In the case of Ratan Tata v. Union of India (2010), a compact disc (CD) containing intercepted telephone calls was introduced in the Supreme Court without following any of the procedure contained in the Evidence Act. In Avnish Bajaj vs. State, the question as to what kind of distinction do we draw between Internet Service Provider and Content Provider was raised. The burden rests on the accused that he was the Service Provider and not the Content Provider. It also raises a lot of issues regarding how the police should handle the cyber crime cases and a lot of education is required.
The trend of ignoring the special procedure prescribed for adducing electronic records as evidence was seen even in subsequent cases. For example the case of Ratan Tata v. Union of India was another case where a CD containing intercepted telephone calls was introduced in the Supreme Court without following the procedure laid down under section 65B of the Evidence Act. In Anvar vs. Basheer, the court held that Section 65B of the Evidence Act has been inserted by way of an amendment by the Information Technology Act, 2000. In as much it is a special provision which governs digital evidence and will override the general provisions with respect to adducing secondary evidence under the Evidence Act.
11. In the recent judgment, Jagdeo Singh vs. The State and Ors (2015) pronounced by Hon’ble High Court of Delhi, while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s 65B Evidence Act, the court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever.
12. The expenses and the arrangements are to be borne by the applicant who wants this facility. 8 The recent judgment of The Hon’ble Supreme Court delivered in ANVAR P.V. VERSUS, P.K. BASHEER AND OTHERS, in CIVIL APPEAL NO. 4226 OF 2012 decided on Sept., 18, 2014, That Computer Output is not admissible without Compliance of 65B,EA overrules the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru[(2005) 11 SCC 600 by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and is required to be overruled. This judgment has put to rest the controversies arising from the various conflicting judgments and thereby provided a guideline regarding the practices being followed in the various High Courts and the Trial Court as to the admissibility of the Electronic Evidences. The legal interpretation by the court of the following Sections 22A, 45A, 59, 65A & 65B of the Evidence Act has confirmed that the stored data in CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of Evidence Act and further clarified that in absence of such a certificate, the oral evidence to prove existence of such electronic evidence and the expert view under section 45A Evidence Act cannot be availed to prove authenticity thereof.
In the Judgment, the Hon’ble Supreme Court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act. The section 63 and section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act.
The only alternative to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence to the court or it’s copy by way secondary evidence u/s 65A/65B of Evidence Act. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. In the present case, the court observed that:
“The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.”
This judgment will have severe implications in all the cases where the prosecution relies heavily on the electronic data specially those cases where the audio-video recordings are produced in the form of CD/DVD before the court. The anticorruption cases are generally based on a lot of electronic / digital evidence and the CD/DVD forwarded to the courts are without a certificate and shall therefore not be admissible as evidence u/s 65B Evidence Act, which makes it mandatory to produce a certificate u/s 65 B(4). The failure to provide the certificate u/s 65 B(4). further occludes the judicial process as the expert view in that matter cannot be availed of till the preceding condition is fulfilled. It has been specified in the judgment that Genuineness, Veracity or Reliability of the evidence is looked into by the court subsequently only after the relevance and admissibility is fulfilled. The requirement to ensure the source and authenticity, pertaining to electronic records is because it is more vulnerable to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to mockery of justice.
The original recording in Digital Voice Recorders/mobile phones need to be preserved as they may get destroyed, in such a case the issuance of certificate under section 65B(4) of the Evidence Act cannot be given. Therefore such CD/DVD is inadmissible and cannot be exhibited as evidence, the oral testimony or expert opinion is also barred and the recording/data in the CD/DVD’s do not serve any purpose for the conviction.
13. Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke SC/0040/2015 : The Hon’ble High Court of Delhi, while deciding the charges against accused in a corruption case observed that since audio and video CDs in question are clearly inadmissible in evidence, therefore trial court has erroneously relied upon them to conclude that a strong suspicion arises regarding petitioners criminally conspiring with co-accused to commit the offence in question. Thus, there is no material on the basis of which, it can be reasonably said that there is strong suspicion of the complicity of the petitioners in commission of the offence in question.
14. The Supreme Court of India, in a path breaking dynamic judgment of Shafhi Mohammad Vs. The State Of Himachal Pradesh SLP (Crl.)No.2302 of 2017), has rationalized the law relating to the admissibility of the electronic evidence particularly in view of the provision of Sec. 65B of the Indian Evidence Act. Section 54-A of the Cr.P.C. provide for videography of the identification process and proviso to Section 164(1) Cr.P.C. provide for audio video recording of confession or statement under the said provision.
The admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps which are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made witness against himself as it would be violative of the Article 19 of the Constitution of India.