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How reliable are Electronic Evidence in today’s time?

By Meher Sunil Dabrai

Introduction

We are living in a digital age where technology plays a vital role in our day to day lives. This has been true even in the legal field. Technology plays an important role right from drafting plaints, written statements and applications on computers to production of WhatsApp messages and CCTV footages as evidence in courts.

The Indian Government has started the ‘Digital India’ campaign to promote the use of digitalization in the daily lives of the people as well.

The production of electronic evidence has also been a part of this digitalization in the Judicial system and has also been incorporated in the provisions contained under the Indian Evidence Act.

While electronic evidence has been a blessing to the Indian legal system, it comes with its own unique challenges and problems with regards to proper authentication and catering the different views on it.

Electronic evidence can have a substantial impact on the outcome of Judicial proceedings if it is found to be authentic and maintainable in Court, but the authenticity of such evidence has proved to be a challenge as electronic evidence can be easily manipulated.

What is evidence?

Section 3 of the Indian Evidence Act 1972 states that evidence can be either oral or documentary. Statements made by witness and the examination and cross examination of the Plaintiffs, and the Defendants in Court can be considered as oral evidence while the documents produced in Court including bank statements, bills etc. are considered as documentary evidence.

In simple terms, documentary evidence is the evidence that is produced before the Courts for inspection. This also includes electronic records. Evidence has also been classified as primary and secondary evidence.

Primary and secondary evidence

  • Primary evidence

When an original document or original electronic record is produced in the court, it is considered as primary evidence. It has always been an established principle of law that in a case where primary evidence is available, it has to be given priority over secondary evidence.

This does not mean that secondary evidence does not have important evidentiary value.

  • Secondary evidence

Secondary evidence is a copy or counterpart of the original documents which the party may nt have access to or may not be able to produce in the court. Secondary evidence is usually filed with the statement of an expert or a person who has himself seen the document.

The production of computer outputs of electronic records constitute as secondary evidence.

Secondary evidence may be submitted in Court through print out on paper, copying or stored on any magnetic or electronic device such as pen drives, CDs etc. Electronic evidence is only admissible in Court if it satisfies the conditions preceded under Section 65B of the Indian Evidence Act 1972.

Electronic records under the Indian Evidence Act, 1972

As discussed earlier, Section 3 of the Indian Evidence Act 1972 lays down the grounds for what may constitute as valid evidence in the Court of law. Earlier this Section did not mention of any form of electronic evidence. It was amended in the year 2000 after the courts observed a substantial increase in the production of electronic evidence.

Following this, Section 65A and 65B were introduced to make electronic evidence admissible. The amendment was also made to Section 92 of the Information Technology Act of 2000.

After the amendment of Section 3, there was still an ambiguity regarding Sections 61 to 65 of the Indian Evidence Act that deal with documentary evidence. No amendment was made to these sections to include electronic evidence.

Thus, issue was later cleared out in the case of Utkal Contractors Vs. State of Orissa[1]. In this matter, the Court held that the legislature did not intend on the amendment of Sections 61 to 65 as it did not want these sections to extend to electronic records.

As a result of this, electronic evidence is only admissible as secondary evidence in India.

Section 65B of the Indian Evidence Act specifies the admissibility of electronic evidence. The Section specifies the procedure for proving the electronic records which have been laid down under Section 65B.

Section 65B(4) states that a certificate under the Section needs to be produced along with the electronic evidence. The certificate must contain important details that guarantee the reliability of the source of the electronic record and the authorization of the source of such records. The certificate removes any questions with regards to the nature of the machine.

The certificate needs to be authorized by the person who has a responsible official position about the particulars of the device or the source of the electronic evidence. These particulars include the device and model names and numbers, whether the devices have an antivirus or not, the maintenance and ownership of the device and so on.

While this minimizes the tampering of evidence and slows down the procedure making it very complex and time consuming. The electronic evidence is acceptable only along with the certificate under this Section otherwise it is not acceptable by the Court.

In the landmark case of State (NCT of Delhi) Vs. Navjot Sandhu[2], it was held by the Supreme Court that the requirement of certificate under Section 65B pertaining to any electronic evidence is mandatory irrespective of the compliance of the requirements of Section 65B.

This judgement became a well-established principle that the procedure is the handmaid of justice and the object of prescribing the procedure is to advance the cause of justice, not to make it subservient to procedure.

In another case, Tukaram S Dighole Vs. Maikrao Shivaji Kokate[3] the Supreme Court held that the tapes and casettes that had been produced in Court were susceptible to tampering and alterations which may have been difficult to detect and therefore such evidence may be received with caution.

The Court also emphasized that to rule out the possibility of any kind of tampering of evidence the standard proof about its authenticity and accuracy had to be made more stringent as compared to other documentary forms of evidence.

Evidence in the form of mobile phones in the form of media, calls and e-mails

E-mails were one of the first forms of electronic evidence that is recognized as a valid and authentic source of evidence. E-mails are submitted through print outs attached with the certification under Section 65B of the Indian Evidence Act.

Media and calls generated through mobile phones have also been important sources of electronic evidence in recent times. Mobile phones have been very useful and have helped in several ways such as tracing location, capturing videos and pictures, recording calls to many other electronic resources which aids the Judicial system in recording valuable evidence.

Even information that is available on social media in the form of messages from WhatsApp or Facebook applications are admissible forms of evidence along with the certificate under Section 65B.

Information Technology Act, 2000

The amendment made to Section 2(o) of the Information Technology Act defines ‘data’ as a representation of information, knowledge, facts, concepts, or instructions in formalized manner to be processed in a computer system or network.

The amendment means that data may signify information in any form including printouts, magnetic or optical storage media, punched cards, tapes or in the memory of the computer.

Section 2(r) of the IT Act defines ‘electronic form with reference to information’ as any information generates sent, received, or stored in media, magnetic, optical or similar devices. The information that may be stored on such devices is referred to as ‘electronic form’. This does not include any print outs or hard copies of the electronic evidence.

Section 2(t) of the IT Act defines ‘electronic record’ which means data, record or data generated, image or sound stored, received or sent in an ‘electronic form’ or in any computer-generated microfiche.

Recent judgements on electronic evidence

  • Anvar P.V.S. Vs. P.K. Basheer and Others[4] – Section 65B certificate is mandatory for the production of electronic evidence

Held:

This case resolved the conflict of the judgements of various High Courts on the matter of the admissibility of electronic records. The Supreme Court in this matter ruled that the secondary data in the form of CD/DVD/Pen Drive are admissible only with the certificate under Section 65B(4) of the Indian Evidence Act.

Oral evidence cannot be considered as electronic evidence under Section 65B is essential to prove that. The opinion of the expert under Section 54A of the Indian Evidence Act is an escaping gate to bypass the procedure under Section 65B.

  • Arjun Pandit Rao Vs. Kailash Kushanrao[5] – Necessary compliance of Section 65B

Held:

This was a recent judgement that was ruled under Section 65B of the Indian Evidence Act’s compliance is essential for a record to be admitted as evidence. The certificate submitted under this provision constitutes the particular of the evidence records and identity inclusive of authorized signature if a person having official responsibility in relation to the management and operation of relevant evidence.

Conclusion

Over the years there has been a lot of conflict regarding the electronic evidence under the ambit of Section 65 b of the Indian Evidence Act. This conflict has only been resolved through the recent judgements of the Supreme Court in several civil and criminal matters as well as other Judicial proceedings where the Indian Evidence Act is applicable.

It is now crystal clear that the certificate under Section 65B is mandatory during the production of any form of secondary electronic evidence

. It should be noted that electronic evidence play a crucial role in the investigation but the value of such electronic evidence only depends on the compliance of such evidence with the provisions of the Indian Evidence Act.

References

  1. Utkal Contractors Vs. State of Orissa 1987 AIR 2310
  2. State (NCT of Delhi) Vs. Navjot Sandhu, 8 (2005) 11
  3. Tukaram S Dighole Vs. Maikrao Shivaji Kokate Civil Appeal No. 2928 of 2008
  4. Anvar P.VS. Vs. P.K. Basheer And Others 2014 10 SCC 473
  5. Arjun Pandit Rao Vs. Kailash Kushanrao Civil Appeal No. 20825-20826 of 2017 – Judgment dated July 14, 2020