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16 Oct 2020

With constant technological innovation and dynamic transformation of related laws happening worldwide, the jurisprudence regarding reliance on evidence in electronic form is also evolving. Judges these days have demonstrated considerable perceptiveness towards the intrinsic ‘electronic’ nature of evidence, which includes insight regarding the admissibility of such evidence, and the interpretation of the law in relation to the manner in which electronic evidence can be brought and filed before the court.

 

ELECTRONIC RECORD AS EVIDENCE

The term electronic record has been defined under Section 2(t) of the Information Technology (IT) Act as under:

data, record or data generated, image or sound stored, received or sent in an electronic form or micro-film or computer-generated micro fiche”

Further, Electronic records have also been given an overarching legal recognition through Section 4 of the IT Act which provides that:

“Any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is– (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference.”

Moreover, Section 79A while authorizing the Central Government to notify Examiner of Electronic Evidence also explains what would be called as “electronic form evidence” as under:

“Electronic form evidence means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.”

In addition, Section 3 of the Indian Evidence Act, 1872 was also amended to include electronic records as documentary evidence and now it reads as follows:

“all document including electronic records produced for the inspection of the Court, such statements are called documentary evidence”

In case of State (NCT of Delhi) vs. Navjot Sandhu[1], the Supreme Court had held that courts could admit electronic records such as print outs and compact disc as prima facie evidence without notification.

However, oral admission as to contents of electronic records are not relevant unless the genuineness of the record produced is in question.[2]

In cases of cybercrime, a suggestive list has been provided by the National Cyber Crime Reporting Portal on the type of information that would be considered as evidence while filing any complaint related to cybercrime:

  • Credit card receipt
  • Bank statement
  • Envelope (if received a letter or item through mail or courier)
  • Brochure/Pamphlet
  • Online money transfer receipt
  • Copy of email
  • URL of webpage
  • Chat transcripts
  • Suspect mobile number screenshot
  • Videos
  • Images
  • Any other kind of document

ADMISSIBILITY OF “ELECTRONIC EVIDENCE”

Sections 65A and 65B of the Evidence Act particularly deal with information contained in electronic records. The marginal note to Section 65A indicates that “special provisions” as to evidence relating to electronic records are laid down in this provision. The marginal note to Section 65B then refers to “admissibility of electronic records”.

Section 65B (1)[3] states that if any information contained in an electronic record produced from a computer has been copied onto an optical or magnetic media, then such electronic record that has been copied ‘shall be deemed to be also a document’ subject to conditions set out in Section 65B (2)[4] being satisfied.

Section 65B (2) provides some conditions which are to be satisfied in order to accept electronic records as evidence, which are briefly provided below –

  • the computer was used by a person to store or process information for carrying on any activity regularly over a period of time and has lawful control over the use of such computer,
  • such information must have been regularly fed into the computer in the ordinary course of the said activities. Throughout the material part of the said period, the computer was operating properly and even if not operating properly, it does not affect the electronic record or accuracy of its contents and
  • information in the electronic record reproduced / derived from information fed into the computer in the ordinary course of the said activities.

In Anvar P.V. vs. P.K. Basheer and ors[5] , the Court has interpreted sections 22A, 45A, 59, 65A & 65B of the Indian Evidence Act and held that a secondary data contained in a CD, DVD or a Pen Drive are not admissible without a certificate under section 65 B(4) of the said Act. In the case it was said that electronic evidence without certificate under section 65B cannot be proved by oral evidence and also the opinion of the expert under section 45A of the said Act cannot be resorted to make such electronic evidence admissible. After this case, it was clarified that the only way to prove an electronic record/evidence is by producing the original media as primary evidence and the copy of the same as secondary evidence under section 65B of the Indian Evidence Act, 1872.

Thereafter, the Supreme Court in Shafhi Mohammad[6] case, held that the requirement of producing a certificate under Section 65B(4) is procedural and not always mandatory. A party who is not in possession of the device from which the document is produced cannot be required to produce a certificate under Section 65B (4). The Court was of the view that the procedural requirement under Section 65B(4) is to be applied only when electronic evidence is produced by a person who is in control of the said device, and therefore in a position to produce such a certificate. However, if the person is not in possession of the device, Sections 63 and 65 cannot be excluded.

Recently, the Supreme Court in the decision of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors.[7]has settled the controversies created by previous judgments as to whether certificate under Section 65B of the Indian Evidence Act is a condition precedent for admissibility of any Secondary electronic record, and at what stage the same may be produced. This judgment arose from a reference by a Division Bench of the Supreme Court, which found that the Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh (supra)  required reconsideration in view of the three-judge bench judgment in Anvar P.V. v. P.K. Basheer(supra).Some of the key takeaways from the decision are as follows –

  1. Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence, and the latter being secondary evidence. Required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate Under Section 65B(4).
  2. If the certificate is not issued or refused, the Court may order production of the certificate by the concerned authority.
  3. Evidence aliunde given through a person who was in-charge of a computer device in the place of the requisite certificate is not allowed.
  4. The decision in Anvar P.V. cited above has been upheld and the judgment in Tomaso Bruno v. State of U.P.[8] has been overruled.

The person who gives this certificate can be anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device, as also the person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B. Also, it is sufficient that such person gives the requisite certificate to the “best of his knowledge and belief.”

These directions issued by the Supreme Court are welcome as they will improve the efficacy of criminal and investigative proceedings.

WHEN SHOULD THE CERTIFICATE BE PRODUCED?

Although not expressly provided for under the Indian Evidence or the Information Technology Act, the Anvar P.V. case and the Arjun Panditrao case cited above have shed adequate light on the stage at which such certificate must be furnished to the court.

In terms of general procedure, the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence i.e. in a criminal trial, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the Accused a fair chance to prepare and defend the charges levelled against him during the trial.

However, the Court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it is the Accused who desires to produce the requisite certificate as part of his defense, this again will depend upon the justice of the case-discretion to be exercised by the Court in accordance with law.

POSITION ACROSS THE GLOBE

The Indian law relating to electronic evidence has adopted the language of Section 5 of the UK Civil Evidence Act, 1968 to a great extent, however this provision had already been repealed by the UK Civil Evidence Act, 1995 and even Section 69 of the Police and Criminal Evidence Act, 1984 which related to the admissibility of computer evidence in criminal cases was revamped to permit hearsay evidence. Therefore, in UK currently, no special provisions have been made in respect of the manner of proof of computerized records.

In USA, a person seeking to produce an electronic record has more than one option to do so under the Federal Rules of Evidence (FRE). A person can follow either the traditional route under Rule 901 or the route of self-authentication under Rule 902 whereunder a certificate of authenticity would elevate its status. This is a result of an amendment introduced in the year 2017, by which sub-rules (13) and (14) were incorporated in Rule 902.

In Canada, the position is similar to India although the Canadian law takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Section 31 of the Canada Evidence Act, 1985 deals with electronic evidence and the application of ‘best evidence rule’.

The future holds definite challenges as far as electronic evidence is concerned and constant legal overhaul and vigilance of judiciary is anticipated but the legislature also needs to take a pro-active step in making laws consistent to the changing technology environment.

 

[1] State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600.

[2]Section 22A of Indian Evidence Act

[3] Indian Evidence Act, 1872.

[4] Ibid

[5] Anvar P.V. vs. P.K. Basheer and ors  AIR 2015 SC 180, [MANU/SC/0834/2014]

[6] (2018) 2 SCC 801

[7] 2020 SCC OnLine SC 571

[8] [(2015) 7 SCC 178]


Image Credits: Maxim Ilyahov on Unsplash

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