Electronic Evidence and its Admissibility Under the Indian Evidence Act, 1872

Introduction:

The technological revolution which was observed in the 21^st century captured the attention of not only India but the whole world. The computers are not only used in the established organizations but it also used available to the individuals at their finger. Humanized action is eased out by Information Technology in almost every area. As in modern times, the computer became popular in the cyber world, the growth of technology also expanded. This evolution gave birth to cyberspace where the people are provided with equal opportunities to access data, storage etc by using high technology. As the reliance on electronic means increased, a need for the formation of law regarding information technology has arisen. Rules are also necessary for both the matters, criminal and civil, for the admissibility of that evidence that is electronic. It also necessitated to do amendments in those Indian Laws under whose provisions, the digital evidence and its appreciation is incorporated. Indian Penal Code, 1860, Indian Evidence Act, 1872, Banker’s Book Evidence Act, 1891 and Information Technology Act 2000 provides for a framework for the legislation regarding the electronic world.[1] Judges and Indian Courts have demonstrated their perceptiveness regarding the evidence with the nature being electronic. Its interpretation under law and admissibility has also been brought and considered in the courts.[2]

Meaning: Electronic Evidence

Any type of proof that is presented before the court with the intention to induce a belief in the mind of the people in the court is called evidence. Under Section 3 of the Indian Evidence Act, the evidence is described as:

““ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. “Proved” .—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”. — A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “ Not proved”. — A fact is said not to be proved when it is neither proved nor disproved.  [“ India ”. —“ India ” means the territory of India excluding the State of Jammu and Kashmir .] [the expressions “Certifying Authority”,  [electronic signature], [Electronic Signature Certificate], “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]”[3]

• ELECTRONIC EVIDENCE

In the above definition, it can be observed that electronic evidence is also covered in this section. A digital signature, electronic signature certificate, electronic signature, electronic records etc comes under electronic evidence.

Evidence is divided into oral or documentary and primary or secondary. When the evidence is primary, it means that a document is produced specially for the inspection in the court. When the evidence is secondary, it comprises those copies or certified copies that are made from the original document by the mechanical process.

Electronic evidence is invisible to the human eye and is developed through the equipments. As mentioned above, it can be an electronic record, electronic document etc. Under the Information Technology Act, 2000, an electronic record is defined under Section 2(t) as:

“‘electronic record’ means, “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated micro fiche;”[4]

E-mails come under electronic records and can be used as evidence by taking a print-out of it. It should contain the date, time and sender and recipient’s name along with other necessary details. Data like this is relevant as a proof whose transaction can be adduced. Yahoo, Outlook, Gmail and other web-based facilities regarding e-mail have s provision to exercise this. Viber, WhatsApp, Telegram and other online platforms for messaging are also admissible to be evidence in the court.

Now the question that arises is whether the electronic evidence is primary or secondary evidence. Electronic evidence is an information which is transmitted or is stored digitally. Therefore, electronic evidence comes under secondary evidence.

Electronic Evidence and its Admissibility under the Indian Evidence Act, 1872

Under the Indian Evidence Act, 1872, secondary evidence is dealt in Section 65 of the Act. Section 65A and 65B of the Indian Evidence Act was added by the Information Technology Act, 2000.

Section 65A of the Act states that:

“Special provisions as to evidence relating to electronic record — The contents of electronic records may be proved in accordance with the provisions of section 65B.”[5]

Section 65B of the Indian Evidence Act mentions about the admissibility of electronic evidence. It states that the information available in the electronic medium and is copied, recorded or stored in magnetic media or optical or is printed on a paper by a computer shall be deemed as a document if it is in accordance with the conditions that are mentioned in the section 65B(2) of the Act and is admissible as evidence in the proceedings and any further proof is not required.

The conditions are:

1. The person who is producing the information needs to have lawful authority over the computer system and its use in a regular course.
2. The information should be fed in the computer in a regular course activity. It should be an ordinary course
3. During the said period, the accuracy of the electronic record or record itself should not be affected by operating or improper operating of the system.
4. Information that is fed in the computer during an ordinary course should be the information that is inserted in an electronic record.

The purpose of this is to sanctify the proof produced as secondary evidence. This facility will be applicable to any output of the computer which is deemed as a document. This document is used as a proof in proceedings. When any information is processed/fed in the computers that are interlinked or in succession, then it is to be treated as a single computer.

In many cases, the Court has held Audio CD to be inadmissible. But the courts have agreed to consider the recording of the evidence through video conferencing admissible in the criminal and civil cases. But they’ve also mentioned that necessary precautions should be taken for identifying the witness and checking the accuracy of those equipments which are used for this purpose.

Effect of considering Electronic Evidence as Primary and Direct

As the evidence is being produced in an electronic form, it has blurred the difference between the evidence that is in the form of primary and secondary. Although the difference is still applicable but there is an exception made for computers because producing the computer evidence in a tangible form is not possible. Electronic evidence has made it easy for the prosecution to prove the guilt of the terrorist who plans an attack through a sophisticated high technology and has replaced the evidence which is produced in traditional forms.

Opinion of the Courts regarding Admissibility of Electronic Evidence

In the case of Shafhi Mohammad v. The State of Himachal Pradesh[6], the Supreme Court rationalized the law regarding the admissibility of electronic evidence under Section 65B of the Act. The court also mentioned the Sections 54A and 164(1) of the Code of Criminal Procedure which provides for the videography (Identification process) and audio-video recording of statement or confession respectively.

In the case of Ram Singh & Ors v. Col. Ram Singh[7], the Bench of three judges considered that it is wrong to deny the admissibility of the electronic evidence as this law provides advantages when the accuracy and authenticity is proved.

There are many more judgements by the courts in which the courts have accepted the admissibility of the electronic evidence and also have considered the issue of tampering as in the case of Tomaso Bruno & Anr. v. State of Uttar Pradesh.[8]

Conclusion

This statute has somehow overlooked the risk involved regarding manipulation of the evidence. It is easy to tamper with the evidence available in electronic form but the computer forensics has tried to develop ways through which the cross-checking regarding tampering can be done. Sections 65A and 65B have proved to have a large scope as they involve many gadgets such as computers and even computer chips. But the Court has to look for the practical considerations while deciding the ambit of these sections.

After considering the judgements and observations by the Courts, it can be concluded that electronic evidence can only be admissible in the courts if they have a certificate mentioned under Section 65B.

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References:

[1] https://www.linkedin.com/pulse/electronic-evidence-digital-cyber-law-india-adv-prashant-mali-.

[2] Tejas Karia, Akhil Anand and Bahaar Dhawan, The Supreme Court of India re-defines admissibility of electronic evidence in India.

[3] Section 3 of Indian Evidence Act, 1872.

[4] Section 2(t) of Information Technology Act, 2000.  

[5] Section 65A of Indian Evidence Act, 1872.

[6] (Crl.)No.2302 of 2017.

[7] 1985 (Supp) SCC 611.

[8] (2015) 7 SCC 178.