Admissibility of Electronic Evidence under Indian Evidence Act

Introduction:

In this day and age computerized gadgets are utilized all over the place. It encourages individuals to impart locally and universally effortlessly. Because of which the dependence on electronic methods for correspondence, online business and capacity of data in computerized structure is expanding quickly. It made a need change the law identifying with data innovation and rules of tolerability of electronic proof both in common and criminal issues.

Computerized proof is characterized as data and information of significant worth to an examination that is put away on, got or sent by an electronic gadget. It is any probative data put away or communicated in advanced structure that involved with a legal dispute may use at preliminary. It is “data of probative worth that is put away or communicated in twofold structure”. It isn’t just restricted to that found on PCs however may likewise reach out to remember proof for computerized gadgets, for example, media transmission or electronic sight and sound gadgets. The e-proof can be found in messages, computerized photos, ATM exchange logs, word preparing, archives, text chronicles, records spared from bookkeeping programs, spreadsheets, web program accounts information bases, Contents of PC memory, Computer reinforcements, Computer printouts, Global Positioning System tracks, Logs from a lodging’s electronic entryway locks, Digital video or sound documents. Advanced Evidence will in general be more voluminous, harder to demolish, effectively altered, effortlessly copied, possibly more expressive and all the more promptly accessible This definition has three components:

To start with, it is proposed to incorporate all types of proof that is made, controlled or put away in an item that can, in its largest importance, be viewed as a PC, barring for the time being the human mind.

Second, it expects to incorporate the different types of gadgets by which information can be put away or communicated, including simple gadgets that produce a yield. In a perfect world, this definition will incorporate any type of gadget, regardless of whether it is a PC as we by and by comprehend the significance of a PC; phone frameworks, remote media communications frameworks and organizations, for example, the Internet; and PC frameworks that are inserted into a gadget, for example, cell phones, savvy cards and route frameworks.

The third component limits the information to data that is pertinent to the cycle by which a question, whatever the idea of the contradiction, is chosen by an adjudicator, whatever the structure and level the mediation takes. This aspect of the definition incorporates one part of suitability – significance only – but does not use “admissibility” in itself as a defining criteria, because some evidence will be admissible but excluded by the adjudicator within the remit of their authority, or inadmissible for reasons that have nothing to do with the nature of the evidence – for instance because of the way it was collected. The last criteria, however, restricts the definition of electronic evidence to those items offered by the parties as part of the fact-finding process.^[1]

Digital Evidence in India

Because of huge development in e-administration all through general society and private segment, electronic proof has become a central mainstay of correspondence, handling and documentation and different types of computerized proof are progressively being utilized in both common and criminal prosecution. With this Indian courts have created case law in regards to dependence on electronic proof and have all required changes in Indian law to consolidate the arrangements on the energy about computerized proof. The Information Technology Act, 2000 and its correction depend on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce. The Information Technology (IT) Act 2000 was corrected to consider the suitability of advanced proof. A correction to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 gives the administrative structure to exchanges in the electronic world. As per provision Sec 2(t) of Information Technology Act 2000^[2], electronic record means; “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”

Section 65B of Indian Evidence Act is under focus in the Judicial and Law Enforcement circles. The main points that make here are:

1. Section 65B (just as 65A) of Indian Evidence Act allude to the unique arrangements of the Act in regard of Electronic Documents. In spite of the fact that Section 65 is alluding to “Auxiliary” archives in paper structure, there is no such qualification made with regards to the electronic report.
2. There is no need to distinguish Primary and Secondary and all documents need to be interpreted by a human being which takes the form of a Section 65B certificate.
3. A “Hard disk” which may contain an electronic archive likewise can’t be considered the “Essential Document” since it is just a “Compartment” and the genuine Electronic report is an articulation in paired language which can’t be perused by a person and should be deciphered with the help of a twofold understanding gadget (Computer working framework +Application).
4. Section 65B clarifies the conditions under which an electronic report can be considered as “Allowable” in a Court as an “Archive” and it should be appropriately affirmed for the Court to acknowledge the record, which is regularly named as “Section 65B testament or Statement.”
5. Section 65B refers to a process of producing a “Computer Output” of the electronic document which is the evidence to be admitted and such computer output can be either in the form of a “Print Out” or a “Copy”.
6. There is a “Process” by which the electronic document becomes the “Computer output” and Section 65B identifies this as the subject activity which needs to be conducted by a person having lawful control over the computer producing such output and that during the period of such production, the Computer should be working properly etc.
7. The focus of Section 65B is the activity of conversion of the electronic document residing inside a system which can be seen by an observer into a “Computer Output”.
8. The other clarifications contained in the Section 65B such as that the the Computer Output could be produced by a combination of computers, acting in succession etc as relating to dynamic creation of an electronic document from a database and routing it through multiple devices onto a final visible form in the computer of the observer and thereafter its porting into a Printer.
9. Considering these understandings, the Section 65B confirmation is a “self-evident reality” accreditation such that “What I saw is the thing that I recreated as a PC yield dependably” and this should be possible by any individual who is watching an electronic archive in his PC and needs it to be delivered as a proof. It isn’t vital that a record from yippee site must be ensured distinctly by a Yahoo worker director. Thus, an announcement of record downloaded from an ICICI bank site need not be ensured distinctly by the ICICI Bank chief however by any individual who can legitimately get to the report in electronic structure.
10. There is also an important distinction that “Content Owner” is different from “Content Viewer” and Section 65B is meant to be produced by a content viewer. On the other hand, the content owner in respect of say a Bank statement is the official Bank manager and he can provide a print out as the owner of the content who understands the content and is considered as an “Expert” in the domain.

Any other individual who sees the archive gives a Section 65B testament that the print out (or a delicate duplicate) is a devoted multiplication. It is significant that the lawful organization and the Judiciary deciphers the part appropriately. Any translation that solitary a “Worker Administrator” can give a testament under Section 65B is viewed as mistaken. The worker director can anyway give the testament however it isn’t obligatory.

The Section 65B certifier resembles a picture taker who catches a photo of an occasion and affirms the way toward snapping the picture however he may not know about who is there in the image and what they are doing. It is left to other “Specialists” to decipher the “Content” and credit significance as just a topic master can do.

Amendments in Evidence Act 1872

In the ANVAR CASE^[3] , the Supreme Court noted that “there is a revolution in the way that evidence is produced before the court. In India before 2000, electronically stored information was treated as a document and secondary evidence of these electronic, documents were adduced through printed reproductions or transcripts, the authenticity of which was certified by a competent signatory.”

The signatory would distinguish her mark in court and be available to questioning. This basic methodology met the states of the two sections 63 and 65 of the Evidence Act. As such, Indian courts essentially adjusted a law drafted more than one century sooner in Victorian England. In any case, as the movement and multiplication of innovation extended, and as the creation and capacity of electronic data developed more unpredictable, the law needed to change all the more significantly.

Under the arrangements of Section 61 to 65 of the Indian Evidence Act, 1872, “Record or substance of archives” have not been supplanted by “Electronic reports or substance of electronic archives”. Hence, the expectation of the assembly is expressly clear for example not to broaden the relevance of sections 61 to 65 to the electronic record. It is the cardinal rule of translation that if the lawmaking body has precluded to utilize any word, the assumption is that the omission is intentional. It is well settled that the Legislature does not use any word unnecessarily.^[4] In this regard, the Apex Court in UTKAL CONTRACTORS & JOINERY PVT. LTD. V. STATE OF ORISSA^[5] held that “…Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily.”

The IT Act changed sec. 59 of the Evidence Act, 1872 to avoid electronic records from the probative power of oral proof in a similar way as it rejected archives. This is the re-use of the narrative gossip rule to electronic records. Be that as it may, rather than submitting electronic records to the trial of optional proof – which, for archives, is contained in sections 63 and 65, it embedded two new evidentiary principles for electronic records in the Evidence Act: segment 65A and section 65B.

The aim of the assembly is to present the particular arrangements which has its cause to the specialized idea of the proof especially as the proof in the electronic structure can’t be delivered in the official courtroom attributable to the size of PC/worker, dwelling in the machine language and accordingly, requiring the mediator to peruse the same. Section 65A of the Evidence Act makes uncommon law for electronic proof – The substance of electronic records might be demonstrated as per the arrangements of section 65B. This part plays out similar capacity for electronic records that section 61 accomplishes for narrative proof: it makes a different system, particular from the straightforward methodology for oral proof, to guarantee that the kidnapping of electronic records complies with the gossip rule. It additionally makes sure about different interests, for example, the validness of the innovation and the sacredness of the data recovery methodology.

Yet, section 65A is additionally recognized in light of the fact that it is an extraordinary law that stands separated from the narrative proof methodology in sections 63 and 65. Section 65B of the Evidence Act subtleties this unique methodology for illustrating electronic records in proof and makes the auxiliary duplicate as PC yield comprising of printout or the information replicated on electronic/attractive media acceptable.

Relevancy & Admissibility of Electronic Evidence

In India Tape Records Whether Electronic Device? In R.M MALKANI V. STATE OF MAHARASHTRA, it was held that the tape is essential and direct proof of what has been said and recorded. The court clarified that electronically recorded discussion is acceptable in proof, if the discussion is pertinent to the issue in issue and the voice is distinguished and the precision of the recorded discussion is demonstrated by wiping out the chance of eradication, expansion or control. This Court additionally held that a contemporaneous electronic chronicle of an applicable discussion is a pertinent truth equivalent to a photo of a significant occurrence and is allowable as proof under Section 8 of the Act.

There is therefore no doubt that such electronic records can be received as evidence. Supplying Copy of Electronic Record State of Punjab v. Amritsar Beverages Ltd^[6] S. 14(3) of Punjab General Sales Tax Act provided to investigation of books, records and accounts and their seizure. The official holding onto book, record, register or archive will forthwith give a receipt to receipt, holding duplicate, attaching mark and seal of official on report and return of books to vendor. Be that as it may, the held onto record was a money book, record and different registers kept up in hard circle. Henceforth it was unrealistic to put the mark and seal of the authority on held onto archives. Be that as it may, a duplicate was taken from the hard plate and the hard circle was returned. It was held that the best possible game-plan for officials in such conditions was to make duplicates of the hard plate or get a printed version, append their marks or authority seal on the printed copy and outfit a duplicate to the seller or individual concerned.

Video Conferencing

In AMITABH BAGCHI V. ENA BAGCHI^[7] , sections 65-A and 65-B of Evidence Act, 1872 were analyzed. The court held that the physical presence of a person in Court may not be required for the purpose of adducing evidence and the same can be done through medium like video conferencing. Sections 65-A and 65-B provide provisions for evidence relating to electronic records and admissibility of electronic records, and that definition of electronic records includes video conferencing.

In STATE OF MAHARASHTRA V. DR PRAFUL B DESAI^[8] , 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.

Proof of the Digital Signature of a Person

Section 67A of IEA provides that except in the case of secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to an electronic record the fact that such digital signature is digital signature of subscriber must be proved. It is necessary to prove in manner of proof of electronic record.14 Section 65B will be applicable. In BODALA MURALI KRISHNA V. SMT. BODALA PRATHIMA^[9] 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.”

Conclusion

Due to enormous growth in e-governance throughout the Public & Private Sector and ecommerce activities Electronic Evidence have involved into a fundamental pillar of communication, processing and documentation. The government agencies are opening up to introduce various governance policies electronically and periodical filings to regulate and control the industries are done through electronic means. These various forms of Electronic Evidence/ Digital Evidence are increasingly being used in the judicial proceedings. At the stage of trial, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused.

The Court continue to grapple with this new electronic frontier as the unique nature of evidence, as well as the ease with which it can be fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The various categories of electronic evidence such as CD, DVD, hard disk/ memory card data, website data, social network communication, email, instant chat messages, SMS/MMS and computer-generated documents poses unique problem and challenges for proper authentication and subject to a different set of views. Maintaining the integrity of electronic evidence throughout the process of investigation and trial presents different problems from the handling of traditional physical or documentary evidence. The challenges with respect to the admissibility and appreciation of electronic evidence, India still has a long way to go in keeping pace with the developments globally.

Although the amendments were introduced to reduce the burden of the proponent of records, they cannot be said to be without limitations. It is clear that India has yet to devise a mechanism for ensuring the veracity of contents of electronic records, which are open to manipulation by any party by obtaining access to the server or space where it is stored. The admission of electronic evidence along with advantages can also be complex at the same time. It is upon the courts to see that the whether the evidence fulfils the three essential legal requirements of authenticity, reliability and integrity. After Anvar’s case decision by the Supreme Court laying down the rules for admissibility of electronic evidence it can be expected that the Indian courts will adopt a consistent approach, and will execute all possible safeguards for accepting and appreciating electronic evidence.

---

References:

^[1] Stephen Mason (ed), “Electronic Evidence” (Lexis Nexis, 2013).

^[2] The Information Technology Act, 2000, No. 21, Acts of Parliament 2000.

^[3] (2014) 10 SCC 473.

^[4] Vivek Dubey, “Admissibility of Electronic Evidence: An Indian Perspective”4, FRACIJ (2017).

^[5] AIR 1987 SC 1454.

^[6] AIR 2007 SC 590

^[7]  2005 Cal. 11

^[8] AIR 2003 SC 2053.

^[9] AIR 2007 (2) ALD 72.