Electronic Evidence under Indian Evidence Act, 1872

The article titled ‘Electronic Evidence under Indian Evidence Act, 1872′ is written by Ritika Chaturvedi and broadly discusses the clauses in relation to Electronic Evidence under the Indian Evidence Act, 1872. Today, virtually every crime has in it some or the other kind of electronic component.

The Section 65A and 65B of Indian Evidence Act have defined the Electronic Evidence and were added to the Indian Evidence Act in the year 2000 with the advent of the Information and Technology Act. The article contains the interpretation of the existing laws and numerous case laws have been discussed which depicts the evolution of the perception of the admissibility of electronic evidence.

I. Introduction

Electronic evidence has lately become the most important evidence. Information Technology has caused a paradigm shift in the way individuals and organizations communicate, create, collect, share and store data and information. With the help of mobile phones, people are daily documenting their lives which results in an expansive collection of records that may become ‘evidence’ in the forthcoming cases.

Electronic documents include photographs, video, audio, comments, emails, and different other social media records. This has enhanced the way things proceed in the court and with this, the traditional way of eyewitness testimony is highly corroborated with this digital/ electronic evidence.

The Section 65A and 65B have been added to the Indian Evidence Act, 1872 by the Information Technology Act, 2000.

The Government of India enacted its Information Technology Act 2000 with the objectives stating officially as:

“to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as “electronic commerce”, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

The main aim of the said legislation was to provide legal recognition to electronic documents, electronic signatures, other offences and contraventions and dispensation of justice for cybercrimes.

Justice P.N Bhagwati held in the case of National Textile Workers’ Union v. P.R. Ramakrishnan (1983) 1 SCC 228, held that “law cannot stand still and it must change with the changing social concepts and values. If the law fails to respond to the needs of changing society, then it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth.” Therefore, the changing circumstances today where virtually every crime has an electronic component has had a considerable effect in the law of the land and to respond to the current needs the laws have been amended to cater or facilitate its larger goals i.e dispensation of justice.

The trend of changing laws relating to evidence can be seen, for example in the case, State v S.J. Choudhary (1996) 4 SCC 567, It was held that the Evidence Act was an ongoing Act and the word “handwriting” in Section 45 of that Act was construed to include “typewriting” and on the same principle, courts have interpreted, over a period of time, various terms and phrases. For example, “telegraph” to include “telephone”; “banker’s books” to include “microfilm”; “to take note” to include “use of tape recorder”; “documents” to include “computer databases”.

II. Types of Evidence Under Indian Evidence Act, 1872

The law of evidence has long been guided by the rule of “best evidence” which is considered to have two basic paradigms – avoidance of hearsay and production of primary evidence. Considering this statement, it is clear that evidence has been classified under two heads i.e Primary Evidence (Section 62 of Indian Evidence Act) and Secondary Evidence (Section 63 of Indian Evidence Act).

Primary evidence means the original document being itself produced for inspection by the court. A document has been defined as any matter which has expressed or described upon any substance by means of letters, marks or figures for the purpose of recording that matter.

Thus, a certificate of age, an inscription on a stone plaque, a caricature or photograph, a map, are all documents of various forms. If a copy is made of such a document, it will not be primary evidence since it is not the original. Copies of the original document are considered secondary evidence.

Secondary evidence is acceptable in court only under certain conditions, such as when the original is in the possession of the adversary or when the original is destroyed or lost, or when the original is of such a nature that it cannot be easily moved.

III. Section 65A & 65B

Section 65A lays down that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B (Admissibility of electronic records) states that any information contained in electronic records which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be also deemed to be a document if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without any further proof or production of the original.

The conditions further laid down under Section 65B are as follows:

1. The information produced by the computer during the period over which the computer was used over a regular period of time to store or process information or for any other activity carried out regularly over that period of time by the person having lawful control over the use of the device.
2. The said information was regularly fed into the computer in the ordinary course.
3. The computer must operate properly during that period of time when the information was being stored and if not working properly then the same must not have any effect on the electronic record thus stored.
4. The information contained in the electronic record thus reproduced must be of the nature of such kind that it was fed into the computer in the ordinary course of nature.

Therefore in simple words, Section 65B provides that electronic records shall be considered documents, thereby making it primary evidence, if it satisfies the conditions mentioned above. It further provides that all computer output shall be considered as being produced by the computer itself, whether it was produced directly or indirectly, whether with human intervention or without.

This provision does away with the concept of computer evidence being hearsay. As a computer output is a deemed document for the purpose of proof. Further, Section 65B (3) maintains that where, over any period of time, the information was processed or fed into the computer on interlinked computers or one computer after the other in succession all the computers so used shall be treated as one single computer.

A “computer” has been defined in the clause (i) of Section 2(1) of the IT Act and it states that, “computer means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network.”

In the case, Syed Asifuddin v. The State of Andhra Pradesh 2006 (1) ALD Cri 96, 2005 CriLJ 4314 decided on 29th July 2005 by the AP High Court wherein it was stated that when seen the definition of a “computer” in the light of clause (i) of Section 2(1) of IT Act, it is clear that a cell phone is a computer which is programmed to do among others the function of receiving digital audio signals, convert it into analogue audio signal and also send analogue audio signals in a digital form externally by wireless technology.

IV. The Changing Scenario About Video-Conferencing

In Basavraj R. Patil v. State of Karnataka (2000) 8 SCC 740, the question was whether an accused needs to be physically present in the court to answer the question put to him by court whilst recording his statement under Section 313, Cr.P.C. It was held that the section has to be considered in the light of revolutionary changes in the technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was not necessary that in all the cases it is necessary for the accused to be present in the court physician to answer the questions put forth by the court.

In the said judgment itself, the court observed that video-conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.

This court said is not virtual reality but actual reality. The decision of the court was that, under Section 3 of the Indian Evidence Act, evidence can be both oral and documentary and electronic records can be produced as evidence. This means that the evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing.

One of the firsts of its kind, in the landmark judgment (State of Maharashtra Vs. Praful B. Desai (2003) 4 SCC 601) where the court answered the question as to whether in a criminal trial, evidence can be recorded via ‘video conferencing’. The Supreme Court cited the infamous judgment of the US Supreme Court (Maryland v. Santra Aun Craig [497 US 836 (1990)]) where it was held that the recording of evidence by video-conferencing was not a violation of the confrontation clause.

It was held that video-conferencing could be resorted to for the purpose of taking evidence of a witness. In this case, one party was seeking directions of the court to take evidence of a witness residing in the USA. The SC stated that such recording of evidence satisfies Section 273 of the Code of Civil Procedure that evidence is recorded in the presence of the accused.

In explaining the benefits of video-conferencing the court observed that “In fact, the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Courtroom. They can observe his/her demeanour. In fact, the facility to playback would enable better observation of demeanour. They can hear and rehear the deposition of the witness.”

V. Section 65B(4) [Admissibility of Electronic Evidence]

Section 65B (4) talks about a certificate identifying the electronic records containing the statement and describing the manner in which it was produced by a computer and satisfying the conditions mentioned above and signed by a person occupying a responsible official position in relation to the operation of the relevant device or management of its relevant activities, shall be the evidence, of any matter stated in the certificate, it shall be sufficient for the matter to be stated to the best of the knowledge and belief of the person stating.

In State v. Navjyot Sandhu (2005) 11 SCC 600, the Supreme Court held that merely because a certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Section 63 and 65 i.e no bar in adducing secondary evidence of an electronic record under the said section (63 & 65).

This was overruled by the judgment in Anvar P.V. v. P.K. Basheer and Others (2014) 10 SCC 473, delivered by a Three-Judge Bench, it was observed that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. 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 a very recent judgment, the Supreme Court of India clarified its position relating to this law i.e Shafi Mohammad v. 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 the view of the provision of Sec 65B of the Indian Evidence Act. Section 54-A of the Cr.P.C. provides for videography of the identification process and the proviso to Section 164(1) Cr.P.C. provide for audio-video recording of confession or statement under the said provision.

It was held that Section 65B (4) of the Indian Evidence Act, is a procedural provision intended to supplement the law and if the electronic evidence is “authentic and relevant” the same can certainly be admitted, subject to the satisfaction of the court and it may depend on situation such as “whether the person producing such evidence is in a position to furnish certificate” under Section 65B (4). In simple word, if a person is not in a position to produce such certificate signed by a person occupying a responsible position in relation to the operation of the relevant device or management of the relevant activities, in such situation Section 65B (4) should not be applied as, it will be a denial of justice. The requirement of a certificate is not always mandatory.

The Supreme Court also clarified the legal position on the subject on the admissibility of the electronic evidence, holding that a party who is not in possession of device from which the document is produced, such party cannot be required to produce a certificate under Section 65B (4) of the Indian Evidence Act.

VI. Transcription of Recorded Conversation

In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke MANU/ SC/ 0040/ 2015, relying upon the judgement of Anvar P.V. supra, while considering the admissibility of transcription of recorded conversation in a case where the recording has been translated, the Supreme Court held that as the voice recorder had itself not subjected to analysis, there is no point in placing reliance on the translated version. Without a source, there is no authenticity for the translation and it was held that ‘source’ and ‘authenticity’ are the two key factors for electronic evidence.

VII. The Future of Electronic Evidence

The courts have by and large maintained that for the evidence to be admissible, it must be authenticated. The foundations for digital evidence are based on established principles of authentication and admissibility that originated with the use of “paper” evidence. The five separate foundations are, relevance, authenticity, hearsay, best evidence, the probative value must outweigh any prejudicial effect. The nature of digital evidence has been changing over time as digital information now can be created easily and without any verifiable record of who did so and also has the scope of changes without detection. There has also been reliance on corroboration of this electronic evidence through a combination of witness testimony or documentary physical evidence to determine the accuracy of the same. The budding area of development under the Indian Criminal Law system is the area of digital forensics which has been successful in supplementing the electronic evidence with recovery and investigation of material found in digital devices.

In India, all electronic records are now considered to be documents, thus making them primary evidence. 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. These changes in the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain precautions still being necessary. However, technology has itself provided answers to problems raised by it, and computer forensics ensure that manipulations in electronic evidence show up clearly in the record. However, there are a few gaps still unresolved but this area of law (Electronic Evidence) is yet to see more changes with upcoming events and technological changes.

Edited by- Akriti

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References

1. Electronic Evidence and its Challenges by Dr. Swarupa Dholam
2. Economic Times’s article (Courts can rely on Electronic Records without Certificates: SC)
3. Admissibility of Electronic Evidence Under Indian Evidence Act, 1873 by Advocate Vijay Pal Dalmia
4. Mobile Devices-New Challenges for Admissibility of Electronic Evidence by Lucy L. Thomson
5. Information and Technology (Case Material), Faculty of Law, University of Delhi
6. The Indian Evidence Act, 1872 (Bare Act)
7. The Information and Technology Act, 2000 (Bare Act)

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