Electronic Evidence – Relevancy and Admissibility

This article titled ‘Electronic Evidence– Relevancy and Admissibility’ is written by Divya Aswani and discusses the relevance and admissibility of electronic evidence.

I. Introduction

With the advent of the 21^st century, the technological revolution enthralled the entire world including India; computers were available to individuals at the swipe of a finger. With the enactment of the Information Technology (IT)Act, cyberspace was born wherein anyone having internet could access the data stored and analyze the same. This escalating reliance on electronic and digital means led to the necessity of transforming law relating to IT and rules of admissibility of electronic evidence for both, civil and criminal matters in India.

Thereafter, the IT Act of 2000 was enacted and its amendments were founded on the United Nations Commission on International Trade Law (UNCITRAL) on electronic evidence.[1] The amendment allowed the admissibility of digital/electronic evidence. This gave an opportunity to the courts in India to develop law and give a perspective on the intrinsic “electronic” nature of the evidence including its admissibility, relevancy, credibility, veracity and authenticity.

II. Meaning of Electronic Evidence

Electronic evidence or digital evidence refers to any probative information amassed or transmitted in digital, handed over by the party to the court for inspection to be used at trial. The term electronic evidence was added to the Indian Evidence Act through an amendment by virtue of Section 92 of the Information Technology Act, 2000.

Electronic or digital evidence refers to the information that is stored or transferred in the binary form and it is not limited to information on computers but extends to incorporate evidence on multimedia and/or telecommunication devices.

It is any probative information stored or transmitted in digital form and produced by the party before the court for inspection at the trial. In accordance with the IT Act of 2000, the legal definition of “electronic record” is the data, record, or the data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche, as provided for under section 2(t)[2].

The definitions of electronic evidence intend to include within their scope all forms of evidence stored, created or manipulated in a product that is deemed to be a computer in its widest sense only excluding the human brain. It also intends to include all sorts of devices by which data can be stored and/or transferred including computers, wireless telecommunications networks or systems, telephone systems, navigation systems, mobile phones, smart cards, etc.

Also, the relevancy and admissibility of such information are restricted to the issue at hand, that is, the dispute before the adjudicator.[3] Moreover, it is imperative to note that electronic or digital evidence tends to be voluminous, difficult to destroy, can be easily duplicated or modified, is readily available but is potentially more expensive.

III. Electronic Evidence under the Indian Evidence Act, 1872

Evidence, as defined under Section 3 of the Act, provides for:

1. oral evidence, that is, evidence of the witness and
2. documentary evidence inclusive of electronic record that is produced before the court for inspection.

To ensure that the law incorporates the technological technicalities, Section 22A of the Act provides for the relevancy of the oral admission with respect to the contents of the electronic records. As a rule, such oral admissions are relevant unless the genuineness of the electronic record produced is itself in question.

In addition to this, Section 59 of the Act was amended and the words “Content of documents” was substituted with the words “Content of documents or electronic records” and also, Section 65A & 65B were inserted in the Act to provide for the admissibility and evidentiary rule for electronic evidence.

The purpose of the legislature was to provide specific provision that deals with the problem associated with bringing in electronic form of evidence which usually is available in machine language in computers or servers requiring an interpretation by an expert.[4]

An amendment was made to section 3 of the Act and the phrase “All documents produced for the inspection of the Court” was substituted by “All documents including electronic records produced for the inspection of the Court”. The article elucidates the meaning of electronic evidence, its relevancy and its admissibility.

Section 65A of the Act makes a provision that the contents of electronic evidence may be proved in accordance with section 65B of the Act; the detailed procedure under the latter provides for a special procedure for adducing electronic records, it makes the secondary copy obtained as a computer output comprising of either a printout or data on magnetic or electronic media admissible.

These two sections have an overriding effect on the rest of the Act for the words used are “Notwithstanding anything contained in this Act” as the intention of the legislature was to put in a non-obstante clause for the exhibition or production of electronic records only as per section 65A and 65B.

IV. Admissibility of electronic evidence

In accordance with Section 65 B(4) of the Act[5], for the purposes of the admissibility of the evidence, a certificate should contain as follows:

1. It should identify the relevant electronic record for which the certificate is issued and the mode in which it is produced;
2. Details of the device producing it;
3. It should satisfy section 65B (2), that is, the computer which generated the output was used regularly to process information during regular activities and was working properly;
4. The certificate should indicate that it is made to the best of the knowledge and belief of the officer in charge, of the management or operations, signing the certificate.

The Supreme Court took the onus to interpret the law with respect to the relevancy and admissibility of the electronic evidence.

In the case of Ram Singh v. Col. Ram Singh[6] the court while adjudging the law relating to admissibility of electronic evidence held that the law of evidence should take advantage of the new devices and technological advancements if the accuracy of the same can be ascertained. This type of evidence has to proceed with caution and thereby the electronic evidence per se is admissible in light of the circumstances of the case and subject to the safeguards regarding its credibility as espoused by the court.

Later in the case of State (NCT of Delhi) v. Navjot Sandhu[7], the Court held that when the certificate under Section 65B containing the details is not provided for, even then the secondary evidence is admissible if it adheres to Section 63 and 65 of the Act.

In another case of Tukaram S. Dighole v. Manikrao Shivaji Kokate[8], the court held that techniques and devices are a matter of routine but more susceptible to tampering, the standard of proof – accuracy and authenticity have to be more stringent than documentary evidence and no exhaustive rule can be laid down for the same.

Furthermore, in the case of Tomaso Bruno v. State of Uttar Pradesh[9], the court made an observation that the advancement of technology should pierce the mode investigation. Electronic and scientific evidence is of great assistance in the investigation.

Also, in the case of Anvar P.V. v. P.K. Basheer[10], the court observed that primary electronic evidence comes under Section 62 of the Act and Section 65B doesn’t apply to it, it only is applicable to secondary electronic evidence and such evidence cannot be proved in any other way than by way of the procedure provided under section 65B.

Thereafter, in the case of Sanjay Singh Ram Rao Chavan v. Dattatray Gulab Rao Phalke[11] the Apex Court took the view that the source and authenticity are two key factors for admissibility of electronic evidence and that taped conversation is primary evidence and not secondary and certificate for the same is mandatory under Section 65B of the Act. The court also clarified that sections 65A and 65B are not complete codes in themselves on the subject.

Recently, the Apex Court in the case of Shafhi Mohammad v. State of Himachal Pradesh[12] rationalized the law pertaining to the admissibility of electronic evidence especially with respect to section 65B. While dealing with Section 65 B(4) of the Act it held that when electronic evidence is presented by the party who is not in possession of the device from which the electronic documentary evidence is obtained, Section 63 and 65 are still applicable and the procedure under these sections can be invoked.[13]

In addition to this, there is no mandatory requirement of a certificate provided for under Section 65B for the purposes of admissibility of electronic evidence as the party presenting it, was not in control/possession of the device. Therefore, the party cannot be required under section 65B (4) of the Act to produce a certificate for the admissibility of the documentary electronic evidence[14].

1. Presumptions as to electronic evidence

Presumption as to gazettes in electronic forms is provided for under Section 81A whereas the presumption as to electronic agreements is provided for under Section 85A. Presumption as to electronic signature certificates is provided for under Section 85C. Also, Section 88A provides for presumption as to electronic messages and Section 90A states presumption as to electronic records that are five years old.

V. Conclusion

With the advent of technology and its advancements, the admissibility of documentary electronic evidence has to be in line with the procedure provided for under Section 65B of the Act and for this purpose the section and its interpretation by the Apex Court have been discussed at length and the recent judgments have been taken into account.

The position is explicit and clear; if the document is being presented by the party who was in control of the device from which the evidence is obtained such party is bound to produce a certificate to that effect as per section 65B and absence of such certificate will lead to non-admissibility of the electronic evidence.

On the other hand, if such documentary electronic evidence is being presented by a party who was not in control/possession of the device from which the evidence is obtained, there is no mandatory requirement of providing a certificate as under section 65B for the purposes of admissibility of such electronic evidence. However, it is imperative for the court to proceed with caution and ascertain the authenticity of its source and the credibility of the evidence itself before relying on it or making it admissible.

Edited by- Akriti

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References

[1] Harsh Mahaseth, The Debate Surrounding the Admissibility of Electronic Evidence, 2019, Available Here

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

[3] Vivek Dubey, Admissibility of Electronic Evidence: An Indian Perspective, 2017, Available Here

[4] Vijay Pal Dalmia, Admissibility of Electronic Evidence Under The Indian Evidence Act, 1872, 2018, Available Here

[5] Section 65B, The Indian Evidence Act, 1872.

[6] Ram Singh v. Col. Ram Singh, 1985 (Supp) SCC 611

[7] (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

[8] Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329

[9] Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178

[10] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

[11] Sanjay Singh Ram Rao Chavan v. Dattatray Gulab Rao Phalke, (2015) 3 SCC 123

[12] Shafi Mohammad v. State of Himachal Pradesh, (2018) 1 SCC (Cri) 860

[13] Vijay Pal Dalmia, Admissibility of Electronic Evidence Under The Indian Evidence Act, 1872, 2018, Available Here

[14] Harsh Mahaseth, The Debate Surrounding the Admissibility of Electronic Evidence, 2019, Available Here

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