This article is written by Neha Parveen of BA-LLB of 10th Semester of SOA University, an intern under Legal Vidhiya
Abstract
The Indian Evidence Act of 1872 (IEA) and the proposed Bharatiya Sakshya Bill of 2023 (BSB) are the main subjects of this comparative study, which looks at the legislative development in the area of electronic evidence. With the growing dependence of our global society on information and technology, new business ideas and developing technologies have resulted in an increase in cybercrimes, necessitating the integration of electronic evidence in criminal investigations. The study looks at how the IEA recognizes electronic evidence and the difficulties caused by the procedural requirements of Section 65B. By defining electronic records more broadly and classifying them as primary evidence, the study explores the possible effects of the BSB, which is presently being considered, on how electronic evidence is handled. The legitimacy and admissibility of electronic evidence in court proceedings may be greatly impacted by this deviation from the IEA. A fundamental framework is provided by the Information Technology Act of 2000. However, it is essential to conduct ongoing research to handle new legal complexities and stay up with changing technological advancements.
Over the past ten years, there has been an exponential increase in the use of electronic media for both legal and illicit purposes. The current situation is such that electronic data is a component of every legal dispute that takes place worldwide. Electronic evidence is frequently the best type of evidence available. Therefore, it is essential that this type of evidence be appropriately validated in order to establish its credibility in legal proceedings. Furthermore, electronic evidence is inherently highly volatile. Because of the length of time that elapses between discovery and production before the court, it is difficult to press certain charges against the accused that would otherwise be simple, casting doubt on its authenticity. Through case law, this article investigates the rules pertaining to electronic evidence and its admissibility in Indian courts. Additionally, it covers the complexities of electronic evidence, the need to comply with certification requirements, and the value of electronic evidence.
Keywords
Provisions related to electronic evidence, Application of IT Act, 2000, Admissibility and evidentiary value of electronic records.
Introduction
One of humanity’s greatest triumphs is the invention of computers and digitalization. The administration of many nations has embraced digitalization in the era of globalization. The ‘Digital India’ campaign was recently launched by the Indian government to encourage the use of digitalization in our daily lives as well, which will undoubtedly aid in accelerating our nation’s development. Digitalization is now the foundation of documentation, processing, and communication due to its massive growth in governance, commerce, and private as well as business activities. Human life has greatly benefited from electronic means. If the electronic records comply with the Indian Evidence Act, the Indian judiciary has recognized and accepted them as evidence.
According to the Indian Evidence Act of 1872, a fact is anything, any state of things, or any relationship between things that can be perceived by the senses, including a person’s mental state. The fact needs to be demonstrated orally and supporting documentation up until the introduction of the Information Technology Act in 2000. The Indian Evidence Act, 1872, which remained unchanged until the Information Technology Act, 2000 went into effect, was also amended by the Act, in addition to a few other Indian laws that were amended in the schedules. Significant changes were made to the Indian Evidence Act of 1872 by the Information Technology Act of 2000, which also introduced the brand-new idea of “electronic evidence.”
Electronic records are convenient, but they have also brought about special issues and difficulties in terms of appropriate authentication and accommodating differing opinions. As cyberspace has grown quickly, there has also been a huge rise in its misuse; as a result, the threat of cybercrimes has changed. As a result, courts and investigative agencies are having trouble determining whether electronic records are admissible due to the increased possibility of manipulation. Electronic records have a significant impact on the outcome of civil, criminal, and other court proceedings during the trial stage. Understanding electronic records, their types, admissibility, evidentiary value, and their function as evidence is therefore extremely important.
To support the claims and defenses of each party in a case, evidence is crucial in the Indian legal system. Although evidence can take many different forms, the court’s discretion determines whether it is admissible by abiding by the laws and regulations in place. Since technology is constantly advancing, digital evidence—also referred to as electronic evidence—is regarded by the Indian Court of Justice as pertinent evidence. Computers, smartphones, pen drives, and other digital media are just a few examples of the various types of digital evidence. Its admissibility is contingent on the specific facts of each case.
What is Electronic Evidence
Evidence can be either oral or documentary, according to Section 3 of the Indian Evidence Act of 1872. Oral evidence refers to the statements that witnesses make in front of the Honorable court, while documentary evidence, which includes electronic records, is evidence that is presented to the court for review. If we look more closely, we can learn more about the kinds of evidence that are used in court.
The word “electronic evidence” is not defined either in the Indian Evidence Act, 1872 or in the Information Technology Act, 2000. I looked at it from a legal blog called “Legal Match” for a better understanding, which summarized the electronic evidence as follows: “Any electronically stored information that may be used as evidence in a lawsuit or trial is considered electronic evidence.” Any documents, emails, or other files stored electronically are considered electronic evidence. Records kept by network or internet service providers are also considered electronic evidence. For instance, any computer-stored electronic data—such as emails or electronic records—that is used as evidence in court.
Primary and Secondary Evidence
Primary evidence: primary evidence is what When the original electronic record is produced, the document itself is also produced.
Production of computer output of the electronic record’s contents is known as secondary evidence. It includes the statement of an expert or someone who has personally viewed the document, as well as a certified copy or counterparts of documents that the party cannot produce in court.
It is a well-established legal principle that primary evidence must take precedence over secondary evidence when it is available. The apex court has allowed secondary evidence because primary evidence is frequently nearly impossible to produce in court due to its storage on hard drives, cloud servers, large servers, and other electronic data storage devices.
You can bring that secondary evidence to court by printing it out, copying it, or storing it on any magnetic or optical media that an electric device produces. However, secondary evidence can only be admitted if it meets the requirements outlined in Section 65B of the Indian Evidence Act.
Electronic Record as Evidence
Section 65 of the Indian Evidence Act outlines when secondary evidence is admissible. According to Section 65B, the process for demonstrating the contents of electronic records is outlined in Section 658.
According to Section 65B of the Indian Evidence Act, electronic records that are printed on paper or that are copied onto optical or magnetic media are also considered secondary evidence documents if they meet the requirements outlined in Section 65B and the original source of the information—that is, an electronic device—is admitted into the court of law without the need for additional proof.
According to the Indian Evidence Act, electronic evidence consists of the following essential components:
1. The person legally authorized to control the electronic device must produce the information of electronic records;
2. The information must be stored on the electronic device during the person’s daily general course of action; and
3. The stored information must be stored on the electronic device during the person’s daily general course of action.
4. The electronic device must be in a working condition when storing or copying that material information in order to prevent any potential harm to its functionality or distortion of the authenticity and correctness of its material contents.
5. Any type of storing, copying, or creating a counterpart of the information needed for the court of law’s production Because electronic evidence must be genuine and reliable in order to be admitted as evidence in a court of law, it must be free from any form of distortion, manual editing, or manipulation.
Importance of Electronic Evidence
Electronic evidence’s significance It is understandable that people today might not go a day without using an electronic device. It may be very beneficial to use electronic evidence to apprehend a criminal suspect might make his escape easier as well. Like this, determining a party’s liability in civil suits is simple and may even assist a party in avoiding liability. The agency that presents the electronic evidence to the court in accordance with the current Indian laws will determine this.
Imran Khan Niazi v. Mian Muhammad Nawaz Sharif[1] —commonly referred to as the key case that clarified the significance of electronic evidence—may be case of the Panama Papers. According to the Court’s report, Maryam participated in the fabrication of evidence presented to the Supreme Court. The Calibri font, which was initially made available to the public in January 2007, served as the foundation for this and was used in documents allegedly from 2006. Nawaz Sharif lost both his position as prime minister and his position as head of the National Assembly after the ruling.
The value of electronic evidence was highlighted by the Hon. Supreme Court of India in Tomaso Bruno and Anr v. State of U.P. [2]
The Honorable Apex Court of India ruled that, even though the accused bears the responsibility of proving the defense argument of alibi in the particular facts and circumstances of the case, the prosecution should have produced CCTV footage since it was the best available evidence. Under Section 114(g) of the Indian Evidence Act, 1872, it is reasonable, in our opinion, to infer against the prosecution that they withheld the information because it would have been detrimental to them if it had been produced.
However, when the electronic evidence is presented to the courts, the issues of admissibility and proof of electronic record repeatedly come up. Since the amendment, the law has shifted in favor of electronic evidence’s admissibility and proof to the Indian Evidence Act of 1872, which included a number of clauses pertaining to electronic evidence. Let me now look at the clauses pertaining to electronic evidence, including its authenticity, admissibility, relevance, and proof.[3]
Distinctive Features of Electronic Evidence
The characteristics of electronic evidence can be broadly characterized as “volatile and easily alterable memory, easily manipulated or forged, encrypted, and cloud computing information.”
Electronic devices may contain volatile memory that is easily changed.
For instance, when the computer is reset or the power is switched off, the memory that is stored in the RAM vanishes. However, the information stored on the disk remains there indefinitely until the storage medium fails, or until it is deleted. The memory that is stored on a hard drive and in random-access memory (RAM) differs greatly. However, it is simple to change the data on the hard drive or RAM. In a similar vein, information on electronic devices is easily falsified or altered. We frequently encounter problems with photographs changing. Thus, the Information encryption is the next distinguishing characteristic. Information that has been encrypted is transformed into a secret code that conceals its actual meaning. The Investigating Agency may find it challenging to obtain the original in such a situation data up until the decryption process. The only options are to ask the Examiner of Electronic Records for their opinion or to approach the authorized individual to have the information converted into plain text. Likewise, cloud computing has the same issue. Cloud computing involves storing data in cloud storage and delivering it via the internet via various services. The same challenge confronts the Investigating Agency with the acquisition of data created online and its source, as well as the acquisition of data kept in cloud storage, particularly when logs or history are erased.
The problems are centered on the data that is fed, generated, stored, and produced by a computer, and admitting it before the court in proof of the fact in question or pertinent fact, given the unique characteristics of electronic records.
Different Types of Electronic Records
Electronic records are defined by the Information Technology Act of 2008, which encompasses a variety of data formats. These include, but are not limited to, DVDs, CDs, pen drives, hard drives, e-mails, pictures, sound recordings, video recordings, and telephone recordings. Regarding their admissibility in a court of law and their evidentiary value, each of the aforementioned electronic record formats addresses a number of distinct requirements.
- Evidence in the form of DVD, CD, Hard-Drive, chip, memory chip, Pen Drive:
The electronic documents mentioned above can be used as both primary and secondary evidence. The value of the evidence depends on how and how the electronic records were presented to the court. For example, if the electronic records are presented in their original form, they are unquestionably more valuable. However, if you wish to submit a copy of the records on a different or comparable device, you must obtain a certificate for the court’s admission and adhere to the precedents set forth in Section 65b of the Indian Evidence Act.
- Audio and video recordings:
If these electronic records are submitted in their original form—that is, as original audio or video recordings rather than copies—they are admissible as electronic evidence. Their duplicated records on other comparable or dissimilar devices must meet the requirements outlined in Section 65B of the Indian Evidence Act in order to be certified for court admission.
- Evidence generated through mobile phone in the form of media, calls and email:
Email: It is acknowledged as a legitimate and reliable source of proof. Emails are typically sent using printouts that are certified under Section 65B of the Indian Evidence Act.
Media and phone calls: Mobile phones are incredibly practical and resourceful electronic devices these days. It facilitates location tracking, video and photo capture, call recording, and many other electronic resources that help the legal and investigative systems obtain important evidence. Electronic records from a mobile phone are admissible if they are submitted in their original form, meaning the phone itself, which serves as the main source of calls and media. Their duplicated records on other comparable or dissimilar devices must meet the requirements outlined in section 65B of the Indian Evidence Act to be certified for court admission.[4]
Relevancy of Electronic Record
The Indian Evidence Act of 1872’s original Section 22 addresses the applicability of oral admissions regarding document contents. Section 22A of the Indian Evidence Act of 1872 does not need to be included if the document contains the electronic record.
Like how Section 45 of the Indian Evidence Act of 1872 addressed the applicability of expert opinions, Section 45-A of the same act was added to address the applicability of examiners’ opinions regarding electronic evidence. Therefore, for the sake of relevancy, the Legislature made it clear that an electronic record is not included in the definition of a document. Section 59 of the Indian Evidence Act, 1872, which states that a document and an electronic record are two distinct things, also makes this point clear. In this situation, I’m unable to comprehend the purpose behind the purpose of the Legislature’s Chapter V, “Of Documentary Evidence,” by adding Sections 65-A, 65-B, 67-A, and 73-A of the Indian Evidence Act, 1872.
Admissibility and Proof of Electronic Record
The law pertaining to admissibility and electronic record proof is tilting, as I previously stated, from the introduction of electronic evidence through amendments to the Indian Evidence Act, 1872. It could be because the law is inadequate, and it has to do with modern instrumentation like computers, etc. Prior to discussing Sections 65-A and 65-B of the Indian Evidence Act, 1872, which deal with the admissibility and proof of electronic records, I would like to clarify that the other Chapter V of the Indian Evidence Act of 1872 contains sections that do not address the admissibility and proof of electronic records, including Sections 61 to 65. In other words, even though the definition of “evidence” in Section 3 of the Indian Evidence Act, 1872 includes the electronic record in documentary evidence, not a single word in these sections refers to the admissibility and/or proof of a “electronic record.” Sections 65-A and 65-B of the Act were incorporated by the Legislature to create special rules pertaining to the admissibility and proof of electronic records.
As per the guidelines in Section 65-A of the Indian Evidence Act of 1872, the information contained in an electronic record may be proven in line with Section 65-B of the same Act. The Legislature, prior to proceeding with the admissibility and evidence of computer output, one might have considered the clauses pertaining to the manufacture of the initial electronic device. The claim that a specific provision to produce original electronic devices is unnecessary may not be persuasive because sections 62 and 64 of the Indian Evidence Act, 1872, contain specific provisions to produce original documents. Sections 62 and 64 of the original enactment do not need to be included if this argument is accepted. Therefore, a clause requiring the production of the original electronic record might exist and safety precautions to safeguard the gadget and data until the dispute in Section 65-A of the Indian Evidence Act, 1872 itself is resolved, after which the remaining contents may be continued.
Nonetheless, Section 65-B of the Indian Evidence Act of 1872 and the production of the certificate mandated by Section 65-B (4) of the same act constitute the core of the entire law. Section 65-B (1) of the 1872 Indian Evidence Act addresses admissibility and proof of electronic records, Section 65-B (2) of the Indian Evidence Act, 1872 addresses the requirements mentioned in Subsection (1) with regard to the computer in question and its output, and Section 65-B (3) of the Indian Evidence Act, 1872 addresses
computer combination, and the requirements for the certificate are covered in Section 65-B (4) of the Indian Evidence Act, 1872. Furthermore, it is evident that the other provisions of the Indian Evidence Act of 1872 are superseded by Section 65-B of the same body. However, upon closely examining Section 65-B (1) of the Indian Evidence Act, 1872, it seems that the phrase “computer output shall be deemed to be also a document” is used meaninglessly.[5]
Case Laws
- Arjun Pandit Rao vs. Kailash Kushanrao (2020)[6]:
The Supreme Court recently decided that in order to admit an electronic record as evidence, it must comply with Section 65B of the Indian Evidence Act. The certificate that is submitted in accordance with this provision contains information about the electronic records and the identity of the person who has official responsibility for the management and operation of the relevant device, including the authorized signature of that person.
- Anvar P.V. vs. Basheer and Others (2014)[7]:
The Apex Court rendered a historic ruling in this case. It had made decisions and assisted in resolving conflicts between the rulings of different High Courts regarding the admissibility of electronic (record) evidence.
According to the Supreme Court, secondary data on CDs, DVDs, and pen drives can only be admitted with a certificate issued in accordance with Section 65B (4) of the Indian Evidence Act. Electronic evidence cannot be proven by oral testimony; U/S 65B certification is necessary to demonstrate this. Furthermore, according to the expert, the Indian Evidence Act’s Section 45A is not a way to get around the process of Section 65b.
The only way to prove electronic evidence as primary or secondary evidence is to produce the original, its copy, or its counterpart attached with the certificate under section 65B.
- State (N.C.T. of Delhi) vs. Navjot Sandhu Afsan Guru[8]:
wherein it was decided that printouts from computers or servers that have been mechanically removed and verified by a responsible representative of the service provider can be introduced into evidence by a witness who can recognize the certifying official’s signatures officer or otherwise discuss the facts based on his own knowledge, there is no restriction on the introduction of secondary evidence under the other provisions of the Indian Evidence Act, 1872, namely Sections 63 & 65 of the Indian Evidence Act, 1872, regardless of whether the requirements of Section 65-B of the Indian Evidence Act, 1872, which deals with the admissibility of electronic records, are met.
- Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand & Others (2011):
According to the Hon’ble Supreme Court’s ruling in Vijendra Kumar Verma v/s Public Service Commission, Uttarakhand & Ors. 2011 (1) SCC 150, the Indian judiciary is implementing e-governance to manage judiciary. Not long from now, every court in the nation will be computerized. In this regard, it is anticipated that the newly appointed judges will possess a basic understanding of computer operation. Given the recent developments being adopted, it would be unfair to disregard a basic understanding of computer operation as a prerequisite for becoming a judge. For this reason, the Supreme Court believes that the requirement of having a basic understanding of computer operation should not be relaxed.
- Shafhi Mohammad vs. State of Himachal Pradesh (2018)[9]:
According to the Honorable Supreme Court, it would be incorrect to deny the law of evidence the benefits that new methods and tools can offer, so long as the recording’s accuracy can be verified. No comprehensive rule could be established by which the admission of such evidence may be evaluated, even though such devices are subject to manipulation. Electronic evidence was pertinent to the fact-finding process. For an investigating agency, scientific and electronic evidence can be very beneficial.
Being in possession of electronic evidence is one thing; proving it is quite another in the context of electronic evidence jurisprudence.
- Thana Singh vs. Central Bureau of Narcotics (2013)[10]:
It was decided that a digital charge sheet was a document that could be used as an electronic record. The Honourable Supreme Court has ordered that charge sheets be provided electronically.
- Arun Maruthi Wahchaure vs. State of Maharashtra (2012):
It has been established that the investigating agency must provide proof of the mobile instrument number’s IMEI whenever the identity of a mobile number is questioned.
Thus, it is evident that the IMEI number can be used to verify the identity of the mobile number.
- Shamsher Singh Verma vs. State of Haryana[11]:
According to the ruling, the accused may insist on playing the contents of the aforementioned CD or DVD in court and requesting that it be sent to a forensic lab for additional examination if they want to rely on any portion of it that the prosecution denies.
However, the primary challenge facing the courts is maintaining the integrity of CD. Failure to properly preserve a valuable piece of evidence could result in its disappearance. For the information on CDs to remain intact, they must be packaged or stored in Faraday bags or static bags. One kind of Faraday cage composed of flexible metallic fabric is called a Faraday bag.
Conclusion
In light of this, I can say that the Legislature made a mistake in deciding whether or not to include the electronic record in the document’s scope. If the Hon’ble Apex Court’s observations and conclusions are appropriately taken into consideration when amending the Indian Evidence Act, 1872.
India would only satisfy the requirements of new generation instruments, such as electronic records, if it made a specific provision for the production of original electronic devices as primary evidence, established a provision for device and data safety until the case’s final resolution, and specifically distinguished between primary and secondary evidence with regard to electronic evidence in Arjun Panditrao Khotkar’s case referred above.
Electronic records must be evaluated for admissibility and evidentiary value within the parameters of the U.S. Evidence Act, Section 65B. Via a number of seminal rulings, the Supreme Court clarified the admissibility of electronic records and their evidentiary value in civil, criminal, and other court proceedings.
Since electronic evidence is typically not admissible in court without a certificate, it is now a well-established fact that any secondary evidence must adhere to the provisions of 65B of the Indian Evidence Act. In an investigation, electronic devices can be extremely important, but their value depends on how well they adhere to the Indian Evidence Act’s rules.
References
- Santosh Subhas Pawar, 18th April (2021), admissibility and evidentiary value of electronic record, 3-5, different kinds of electronic record, leading case laws.
- D. Yedukondalu, District Judge, Commercial Court, Vijayawada, importance of electronic records, what is evidence.
- Prashant Mali (2021), evidence record.
- Nandini Chandrakant Shahasane, University of Pune, Introduction & abstract.
- Indian Evidence Act, 1872.
- Bharatiya Sakshya Adhiniyam, 2023.
- https://aphc2.in/apdigilr/readable/articles/electronic_evidence.pdf
- https://aphc2.in/apdigilr/readable/articles/electronic_evidence.pdf
- https://blog.ipleaders.in/admissibility-evidentiary-value-electronic-records/
- https://law.asia/electronic-evidence-indian-law/
- https://www.lawjournals.org/assets/archives/2024/vol10issue1/9247.pdf
[1] Imran Khan Niazi v. Mian Muhammad Nawaz Sharif, AIR 2017
[2] Tomaso Bruno & Anr vs State Of U.P on 20 January, 2015
[3] https://www.rostrumlegal.com/electronic-evidence-understanding-through-case-laws/
[4] Tomaso Bruno & Anr vs State Of U.P on 20 January, 2015
[5] https://www.tnsja.tn.gov.in/article/electronic_records_article.pdf
[6] Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal on 14 July, 2020
Equivalent citations: AIR 2020 SUPREME COURT 4908, AIRONLINE 2020 SC 641
[7] Anvar P.V vs P.K.Basheer & Ors on 18 September, 2014
Equivalent citations: AIR 2015 SUPREME COURT 180, 2014 AIR SCW 5695, 2014 (4) AIR KANT HCR 580, 2014
[8] State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005
[9] Shafhi Mohammad vs The State Of Himachal Pradesh on 30 January, 2018
[10] Thana Singh vs Central Bureau Of Narcotics on 23 January, 2013
Equivalent citations: 2013 AIR SCW 800, 2013 (2) SCC 590, 2013 CRI. L. J. 1262, AIR 2013 SC( CRI) 753, 2013
[11] Shamsher Singh Verma vs State Of Haryana on 24 November, 2015
Equivalent citations: (2016) 1 UC 543, 2015 AIR SCW 6434, 2016 (15) SCC 485, 2016 CRI. L. J. 364, AIR 2016 SC
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