Proving electronic evidence in proceedings with reference to
the provisions of Indian Evidence Act, 1872 and the judgements of the Supreme
Court.
Shahin Hardy*
Introduction
In today's advanced world, use of
technology or internet is not limited to establish scientific or academic
research, but is evolving each day to become accessible to every individual for
their various needs with just a tap on the screen. However, unlike the real
world, the virtual world comes with a bundle of drawbacks giving rise to the
commission of numerous cyber crimes such as phishing, pornography, hacking, and
so on. Realising the growing dependency of electronic means of communications,
digitalisation of businesses and storing records, etc. the need for changes in
the laws relating to information technology, as well as rules governing the
admissibility of electronic documents as evidence in both civil and criminal
proceedings were required.
For this exact reason, the Indian
legislature introduced the concept of “electronic evidence” through the Information Technology Act, 2000 (“IT Act”)
and the related amendments in the Indian
Evidence Act, 1872 (“Evidence Act”) and
the Indian Penal Code, 1860 (“IPC”). The Evidence Act was amended by virtue
of Section 92 of the IT Act and the
term "evidence" was amended to include "electronic record",
thereby allowing for admissibility of the digital evidence. The IT Act and its
amendment are based on the United Nations Commission on International Trade Law
(“UNCITRAL”) model Law on Electronic Commerce.
What is Electronic Evidence?
●
As per the
explanation to Section 79A of the IT Act, “electronic evidence” means any
information of probative value that is either stored or transmitted in
electronic form including, files on computer, digital audio or video, cell phones,
digital fax machines, etc.
●
Thus, the
courts may permit the use of digital evidence such as e-mails, SMS or instant
messaging applications such as WhatsApp, hard disk of a computer, call records,
tape recordings, photographs, printouts or some other storage media such as
CDs, USB Drives, etc.
Provisions
of Electronic Evidence under Indian Evidence Act, 1872
●
Section 65A
of the Evidence Act states that, the contents of electronic records have to be
proved as evidence in accordance with the requirements of Section 65B.
●
Section 65B
prescribes a distinct framework that governs the admissibility of electronic
evidence.
Provisions
of Law under Section 65B of the Evidence Act (Admissibility of Electronic
Records)
●
Section
65B (1): under this any
information contained in an electronic record, which has been stored, recorded
or copied as a computer output, shall also be deemed as a ‘document’ – and
shall be admissible as evidence without further proof or production of the
originals, if the conditions mentioned are satisfied.
●
Section
65B (2): It lays down the
criteria that must be satisfied for the information obtained to be categorized
as a ‘computer output.’
●
Section
65B (3): This section is
self-explanatory and confirms that if the user has been using a networked
device either to store or process information, all the connected devices will
be considered to be a single device.
●
Section
65B (4):
-
It states
that, if the electronic evidence is to be used in any judicial proceeding, a
certificate shall have to be produced which identifies the electronic record,
and gives particulars of the device involved in the production of the
electronic record.
-
This
certificate shall have to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device, or from
a person who is in the management of the relevant activities involved.
-
This
signature shall be evidence of the authenticity of the certificate.
-
Section 65B
(4) also mentions that the contents of the certificate should be stated “to the
best of the knowledge and belief of the person stating it.”
Fundamentally, all of these provisions of
law have been established to ensure the source and authenticity of electronic
records that are to be used as evidence. The reason being that, electronic
records are more vulnerable to tampering, alteration, transportation, excision,
and so on, a trial based solely on electronic evidence may result in a travesty
of justice.
Cases
decided by Supreme Court with reference to admissibility of Electronic Records
●
State (N.C.T. of Delhi) v. Navjot Sandhu alias Afsan Guru (Parliament Attack Case) 1
One of the issues
arising out of this case was ‘call records and its authenticity’.
-
the counsel
on behalf of the accused raised the issue of credibility and reliance on the
telephone records which were produced by the prosecution. The records lose
their credibility because there was no certificate produced by the
prosecution which is necessary for admitting any electronic record
under Section 65B (4) of the
Evidence Act.
-
However,
the Supreme Court concluded that the cross-examination of competent witness
acquainted with the functioning of the computer during the relevant time and
the manner in which the printouts of the call records were taken was sufficient
to prove the authenticity of the call records.
●
Anvar P.V. v. P.K. Basheer 2
-
In this
case, the Supreme Court ruled that a written and signed certificate
under Section 65B of the Evidence Act is compulsory for admission of
electronic evidence in all cases where the original electronic record (as
stored on a computer device) cannot be produced before the Court. Hereby,
overruling its earlier decision in the case of Navjot Sandhu, to that extent.
-
The Court
conclusively held that documentary evidence in the form of an electronic record
can be proved only in accordance with the procedure set out under Section 65B
of the Evidence Act, being a complete code for electronic evidence.
-
The maxim Generalia specialibus non derogant that
is, special law will always prevail over the general law, would be applicable.
Therefore, Sections 63 and 65 have no application as secondary evidence by way
of electronic record is wholly governed by Sections 65-A and 65-B.
●
Shafhi Mohammed v. State of Himachal Pradesh 3
-
The Supreme
Court has held in this case that, the certificate requirement under Section 65-B (4) was not
always mandatory, and could be relaxed in the interest of justice.
-
Where the
party who is not in possession of device from which document is produced,
applicability of Sections 63 to 65 of the Act cannot be held to be excluded.
●
Tomaso Bruno and Anr. v. State of Uttar Pradesh 4
-
In this
case it was held that secondary evidence of contents of document can also be
led under Section 65 of the Evidence Act and the same is in contradiction to
the decision in Anvar P.V.
●
Arjun Panditrao Khotkar v. Kailash Kishanrao 5
-
This case
has been a significant decision of the Supreme Court with respect to the
admissibility of electronic
evidence. Expressly and impliedly, the court has clarified various points of
significance with respect to electronic evidence, especially secondary
evidences.
-
The court
acknowledged that though section 65(B) does not talk about the stage at which
such certification can take place but still it was clarified in the P.V. Anwar Case that in cases where
either a defective certificate was given or where such certificate had been
demanded but was not given by the concerned person, the Judge conducting the
trial was empowered and he must summon the person/persons referred to in
Section 65B(4) of the Evidence Act, and require that the requisite certificate
be given.
-
However, it
was added that the same was, subject to the discretion exercised by the courts
in civil cases in accordance with law and with the requirements of justice,
with regard to the facts of every individual case.
-
The Court
stated all those interpretations to be incorrect which advocated for the
admissibility of secondary evidence of any electronic record under any other
sections of the Evidence Act, namely, Section 63 and Section 65.
-
The Court
categorically indicated the problems in the legal positions determined by the Navjot Sandhu Case and the Shafhi Mohammed Case. Further, it
secured the interests of justice by giving special consideration to the facts
of the case and accordingly allayed the requirements of certification under
section 65B for the respondents, who despite of all possible efforts on their
part, were not able to get the same by the respective authorities.
-
Also, it
upheld the judgment in the P.V. Anvar
Case and decided that the requirements of certification under section 65B
(4) were mandatory in nature and could not be dispensed with until and unless
there were grave circumstances, like the one which existed in the present case.
-
The Court
also clarified that oral evidence by the respective authority, as it happened
in the present case, could not take place of the certification requirements
mentioned under Section 65B (4) and would not be sufficient to make the
electronic evidence admissible in court.
Conclusion
Science and law are two distinct fields and
with the evolution of society both have pleasantly blended and supplemented one
another in diverse ways, ensuring a fair process and fast delivery of justice.
On one hand, scientific evidence offers the possibility of highly accurate
fact-finding and the elimination of uncertainty by providing objectivity, which
is frequently associated with legal decision-making. But on other hand,
scientific developments at present includes high risk of tampering that the
legal system is reluctant to undertake.
However, with the legal recognition given
by the Information Technology Act, 2000 to the electronic or digital evidence,
along with subsequent amendments in the Indian Evidence Act, 1872, the use of
electronic form of evidence has come a long way.
While the production of a certificate under
Section 65B (4) may be a necessary safeguard to ensure authenticity, there is a
need to formulate other safeguards as well. There is now clarity over the scope
of Section 65B, however, multiple steps are still needed to ensure the safety,
retention and confidentiality of information obtained in the form of electronic
evidence.
Footnotes
- AIR (2005) SC 3820
- AIR (2015) SC 180
- AIR (2018) SC 714
- (2015) 7 SCC 178
- (2020) 7 SCC 1
* Student of LL.B. ( Final Year ), Department of Laws, Panjab University, Chandigarh
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