Thursday, 7 April 2016

Good legal article on appreciation of electronic evidence

01. The proliferation of computers, the social influence of information technology and the ability to store information in digital form have all required Indian law to be amended to include provisions on the appreciation of digital evidence. In 2000 Parliament enacted the Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility of digital evidence.

02. The IT Act is based on the United Nations Commission on International Trade Law Model Law on Electronic Commerce and, together with providing amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker's Book Evidence Act 1891. It recognizes transactions that are carried out through electronic data interchange and other means of electronic communication.

02. Changes to Evidence Act :-
Although the Evidence Act has been in force for many years, it has often been amended to acknowledge important developments. Amendments have been made to the Evidence Act to introduce the admissibility of both electronic records and paper-based documents.

03. Evidence :-
The definition of 'evidence' has been amended to include electronic records (Section 3(a) of the Evidence Act). Evidence can be in oral or documentary form. The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. The term 'electronic records' has been given the same meaning as that assigned to it under the IT Act, which provides for "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche."

04. Admissions :-
The definition of 'admission' (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. Section 22A has been inserted into the Evidence Act to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of electronic records produced is in question.

05. Admissibility of Electronic Evidence :-
New Sections 65A and 65B are introduced to the Evidence Act under the Second Schedule to the IT Act, 2000. Section 5 of the Evidence Act provides that evidence can be given regarding only facts that are at issue or of relevance. Section 136 empowers a judge to decide on the admissibility of the evidence. New provision Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record (i.e. the contents of a document or communication printed on paper that has been stored, recorded and copied in optical or magnetic media produced by a computer ('computer output'), is deemed to be a document and is admissible in evidence without further proof of the original's production, provided that conditions set out in Section 65B (2) to (5) are satisfied.

06. Conditions for the admissibility of electronic evidence :-
Before a computer output is admissible in evidence, the following conditions as set out in Section 65(B)(2) must be fulfilled: "(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was
produced by the computer during the period over
which the computer was used regularly to store or process information for the purposes of any activities
regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether:
(a) by a combination of computers, operating over that period;
(b) by different computers operating in succession over that period;
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer and references in this section to a computer shall be construed accordingly."

Section 65B(4) provides that in order to satisfy the conditions set out above, a certificate of authenticity signed by a person occupying a responsible official position is required. Such certificate will be evidence of any matter stated in the certificate.

The certificate must :
* identify the electronic record containing the statement;
* describe the manner in which it was produced; and
* give such particular of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer. The certificate must also deal with any of the matters to which the conditions for admissibility relate.

07. Presumptions Regarding Electronic Evidence :-
A fact which is relevant and admissible need not be construed as a proven fact. The judge must appreciate the fact in order to conclude that it is a proven fact. The exception to this general rule is the existence of certain facts specified in the Evidence Act that can be presumed by the court. The Evidence Act has been amended to introduce various presumptions regarding digital evidence.

08. Gazettes in electronic form :-
Under the provisions of Section 81A of the Evidence Act, the court presumes the genuineness of electronic records purporting to be from the Official Gazette or any legally governed electronic record, provided that the electronic record is kept substantially in the form required by law and is produced from proper custody.
09. Electronic agreements :-
Section 84A of Evidence Act provides for presumption that a contract has been concluded where the parties digital signatures are affixed to an electronic record that purports to be an agreement.

10. Secure electronic records and digital signatures :-
Section 85B of the Evidence Act provides that where a security procedure has been applied to an electronic record at a specific time, the record is deemed to be a secure electronic record from such time until the time of verification. Unless the contrary is proved, the court is to presume that a secure electronic record has not been altered since obtaining secure status. The provisions relating to a secure digital signature are set out in Section 15 of the IT Act. A secure digital signature is a digital signature which, by application of a security procedure agreed by the parties at the time that it was affixed, is:
* unique to the subscriber affixing it;
* capable of identifying such subscriber, and
* created by a means under the exclusive control of the subscriber and linked to electronic record to which it relates in such a manner that if the electronic record is altered, digital signature would be invalidated. It is presumed that by affixing a secure digital signature the subscriber intends to sign or approve the electronic record. In respect of digital signature certificate (Section 85-C of the Evidence Act), it is presumed that information listed in the certificate is correct, with exception of information specified as subscriber information that was not verified when the subscriber accepted the certificate.

11. Electronic messages :-
Under the provisions of Section 88A, it is presumed that an electronic message forwarded by a sender through an electronic mail server to an addressee corresponds with the message fed into the sender's computer for transmission. However, there is no presumption regarding the person who sent the message. This provision presumes only the authenticity of the electronic message and not the sender of the message.

12. Five-year old electronic records :-
The provisions of Section 90A of the Evidence Act make it clear that where an electronic record is produced from custody which the court considers to be proper and purports to be or is proved to be five years old, it may be presumed that the digital signature affixed to the document was affixed by the signatory or a person authorized on behalf of the signatory. An electronic record can be said to be in proper custody if it is in its natural place and under the care of the person under whom it would naturally be. At the same time, custody is not considered improper if the record is proved to have had a legitimate origin or the circumstances of the particular case are such as to render the origin probable. The same rule also applies to evidence presented in the form of an electronic copy of the Official Gazette.

Latest case laws on Electronic Evidence :-

1. It is held by Hon'ble Rajasthan High Court - in the case of Paras Jain & Ors. -V/s.- State of Rajasthan, Decided
On: 4-7-2015. that certificate as per Section 65B of Evidence Act can be produced it subsequent stage during the course of trial if it is not produced alongwith electronic record or alongwith charge-sheet in the Court.

2. It is held by Hon'ble Orisa High Court, in the case of Pravata Kumar Tripathy -V/s.- Union of India (C.B.I.) 19(2015)CLT177, 2014(II)OLR941 - that, at the time of consideration of bail application, it is not at all necessary to ask prosecution to first satisfy the fulfillment of all the criteria laid down in the case of Anvar P. V. -V/s.- P. K. Basheer before taking into account Forensic Voice Examination Report as well as transcription of CD.

3. It is held by Hon'ble Bombay High Court, in the case of Balasaheb Gurling Todkari And Ors. -Vs- The State of Maharashtra, 2015, ALLMR(Cri.)3464 - CDR Report and Electronic Evidence is not admissible in evidence in absence of certificate as per Section 65-B of Evidence Act.

4. K. Ramajayam @ Appu -V/s.- The Inspector of Police, Dated 27-1-2016. In this case, Hon'ble Madras High Court has issued guidelines to Magistrate to follow the procedure when CCTV footage and video recording is produced by police at the time of filing charge-sheet. In this case, it is held by Madras High Court.
"During the hearing of the case, we noticed that
the trial Court had not played the DVR (MO-2) and
seen the CCTV footages in the presence of the accused.
In this regard we propose to dispel misgivings, if any,
in the mind of trial Judges about their power to view
such evidences. There will be instances where, by
the time the case comes up for trial in one court,
the electronic record would have had a natural death
for want of proper storage facilities in the Court
property room. To obviate these difficulties, we
direct that, on a petition filed by prosecution, the
Judicial Magistrate, who receives the electronic
record, may himself view it and take a back up,
without disturbing the integrity of the source, in
a CD or Pendrive or any other gadget, by drawing
proceedings. The back up can be kept in safe
custody by wrapping it in anti static cover and
should be sent to Sessions Court at the time
of committal".

5. It is held by Hon'ble Supreme Court, in the case of Anvar P. V. -V/s.- P. K. Basheer AIR, 2015 SC 180, 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 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.

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