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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