ADMISSIBILITY OF ELECTRONIC RECORDS AS EVIDENCE WITH SPECIAL REFERENCE TO THE INDIAN EVIDENCE ACT, 1872 By - Mayank Dagar
ADMISSIBILITY OF ELECTRONIC
RECORDS AS EVIDENCE WITH SPECIAL REFERENCE TO THE INDIAN EVIDENCE ACT, 1872
Authored By - Mayank Dagar
ABSTRACT:
This research paper states the
concept and meaning of electronic records. Further, the principles of the
Indian Evidence Act have been explained with amendments in regard to electronic
records and their admissibility. Several decisions of the Indian Supreme Court
and other Courts have been cited in reference to the admissibility of
electronic records. The drawbacks of the admission of electronic records as
evidence have also been stated in this research paper. Finally, the complexity
of electronic records and the difficulty faced by the Indian judiciary in
handling electronic evidence are stated in the conclusion.
INTRODUCTION:
The
e-commerce sector in India has modernized drastically in the past decade. With
the advancements in e-commerce reaching new heights, electronic evidence has
also come to become more accurate and reliable. Nowadays, e-commerce has become
part of our daily lives including communication and documentation. With such
robust use of electronic gadgets and software, it has become almost impossible
for the Indian courts to ignore evidence submitted to them in electronic form.
All sorts of documentation and entries are done in electronic form. Take an
example, even the attendance taken in the classrooms is recorded electronically
rather than through the usage of pen and paper. But a problem arises when we
start admitting electronic records as evidence in judicial proceedings. Doubts
begin to arise concerning the authenticity of the electronic evidence
submitted. The party against whom the electronic evidence is submitted
mandatorily challenges the admissibility of the electronic evidence and this
creates a whole new burden for the judicial bench to judge the admissibility of
the electronic evidence. The admissibility of electronic evidence has the power
to completely change the outcome of the ongoing civil suit or trial. Electronic
evidence carries the burden of being very easy to fabricate and falsify and
anyone with sufficient computer knowledge can use the electronic records according
to his or her own advantage. Overwriting CDs and DVDs, erasing hard disk
memory, falsifying website addresses, and sending fake emails or SMS are all
sorts of misdeeds that can be undertaken to fabricate and falsify electronic
records.
MEANING OF ELECTRONIC EVIDENCE:
An
electronic record is any kind of information that can be stored and transmitted
in a digital form. Electronic evidence is any electronic record that is valid
to be submitted in court by a party to support their claim in a suit or a
trial. Though the parties are free to submit any electronic record as evidence
in the court, it is the court that decides whether the record is admissible as
evidence by checking the authenticity of the same.
Section
92 of the Information Technology Act, 2000 amended Section 3 of the Indian
Evidence Act. The phrase “All documents produced for the inspection of the
Court” was amended and replaced with “All documents including electronic
records produced for the inspection of the Court”. Another amendment that took
place was in Section 59 of the Indian Evidence Act. The term “Content of
documents” was substituted with “Contents of documents or electronic records”
in Section 59 and two entirely new legislations were introduced in the form of
Sections 65A and 65B that discuss the admissibility of electronic evidence in
the court of law.
Though
amendments have been made to incorporate electronic records as evidence in the
court, still it has not been put on the same stature as that documentary
evidence in Section 61 to 65 of the Indian Evidence Act which discusses the
ways in which documentary evidence will be termed to be admissible were not
amended to include electronic documents.
ELECTRONIC RECORDS AND THEIR ADMISSIBILITY AS STATED UNDER
DOCUMENTARY EVIDENCE:
The
two main legislations governing the admissibility of electronic records are
Section 65A and 65B of the Indian Evidence Act.
“Section
65A. Special provisions of electronic records.
The
contents of electronic records may be proved in accordance with the provisions
of Section 65B.”
“Section 65B. Admissibility of electronic records.”[1]
(1) Notwithstanding anything
contained in this Act, any information contained in an electronic record that
is printed on paper, stored, recorded, or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall
be deemed to be also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(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 sub-section (2) was regularly performed by computers, whether—
(a) by
a combination of computers operating over that period; or
(b) by
different computers operating in succession over that period; or
(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.
(4) In
any proceedings where it is desired to give a statement in evidence by virtue
of this section, a certificate doing any of the following things, that is to
say,—
(a) identifying
the electronic record containing the statement and describing the manner in
which it was produced;
(b) giving
such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic
record was produced by a computer;
(c) dealing
with any of the matters to which the conditions mentioned in sub-section (2)
relate, and purporting to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall be
evidence of any matter stated in the certificate, and for the purposes of this
sub-section it shall be sufficient for a matter to be stated to the best of the
knowledge and belief of the person stating it.
(5) For
the purposes of this section, -
(a) information
shall be taken to be supplied to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied directly or (with or without
human intervention) by means of any appropriate equipment;
(b) whether
in the course of activities carried on by any official information is supplied
with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those
activities, that information, if duly supplied to that computer, shall be taken
to be supplied to it in the course of those activities;
(c) a
computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of
any appropriate equipment. Explanation.—For the purposes of this section any
reference to information being derived from other information shall be a
reference to its being derived therefrom by calculation, comparison or any
other process.]
EVIDENCE RELATING TO ELECTRONIC RECORDS:
Section
65A gives mere directions to Section 65B by stating that for an electronic
record to be admissible in a court of law, its contents must be proved and
authenticated in accordance with the provisions of Section 65B.
Section
65B states the way in which the contents of the electronic record can be proven
to be authentic and in the process be termed admissible in a court of law. The
authenticity of the electronic record can be proven by presenting secondary
evidence that supports the claim of the authenticity of the electronic record
in question. A distinct feature introduced in Section 65B is that any
information that is part of the electronic record is printed on paper or
stored, recorded, and copied in a digital form that can be produced by a computer
will be termed to be a computer output and this computer output will be termed
to be as a document under the Indian Evidence Act.[2]
Section 65B provides for certain requirements that need to be fulfilled in
order for the electronic record to be termed as evidence admissible in the
court. Once the electronic record is termed as admissible there is no further
need to prove its authenticity at any point of time in the trial or suit.
REQUIREMENTS AS TO RELEVANCY OF COMPUTER OUTPUT {S. 65-B(2)}:
The conditions
which have to be satisfied so as to make a contracted output as primary
evidence are stated in sub-section (2) of Section 65B. They are as follows: -
1.
The computer output which contains the relevant
information must be produced by the same computer which has been regularly used
to store or process the same information.
2.
The storage or processing of information by the
computer must be undertaken by a person in a legal way and no unlawful activity
must be carried out pertaining to the storage or processing of such computer
output.
3.
The information should be the type of
information that is computed into the computer during the ordinary course of
the activities undertaken by the person in charge of doing the same.[3]
4.
The computer in which the data or information
is fed must be functioning properly while the date was being entered into it
for storage and processing.
5.
If the computer was not working properly then,
the period of non-operation must not be such that it would affect the accuracy
of the storage and processing of the electronic record in question.
6.
The electronic record must only contain the
information that was fed into the computer during the ordinary course of
operations.
If the
information was fed into several inter-linked computers or in several computers
one after the other, then all these computers will be treated as a single
computer during the judicial proceedings. [Section65B (3)[4]]
A
certificate of authentication should be presented to the court of law along
with the electronic record in question. The certificate should state the manner
in which the e-record is being produced, from which device it was obtained, and
whether it satisfies the requirements stated in Section 65B(2).[5]
ADMISSIBILITY OF AUDIO C.D. AS ELECTRONIC EVIDENCE
The
admissibility of Audio C.D. as electronic evidence was discussed in the case of
G. Shyamala Ranjini v. M.S. Tamizhnathan[6].
The case was pertaining to the dissolution of marriage where the husband
alleged that he was abused and threatened by his wife. The evidence for the
same was recorded on an Audio C.D. and the C.D. was termed as evidence by the
Court subject to the condition that the wife will be given an opportunity for
cross-examination whenever the C.D. is presented in the court as evidence.
ADMISSIBILITY OF VIDEO CONFERENCING AS ELECTRONIC EVIDENCE:
The
case of Amitabh Bagchi v. Ena Bagchi[7]
was a case for claim of pendente lite (while a suit is pending) maintenance,
video conferencing with the husband to record his statement was allowed since
the husband was living in America. The Court was of the view that there was no
law that barred the examination of a witness through video conferencing. The
husband’s statement was allowed to be admitted in the trial as an electronic
record.
ELECTRONIC EVIDENCE AND THE SUPREME COURT OF INDIA:
In the case of Som Prakash vs. State
Of Delhi[8],
the Supreme Court has rightly observed that “in our technological age
nothing more primitive can be conceived of than denying discoveries and nothing
cruder can retard forensic efficiency than swearing by traditional oral
evidence only thereby discouraging the liberal use of scientific aids to prove
guilt.” Also, the court reiterated its stance on the admissibility of
electronic records as evidence in the case of State vs. Mohd. Afzal and Ors[9]
held that electronic records generated through a computer will be termed to be
admissible in a court of law if the electronic record is proved to be genuine
in the manner prescribed under Section 65B of the Indian Evidence Act, 1872.
The Indian Evidence Act is very
stringent in allowing printed copies of electronic information to be accepted
as evidence in court. This is because printed copies of any evidence are
extremely vulnerable to being manipulated by somebody for their own benefit
during a trial. To prevent such manipulation of the evidence and the court
trial, electronic evidence is only allowed to be admitted in the court if it
strictly adheres to all the provisions of Section 65B. Any electronic record
without a certificate of its authenticity will not be admissible as electronic
evidence in any trial as specified by the Delhi High Court in the case of
Jagdeo Singh vs. The State and Ors[10]
since not having a certificate goes against the provisions specified in Section
65B.
CONCLUSION:
Indian judiciary has been very
specific in not giving any leniency to any electronic evidence that is
presented before the court without following the proper procedure as mandated
under the Indian Evidence Act, 1872. Anyone who intends to submit emails, SMS
or any other electronic record as evidence will have to strictly comply with
the provisions of the 1872 Act.
Right now, the Indian Evidence Act
either accepts or rejects the electronic evidence on the basis of whether the
evidence follows the pre-requisite requirements of Section 65B of the Indian
Evidence Act. Computer generated electronic records are treated in a more
critical manner as compared to documentary evidence. This scenario needs to be
shifted towards treating both on the same platform since electronic records
being presented as evidence has become the norm in today’s modern digitalized
world. With the recent advancements in technology, it has now become possible
for the courts to analyze and judge whether the evidence is credible or not
even if it deviates a bit from the pre-requisite requirements listed under
Section 65B of the 1872 Act. If the courts can have a more open approach
towards acceptance of electronic evidence, then surely it will be of great help
in deciding cases in a faster manner.
The admission of electronic evidence
along with its advantages can also be complex at the same time. It is and will
be upon the courts to see whether the evidence fulfills the three essential
legal requirements of authenticity, reliability, and integrity.[11]
[1] Indian Evidence Act, 1872, Section 65B, Acts of Parliament, 1872 (India).-
Admissibility of electronic records.
[2] Vivek
Dubey, Admissibility of Electronic Evidence: An Indian perspective, Volume 4,
Issue 2, FRCIJ, 2017
[3] P. Padmanabh v. Syndicate Bank
Ltd., A.I.R 2008 Kant 42, 2008 (1) KarLJ 153, bank attempted to recover money
withdrawn from Savings Bank A/c through ATM because the withdrawal was affected
at a time when there was not sufficient balance in the account of the customer,
bank admitted malfunctioning of ATM. The claim was on the basis of ledger
entries. The court did not accept the claim because ledger entries were not
independent of ATM entries.
[4] Indian Evidence Act, 1872, Section 65B(3), Acts of Parliament, 1872 (India).-
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 sub-section (2) was regularly performed by
computers, whether—
a) by a combination of
computers operating over that period; or
b) by different computers
operating in succession over that period; or
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.
[5] Indian Evidence Act, 1872,
Section 65B(4), Acts of Parliament, 1872 (India)
[6] G. Shyamala Ranjini v. M.S.
Tamizhnathan, A.I.R. 2008, C.R.P.(PD)No.2657 of 2007 and M.P.No.1 of 2007
[8] Som Prakash vs. State of Delhi,
A.I.R 1974 SC 989, 1974
[9] State vs.
Mohd. Afzal and Ors, 2003 VIIAD Delhi 1, 107 (2003) DLT 385, 2003 (71) DRJ 178,
2003 (3) JCC 1669
[10] Jagdeo Singh vs. The State and
Ors. MANU/DE/0376/2015
[11] Tejas Karia, Akhil Anand &
Bahaar Dhawan, The Supreme Court of India Re-Defines Admissibility of
Electronic Evidence in India, 12 DIGITAL EVIDENCE & ELEC. Signature L. REV.
33 (2015).