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EVIDENTIARY VALUE OF ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT,1872 BY: YUKTA BAJAJ
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EVIDENTIARY VALUE OF ELECTRONIC EVIDENCE UNDER INDIAN
EVIDENCE ACT,1872
AUTHORED BY:
YUKTA BAJAJ
Roll No.:
20191BBL0109
Year/
Semester: 5th Year/ 9th Semester
Institute:
School Of Law, Presidency University
Course
Instructor: Prof. Aprajita Verma
Course: Law
Of Evidence
ACKNOWLEDGEMENT
I would like to express my
sincere gratitude to my mentor Prof. Aprajita Verma for guiding me in making
this research paper on the topic evidentiary value of electronic evidence in
Indian Evidence Act and for providing me the knowledge during my research. It
has been a privilege for us to be her students and this project would not have
been practically possible without her indispensable support. We cherish the
motivation that she has brought in me to work harder and think more vividly.
Special mention of her patience with which she gave enough time to me every
time I approached her for guidance. It has been an enlightened experience under
her guidance and we take immense proud in being called students.
WITH
REGARDS
YUKTA BAJAJ
20191BBL0109
SEC2-
B.B.A. LL.B.
V YEAR (9TH
SEMESTER)
The
idea and definition of electronic evidence are addressed at the introduction of
this article. The evidence act's principles have also been clarified with
relation to changes made for electronic evidence. The admissibility of
electronic evidence has been discussed in relation to a number of judgements of
the Indian Supreme Court. Finally, the protections and protocol that the Indian
judiciary must use while handling electronic evidence.
The use of
technology tools like computers, smartphones, and other technologies is at the
heart of the digital world. There are many possibilities to perpetrate crimes
in the digital age. A significant fact or an in-question fact may be supported
or refuted using such information in electronic form. Evidence is described as "anything that tends to prove or deny the existence of an alleged
fact" in the Black's Law Dictionary. As a response, the Information
Technology Act, 2000 (often known as the IT Act), was enacted. Electronic
evidence is now admissible in both criminal and civil proceedings due to
amendments proposed to the Evidence Act. In an Indian court of law, only oral
evidence and documentary evidence are acceptable forms of proof. Event of
changes, electronic records are now included under the Evidence Act's
definition of "evidence." Electronic records are those that are
"data, record or data generated, image or sound stored, received or
transmitted in an electronic form or micro film or computer-generated micro fiche," according to the IT Act.
Electronic evidence can be any data that has been kept or transferred
electronically and has some value as evidence. So, after the certain amendment made section 65b and many other
provisions was inserted in the Indian Evidence ACT,1872 which tell about the admissible of electronic evidence in
courts. The requirements for the admissibility of electronic records, such as
eSignatures & digital documents, as evidence in legal proceedings are
outlined in Section 65B of the Evidence Act. State (NCT of Delhi) v.
Navjot Sandhu Alias Afsan Guru: - In this instance, the issue of
admissibility revolved around the printouts provided in support of the call
logs and the accuracy of the statement made by a non-expert describing the
computer's operational state. The phone records, which are a significant piece
of evidence because it was a high-profile case of terrorism, need to be
thoroughly examined. The defence attorney for the accused argued that the
standards of section 65B (4) of the IEA had not been met and that the witnesses
who attested to the computer's functionality could not be relied upon because
they lacked relevant expertise.[1]
EVOLUTION
OF ADMISSIBILITY OF ELECTRONIC RECORDS AS EVIDENCE IN INDIA
Only tape
recording and videography could be considered electronic records in the 1950s.
In the case State of Maharashtra v. Prakash Vishnurao (1979) Mane,
electronic records were accepted as proof in 1960. In this decision, the
Supreme Court established guidelines for the admissibility of electronic
records. The guidelines provide that the recording must be played in the
courtroom, the voice must be examined by a professional, and the person who
recorded the incident and the person whose voice was captured must be
separated. Prior to 2000, the courts did not generally accept the electronic
record as evidence. Although a certificate under Subsection 4 of Section 65B of
the Indian Evidence Act, 1872 was made optional by the Court in Archana
Rastogi v. Vivek Rastogi (2007), the Court began accepting electronic
evidence after 2000 in accordance with the procedure outlined in Section 65 of
the Indian Evidence Act. Nowadays,
practically all types of electronic records—including CCTV video, ATM receipts,
bank statements, e-forms, government orders, digital signatures, etc.—are accepted
as electronic proof. [2]
THE LEGAL SITUATION
PRIOR TO THE YEAR 2000
Before the year 2000, courts
would apply Sections 61 to 65 of the Act when determining whether electronic
records were admissible in court. Electronic records are unquestionably
documents, and they can have their contents verified using either primary or
secondary evidence. According to Section 62 of the Act, main evidence occurs
when the original document is presented to the court for review. An original
document must be produced in order to demonstrate its contents. The necessity
to provide secondary evidence arises if the original document is not available. In
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, a larger bench
of the Supreme Court has finally resolved this confusion (2020). where it was
decided that the process outlined in Sections 65A and 65B constitutes a code in
and of itself and supersedes any general principles pertaining to the
admissibility of electronic evidence. Therefore, in order to introduce
electronic evidence, the provisions of Rules 65A and 65B shall be observed. One
could wonder who is responsible for producing the certificate required by
Section 65B of the Indian Evidence Act of 1872. A competent and capable person
must issue a certificate under Section 65B. 16 It is made clear that the individual
delivering the certificate is doing so in their "official capacity"
by the language of Section 65B, which states that they must be "occupying
a responsible official position." Instead, then insisting on the person
who created the certificate when he was a member of the organization, if the
person providing the certificate has left the organization and someone else
possesses that "official capacity," that person can be forced to give
a deposition in court. Some of the amendments done in the Indian Evidence Act
which defines the admissibility of electronic in different manner and they are as follow:-
Section 65a of Indian Evidence Act defines: -Special
rules regarding electronic record evidence are contained in section 65A.
Electronic records' contents may be proven in compliance with section 65B's
rules.
Section 67A of the Indian Evidence Act. Proof of a
digital signature:- If a subscriber's electronic signature is claimed to
have been added to an electronic record, it must be proven that it is that
subscriber's electronic signature, with the exception of secure electronic
signatures.
Section 85A of the Indian Evidence Act provides the
following presumption regarding electronic
agreements: "The Court shall presume that every electronic record
purporting to be an agreement[3] and
containing the electronic signature of the parties was so concluded by affixing
the electronic signature of the parties[4]."
This is stated in Section 85B of the Indian Evidence Act. Except in the case of
a secure electronic record or a secure 15 electronic signature, nothing in this
section shall create any presumption relating to the authenticity and integrity
of the electronic record or any 1 electronic signature. The secure 15
electronic signature is attached by the subscriber with the intent of signing
or approving the electronic record.
Section 85C Presumption regarding Electronic Signature Certificates: If the certificate
was accepted by the subscriber, the court will presume, absent evidence to the
contrary, that the information listed in the certificate is accurate, with the
exception of any subscriber information that has not been verified.
Proof relating to the verification of a digital
signature under Section 73A of the Indian Evidence Act:-The Court may order one or more of the
following in order to determine whether a digital signature is authentic: (a)
that person, the Controller, or the Certifying Authority must produce the
Digital Signature Certificate; (b) any other person must use the public key
listed in the Digital Signature Certificate in order to verify the authenticity
of the digital signature that is purported to have been applied by that person.[5]
Indian Evidence Act Section 90A: Five-year
presumption regarding electronic records:- The court may assume that the
electronic signature that purports to be the electronic signature of any
specific person was so applied by him [6]or any
person he or she authorised in this behalf when any electronic record that
purports to be five years old is produced from any custody that the court in
the particular case considers proper.7
In Anvar
P.V vs. P.K.Basheer & Ors (2014), the Supreme Court overturned this
position by ruling that Sections 65A and 65B are codes in and of themselves,
and that the procedure outlined in those Sections should be followed in order
to introduce electronic evidence. In Shafhi Mohammad v. The State Of Himachal
Pradesh, (2018), the Supreme Court overturned this position once more
by ruling that Sections 65A and 65B's procedural requirements do not always
have to be met because they are simply procedural in nature.
In case of Arjun vs. Kailash the
Hon'ble Supreme Court observed that section 65B distinguishes between the
primary electronic record, or the device where the information was originally
saved, and the secondary copies that are made from that primary electronic
record in the Arjun v. Kailash case. In this instance, the Court has ruled that
when a secondary copy of a primary electronic record is produced in front of
the court, the requirement of a certificate under section 65B must be
satisfied. If an original electronic record is produced, the criteria for a
certificate under section 65B don't have to be fulfilled.
COMPARISON
OF LEGAL POSITION BETWEEN UNITED KINGDOM AND INDIA OF ELECTRONIC EVIDENCE
Famous
judges Justice Nariman and Justice V.
Ramasubramanian noted that section 65B of the Indian Evidence Act was a
duplication of section 5 of the U.K. Civil Evidence Act, 1968, with a few minor
alterations. In 1995, the provision 5 of this law was repealed. Thus, when
section 65B was added to the Evidence Act in 2000, the Indian judiciary
embraced a clause tht had already been eliminated in the United Kingdom.
Following a
recommendation from the Law Commission, section 5 of the U.K. Civil Evidence
Act was repealed. The Law Commission noted that the constant advancement of
computer technology is the framework under which section 5 is being considered
out of date and that there is no need for a separate area regarding
computer-generated documents. India shared the same perspective and took the
same action to solve issues more effectively.
The digital
evidence was previously labelled as hearsay because there were no scientific
testing to verify its veracity. However, with the widespread adoption of
technology in the modern era and crime driven by the use of technology, digital
evidence has become more common[7].
There have been more exceptions to the rule against using digital evidence or
electronically stored material in court in the United States as it has become
more prevalent.[8] In
order for some types of data to be considered acceptable, the US has
established two criteria: (a) Background evidence, and (b) Foreground evidence.
Information retrieved from network devices like routers, authentication records
like physical access systems, classification engines, etc., and audit
information like system, application, and security logs are all examples of
electronically or digitally stored information/evidence that have been created
as part of routine business operations and are used to establish facts and
conclusions during an investigation. As well as any electronic and digitally
stored information that has been created which result to object which support
the investigation to identify perpetrators.
Whereas in
India it should be highlighted that unlike oral or physical evidence, the
hearsay rule[9]
does not apply with the same rigour or clarity to documentary evidence in
India. This is so that the document can speak for itself because it is
established law that spoken evidence cannot establish a document's contents[10].
As a result, oral testimony regarding the veracity of a document cannot be
offered in its absence, nor can it be compared to the document's contents.
Although the document itself serves as the document's primary evidence, it was
recognised that there would be circumstances where primary evidence isn't
available.
CAN
INSTAGRAM CHAT BE COUNTED AS AN EVIDENCE?
In recent
years, courts have accepted social media posts as admissible evidence. The
courts must adhere to strict procedures when analyzing the authenticity and
reliability of various chats or massages and contents in various social media
platforms, chatting platforms, and electronic mails because electronic evidence
can be handled, edited, exploited, or influenced in some cases.
The court
can refuse to admit evidence items that are still available on chats and other
electronic media as evidence if there is any dispute about the trustworthiness
or authenticity of the evidence. Screenshots can be taken of the talks that
take place on online massage platforms and used to document them. The onus of
proving the veracity of these evidences rests with the party contesting it,
even if in this method these chats or dates are recorded as photographs that
can be readily altered or tampered with. The information from Instagram Chat
can now be submitted as evidence in court under section 65B of the Indian
Evidence Act. In a case, the court also received information from Instagram's
parent corporation. It demonstrates that they can be used in court in a certain
sense.[11]
In other
decisions, judges noted that if WhatsApp messages meet certain requirements
under Section 65B of the Evidence Act, they may be accepted as evidence. The
Hon'ble Supreme Court alluded to the WhatsApp messages that were presented as
evidence during the hearing of a petition appealing an injunction order in the
matter of Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and
Another.
In a recent
case involving Chirag Dipakbhai Sulekha v. the State of Gujarat , the court
issued a ruling that referred to WhatsApp messages as remarks on granting bail
that might be considered prima facie. Additionally, the Commercial Court of
Delhi has used WhatsApp communications to support a judgement in a case under
section 65B. There have recently been reports concerning using WhatsApp
messages in divorce proceedings.
In the
Rakesh Kumar case, the Punjab and Haryana High Court also noted
that WhatsApp conversations have no admissible evidence until they are provided
with a certificate in accordance with section 65B of the Indian Evidence Act.
When deciding on a bail request for an NDPS case, Justice Jayshree Thakur's
one-judge bench made such observation. When arguing against the application,
the NCB emphasized a few of the claimed WhatsApp conversations of the accused
and provided screenshots of those that were allegedly related to the
petitioner's possession of contraband.
To recap,
we can argue that the usefulness of electronic records as evidence is debatable
because they can occasionally be altered or fabricated, necessitating a very
thorough examination by the courts before relying on them. In actuality, the
WhatsApp talks should be saved for improved dependence on them in the future
together with certification and an expert's counsel to check their credibility.
CONDITION
The following requirements must be
satisfied before an electronic record is acceptable as evidence under Section
65B Evidence Act:
·
A certificate identifying the electronic record
containing the statement must be included with it.
·
The certification must explain how the electronic
record was created
·
The certificate must include information on the device
used to create that record
·
The certificate must show that the data or electronic
record offered as evidence was created by a computer or other electronic
device.
(That was
commonly utilized in the course of business to store or process such
information;)
·
at the moment that was relevant & was functioning
properly, the certificate must be signed by a person holding a position of
authority over the operation of the device,
·
If any information contained in an electronic record
that is printed in paper, stored, recorded, or copied in optical or magnetic
media, produced by a computer, shall be deemed as a document.
·
Such documents shall be admissible as evidence without
further proof or production of the original if the owner or person responsible
for the computer, who recorded the evidence gives a certificate under Section
65B(4) of Indian Evidence Act, 1872 stating
·
The working condition of the computer during the
recording of evidence.
·
It’s lawful use by the owner or operator.
·
A description of the regular use of computers.
·
If the information is fed into another computer in the
ordinary course of activity, a description about it.
SECTION 65B
(4)
In this case, it was held
that the condition precedent under section 65B (4)[12] is
procedural in nature, which need not be satisfied when the person who is
responsible to produce the certificate under section 65B (4)[13]
doesn't have access to the electronic device. This confusion which was created
by these judicial pronouncements on the scope and ambit of section 65B was
clarified in the case Arjun v Kailash. The Shahfi Mohammad Case
was likewise rejected by the Supreme Court in this instance. The Evidence Act,
the Civil Procedure Code, and the Criminal Procedure Code all contain
provisions that give the Court the authority to order the production of any
document during a trial[14].
Accordingly, it was determined in Arjun v. Kailash that if a person is unable
to get a certificate under section 65B (4), they may submit an application with
the judge asking for an order directing the production of the certificate. The
Court came to the conclusion that "the requirement imposed by Section 65B
(4) was mandatory, and not voluntary, and is a condition precedent before
secondary copies of an electronic record can be admitted." The
prerequisites listed in sections 65B (2) and 65B (4) must all be met.
CONCLUSION
Every
action result in the creation of an electronic record as society moves more and
more toward the virtual world, which is a larger version of the real world. The
most important piece of evidence in every crime today is now electronic
records. As a result, there should be no room for doubt regarding whether such
a piece of evidence is admissible. The original electronic record and the
computer output can be brought before the Court as evidence, according to a
position that has occasionally been defined by Indian courts.
[1] 65B. Admissibility of electronic records. —
(1)Notwithstanding
anything contained in this Act, any information contained in an electronic
record which is printed on a 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 sub-section (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) infomation 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.
[2] TOMASO BRUNO & ANR. V. STATE OF UTTAR PRADESH
The present
case dealt with the death of a foreigner who came along with other foreigners,
being charged for his murder but were acquitted as the CCTV footages being the
best evidence were not shown which could have easily proven the guilt of the
accused persons, instead of beating around the bush on the prosecution side
The judgment delivered in Tomaso Bruno case degraded
the position of law with respect to the admissibility of secondary electronic
evidence and this brings a direct conflict between this case and the Anvar P.V.
case
[3] Ins by Act 21 of 2000, s. 92, and the Second Schedule
(w.e.f. 17-10-2000).
[4] Subs by Act 10 of 2009, s. 52(e), for “digital
signature” (w.e.f. 27-10-2009).
[5] Ins by Act 21 of 2000, s. 92 and the second Schedule
(w.e.f. 17-10-2000).
[6] Ins. by Act 21 of 2000, s. 92 and the Second Schedule
(w.e.f. 17-10-2000). 7 Subs. by Act 10 of 2009, s. 52, for Digital
Signature (w.e.f. 27.10.2009).
[7] Article 20(3), Constitution of
India, 1950
[8] Paul Roberts, Adrian Zuckerman,
(2004). Criminal evidence. Oxford Univ. Press.
[9] Prashant Mali, Electronic Evidence/Digital
Evidence & Cyber law in India,
[10] May, Richard, and Steven Powles.
2007. Criminal evidence. London: Thomson/Sweet & Maxwell
[11] Largent v. Reed 24, the plaintiff claimed that a
recent accident had made her life rather complicated, despite the defendant
producing Facebook posts and images of the event that proved she had gone to
the gym and was in a good mood while going about her daily activities. She was
ordered to provide the court with her Facebook login information so that it can
conduct additional research on the issue.
[12] the Honorable Supreme Court has expressed opposing
opinions over how to read Section 65B. It was made clear what section 65B
included in the case of Arjun v. Kailash
[13] The Supreme Court's earlier decisions, Anvar P V v. P
K Basheer[hereinafter referred to as Anvar v. Basheer], Shahfi Mohammad v.
State of Himachal Pradesh [hereinafter referred to as Shahfi Mohammad Case],
and Tomaso Bruno v. State of Uttar Pradesh [hereinafter referred to as Tomaso
Bruno Case] [hereinafter referred to as Tomaso Bruno Case.
[14] The Hon'ble Supreme Court in the Tomaso Bruno Case
didn't refer to the earlier judgment of Anvar v
Basheer and held that "section 65B was not a
complete code". The view taken by the Supreme Court in the Shahfi Mohammad
Case created more confusion on the issue whether the requirement of a
certificate under 65B (4) is mandatory or not.
Article Information
EVIDENTIARY VALUE OF ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT,1872 BY: YUKTA BAJAJ
Authors: YUKTA BAJAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/23
- Issue 7
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