Admissibility of Electronic Evidence in Courts

Introduction

Electronic and information technologies have been making unprecedented inroads into the way we live in and the way we carry out our transactions in every sphere. This phenomenon in turn makes revolutionary changes in the way evidence is brought before and considered by the court.

The Indian Evidence Act, 1872 crafted for a quite different technological age remains inadequate in dealing with the emerging scenario. However the courts are making every effort in interpreting the inadequate legal provisions in a purposeful manner so as to employ technological advancements in making investigation and prosecution of cases effectve.

What electronic evidence means

Electronic evidence can be defined as any sort of information with probative (tending to prove the truth) value which is included in or transmitted by an electronic medium. It may include both data stored in a computer system and Information transmitted electronically through telecommunication networks.

Electronic evidence includes information stored in storage devices such as computers, CDs, DVDs, floppy disks, hard drives, thumb drives, digital cameras, memory sticks and memory/SIM cards, cell phones, fax machines, answering machines, cordless phones, pagers, scanners, printers and copiers, CCTVs etc in the form of audio, video or textual forms.

Proving contents of electronic records

The Section 59 of the Indian Evidence Act, 1872 implies that the contents of electronic records cannot be proved by oral evidence but the Section 22A states that oral admission can be relied on when the genuineness of the electronic record is in question.

The contents of electronic records, as per Section 65A of the Indian Evidence Act, may be proved in accordance with the procedure prescribed under Section 65B.  Therefore any documentary evidence printed or copied from an electronic record, which is in the nature of secondary evidence, may be proved under the evidence act only in accordance with the procedure prescribed under Section 65B.

The purpose of these provisions is to sanctify the secondary evidence in electronic or print form, generated from a computer. So an electronic record printed on a paper or stored, recorded or copied in optical or magnetic media ( such as CD, DVD etc) produced by a computer should satisfy the conditions described under 65B to make it admissible as evidence in a judicial proceeding.

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 shall be deemed to be a document, if it satisfies the conditions mentioned under sub- Section 65 B (2), without any further proof or production of the original. In other words it means the admissibility of contents of electronic record either in the form of a printed paper output, or stored/recorded/copied in optical or magnetic media, to be used as evidence must satisfy the four conditions, stated under Section 65B (2) of the Indian Evidence Act.

The four conditions so stipulated in the section are as follows: the computer which produced the output must have been in regular use at the time of the creation of the electronic record, the electronic record must have been regularly and ordinarily fed in to the computer, the computer used for making the computer output was operating properly, and the duplicate copy must be an exact reproduction of the original electronic record.

Include a certificate to ensure the conditions

In order to ensure the conditions set out as above, the printed or computer output must be accompanied by a certificate of authenticity signed by a person occupying a responsible official position in charge of the electronic record.

In the certificate the person in-charge should identify the electronic record containing the statement by describing its characteristics, describe the manner in which it was produced, and give particulars of the device involved in the production of the electronic record. The person in-charge should swear in the certificate that what is stated in it is true to the best of his knowledge and belief.

Such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), Pen Drive, etc., when such an output is produced in evidence. Such safeguards should sanctify the source and authenticity of electronic record used as evidence in a proceeding.

Navjot Sandhu case lays incorrect law

In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, a two-Judge Bench of the Supreme Court considered the issue of production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cell phones, it was held at paragraph-150 of the judgment as follows:

“According to Section 63, secondary evidence means and includes, among other things, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.  Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at paragraph 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub- section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”

In the judgment, the court held that in regard to call records of the cellular phones stored in large servers functioning properly without any misuse, there is no bar in adducing secondary evidence under the Sections 63 & 65 of the Indian Evidence Act, without complying with the requirements of Section 65B (4) in regard to the certificate of authenticity.

However, later in 2015 the Supreme Court in Anvar P. V v P K Basheer & Ors case declared that the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated in Navjot Sandhu case does not lay down the correct legal position and the certificate is an essential accompaniment.

P V Anvar case lays down correct law

In Anvar P. V v P K Basheer & Ors [(2015) 11 SCC 600] a three member bench of the Supreme Court, departing from the ruling in Navjot Sandhu case (2005), observed that any electronic record can be proved only in accordance with the procedure prescribed under Section 65B, in view of the existence of Sections 59 and 65A.

In Navjot Sandhu case, the court failed to take note of the Sections 59 and 65A dealing with the admissibility of electronic record. The Sections 63 and 65 have no application in the case of secondary evidence in the form of electronic record which is wholly governed by Sections 65A and 65B.

The secondary evidence derived from an electronic record, generated as computer output is valid and admissible as evidence in a judicial proceeding only if it satisfies the conditions mentioned under 65B of the Evidence Act.

However, if an electronic record as such is produced before the court as primary evidence under Section 62 of the Evidence Act, it is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act, the court held. On the other hand the certificate of authenticity is needed only when any printed copy or computer output of the contents of electronic evidence is produced as secondary evidence.

Shafhi Mohammed v State of Himachal Pradesh

The two member bench of the Supreme Court in Shafhi Mohammed v State of Himachal Pradesh (2018) case held that the applicability of procedural requirement under Section 65B (4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate when he in control of the said device, but not when he is not in control of it.

This judgment relied on Supreme Court judgments delivered by three member benches in Tomaso Bruno case [(2015) 7 SCC 178] and Ram Singh case [1985 (Supp) SCC 611]. Both judgments stressed the use of technological advancements increasingly in investigation or prosecution and the need to focus more on substantive issues of evidence than on its procedural formalities.

During the hearing of the case the bench pointed out that when a person wants to take recourse of alibi in a criminal trial with the help of computer printed boarding pass of a flight with no signature, whether the court can refuse to rely on that document for want of such certificate of authenticity.

Similarly, the court asked when a person relies on a computer-generated receipt or a bill of a departmental store, which is quite commonly given nowadays at every shop, whether the court can ask him to go and get the certificate of authenticity from the store.

The bench categorically declared that the court cannot afford to deny acceptance of such documents for want of certificate under Section 65B of the evidence act.

In the judgment the court held that in a case the computer output of electronic evidence is produced by a party who is not in possession of the device, the strict stipulations under Sections 63 and 65 of the Evidence Act in regard to secondary evidence cannot be made applicable to him and he cannot be mandated to produce the certificate of authenticity. Otherwise, it will lead to denial of justice to the person who cannot produce such a certificate as he is not in possession of the device carrying the original electronic record.

Therefore the court held that a party who is not in possession of the device from which the computer output is produced such party cannot be required to produce certificate under section 65 B. The applicability of requirement of certificate being produced can be relaxed by court where interest of justice so justifies.

The court is of the view that admissibility of any electronic evidence cannot be ruled out on grounds of technicality if it is relevant. Electronic evidence has become increasingly useful in establishing facts in investigation of crimes. So no exhaustive rule could be laid down.

Shafhi Mohammed case referred for reconsideration

On 26th July, 2019 a two member bench of the Supreme Court in Arun Pandit Rao Khotkar v Kailash Khusan Rao, ordered that the judgment in the Shafhi Mohammad case is per incuriam and referred it for reconsideration in the light of Anvar PV case delivered by a three member bench of the Supreme Court itself.

A summary of provisions on electronic records in Indian Evidence Act

The provisions relating to “electronic records‟ under Indian Evidence Act are Sections 17, 22A, 34,35, 39, 45A, 47A, 59, 65A, 65B, 67A, 73A, 81A, 85A, 85B, 85C, 88A, 90A and 131.  

The Section 17 of the act amended the definition of admission which now includes a statement in oral, documentary and electronic forms.  The Section 22A provides for the relevancy of oral evidence relating to the contents of electronic records.  It states oral admission as to contents of the electronic record is not relevant normally. But oral admission is relevant and admissible when the issue is relating to the genuineness of the electronic record. 

The Section 34 states that an entry in an electronic book of account is relevant in a court proceeding. Similarly the Section 35 states that an entry in a public record is relevant. The Section 39 states that when any statement is part of an electronic record the evidence of the electronic record must be given as the court considers it necessary in that particular case so to understand fully the nature and effect of the statement and the circumstances under which it was made.

The Section 45A says the expert opinion of an Examiner of Electronic Evidence is relevant when the court has to form an opinion on electronically transmitted information. The Section 47A says the opinion of a certifying authority who issued Digital Signature Certificate is relevant to the court. The Section 59 says oral evidence is not good enough to prove the contents of electronic record as well, except for the purpose specified in Section 22A. The Sections 65A & 65B of the act set out the rules relating to admissibility of electronic records as evidence and are the most important provisions relating to electronic records.

The Section 67A states that if the electronic signature is not a secure one it needs to be proved that the signature is that of the subscriber. The Section 73A states that the court can ask the concerned party to produce Digital Signature Certificate so as to verify the digital signature. 

The Section 81A of the act stipulates a presumption as to genuineness of every electronic record purporting to be the Official Gazette. The Section 85A creates a presumption that every electronic record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties. The Section 85B also creates a presumption of authenticity of secured digital signatures unless proven otherwise. The Section 85C provides a presumption of authenticity of information listed in an Electronic Signature Certificate unless proven otherwise.

The Section 88A also creates a presumption as to the contents of electronic messages, but not the originator of the electronic messages. The Section 90A of the act creates a presumption as to the authenticity of signature in a five year’s old electronic record, which is produced from a proper custody. The Section 131 says no one should be compelled to produce an electronic document in his possession, if any other person would be entitled to refuse its production if it were in his possession.

Conclusion

Electronic evidence has become a key dependable source in any court proceeding. But the court has to proceed with great caution as tampering with electronic evidence is not very difficult. Miscreants can easily make endless manipulations in the electronic record to be presented before the court. However, computer forensics has developed enough mechanisms to cross check whether an electronic record has been tampered with, when and in what manner.

With the increasing impact of technology in everyday life, it has become a necessity to produce electronic evidence in many cases to establish the guilt of the accused or liability of the parties.

Therefore the evidence act should be properly amended to deal with such emerging issues in authenticity and presentation of electronic evidence. The court should tread the difficult terrain with great care and caution but without creating unending confusion.  

SC Judgments for reference

1. Ram Singh and Others v Col. Ram Singh: 1985 (Supp) SCC 611
2. State (NCT of Delhi) v Navjot Sandhu : AIR 2005 SC 3820
3. Anvar P V v P K Basheer & Others: (2014) 10 SCC 473
4. Tomaso Bruno & Anr v State Of U.P: (2015) 7 SCC 178
5. Shafhi Mohammed v State of Himachal Pradesh: 2018 (2) KHC 80

NB: The author of this article, now with Thrissur Bar, can also be reached at rajnakila@gmail.com