Electronic Evidence and its admissibility

PREAMBLE

We all must have heard story of ‘KAMDHENU’ which supply all worldly things as per the wish of its cow-heard which is found in ancient Hindu literature; Or story of that magic stick ‘Jadu ki chhadi’ or ‘Alladin ka chirag’which provide all requirements of its master. Just like ‘Kamdhenu’ or ‘Jadu kichhadi’ or ‘chirag’ electronic instruments work for us.

We are the generation living in the electronic world. Most of our pursuits have been accurately performed with the help of electronic technology. Information technology is now an essential segment of the modern world. The influence of electronic media has been spread over all branches of society including law and the judiciary.

We have evidence act for adducing evidence, its mode of proof and its admissibility. Court of law relied up on Oral as well as documentary evidence. Oral evidence is most often full of discrepancies and human error because every human being feels or observe with the help of the senses. Even documentary evidence also sometime contains errors. So It is a time requirement to seek help from electronic evidence in all fields of criminal justice delivery System i.e. inquiry or Investigation & Prosecution, therefore the legislation laid down Information Technology Act 2008. As well amended evidence Act, Indian penal code and The Bankers book evidence Act.

WHAT IS ELECTRONIC EVIDENCE?

Evidence Act fundamentally describes two type of evidence i.e.

1) Oral evidence and

2) Documentary evidence.

As per amended provision Sec 3(2) of evidence Act electronic evidence is documentary evidence.

“(2) All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.”

Further if we refer another provision it is contained in Section 2(t) of Information Technology Act 2000 electronic record means;

“(t) ‘electronic record’ means, “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

So, if we refer above mentioned definitions in the light of the provisions incorporated u/s65-A & 65-B of evidence Act; Electronic Evidence is one another type of documentary evidence which is if duly proved in the manner provided in sec 65-B, can be considered as strong evidence.

Before elaborate discussion of Electronic evidence it is required to be get a flash back up on the structure of evidence Act and also the principles of law for adducing, relying and considering evidence.

We have a three part in evidence Act Part-I is for “RELEVANCY OF FACT”, Part-II is of “ON PROOF” and Part-III is regarding “PRODUCTION AND EFFECT OF EVIDENCE”. All evidence passes through above three stages. To consider any matter or thing relevant it must be en suite in the frame of PART-I i.e. section 5 to 55. To appreciate evidence which is considered relevant there are provisions of part-II. To make electronic evidence relevant and to establish the mode of its proof there are certain provision at different stages in the evidence Act.   

There are detailed provisions included in evidence act in which definition and the procedure of introducing electronic evidence has been mentioned by legislation.  Those provisions are hereunder.

AMENDMENTS IN EVIDENCE ACT TO INTRODUCE ELECTONIC EVIDENCE

To consider RELEVANCY OF FACT of electronic evidence there is Section 22A, which is included in Act. That is similar to sec. 22 in which is embargo on producing oral evidence so as to consider the contents of document, similarly Sec.22A declares that “oral evidence as to the contents of electronic records are not relevant, unless the genuineness of electronic record produced as in the question.

Entries in books of account, including those maintained in electronic form, An entry in any public or other official book, register or by a public servant in the discharge of official duty in the performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept are the relevant facts as per Sec 34 and 35 of evidence Act.

OPINION OF EXAMINER OF ELECTRONIC EVIDENCE

As it is already laid down provision u/s45 regarding the relevancy of expert opinion referred to in Sec.79A of I.T Act, now we have Sec.45A to consider opinion given by an examiner of electronic evidence regarding any information transmitted or stored in any computer resource or any other electronic or digital form is also relevant fact.

As like other expert opinions, court may rely up on the opinion of an examiner who has given in the manner prescribed u/c79A of I.T.ACT.

Further, when the courtt has to form an opinion as to the electronic signature of any person, the opinion of the certifying Authority which has issued the electronic Signature Certificate is also relevant u/s 47A of evidence Act.

PROVISIONS FOR THE PROOF OF ELECTRONIC EVIDENCE

In the PART-2  “ON PROOF” of the evidence Actt following provisions has been included to cover electronic evidence.

65A. Special provisions as to evidence relating to electronic record

65B. Admissibility of electronic records

67A. Proof as to digital signature

73A. Proof as to verification of digital signature

81A. Presumption as to Gazettes in electronic forms

85A. Presumption as to electronic agreements

85B. Presumption as to electronic records and digital signatures 85C. Presumption as to Digital Signature Certificates

85C. Presumption as to Digital Signature Certificates

88A. Presumption as to electronic messages

90A. Presumption as to electronic records five years old

131. Production of documents or electronic records which another person, having possession, could refuse to produce

CLASSIFICATION OF ELECTRONIC EVIDENCE

As we observe above amendments  and basic structure of evidence Act, any substance on which matter has been expressed or described can be considered a document, provided that the purpose of such expression or description is to record the matter.  Electronic records have been defined in the Information Technology Act, 2000 as any data, record or data generated, any image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. An electronic record can be safely included under such a definition because matter is recorded on the computer as bits and bytes, which are the digital equivalent of figures or marks.

Computer records were widely considered to be hearsay statements since any information retrieved from a computer would consist of input provided by a human being. Thus, be it a word document containing statements written by one party, or an image of a missing person generated by the computer based on the inputs given to it, all such records will be hearsay.

An electronic document would either involve documents stored in a digital form, or a print out of the same. What is recorded digitally is a document, but cannot be perceived by a person not using the computer system into which that information was initially fed. Electronic documents were admitted as real evidence, that is, material evidence, but such evidence requires certification with respect to the reliability of the machine for admission.

Being both hearsay as well as secondary evidence, there was much hesitation regarding the admissibility of electronic records as evidence.

In India, the change in attitude came with the amendment to the Indian Evidence Act in 2000. Sections 65A and 65B were introduced in to the chapter relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. Section 65B provides that shall be considered documents, thereby making it primary evidence, if the computer which produced the record had been regularly in use, the information fed into the computer was part of the regular use of the computer and the computer had been operating properly.  It further provides that all computer output shall be considered as being produced by the computer itself, whether it was produced directly or indirectly, whether with human intervention or without.  This provision does away with the concept of computer evidence being hearsay.

Thus, with the amendments introduced into the statute, electronic evidence in India is no longer either secondary or hearsay evidence, but falls within the best evidence rule.

ELECTRONIC EVIDENCE IS PRIMARY AND BEST EVIDENCE IN INDIA

We have well established rule of evidence Act in which hearsay evidence is not considered in evidence. Even documentary evidence also been classified in primary and secondary evidence. Moreover U/s 65 of evidence Act legislation has laid down guideline for admission of secondary evidence. But after implementation of amendments regarding electronic evidence drastic change occurred in the application of evidence.

A.  Blurring the Difference between Primary and Secondary Evidence

By bringing all forms of computer evidence into the fold of primary evidence, the statute has effectually blurred the difference between primary and secondary forms of evidence. While the difference is still expected to apply with respect to other forms of documents, an exception has been created with respect to computers. This, however, is essential, given the complicated nature of computer evidence in terms of not being easily producible in tangible form. Thus, while it may make for a good argument to say that if the word document is the original then a print out of the same should be treated as secondary evidence, it should be considered that producing a word document in court without the aid of print outs or CDs is not just difficult, but quite impossible.

B.  Making Criminal Prosecution Easier

In light of the recent spate of terrorism in the world, involving terrorists using highly sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to produce electronic evidence as direct and primary evidence in court, as they prove the guilt of he accused much better than having to look for traditional forms of evidence to substitute the electronic records, which may not even exist. As we saw in the Ajmal Kasab case, terrorists these days plan all their activities either face-to-face, or through software. Being able to produce transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused.

Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers. 

C. Risk of Manipulation

While allowing all forms of computer output to be admissible as primary evidence, the statute has overlooked the risk of manipulation. Tampering with electronic evidence is not very difficult and miscreants may find it easy to change records which are to be submitted in court. However, technology itself has solutions for such problems. Computer forensic has developed enough to find ways of cross checking whether an electronic record has been tampered with, when and in what manner. 

D. Opening Potential Floodgates

Computers are the most widely used gadget today. A lot of other gadgets involve computer chips in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going strictly by the word of the law, any device involving a computer chip should be adducible in court as evidence. However, practical considerations as well as ethics have to be borne in mind before letting the ambit of these Sections flow that far. For instance, the Supreme Court has declared test results of narco-analysis to be inadmissible evidence since they violate Article 20(3) of the Constitution. It is submitted that every new form of computer technology that is sought to be used in the process of production of evidence should be subjected to such tests of Constitutionality and legality before permitting their usage.

CONCLUSION

It has thus been seen that with the increasing impact of technology in everyday life, the production of electronic evidence has become a necessity in most cases to establish the guilt of the accused or the liability of the defendant. The shift in the judicial mindset has occurred mostly in the past twenty years and most legal systems across the world have amended their laws to accommodate such change.

Further, when society is largely utilized computers and even investigation seeks help of gadgets which product of modern electronic technology prosecution is need to be armed with latest technological knowledge and basics of admissibility of electronic evidence as well.

In India, all electronic records are now considered to be documents, thus making them primary evidence. At the same time, a blanket rule against hearsay has been created in respect of computer output. These two changes in the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain precautions still being necessary. However, technology has itself provided answers to problems raised by it, and computer forensics ensure that manipulations in electronic evidence show up clearly in the record. Human beings now only need to ensure that electronic evidence being admitted is relevant to the fact in issue and is in accordance with the Constitution and other laws of the land.

BY

SHRI DHARMENDRASINH G. RANA

ASSISTANT PUBLIC PROSECUTOR

LEGAL DEPARTMENT

GOVERNEMENT OF GUJARAT