digital evidence- section 45A -How to utilise this section?
Advocate Vasundhara
(Querist) 12 July 2011
This query is : Resolved
INDIAN EVIDENCE ACT 1872 - Section 45A -
Opinion of Examiner of Electronic Evidence:
45A. Opinion of Examiner of Electronic Evidence.-When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.
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In a false criminal case in which my client is innocent, the prosecution has presented a audio conversation in a CD as primary evidence. The CD was collected by IO in 2004 and presented in court in 2005. The trial is in Evidence stage. In the chargesheet no experts had given any opinion on the CD contents. Even in chief examination no prosecution expert witness was produced.
Sir, Can I use this section 45A now? How to utilise it properly?
Guest
(Expert) 12 July 2011
file a petition a petition u/s 45 A of evidence act to give opinion as to authenticity of the CD and it's source.
The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities.
It is further provided that where in any proceedings, evidence of an electronic record is to be given , a certificate containing the particulars prescribed by 65B of the Act, and 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 would be sufficient evidence of the matters stated in the certificate.
The apex court in State v Navjot Sandhu (2005) 11 SCC 600 while examining the provisions of newly added s 65B, held that in a given case, it may be that the certificate containing the details in sub- s 4 of s 65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by the court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, ss 63 and 65 of the Indian Evidence Act 1872. Paragraph 150 of the judgment which is apposite, reads as under:
150. 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. 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 s 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 Indian Evidence Act 1872, namely, ss 63 and 65.
It is pertinent to note herein a recent development, that as per the IT Amendment Bill 2008 , s 79A empowers the Central Government to appoint any department, body or agency as examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. ‘Electronic form of evidence’ herein means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cellphones, digital fax machines.
Further as per Section 85 B of the Indian Evidence Act, there is a presumption as to authenticity of electronic records in case of secure electronic records ( i.e records digitally signed as per Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and presumption will not operate in case of documents which do not fall under the definition of secure electronic records. It is pertinent to
point out herein that with the passage of the Information Technology Amendment Act 2008, India would become technologically neutral due to adoption of electronic signatures as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures.
prabhakar singh
(Expert) 12 July 2011
what is striking in my mind that voice can be changed,hence voice in CD may not be yours is a defense available to you,and it was duty of the prosecution to go for expert but they have not gone to prove it that way then unless there is presumption of law in express terms that a voice in CD shall be presumed to be that of accused unless accuse proves otherwise,going for expert opinion may not prove good for the health of the accused.
it holds water till legal presumption is not there,in case there is one my opinion false throgh on its own.
i do not practice in criminal side is a caution,here.
if section85b Sub Section (1)reproduced below covers your case,then only Mr.Ganeshan is right and not me.
"In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the point of time to which the secure status relates."
Raj Kumar Makkad
(Expert) 12 July 2011
Sorry there is typing mistake.
Please read above written sentence as: I do agree with Ganesan.
Ravikant Soni
(Expert) 12 July 2011
If voice in the CD is not of your client and is fabricated then you should go for expert opinion to demolish inference in favor of prosecution,
Advocate Vasundhara
(Querist) 12 July 2011
@ Ravikant soni
Sir,
the voice is not my client's. I am 100% sure.
CD is already marked as exhibit in chief examination of IO. I did not object at that time.
Now the case stage is set for cross examination of IO. Should I file the petition now? under what section?
M/s. Y-not legal services
(Expert) 13 July 2011
As per evidence act audio tape can't be treated as a primary evidence madam. You can challenge it..
