One of the most important and transformative inventions of mankind has been the advent of computers and associated digitalization. Digitalization’s huge expansion has elevated it to the role of a crucial pillar in our day-to-day lives. The use of digital devices is no longer limited to established organizations or institutions but is now available to almost everybody with just a swipe of a finger. Life has become easier and more efficient as a result of it. The Indian government also supports various schemes like ‘Digital India’, ‘Jan Dhan Yojana’, ‘PMGDISHA’, ‘Online Banking’, etc. that promote the use of digitization in everyday life, which undoubtedly will assist in accelerating the country’s development.
However, as the digital world has gained popularity, there has been a significant surge in its misuse. Given how easily e-documents may be tampered with, their authenticity has long been questioned. The admissibility of such electronically stored information is becoming increasingly problematic for law enforcement agencies. This rising reliance on electronic means, both in civil and criminal issues, has necessitated the transformation of information technology rules and regulations governing the admissibility of electronic evidence in India.
Definition of Evidence
In simple terms, evidence is any type of proof offered with the intent of creating belief in the mind. The Indian Evidence Act, 1872, contains a statutory definition of the term Evidence in Section 3. The term “evidence” is defined in Section 3 to imply and include-
- all statements that witnesses are permitted or required to make before the Court in connection to questions of fact under investigation are referred to Oral evidence.
- any documents, including electronic data, produced for the Court’s scrutiny are referred to as documentary evidence.
Furthermore, evidence can be categorized as follows.
- Oral, or Documentary
- Primary, or Secondary
The documents themselves produced for the Court’s inspection are referred to as primary evidence. According to Section 62, primary evidence is the strongest kind of evidence. Such evidence is an original document that must be presented to the court for examination and is permissible without prior notice.
Evidence that has been copied from an original document or substituted for an original item is referred to as secondary evidence. Secondary evidence is only admissible if it meets the prerequisites stated in Section 65B of the Indian Evidence Act.
What is an Electronic Record:
It was the Information Technology Act of 2000 (“IT Act”), as well as associated amendments to the Evidence Act of 1872 (”Evidence Act”) and the Indian Penal Code, 1860, that established the notion of electronic evidence. The IT Act’s section 2(1)(t) defines, “electronic record” as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
While the legality and usage of electronic records in place of traditional paper-based records is expressly recognized in Section 4 of the IT Act.
Section 65 of the Indian Evidence Act, 1872
In Section 65, the conditions under which secondary evidence may be given without filing primary evidence are outlined. However, without exhausting Section 65, the party cannot seek the Court’s approval to introduce secondary evidence.
The Indian Evidence (Amendment) Act, 2000 added Section 65A and Section 65B to the Indian Evidence Act, 1872. Sections 65A and 65B’s major aim is to explain the admissibility of electronic records as evidence. The content of electronic records can be proven under Section 65A using the approach outlined in Section 65B.
Section 65A of the Indian Evidence Act, 1872
It lays down special provisions as to evidence relating to electronic records. –– The contents of electronic records may be proved in accordance with the provisions of section 65B
Section 65B of the Indian Evidence Act, 1872
The electronic equipment and the circumstances in which the evidence is recorded are discussed in Section 65B. It also discusses the state of electronic equipment when evidence is being recorded. The computer output is defined in Section 65B, sub-section 1. When this section is read in conjunction with Section 2 of the Information Technology Act of 2000, it can be assumed that any electronic device with the ability to store, process, or communicate information, such as a computer, mobile phone, tape recorder, or video recorder, is an electronic device. The term “computer output” is widely used to describe these devices.
To summarize, the method outlined in Sections 65A and 65B of the Indian Evidence Act, 1872 should be followed when presenting electronic evidence. The owner of the device or the lawful operator of the device must sign a certificate for the electronic evidence to be admissible. Furthermore, to present secondary evidence, the party must have a legitimate reason for doing so and must first attempt to provide primary evidence before filing secondary evidence. Furthermore, after exhausting the choices outlined in Section 65 of the Indian Evidence Act, the party should state the basis for filing secondary evidence. The Court has the power to admit the same as secondary evidence.
The admissibility of electronic documents as evidence has evolved through time.
The electronic record was limited to tap recording and videography in the 1950s. In the case of State of Maharashtra v. Prakash Vishnurao Mane, the remaining electronic record was admitted as evidence in 1960. In this decision, the Supreme Court established guidelines for the admissibility of electronic records. The guidelines specify that the record be played in court, that the voice be analyzed with expert opinion, and that the person who recorded the occurrence and the person whose voice has been recorded be examined.
Electronic evidence was admissible as primary or secondary evidence under Sections 61 to 65 of the Indian Evidence Act, 1872, prior to 2000. If the original document was presented, it was considered primary evidence. In other circumstances, the electronic evidence must be introduced through the Section 65 approach.
However, in Archana Rastogi v. Vivek Rastogi (2007), the Court accepted electronic evidence as per Section 65 of the Indian Evidence Act and made a certificate under sub-section 4 of Section 65B of the Indian Evidence Act, 1872 as optional.
For the first time in the ruling on Anvar PV, the Supreme Court has determined that documentary evidence in the form of an electronic record can be proven only under the provisions of Section 65B of the Evidence Act. This is where the significance of section 65B of the Evidence Act was fully recognized and appreciated by the Supreme Court.
Almost all types of electronic records, including CCTV videos, bank statements, ATM receipts, e-forms, digital signatures, government orders, and so on, are now accepted as electronic evidence.
Case Law:
RAVINDER SINGH @ KAKU Versus STATE OF PUNJAB (SC 461MAY 4, 2022) (UDAY UMESH LALIT; VINEET SARAN, JJ. SUPREME COURT OF INDIA)
CRIMINAL APPEAL NO.1307 OF 2019 [ARISING OUT OF SPECIAL LEAVE PETITION [CRL] NO.9431 OF 2011] WITH CRIMINAL APPEAL NOs. 1308•1311 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION [CRL] NOs.9631•9634 OF 2012)
Indian Evidence Act, 1872; Section 65B(4) – Certificate under Section 65B(4) is a mandatory requirement for production of electronic evidence – Oral evidence in the place of such certificate cannot possibly suffice.
Criminal Trial – Circumstantial Evidence – Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Oral evidence in the place of such a certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
Who is an “Expert”?
In order to withstand trial in a court of law, the evidence needs to be examined and validated by an expert. An expert is defined under section 45 of The Indian Evidence Act, 1872. The court needs an expert to form an opinion upon:
- Foreign Law
- Science & Art
- Identity of Handwriting
- Identity of Finger Impression
- Electronic Evidence
An expert is a person who is skilled and has special knowledge and experience. Such specialized knowledge must be acquired by practice and observation.
In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., the court stated that the first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layman. People who can be termed as an expert are explained in detail below.
The data given by the expert is relevant and admissible.
Opinion of Examiner of Electronic Evidence (Section 45A)
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.
For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.
Examiner of Electronic Evidence:
The Examiner of Electronic Evidence is governed by Section 79A of the Information Technology Act of 2000. The legislators considered that there was a need for a specialised department, entity, or agency of the Central Government to provide expert opinion on electronic forms of evidence, thus they included a clause emphasizing the position of Examiner of Electronic Evidence.
[79A. Central Government to notify the Examiner of Electronic Evidence. –The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.
For the purposes of this section, “electronic form evidence” means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.]
Notification of Forensic Labs as ‘Examiner of Electronic Evidence ‘under Section 79A of the Information Technology Act 2000 is duly listed on the link.
Conclusion:
The internet and the digital revolution have revolutionized the lives of mankind. Now, almost every piece of information is just a click away. To connect, all you need is an internet connection and a digital device such as a smartphone or PC. It has not only added comfort to our lives but has also made things way more accessible, which otherwise were tedious and time-consuming. You no longer even need to type. IoT devices like Siri and Alexa simply work with voice commands. But all this comes at a price, though. Sometimes, the user inadvertently becomes a victim of a digital crime, while many times the user intentionally uses digital means to commit e-crime. Not every time a digital device is used to commit a crime. There are instances wherein the devices are used to record a certain occurrence or the information stored therein comes in handy in solving a certain case. How to use this electronically stored information in the delivery of justice becomes a vital question here. For understanding this binary code, court-accepted digital forensic solutions, duly following the procedures as laid out in the respective laws, are used by the experts who are considered as witnesses, although they are not actually related to the case. The court requires these experts to give an opinion regarding the case to help the court have a wider perspective to give justice. The rationale behind this is that it is not practical to expect the judges to have adequate knowledge of technology. The statutes regarding the experts’ opinion are discussed in The Indian Evidence Act, 1872 and Electronic Evidence is comprehensively covered under the Information Technology Act, 2000. All these combined together form the basis of admissibility of evidence in the hon’ble court, leading to the delivery of justice.
