"Electronic Evidence and its Admissibility in Indian Courts: A Legal Perspective"

Cracking the Code: A Legal Analysis of Admitting Electronic Evidence in Indian Courts

Electronic evidence in India, Admissibility of electronic evidence, Indian evidence act, Electronic records as evidence, Digital evidence in Indian courts, Cyber forensics in court, Electronic Evidence in legal proceedings, Electronic evidence authentication, Electronic evidence admissibility rules, Digital signature and electronic evidence

Introduction:

The advent of computers and digitalization is undoubtedly one of the most remarkable achievements of mankind. In today's digital age, many governments have embraced digitalization as a means of streamlining their administration. In line with this trend, the Indian government has launched the "Digital India" campaign to encourage the use of digital technologies in our daily lives, a move that is expected to catalyze the development of the country. With the rapid proliferation of digitalization across governance, commerce, and business activities, electronic media has emerged as a critical tool for documentation, processing, and communication. The significant benefits of electronic media have added immense value to human life. The Indian judiciary has recognized and acknowledged electronic records as evidence, provided they comply with the provisions set out in the Indian Evidence Act.

While electronic records undoubtedly offer unparalleled convenience, they also present unique problems and challenges when it comes to ensuring their proper authentication and accommodating the diverse viewpoints on the subject. With the rapid growth of the cyberspace, the threat of cybercrime has escalated, leading to significant concerns for investigating agencies and judiciaries, particularly with respect to the admissibility of electronic records. Given the higher likelihood of manipulation, electronic records can have a substantial impact on the outcome of civil, criminal, and other judicial proceedings during the trial phase. Therefore, it is crucial to have a clear understanding of electronic records, including their types, admissibility, evidentiary value, and role as evidence in legal proceedings.

Evidence

According to Section 3 of the Indian Evidence Act, 1872, evidence can be classified as either oral or documentary. Oral evidence comprises statements made by witnesses before a court of law, while documentary evidence refers to materials submitted for the court's inspection, including electronic records. Further examination reveals additional categories of evidence for use in legal proceedings.

However, Evidence could be divided as follows:

• Oral, or Documentary;

• Primary, or Secondary.

Primary and secondary evidence

Primary evidence refers to the original electronic record itself, while secondary evidence includes certified copies or counterparts of documents that a party is unable to produce in court, as well as computer-generated outputs of the electronic record's contents, and statements from experts or individuals who have personally seen the document.

The legal principle dictates that primary evidence takes precedence over secondary evidence if available, although it may be impractical to present primary evidence in court due to storage on hard disks, cloud, servers, and other electronic storage media.

The Supreme Court has therefore allowed for secondary evidence to be admitted, such as printouts on paper or magnetic or optical media produced by an electronic device.

However, secondary evidence is only admissible if it complies with the conditions set forth under Section 65B of the Indian Evidence Act.

Electronic records as evidence

Section 65 of the Indian Evidence Act outlines the admissibility of secondary evidence in certain cases, while Section 65B sets out the procedure for proving the contents of electronic records as stipulated under this section.

Section 65B of the Indian Evidence Act outlines the conditions for admitting electronic records as secondary evidence in court. According to this section, a printout of information from an electronic record on paper or a copy of the record on an optical or magnetic media can be considered as a secondary evidence document, provided it satisfies the requirements under Section 65B. The original source of the electronic record, such as the electronic device, can also be admitted without further proof in court proceedings.

Essentially elements of the electronic evidence as per the Indian Evidence Act are as follows:

1. Such produced information of electronic records should be produced by the person having legally authorized to have control over that electronic device.

2. That storage of information must take place during the day to day general course of the act of that person.

3. That stored information has been stored on that electronic device during the day to day general course of action of that person.

4. While storing or copying of that material information, the said electronic device must be in a functioning state, to avoid any possible negative impact on its operation or distort the accuracy & authenticity of its material contents.

5. Any kind of storage or copying or making counterpart of the information required for the production in the court of law as electronic evidence should be free from any kind of distortion or manual edit or manipulation, it must be the authentic and trustworthy information, which may get admitted as evidence in the court of law.

Different types of electronic records

Electronic records are defined by the Information Technology Act, 2008 and cover a wide range of data formats. These formats include DVD, CD, pen drives, telephonic recordings, hard drives, e-mails, pictures, video recordings, sound recordings, and others. Each format has unique conditions regarding its evidentiary value and admissibility in court proceedings.

Evidence in the form of as DVD, CD, Hard-Drive, chip, Memory Chip, Pen Drive:

The admissibility of electronic records can be as primary or secondary evidence, and their evidentiary value depends on the manner in which they are presented in court. If electronic records are produced in their original form, they hold more value in court. However, if a copy of the electronic record is submitted, certain conditions laid down in Section 65B of the Indian Evidence Act must be complied with, and a certificate must be obtained for its admissibility in court.

Audio and Video Recordings:

The electronic records are considered admissible if they are presented in their original form. For instance, the original audio or video recordings are a valid and trustworthy source of electronic evidence, whereas the copied version of these records on other similar or different devices must meet the conditions stated in Section 65B of the Indian Evidence Act and obtain a certificate for their acceptance in court.

Evidence generated through mobile phone in the form of media, calls and email:

Emails are recognized as a legitimate and reliable source of evidence. Typically, emails are presented to the court in the form of printouts accompanied by a certificate under Section 65B of the Indian Evidence Act.

In modern times, mobile phones have become a vital electronic device that provides a plethora of resources to aid the judicial and investigating systems in gathering valuable evidence, such as location tracking, video and picture capturing, and call recording. The electronic records generated through mobile phones, such as media and calls, are admissible as evidence if they are submitted in their original form, i.e., the mobile device itself, which contains the primary source of the data. However, if a copy of the records is submitted on a different device, it must comply with the conditions precedent under Section 65B of the Indian Evidence Act and obtain a certificate for its admissibility in court.

Leading case laws

Arjun Pandit Rao v. Kailash Kushanrao (July 2020)

In a recent ruling, the Apex court has emphasized the importance of complying with Section 65B of the Indian Evidence Act in order to admit electronic records as evidence. The certificate submitted under this provision should include details of the electronic record and the identity of the person responsible for managing and operating the relevant device, along with an authorized signature.

Anvar P.V. v. P.K. Basheer And Others (2014)

The Supreme Court has delivered a significant verdict in this matter, which has resolved the conflicting decisions of various high courts regarding the admissibility of electronic records as evidence in court.

In a recent ruling, the Supreme Court made it clear that secondary data in CD/DVD/Pen Drive can only be admissible as evidence if accompanied by a certificate under Section 65B(4) of the Indian Evidence Act. Oral evidence alone cannot establish the authenticity of electronic evidence, and a certificate under Section 65B is necessary to prove its validity. The Court also emphasized that the opinion of an expert under Section 45A of the Indian Evidence Act cannot be used as a loophole to bypass the requirements set forth in Section 65B.

One can prove electronic evidence as primary or secondary evidence only by producing the original or its copy or counterpart attached with a certificate under section 65B of the Indian Evidence Act

Conclusion

The admissibility and evidentiary value of electronic records must be determined under the provisions of U/s 65B Evidence Act. The Supreme Court has issued various landmark judgments clarifying the procedures for admitting electronic records as evidence and their significance in civil, criminal, and other legal proceedings.

It is an established fact that any electronic evidence presented as secondary evidence must comply with the provision of Section 65B of the Indian Evidence Act to be admissible in a court of law. Without a certificate, such evidence is generally not admissible. While electronic devices can play a crucial role in investigations, the value of electronic evidence is dependent on its compliance with the provisions of the Indian Evidence Act.

References

1. Indian Evidence Act, 1872

2. Arjun Pandit Rao v. Kailash Kushanrao Civil Appeal No. 20825-20826 of 2017 – Judgment dated July 14, 2020

3. Anvar P.V. v. P.K. Basheer And Others (2014 10 SCC 473)