Are you working hard at:
- Recording each other’s phone conversation
- Saving screenshots of WhatsApp etc.wherein allegedly promises, secrets, threats etc. are communicated electronically.
- Taking Chat Back-up to ‘prove’ your point on a later date.
As Lawyers, we see this new but very common scenario nowadays with Lovers, Married couples, business deals and ‘sting ops’.
Also the news channels and media have been filled up with such ‘evidence’ of late!
You may believe this is ‘Great evidence’ but is it?
Let me enlighten you.
The era of Information technology has brought new methods and modes of the commission of the crime. Each time a crime is committed whether in physical form or in cyberspace, the success of prosecution largely depends on the quality of evidence presented at the trial.
With the sophistication of Information technology, the weapons of the commission of a crime are changing thereby posing a serious challenge before the investigation agencies to collect and preserve the evidence.
A conviction or acquittal largely depends on the quality of evidence produced by the prosecution.
The advent of information technology has brought into existence a new kind of document called the electronic record.
Electronic evidence and its Admissibility
The evidentiary value of an electronic record totally depends upon its quality.
The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence.
Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with the conventional form of documents.
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.
Law clarifies that documentary evidence can be in the form of electronic record
Electronically stored information was treated as a document in India before 2000, secondary evidence of these electronic ‘documents’ was adduced through printed reproductions or transcripts, and the authenticity was certified. The signatory would identify the signature in court and be open to cross-examination by meeting the conditions of both sections 63 and 65 of the Evidence Act. When the creation and storage of electronic information grew more complex, the law had to change more substantially. By the Information Technology Act, 2000 new definitions are given to the words “data”, “electronic record”, and “computer”.
- New Section 22A has been inserted into Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question.
- Section 59 of the Evidence Act is amended by the IT Act to exclude electronic records and inserted section 65A and section 65B, instead of submitting electronic records to the test of secondary evidence as contained in sections 63 and 65.
- Section 65A has given the right to prove the contents of electronic records in accordance with the provisions of section 65B. Section 65A of the Evidence Act is for electronic records just as section 61 does is for documentary evidence.
A procedure, distinct from the one for oral evidence is formulated, to ensure electronic records obeys the hearsay rule.
Section 65A is a special law that stands apart from the documentary evidence procedure in sections 63 and 65. Any probative information stored or transmitted in digital form is digital evidence or electronic evidence.
The case of State v. Navjot Sandhu (2005)
Popularly called the Parliament attack case, which led to the conviction of the Respondent under various provisions of the Indian Penal Code and the Prevention of Terrorism Act, 2002.
One of the pieces of evidence relied upon by the prosecution and subsequently forming the basis of conviction were the call records of the accused.
In appeal before the Supreme Court, the bench had the occasion to adjudicate on the admissibility of the call records as electronic evidence.
The Court held that printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can base it on his personal knowledge. This would make the call records admissible.
The Supreme Court went further on to state that irrespective of the compliance of the requirements of Section 65B of the Evidence Act which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 &65.
The Court held that merely because a certificate containing the details in sub-section (4) of Section 65B is not filed in the instant case, 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 & 65 identify the signatures of the certifying officer or otherwise speak to the facts.
THEN CAME THE GAME CHANGER JUDGMENT:
In this significant judgment, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences.
The Court has interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act.
It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to making such electronic evidence admissible.
The judgment would have serious implications in all the cases where the prosecution relies on the electronic data and particularly in the cases of anticorruption where the reliance is being placed on the audiovideo recordings which are being forwarded in the form of CD/DVD to the Court.
In the words of Hon’ble Supreme Court: “there is a revolution in the way that evidence is produced before the court”.
In all such cases, where the CD/DVD are being forwarded without a certificate U/s 65B Evidence Act, such CD/DVD are not admissible in evidence and further expert opinion as to their genuineness cannot be looked into by the Court as evident from the Supreme Court Judgment.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to a travesty of justice.
In the aforesaid Judgment, the Court has held that Section 65B of the Evidence Act being a ‘not obstante clause’ would override the general law on secondary evidence under Section 63 and 65 of the Evidence Act.
The Section 63 and Section 65 of the Evidence Act has no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act.
The Constitution Bench of the Supreme Court overruled the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[(2005) 11 SCC 600 by the two-judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the statement of the law on the admissibility of electronic evidence pertaining to the electronic record of this Court, does not lay down correct position and required to be overruled.
The only option to prove the electronic record/evidence is by producing the original electronic media as Primary Evidence court or its copy by way secondary evidence U/s 65A/65B of Evidence Act.
Thus, in the case of CD, DVD, Memory Card etc. containing secondary evidence, the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
Merely, using Auto call recorder apps, Whatsapp screenshots, SMSes , emails won’t take you anywhere in the court of law.
It is a very delicate piece of evidence—Fragile —Handle with care!!
PS- Images for representation purpose only