Article on "ADMISSIBLITY OF DIGITAL EVIDENCE" by Aditya Manral

NAME: Aditya Manral

COURSE: B.B.A.L.L.B.

SEMESTER: 5^th Semester

COLLEGE: Army Law College, Pune

 

 

ADMISSIBLITY OF DIGITAL EVIDENCE

Meaning of Digital Evidence:

According to Ashcroft (2001), digital evidence comprises of only information held in digital form with some probative value because a formal legal definition is elusive. The typical digital evidence sought in legal cases includes file system data, network traffic capture, network management logs, application logs, audit logs, and systems log (Sommer, 1998).For the purpose of legal proceedings, both at national and international levels, digital evidence is defined as the information stored or transmitted in a digital format that is used in a legal proceeding by a party (Casey, 2011).

Section that deals with Digital Evidence:

The sections pertaining to Digital Evidence are mentioned in the Chapter V of Documentary Evidence. There are two sections that deal with the issues of electronic evidence.

[S 65 A] Special Provisions as to evidence relating to electronic record-

“The contents of electronic records may be proved in accordance with the provisions of section 65B.”

Section 65B specifies the method of accreditation of the content of electronic records. Its main purpose is to sanctify proof through secondary evidence. In this case, the supporting evidence test will be applied to any computer output, and that output is treated is a document. The section says in sub-section (1) that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer and to be referred as computer output shall also be deemed as a document.

[S 65B] Admissibility of electronic records-

“Notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which directed evidence would be admissible.”

This section stipulates certain conditions that the relevant information and the relevant computers must meet. When these conditions are met, the electronic record will be acceptable in any procedure without further proof or production of the original as evidence of any content of the original or any facts specified therein.

Also, the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence, if the requirements under section 65B of the Evidence Act are not complied with.

Conditions as to relevancy of computer output:

Ø  The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer.

Ø  During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.

Ø  Throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in  which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its clients; and

Ø  The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course if the said activities.

When information has been processed or entered into a computer or interconnected computer or computer after computer or another computer, all computers used in this way will be regarded as one computer.

When a declaration must be submitted as proofof compliance with this section, a certificate will be attached. The certificate will identify the electronic record that contains the statement and describe its method of production, and provide detailed information on the equipment involved in producing the statement. The electronic record shows that the record is made by computer and shows that it meets the conditions of sub-section (2) of this article. The statement must be signed by the person responsible for the official position in the operation or management of the relevant event. The statement will be used as evidence of the matter stated in the certificate. It should be sufficient for this purpose that the statement is made to the best of knowledge and belief of the person making it.

With the increasing impact of technology on daily life, the generation of electronic evidence in a case has become a relevant content for determining the defendant’s guilt or the defendant’s responsibility. Electronic evidence stricto sensu are admitted as material evidence. Such evidence is of great help to the investigating agency and also to the prosecution.

Case laws regarding Digital Evidence:

·         In Sejal Basavraj Talloli Vs. State Of Gujarat (25.01.2018-GUJHC) the court held that, if primary evidence is available, then there is no question of producing any certificate under Section 65B of Evidence Act for the purpose of adducing the secondary evidence. For Section 65B sub-section (1), when the conditions of Section 65B are met, there is no need to produce original evidence. When the certificate is presented in accordance with Section 65B, computer output related to related information and computers may be accepted as secondary evidence. However, Section 65B does not stipulate that the content output by the computer will be regarded as the truthfulness of the statement. Section 65B deals with the admissibility of secondary evidence in “electronic evidence” cases, and not with the authenticity or the veracity of the contents. However, when submitting a certificate under Section 65B, the court may presume or form a preliminary opinion, which is rebuttable and may not be accepted. 

·         In Amitabh Bagchi vs. EnaBagchi (16.02.2004-CALHC) the supreme court interpreted that in the court physical presence of a person may not be required for the purpose of adducing evidence. The evidence includes video conferencing. Although the supreme court has dealt with criminal matters in rendering its judgment, the necessary explanation is that it applies to all cases, including criminal matters. Therefore, as far as the current situation is concerned, there can be no embargo. Video conferencing is a scientific and technological advance that enables people to see, hear, and speak to people far away with the same comfort and ease as if he were there. The only difference is that the person cannot be touched. Even so, a person will not be deprived of the right to testify in this way. 

·         In Anvar P.V vs. P.K. Basheer&Ors (civil appeal no. 4226 of 2012), the court held that Section 65B itself is a complete specification on the admissibility of electronic evidence and is not affected by other provisions of the Evidence Law. It also held that if the electronic record itself is used as primary evidence in accordance with Section 62 of Evidence act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.

·         In ShafhiMohammad vs. The state of Himachal Pradesh (30.01.2018-SC), the court held that the applicability of procedural requirement under Section 65B (4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possible secure. Thus, requirement of certificate is not always mandatory.

·         In R.M. Malkani v. State of Maharashtra, the court held that the recorded conversations can be used as evidence, as long as the conversation is related to the dispute; speech recognition and the veracity of the conversation are checked by eliminating the possibility of deleting the recorded version. Simultaneous recordings of related conversations are related facts and are acceptable in accordance with Section 7 of the IEA. Chapter 65 Digital Evidence must be produced without any human intervention. Electronic records should be treated as documents, as long as the computer that produced the records has been in normal use and the information entered into the computer is part of normal computer use, and the computer has always been used.

·         In State vs. Mohd. AfzalAndOrs, the court held that computer generated electronic records are evidence, and can be adopted in the trial if they are proved in the manner prescribed in Section 65B of the Evidence Act. In State and NavjyotSandhu, the court held that in this case, the mere failure to produce a certificate containing the detailed information of Section 65B (4) does not mean that even if the law allows it to provide secondary evidence. The certificate must be provided under the circumstances stipulated in relevant regulations, that is, Section 63 and Section 65.

·         SanjaysinhRamraoChavan vs. DattatrayGulabraoPhalke, in this case the offence of demanding bribe was sought to be proved by producing a tape recording conversation which the Supreme Court found to be inadmissible. In fact, the Directorate of Forensic Science Laboratories, State of Maharashtra had stated in its report that the conversation is not in audible connection and, hence, the same was not considered for spectrographic analysis. The learned counsel for the respondents submitted that the content of the conversation has been translated and confirmed by Pan Qi’s witnesses. The witnesses of Panch did not hear the conversation because they were not in the room. The Supreme Court held that since the tape recorder itself is not subject to analysis, there is no point in trusting the translated version because it has no source of authenticity. The processing of decoded evidence and follow-up products are important to ensure admissibility in court. It must establish the resulting statement reliably and convincingly, and must comply with the provisions mentioned in the Information Technology and Evidence Law.

Digital Evidences though hard to obtain and trace are the need of the era and reliance on them has been placed time and time again to prove facts in civil and criminal cases.

Personal point of view:

Recent leaks of Whatsapp chat information obtained during the investigation and its admissibility as evidence in criminal trials have brought the issue of electronic evidence to the forefront. These whatsapp chats logs were leaked into the public domain during the investigation phase, even before the trial began. Given these recent developments, the legal framework for electronic evidence deserves further review.

These recent leak of electronic evidence (in the form of Whatsapp chats) have highlighted the need to design protective measures to preserve and retain electronic records. In a recent order, the higher courts of Punjab and Haryana brought Arjun vs. Kailashto count and concluded that the Whatsapp chat will have no probative value until the certificate is produced under Section 65B (4). Although the creation of a certificate under Section 65B (4) may be necessary to ensure authenticity, other safeguards are also required to ensure that the privacy and confidentiality of the information contained in the electronic record is protected. At his trial, Judge Nariman referred to a report presented by a committee of five judges in November 2018, which established draft rules to handle the maintenance, retrieval, and authentication of electronic records. Although the scope of Section 65B is now clear, several steps still need to be taken to ensure the security, retention, and confidentiality of information obtained in the form of Electronic Evidence.

Serious issues have been raised in the digital world due to malpractices such as falsification of information and impersonation, in relation to authenticity of information relied upon as evidence. It raises the question of how to prove that one of the parties created and transmitted the electronic communication when anyone can insert the name of the party who is author of the publication. Perhaps it may be prudent for the court or government to set up a dedicated team of Digital Evidence experts to assist the court and specifically investigate the authenticity of Electronic Records. Facing challenges in the admissibility and appreciation of Electronic Evidence, India still has a long way to go to keep up with global development. Although the development is to reduce the burden of registrants, it cannot be said to be unlimited. Obviously, India has not yet devised a mechanism to ensure the authenticity of the contents of Electronic Records, which can be manipulated by any party when accessing the server or the space in which they are stored.

Electronic Evidence access and benefits can also be complicated. The court examines whether the evidence meets the three basic legal requirements of authenticity, reliability and integrity.