ABSTRACT
As has been said by Sir Taylor, the path of proving an argument as true or false is done with the help of the law of evidence. It plays an important role in any case as it decides what should be believed and what not. Evidence assert the facts which are said in the court and that’s why there was an urgent need for the admissibility of electronic evidence in the Indian law with the change in the advancement of technology and the increase in the use of electronic devices the proof was based on these electronic pieces of evidence only.
KEYWORD
Evidence, Technology, Devices, Admissability
INTRODUCTION
The Indian Evidence Act, of 1872 was not on par with modern technology development. The present act did not have any provisions related to electronic evidence, there was an urgent need for the inclusivity and recognition of these evidence in the Indian law. To resolve this problem, there as an amendment was inserted into Information Technology Act which also included some provisions to the Indian Evidence Act which were related to the electronic evidence. Section 92 of the Information Technology Act has resulted in changes to the Indian Evidence. The change involves the inclusion of the phrase “electronic record” in the definition of evidence, allowing electronic evidence to be admissible. The phrase “contents of documents” has been changed in Section 59, which refers to “documentary evidence,” to “contents of documents or electronic records.” Additionally, modifications to Sections 65A and 65B were added to allow for the entry of electronic evidence. The scope of Electronic evidence has become so frequent and widespread that it has become an essential component of every inquiry. It can be decisive in court if properly sourced and probed. Also, now almost all electronic evidence is so highly relied on, the data’s integrity, exactness, and trustworthiness must be preserved, and this has become the most difficult challenge in court.
RESEARCH METHODOLOGY
This research paper is doctrinal in nature and focused on electronic evidence. The research is based mostly on the secondary sources like websites, newspapers and journals. The paper is written using descriptive methods.
REVIEW OF LITERATURE
It has been long ago said by the philosopher Stephen, that the word “evidence” is very ambiguous in nature. It is true because it refers to proving a fact right but at the same time says that the arguments of the others are wrong. According to him, evidences are the words that have been said or things which are done by the witnesses in the court.
Wigmore has defined evidence as a knowable fact that is produced before the court of justice so that, it will have some impact either positive or negative, that will help the court while providing justice.
Taylor has also given a short and crisp definition of evidence, which is a way of proving any matter or disproving any facts which are later submitted to the judiciary so that they can decide the verdict of the case. According to him, evidence is required to state the validity of a particular argument which are being said in the court.
What is Evidence?
In layman’s language, evidence can be something which tells that something is true. “Evidence” word comes from the Latin phrase “Evidens Evidere”. It means “plain, obvious, or notorious evidence.” proof is regarded as one of the most significant components while deciding any case since it serves to show the legality of any charge or demand in court, which must be backed by some proof or be considered unfounded. There are two sources by which evidence can be formed in the mind of others. These are- the operation of the individual’s intellectual capabilities and the operation of the like ones.
“Personal evidence[1] is those types of evidence that are brought to the court by a way of human actions. It can either be through disclosure or voluntarily signs and are in the form of oral testimony of the witness.
What are Electronic Records?
Electronic records are defined as data, record or information generated, image or sound kept, received or transferred in an electronic form, or microfilm or computer developed micro fiche” in Section 2(t) of the IT Act.[2] Section 6 of the IT Act provides that electronic devices can be used as evidence in the court and that’s why they are admissible in a court of law. As a result, anytime a court decides on the merits of a dispute involving crimes committed using online platforms or contracts made online, the submission of acceptable evidence is required.
Electronic evidence has developed into a critical pillar of documentation, processing, and communication as a result of the quick growth of e-governance in the private and public sectors as well as e-commerce. Government agencies are becoming more open to introducing different policies that govern electronically, and regular filings to control and regulate the sectors are done so. In trials in courts, these many forms of digital and electronic evidence are put to use.
COMMON ELECTRONIC DEVICES THAT GENERATE DIGITAL EVIDENCE[3]
1. Digital / Video Cameras: They generate evidences like photos, videos, voice recordings and other related file which can be stored in the device itself or in any external media card.
2. Laptop/Computer: They can provide email, social media information’s, internet search history and other files kept in them.
2. Cell Phones: These are considered one of the main and most used electronic evidence used as they provide almost all type of evidence by text messages, call history, social media information, and other applications used.
Law enforcement agencies also generate digital evidence like using Automatic License Plate Readers which helps in taking pictures of vehicles and their number plate, getting geolocation and metadata of the vehicles
In cases like Umedbhai v. the State of Gujarat (1977) and Gade Lakshmi Mangraju v. the State of Andhra Pradesh (2001), when a chain of circumstantial evidence forms a cum prove the guilt of the accused beyond doubt, then circumstantial evidence is very much admissible in court.
What are Electronic Evidences ?
“Electronic evidence” are those types of evidences that are generated or produced using some kind of electronic process or technics. Some of the examples of electronic devices are: text messages, images, videos, voice recordings, CD-ROMs, pendrives etc.[4] In today’s virtual world, even if the crimes are committed in the real world, the evidence of that crime can be found in electronic devices. Example: if some people are planning to attempt a robbery on a bank then, the evidence of there offence can be seen through the CCTVs cameras and through the messages which they have sent online to each other. In most of the finance related crimes, the evidence are available on the online transactions . Electronic evidence, has specific qualities that provide distinct barriers to its acceptance. In a legal setting. To begin with, these electronic evidences are not visible to the human eye, thus it must be utilized in court with particular procedures and equipment. Second, such evidence is easily tampered with since it is fragile in nature. As a result, it fails to fulfill the basic standards of admission under evidence rules. Third, gathering, storing, and analyzing such evidence demands the employment of certain tools and technology. In other words, the testimony given by the experts in this field decides wheather the given electronic evidence to be allowed in a court or not.
FUNDAMENTAL PRINCIPLES OF ELECTRONIC EVIDENCES
The processing of electronic or digital evidence at the crime scene is one of the most crucial aspects of a criminal investigation which are related to offences committed using computers. This process often starts with the evidence being recognized, following which its identification and seizure process starts. The security of the evidences at the scene is also of utmost important. Once the evidences have been secured, then they were finally packed and transferred for further examination by the forensic team. The foundation of any case involving digital or electronic evidence lies in the principles mentioned below:
• Principle 1-Law enforcement organisations must use extreme caution when gathering evidence from any electronic device, ensuring that the material contained therein remains unaltered so that the court can rely on it.
• Principle 2-If the storage media or other original data is urgently needed, the individual accessing it must be having the required qualifications to do so and explain the relevant evidence and its implications.
Principle 3 – The process of investigations and the steps followed should be preserved and the way of doing this process should be encrypted by a third-party and should also come to the same conclusion.
• Principle 4- It is the overall responsibility of the investigating officer to make sure that the rules of evidence and these principles are followed and the same applies in the case of electronic evidence. The investigating officer must make sure that the above mentioned guidelines are followed. Also, while presenting evidence in the court of law, it is important to show how the given evidence was obtained and what other further process was done regarding that electronic evidence.
WHAT WAS THE NEED FOR INTRODUCING ELECTRONIC EVIDENCE ?
As we live in the world where people use electronic devices to transfer or communicate their thoughts and views in the physical world. The virtual world uses digital information’s and communicating devices such as computers, printers, mobile phone, digital cameras and other such devices to interact. The virtual world does not have an offence which happens in the real world. But in addition to that, they have other offences also such as phishing, child pornography, ,identity theft, hacking etc. To investigate these types of devices, there is the requirement of using electronic evidences which plays an important role in solving these offences. Most of the time lawyers present data in court in can be in any form like DNA samples, testimony given by witness, blood samples, fingerprint etc. But electronic evidence like different types of data needs to be secured and to be preserved with massive amount. Nobody tries to go around and try for collecting DNA samples, or keeping meticulous records in case a crime occurs in the future. Our electronic gadgets, on the other hand, record everything that we do, how we behave , what we say, and it is because of this level of monitoring that our data has got so much of value that it needs to be protected. It ought to come as no surprise that this data is being collected. This abundance of personal information is commonly recognized to be collected and stored.
RELEVANT SECTIONS IN INDIAN EVIDENCE ACT
Section 65A of the Evidence Act requires that the contents of electronic records be established as evidence. The Indian Evidence (Amendment) Act, 2000 inserted Sections 65A and 65B into the Evidence Act, and they are part of Chapter V, which covers documentary evidence.
It was clarified in Anvar v. Basheer[5] that because Section 65B has a non-obstante phrase, it creates a full code for the acceptance of electronic evidence. The court held that the admissibility of secondary evidence solely depend upon the satisfaction of all the requirements which are prescribed under Section.65B. On the other hand, if the original evidence were produced in the court under section 62, then the same should also be admissible but without compliance with the conditions given in Section 65B.
In section 65B, all the piece of information which are shared or stored in electronic record shall be deemed to be a document and same should be admissible without proof of original only if the following conditions were fulfilled-
- Computer in regular use
- Information was regularly and ordinary feed in computer
- Computer was operating in proper conditions
- Duplicate copy must be generated from the original copy
The section 65B(4) tells about the production of certificate which requires the certificate to be produced by officer responsible for computer from where that electronic evidence was generated or stored for some time. For this the certificate shall –
- Identify original electronic records and desecrate and the manner it which it was created
- Describe the device which was used to produce record
- Should fulfill all the conditions of sec 65B(2)
In the case of Arjum Pandittao Khotkar v. Kaiash Kushanrao Gorantya & Ors[6], The supreme court ruled that the use of electronic records in investigations will inevitably become more reliable as time goes on.In Shafhi Mohammad v. State of Himachal Pradesh[7], the court held that no party is required to generate the certificate under Section 65B(4) of the Evidence Act, if they did not have the possession of the device from which that evidence was produced. It was said that the authenticity and procedure for the admissibility may depend on facts and situation of different cases and whether the person is in position of providing a certificate.
CASES OF ELECTRONIC EVIDENCE IN INDIA
- In Shreya Singhal Vs. Union Of India[8], Section 66A of the IT Act has been declared as unconstitutional by the honorable supreme court. It was also said that there cannot be wide range of restrictions on the internet as it violates the right under Article 19 (1) (a) of the Indian constitution.
- Recently, the Punjab and Haryana High Court has referred to the Arjun vs Kailash case and declared that Whatsapp chat which are provided in the court will not have any evidentiary value unless a certificate has been attached under section 65B. Also it is important that while submitting the certificate its authenticity should be checked.[9]
- The Supreme court has overruled the ruling in the case of Ramajayam vs. Inspector of Police[10] and held that if a defective or false certificate is provided in the court, then the judge has the power to summon that concerned person and ask him to provide the certificates. This is also applicable when the court has asked for the certificate but the concern person has failed to do so.
SUGGESTIONS AND CONCLUSION
Technology has now transformed how evidence is presented in court. Due to advancements in technology, the admissibility of secondary electronic evidence must be decided in line with Section 65B of the Evidence Act and the legal precedent set by previous rulings from the Apex Court and numerous other High Courts, as well as the above-mentioned legal standard. Emails and social media posts, for example, are now admissible in Indian courts. Lawyers can employ electronic evidence to defend their case and contradict the assertions of the other party. This has resulted in a substantial shift in how attorneys prepare their cases and provide this evidence in the courtroom. With technological innovation, whether electronic evidence will be accepted as secondary evidence or not should be decided based on the guidelines provided under Section 65B. It will help in both the admissibility and checking the authenticity of that evidence. If the evidence does not have the certificate which compliance with the provision of Section 65B of the Indian Evidence Act, it is inadmissible, and the court cannot rely on the forensic expert’s opinion or the witness’ testimony in court. As a result, the decision to permit the entry of electronic evidence is a significant improvement in Indian law because it has opened up new avenues for delivering justice to the populace.
REFERENCES
[1] Yale Law Journal Vol XXIX no.7
[2] Information Technology Act,2000, § 2, Acts of Parliament,2000 (India)
[3] Law Enforcement Cyber Center, https://www.iacpcybercenter.org (last visited July 17,2023)
[4] A.VENKATESWARA RAO, ADMISSIBILITY OF ELECTRONIC EVIDENCE by, Principal Junior Civil Judge, Jagtial
[5] (2014) 10 SCC 473
[6] (2020) 3 SCC 216
[7] (2018) 2 SCC 801
[8] (2015) 0 AIR (SC) 1553
[9] Bharat Vasani and Varun Kannan, Supreme Court on the admissibility of electronic evidence under Section 65B of the Evidence Act, Cyril amarchand mangaldas (July 16, 2023, 10:13 PM), www.cyrilamarchanblogs.com
[10] (2005) 11 SCC 600
[11] (2015) SCC OnLine Del 13647
[12] (2016) SCC OnLine Mad 451
Esha Ahlawat
Army institute of law, Mohali
[1] Yale Law Journal Vol XXIX no.7
[2] Information Technology Act,2000, § 2, Acts of Parliament,2000 (India)
[3] Law Enforcement Cyber Center, https://www.iacpcybercenter.org (last visited July 17,2023)
[4] A.VENKATESWARA RAO, ADMISSIBILITY OF ELECTRONIC EVIDENCE by, Principal Junior Civil Judge, Jagtial
[5] (2014) 10 SCC 473
[6] (2020) 3 SCC 216
[7] (2018) 2 SCC 801
[8] (2015) 0 AIR (SC) 1553
[9] Bharat Vasani and Varun Kannan, Supreme Court on the admissibility of electronic evidence under Section 65B of the Evidence Act, Cyril amarchand mangaldas (July 16, 2023, 10:13 PM), www.cyrilamarchanblogs.com
[10] (2016) SCC OnLine Mad 451