Abstract
This research paper talking about admissibility of electronic evidence for cybercrime investigation in the Indian court. Study looks into how important that technology in our daily lives. The technology were growing rapidly of new techniques and tools for collecting, analysing and preserving digital evidence. The legal system incorporated technology into its proceeding through the Information technology act, 2000 to the Indian evidence act 1872.
The amendment was Introduced to add section 65A and 65B to the act, both the act regulate the admissibility of digital evidence. This paper explains when an electronic or digital evidence certificate is required. What must be included in the E-certificate, who is authorised to issue such a certificate and what category is required.
Keywords:
E-evidence, Cybercrime, reliability, Authenticity, Admissibility, Primary and Secondary electronic evidence.
Introduction
In the Indian judicial system evidence plays an important role in establishing the claims and the defence of both the parties involved in a case. There are many types of evidence, but admissibility depends on the jurisdiction of the court, which follows the established rules and regulations. As the technology continues to develop, digital or electronic evidence is considered as relevant evidence before the Indian court of law. Digital evidence comes in many forms, including computers, smartphones, USB drives and other electronic devices. Its admissibility depends on the situations or conditions of each case.
The information technology act 2000, recognises the transactions which are carried out by means of electronic data interchange, it means communication between computer to computer and the other means of communication.
Review of Literature
The word evidence comes from the Latin word ‘Evidentia’ as saying that is to, simple and clear. They also say that the word evidence is derived from the Latin word ‘evidere’ it means explain clearly or to prove. Under section 3 of the evidence act, 1872, evidence means, and includes: 1) any statement admissible by the court, or which the witness was adduce before, and each, relating to questions of fact, as the subject of investigations, this statements is called oral evidence; 2) all documents, including electronic records, made available for inspection by the court; these documents are called documentary evidence.
“Evidence is what makes us to truth; a living place; a fact, real or obvious fact that explains a subject . Without evidence, there is no proof; without the burden of proof, the burden of proof is not met, nor can it be decided, judgements or determined. So proof evidence is important for resolving any legal dispute. In many cases the collection of evidence is considered to be an important task, so monitoring in these cases can be problematic. One such feature is the collection of evidence for cybercrimes. If an investigator does not have a standard, robust approach to conducting criminal investigations, properly, important information may be missed, and judges may exclude evidence from the case because the acquisition process is fault.
Research Methodology
The purpose of this legal research is to outline the importance of the admissibility and genuineness of digital evidence/electronic evidence in the admissibility of electronic evidence of cybercrime investigation. It is based on secondary sources; Journals, websites and books, where I have gone through the deep analysis to compiled it in an easy way to understand topic.
Digital evidence
Digital evidence is also known as advanced evidence E-evidence. Electronic evidence means, where the data is stored or transferred eight in the binary form and it is not restricted to data only on computers but it also applies to the evidence on multimedia and telecommunication devices. The E evidence found in emails, digital photographs, ATM, transactions, documents, message, histories, spreadsheets, internet, browser, histories, databases, computer backups, digital video or audio files. Digital evidence likely to be more large, more difficult to destroy, easily, modified, easily, updated, easily, duplicated, possibly more expressive and more readily available on the sites or pages.
What is Cybercrime?
The term cybercrime means, where everything is available in one click, crimes are also been committed at one click. It is a darker side of the technology in the today’s E-world. It is a crime where the computer or the electronic devices, tools was the target. The term www.olive.com , where www means world wide web, which becomes the world wide worry because of the rapid growth in cybercrimes.
E-evidence under the evidence act, 1872
Under the section 3 of the act, it is stated that evidence can be both oral evidence and documentary evidence, which also includes the evidence which prove produced by the party before the court for the examination.
All the statements which the court allows or requires to be made before eight by witnesses in relation to the matters or the fact under inspection, this is called oral evidence.
Section 3 of the Indian Evidence Act 1872 was amended to replace the term “all documents produced for the inspection by the court” with all documents, including the electronic records produced for the inspection by the court.
“Admission” defined under the section 17 of the Indian evidence act, 1872 has been changed to include a statement in oral, documentary evidence, from which it suggests the involvement to any fact at issue or of relevance.
Section 3:- Admissibility of E-evidence
After the acquisition and the analysis of evidence, then admissibility will Play the role in the next step, in the process of any cybercrime investigation. Evidence is present before a judge to prove a fact in a case. Admissibility of E-evidence refers to the application of a set of legal rules by a judge to determine whether their evidence can be present or not. To be admissible in court, the evidence would have following characteristics:-
- Admissible:-
the evidence must be utilised able in court. They follow the standard operating procedure during the acquisition and handle. The evidence is the basic requirement to made evidence admissible in the court. Failure to follow the standard operating procedure during the acquisition of evidence and an appropriate documentation and reporting will make the evidence unusable.
- Authentic:-
The evidence should leave no doubt that it was obtained from the specific electronic communication device and it is a complete and proper copy of the obtained digital evidence and the virtue of the evidence is secured.
Maintaining the proper chain of custody helps in maintaining stability and prevents epidemic of evidence. It reveals from where the evidence was obtained and all those who had control upon it, right from acquisition.
Maintaining virtual documentation and use its virtual/integrity. It secures that the digital evidence has not been altered/changed since its acquisition.
Additionally, evidence must be reliable, relevant and genuine to the incident, where it can be able to prove something.
- Complete:-
The evidence must capture all the aspects of the incidents, it should be collected in a way that it should be sufficient to prove or disprove is an activity.
- Reliability:-
There are two methods which are reliability while proving it;
- To determine whether the electronic device from which the evidence was collected, it’s performed normally, and
- To examine whether the digital evidence collected from the electronic communication devices has been controlled with, or damaged. The acquisition and analysis of evidence should not raise any doubt on the authenticity and reliability of the evidence. Evidence should be free from the contamination or the outside influence on the evidence.
- Relevance:-
I need digital evidence present in the court. It must be directly relatable to the fact under the discussion.
Section 4:-Types of Digital evidence/Electronic evidence
Electronic evidence can be divided into two categories:
- Primary electronic evidence:-
This refers to an electronic evidence that contains an image, photo text, video or other document.
- Secondary electronic evidence:-
When an electronic/digital copy or transmission is made and the transmitted or copied copy is made available for inspections by the court.
There are some types of primary and secondary electronic evidence is mentioned below;
- Electronic documents:-
This type of evidence is a broad variety of digital files, including the spreadsheets, presentations and the text documents. In situation, it requires written records, agreements, or contracts, they may be extremely important.
- Digital pictures and videos:-
Visual proof can you obtained through the pictures and videos taken by the use of digital devices, such as the smartphones and CCTV cameras. They are usually employed in the criminal conflict and in the accident situation.
- Social media post:-
Exchanges comments and acts relatable to a case can be illustrated with the content from social media. Applications on the websites like Facebook, Instagram, and Twitter. In case involving harassment, slander, this group can a lot be important.
- Computer forensics:-
This evidence, examines and analyses the computer system data. In digital forensics, the experts are able to recover the files, data, histories of browsers, and the system records. In case, involving cybercrimes, data, breaches, or unlawful access.
- Email communication:-
In cases involving fraud, intellectual property disputes, emails, and meta data, they include such as sender, receivers and timestamps may use as an evidence.
- GPS data:-
In case, where is the personal injury, alibis, or confirming an individuals, location at a specific moment, information from GPS devices or place data from the smartphones may be used.
- Blockchain records:-
To prove the transactions, ownership of digital assets , or the completion of smart contracts in crypto-currency scenarios, Blockchain records can be important.
The growing dependency on evidence which collected from your convictions has given rise to a new branch of science call to computer forensic.
Forensic science helps to deliver justice in the society by permitting physical science ideas to be applied on legal matters. It is the new field of forensic science that focuses on evidence found in the computers and other devices.
It is a combine of computer technology and law in order to conduct effective criminal investigations.
Forensic experts are in charge of, to bring the photographs or clones of the original electronic material, analysing, preserving and present it to the court of law for the judiciary to make a decision. It is also known as digital forensic.
In order to secure the admissibility to the court, the investigating officer must follow the legal procedures for collecting, preserving and evaluating the evidence from computer system.
Guidelines for presenting Electronic Evidence before the courts
Presenting the electronic evidence in courts include severe guidelines/rules to make sure its admissibility and effectiveness:
- Preparation of Evidence:
This involves collecting, processing and organizing electronic evidence in a format that is easy to understand and analyse. It involves exchanging information into formats in which the court are compatible.
- Adhering to legal requirements:
Following the legal standards regarding the E-evidence such as section 65B of the Indian evidence act is important. This includes obtaining the necessary permissions and ensuring that evidence is collected and disclosed in accordance with the legal procedures.
- Clear presentation:
E-evidence must be presented in a clear and understandable manner. This may include using guides, summaries, or expert testimony to explain the technical details.
- Authenticity and integrity:
The presenter must be able to confirm and certify the authenticity and integrity of the evidence showing that the evidence has not been tampered/altered with and it is a true representation of the original digital work.
- Corroboration:
Whenever, possible E-evidence should be supported by other forms of evidence both digital and traditional, to confirm its validity.
Legal framework/statutory provisions for the admissibility of digital or electronic evidence in India
The Indian evidence act 1872, and the information technology act, 2000, provide the legal basis for the admissibility of digital evidence in Indian courts.
Initially, evidence obtained from the system is not legally admissible in the court. However, an amendment of the Indian evidence act in 2000 has given the legal right to the digital evidence as admissible in the court. However, this act does not accept electronic evidence as primary evidence even if it is accepted as evidence before the court. The digital evidence act to be considered as secondary evidence under the Indian evidence act, 1872.
Under the Indian evidence act, 1872
- Section 3 of Indian evidence act:
It states, evidence as i) oral evidence and ii) documentary evidence, which also includes the evidence issued by the party before the court for the examination.
Section 3 of the act was amended to replace the term “all documents exhibit/bring for the inspection by the court” with “ All the documents including electronic records exhibit for the inspection by the court”.
- Section 22A has been inserted, into Indian evidence act to address the admissibility of electronic records as evidence in the court. It stipulates that all the information which were generated by the computer, saved, recorded, or reproduced in optical or magnetic media, printed on paper or contained in an electronic document will be considered as a document.
This is crucial in cybercrime investigations as it allows electronic documents, emails, emails-chats or digital documents to be admitted as evidence in court if certain conditions are met.
- Section 65A and 65B are introduced to the evidence act, under the second schedule to the IT act;
Section 65A deals specifically with electronic evidence. It states that electronic record contents are admissible in court in accordance with the provisions of section 65B.
- According to section 65A, by issuing a certificate signed by the person who owned the computer or device on which the electronic record was created at the time it was created. This certificate must describe the manners in which the electronic record was produced, stored or transmitted. This is important in cybercrime investigation because it sets the standard for the presentation of electronic evidence, ensuring its reliability and validity.
- Section 65B provided detailed procedures for verifying the relevance of electronic records. It explains that in order for electronic records to be admissible, there must be a certificate under the section 65B in the court.
This certificate must confirm the accuracy of the electronic data, the method of its creation and other relevant information. This is an important part of cybercrime investigation because it describes the process of presenting electronic records as a legal evidence.
- Section 85B is an important section which deals with the admissibility of electronic evidence in Indian courts. This section provides specific conditions that must be met for electronic records to be admitted as evidence.
To be admissible, an electronic record must be accompanied by a certificate, in accordance with subsection 65B(4) signed by a government official or person who control over the computer or device from which the record is made. This certificate is important to prove the accuracy and reliability of the electronic record.
- After the certificate, under the section 65B is issued, the court may consider the reliability of the electronic record, thereby clarifying the procedure for admissibility of digital evidence. Failure to comply with the requirements outlined in section 65B will render electronic evidence inadmissible, emphasizing that significance of proper documentation and following the law when presenting electronic evidence in the court.
Case studies
When it comes to the validity of the electronic evidence, the Supreme Court the law in many cases from time to time.
In the case of Ram Singh v. Col. Ram Singh, the court said that the law of evidence to take advantage of new tools and technological developments if their reliability can be determined. However, the nature of this type of evidence must be handled with caution, so electronic evidence is admissible depending on the circumstances of the case and the safeguards offered by the court for its reliability.
State (NCT of Delhi) v. Navjot Sandhu; in this case ,it is also known as the Parliament attack case, the Supreme Court ruled based on electronic evidence. The court ruled that mobile phone data could be admitted without admissibility under the section 65B of the Indian evidence act. The case was a landmark case, for its time and highlighted the importance of electronic evidence in criminal cases.
Till case was overruled by the Supreme Court in the case of Anvar P.V. v. P.K Basheer, the court held that under section 65B(4) of Indian evidence act ,secondary data contained in CDs, DVDs and pen drives are not admissible without a valid declaration. Further, the court clarified that electronic evidence cannot be considered admissible without the certificate and cannot be proved by oral evidence or expert opinion before the court of law, under section 45A of the Indian evidence act, 1872.
In the case of Shafhi Mohammed v. the State of Himachal Pradesh, the Supreme Court while dealing with section 65B(4) of the act, held that section 63 and 65 are still applicable when electronic evidence is submitted by a person who is not to when he has the equipment to collect the evidence, he can follow the procedures is mentioned in these sections.
Further, for the admissibility of electronic evidence, it is not mandatory to have a certificate in section 65B, as the party is not showing/exhibiting the device. Therefore, under section 65B(4) of the act, a party cannot be required to provide a certificate showing the admissibility of electronic documentary evidence.
Conclusion
At the end, would conclude by stating of this research work has been seen that internet and the digital revolution have revolutionised the lives of mankind. In today’s world, almost every single information is in just one click away. For the connection, all we need is an internet connection and a digital device such as smartphones and PC.
Electronic documents have become more important evidence in all the types of crimes. Therefore, the place of the admissibility of such evidence should not remain ambiguous. Indian courts have consistently clarified this, that original electronic evidence along with the computer output can be presented as evidence in the court. In case of computer output, the certificate must also be attached. When it comes to the truth, opposite can always contradict each other. In such cases, recovery of electronic document may be made available to the Examiner.
The reason behind this research paper is that the admissibility of the secondary electronic evidence must be judged under the section 65B of the Indian evidence act 1872. Consequently, accepting digital evidence as legal evidence in India is a step towards combating the growing problem of cybercrime. India needs to continue improving its legal, technological and professional capabilities to effectively fight crimes.
AUTHOR:
TASMIYA ALI
BA.LLB (Final Year )
Al Ameen Law College, Bangalore