The increasing dependence on electronic and digital modes prompted the need for changing law identifying with IT and rules of acceptability of electronic means as evidence for criminal as well as civil cases. From that point, the Information Technology Act of 2000 was instituted and its amendments were established on the United Nations Commission on International Trade Law (UNCITRAL) on electronic evidence and the amendment permitted the admissibility of electronic evidence.
What is electronic evidence?
Electronic evidence can also be called as “e-evidence”, “advanced evidence” or “digital evidence.” Electronic evidence means, the data stored or transmitted in the binary form and is not restricted to data only on computers but also applies to the evidence on multimedia and telecommunication devices.
It is any evidential material stored or distributed in digital form and provided for examination before the judge by the party. The term “electronic record” means, the data, record or the data produced, image or sound stored, obtained or transmitted in electronic form or in microfilm or computer-generated microfiche as defined under Section 2(t) of IT Act of 2000.
The meaning of electronic evidence is meant to include within their framework all types of evidence processed, generated or manipulated in a product which, in its broadest sense, is considered to be a computer, excluding only the human mind. It also aims to include all kinds of devices in which information can be stored or transmitted such as computers, wireless telecommunications systems, telephone systems, navigation systems, cell phones, smart cards, etc., The validity and admissibility of such data is therefore limited to the matter at hand.
E-evidence under the Indian Evidence Act, 1872
Section 3 of the Indian Evidence Act provides evidence as (i) oral evidence and (ii) documentary evidence which also includes the e-evidence produced by the party before the court for examination. Section 3 of the Act was amended to replace the term “All documents produced for the inspection of the Court” with “All documents including electronic records produced for the inspection of the Court.”
Section 22A of the Act includes the relevancy of the oral admission with regards to the contents of electronic documents, in order to ensure that the statute integrates technological technicalities.
Section 59 of the Act was amended and the words “contents of documents” were replaced by the words “Content of documentation or electronic records” and similarly Sections 65A & 65B were also introduced into the Act to allow for the evidentiary and admissibility requirements for electronic evidence. The extensive procedure mentioned under Section 65B provides for a particular procedure for the production of electronic records and it makes the secondary copies produced as a computer output consisting either of a printout or data on magnetic or electronic medium admissible.
Admissibility of e-evidence
In compliance with Section 65 B (4) of the Act provides for a certificate which shall contain the following material for the admissibility of evidence:
The related electronic record for which the certificate is given and the manner in which it is generated should be identified; details of the system producing it; it should conform with Section 65B(2), that is, the computer producing the result was routinely used and was functioning properly to retain information during routine tasks; the certificate should show that it is generated to the best of the ability and knowledge of the officer-in-charge, of the administration, signing the certificate.
Regarding the validity and admissibility of electronic evidence, the Supreme Court took the onus to interpret the law by giving judgements in various cases from time to time.
In Ram Singh vs. Col. Ram Singh, the court ruled, that the law of evidence should take benefit of the modern devices and technical developments if the authenticity of the same can be determined. However, this form of evidence must be carried out with due care and thereby the electronic evidence per se is admissible in the context of the circumstances of the matter and subject to the protections offered by the court about its credibility.
Then in the case of State (NCT of Delhi) vs. Navjot Sandhu, the Court held that even if the certificate containing the information under Section 65B is not given, secondary evidence is admissible if it complies with Sections 63 and 65 of the Act.
This case was further overruled by the bench of Supreme Court in the case of Anvar P.V. v. P.K. Basheer, the court held that the secondary information contained in CDs, DVDs, and Pendrive is not admissible without a valid authentic certificate under Section 65B(4) of the Indian Evidence Act. Furthermore, the Court clarified that any electronic evidence without the certificate should not be deemed admissible and be permitted to be proved by any oral evidence or by any expert’s view in the Court of law as per to Section 45A of the Indian Evidence Act, 1872.
Ina recent case of Shafhi Mohammad v. State of Himachal Pradesh the Apex Court, while dealing with Section 65 B(4) of the Act held that Sections 63 and 65 are still valid where electronic evidence is submitted by a person who is not in possession of the device from which the evidence is collected, and the process referred to in those sections can be followed. Moreover, for the admissibility of electronic evidence, there is no compulsory necessity for a certificate provided in Section 65B, as the party producing it was not in possession of the device. Accordingly, under section 65B (4) of the Act, a party cannot be asked to provide a certificate for the admissibility of electronic documentary evidence.
The admissibility of the secondary e-evidence must be judged under the limits of Section 65B of the Evidence Act and the law settled in the recent judgement of the Supreme Court and numerous other High Courts, as discussed above. Undoubtedly, a simple reference of e-evidence in the law cannot support the case. The faults in the procedure caused by the addition of e-evidences must be dealt with as soon as possible. There are a few differences that are still unanswered as to the status of the secondary electronic evidence retrieved from the accused, where the certificate u / s 65B of the Evidence Act cannot be taken and in the same way accused cannot be made a witness against himself because this would then amount to a breach of Article 19 of the Indian Constitution. Present provisions regarding the admissibility of electronic evidence documentation of different kinds still have a few issues that remain unresolved. The courts though, on occasions have dealt with the issue, but it is the Legislature that needs to come forward.