This article is written by Madhuli Kango, a student of Pravin Gandhi College of Law, Mumbai.

Introduction

With the advent of 21st-century technology as we understand today is making great strides, not only in India but across the whole world. With this rampant growth access to technology is not limited only to established organizations or institutions but is within the reach of every individual at a flick of the finger. The growth of Information Technology has not stayed hidden away from e-governance and it is no wonder that these developments are impacting the legal field. Technology is opening up broad avenues, from the collection of evidence to their storing to checking their validity. Indian courts today have started developing case laws with regards to electronic evidence and have interpreted legislation in a way to bring in greater admissibility of this electronic evidence to courts.

This has been done keeping in mind that the advancement of information technology and scientific temper must pervade the method of investigation.1 Understanding this, the Indian Evidence Act has updated itself with the expansions. In this article, we will talk about Section 45A of the Indian Evidence Act, 1872 which is in reference to the Opinion of the Examiner of Electronic Evidence. This section of the Indian Evidence Act was Inserted by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 52, (b).

What is Electronic Evidence?

The definition of evidence as given in the Indian Evidence Act, 1872 covers both the evidence of witness i.e. oral evidence, and documentary evidence which includes electronic record produced for the inspection of the court. Digital evidence or electronic evidence as we understand stands to be information stored or transmitted in an electronic form and is a part of a court case that can be used in a trial. This is evidence found on devices across telecommunication or multimedia outlets. Electronic or Digital evidences such as DVD, CD, electronic records, communication portals, website information amongst many others are being increasingly used in judicial proceedings.

During various stages of ongoing cases or trials, judges are required to look into the validity and impact of these evidences which play a strong role in the final outcome of any case. At the same time, we realize that these evidences can be technically sophisticated beyond the general understanding of a common man and thus can be quite easily fabricated or adulterated, thus standing as a hurdle towards ensuring justice. A judge who is not well versed with such technology might stand at crossroads regarding the admissibility of such evidence, this is where an expert opinion plays a key role by providing valuable input.

Section 45

Section 45 of the Indian evidence act makes provisions for expert opinions in specialized fields such as science, art, foreign law amongst others.3 This brings us to Section 45A of the same act which talks about expert opinion, specifically with reference to electronic evidence, this section is highly important with regards to cases where opinion has to be formed on matter or information transmitted or stored in any computer resource or digital form.4 An expert opinion must be bought on satisfying two necessary conditions, first and foremost that the testimony is necessary and secondly that the person in question is actually an expert.

Experts opinion

Opinions of experts have been held by the courts and law in high regard, an expert is understood as a skilled professional who holds strong specialized knowledge in a particular field. The court has defined an expert as, a person who by his training and experience has acquired the ability to express an opinion that an ordinary witness does not possess this quality. The opinion of experts is taken when courts understand that decisions cannot be formed on the matter which is technically particular and sophisticated and that the experts add something meaningful to the materials or situation in hand. In these situations, ensuring justice is possible only by taking the opinion of a person who has expertise in the subject matter and without it, the judge is not capable of deciding the issue.

Expert opinion must be truly objective in nature looking strictly at the validity of evidence and at nothing beyond, this opinion is advisory in nature and it only gives reasons but does not have the power to make the final verdict. The thought behind this opinion is to provide the judge with the technical outlook which will aid him in forming an independent judgement. It is essential to note that expert opinions as the word suggests are nothing more than mere opinions, and are strictly corroborative not conclusive, this is because being an expert on the subject matter would still not make the person a direct witness and thereby can still only suppose what might have happened, giving it a corroborative nature not conclusive and thereby courts cannot pass an order of conviction on the basis of expert opinion.

It was Justice Humphrey in R v Nowelly who said very rightly that, “the expert is not a witness for the prosecution nor for the defence, but it is the witness of the Court”. Understanding this the appointment of an expert must be undertaken by the court to ensure impartiality. It has also been observed that experts have a natural inclination of giving opinions in favour of the party which has called them. Experts are frequently bought and bribed to get favourable opinions. It has also been observed that experts appear with a set bias in their minds to support any preconceived cause, this takes away the objective purpose of their evidence.

To prevent such instances, experts are tried as any other witness and until then no expert opinion stands admissible. Either of the two parties have a right to cross-examine the expert. If the expert’s opinion contradicts an unimpeachable eye witness or documentary evidence, then it will not have an upper hand over direct evidences12 This opinion must be taken in with due caution and care,13 and is nothing more than a mere advisory. The judge is not bound to listen to the expert opinion in any situation whatsoever. Recognizing and understanding these points there stands some fallacies with regards to expert opinions, the evidence acts very well to talk about the areas on which the opinion of experts can be sought but does not go further into defining who an expert should be or what is the minimum requirement necessary.

The act fails to provide a procedure for the appointment of an expert and ensures that partiality does not take place and objective opinion is submitted. Lack of strong witness protection programs harm an expert’s ability in giving a strong and fair independent opinion, might and muscle is used to dominate an expert to attain a favourable opinion going against the tangent of justice. Therefore, while expert opinions are a necessity and a sophisticated solution to the problem it can be fairly applied after ensuring the requisite amendments provided which it shall stand as a strong pillar in ensuring justice everywhere.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: