Evidence
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This article has been written by Santosh Subhash Pawar, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

The innovation of computers and digitalization is one of the greatest achievements of mankind. In the age of the digitalized world, governments of many countries have adopted digitalization in their administration. Recently, the Indian government has started the ‘Digital India’ campaign to promote the use of digitalization in our day to day life too, which would certainly help to speed up the development of our country. The enormous growth of digitalization in governance, commerce, private well as business activities has made it the fundamental pillar of documentation, processing and communication. Electronic means have created huge value to the life of human beings. Indian judiciary has appreciated and accepted the electronic records as evidence if it has complied with the provisions contained under the Indian Evidence Act. 

Though electronic records provide convenience, it also has created unique problems and challenges with regards to proper authentication and catering the different views on it. As rapid growing cyberspace, there has been a simultaneous tremendous increase in the misuse of cyberspace; the danger of cybercrimes has evolved. Because of this investigating agencies as well as judiciaries are facing challenges with regard to the admissibility of electronic records (greater chances of manipulation). During the trial stage electronic records substantially impact the outcome of civil, criminal and other judicial proceedings. So, it is really crucial to understand the electronic records, types, admissibility & evidentiary value and their role of evidence.  

Evidence

The Indian Evidence Act, 1872 (Sec. 3) defines evidence as to oral or documentary. Oral evidence can be said the statements which are made by witnesses before the Hon’ble court and Documentary evidence is one which is produced before the court for its inspection which includes electronic records. If it is further seen in detail then we find more about the type of evidence for the court of law purpose. 

However, Evidence could be divided as follows:

  • Oral, or Documentary;
  • Primary, or Secondary.

Primary and secondary evidence

Primary evidence: Primary evidence means Production of the original electronic record means the production of the document itself.

Secondary evidence: Production of computer-output of the contents of the electronic record; Secondary evidence is a certified copy or counterparts of documents which the party is unable to produce in the court and statement of an expert or person who has himself seen that document.

It is a recognized principle of law that if Primary Evidence is available, it has to be given priority over Secondary Evidence. Many of the times it is practically impossible to produce primary evidence in the court because of their storage on hard disks, cloud, big servers and other electronic data storages, hence, the apex court has permitted secondary evidence. 

That secondary evidence can be taken to the court through print out on paper, copying or storing on any magnetic or optical media produced by an electric device. But, secondary evidence is only admissible if it satisfies the conditions preceded u/s 65B Indian Evidence Act. 

Electronic records as evidence

The Indian Evidence Act Section 65 specifies the admissibility of secondary evidence in particular cases. Section 65B specifies the procedure of proving the contents of electronic records which have been laid down under Section 65B. 

Admissibility of electronic records mentioned as per Section 65B of Indian Evidence Act specifies that the printed any information of electronic records on a paper, or created a copy of that record on any optical or magnetic media shall also be deemed to be secondary evidence document if it satisfies the conditions mentioned under section 65B and original source of that information i.e. electronic device shall also be admissible without any further proof in any proceeding of the court of law. 

Essentially elements of the electronic evidence as per the Indian Evidence Act are as follows:

  1. Such produced information of electronic records should be produced by the person having legally authorized to have control over that electronic device.
  2. That storage of information must take place during the day to day general course of the act of that person.
  3. That stored information has been stored on that electronic device during the day to day general course of action of that person.
  4. While storing or copying of that material information, the said electronic device must be in a functioning state, to avoid any possible negative impact on its operation or distort the accuracy & authenticity of its material contents.
  5. Any kind of storage or copying or making counterpart of the information required for the production in the court of law as electronic evidence should be free from any kind of distortion or manual edit or manipulation, it must be the authentic and trustworthy information, which may get admitted as evidence in the court of law.

Different types of electronic records

Information Technology Act, 2008 defines electronic records; it covers a wide range of formats in which data can be produced. DVD, CD, pen drives, telephonic recordings, hard drives, e-mails, pictures, video recordings, sound recordings, etc. are a few of them. Each of the above electronic records formats deals with a variety of different conditions relating to their evidentiary value and admissibility in a court of law. 

Evidence in the form of as DVD, CD, Hard-Drive, chip, Memory Chip, Pen Drive:

Above electronic records are admissible as primary as well as secondary evidence. The value evidence depends on how and in what manner the electronic records have been submitted to the court i.e. if these electronic records are submitted as it is then those have more value without any doubt but if you want to submit their copied version on other similar or different device then you have to comply with the conditions precedent under Sec. 65b of the Indian Evidence Act and get the certificate for its admission in the court. 

Audio and Video Recordings:

These electronic records are admissible if they are submitted in original i.e. original audio or video recordings are the valid and authentic source of electronic evidence and not the copied version. Their copied version records on other similar or different device have to comply with the conditions precedent under Sec 65B of the Indian Evidence Act and get the certificate for its admission in the court. 

Evidence generated through mobile phone in the form of media, calls and email: 

Email: It is recognized as a valid and authentic source of evidence. Generally, e-mails are submitted through print outs attached with the certification of u/s 65B of the Indian Evidence Act.

Media and calls generated through mobile phone: Nowadays, Mobile phones are very useful electronic device and very resourceful. It helps from tracing location, capturing videos & pictures, recording calls to many other electronic resources which aids the judicial and investigating system to get valuable evidence. Mobile phone’s electronic records are admissible if they are submitted in original i.e. mobile itself which contains the primary source of media and calls. Their copied version records on other similar or different device have to comply with the conditions precedent under sec. 65B of Indian Evidence Act and get the certificate for its admission in the court. 

Leading case laws

Arjun Pandit Rao v. Kailash Kushanrao (July 2020)

Apex court, in a recent judgment, ruled that u/s 65B Indian Evidence Act’s compliance is essential to admit the electronic record as evidence. The certificate submitted under this provision constitutes particulars of that electronic records and identity inclusive of authorized signature of a person having official responsibility in relation to the management and operation of the relevant device. 

Anvar P.V. v. P.K. Basheer And Others (2014)

The Apex Court has given a landmark judgment in this case. It had ruled and helped to resolve the conflicts judgements of various High Courts on the manner of the admissibility of the Electronic (record) evidence. 

The Supreme Court ruled that secondary data in CD/DVD/Pen Drive are admissible only with certificate U/s 65B (4) of the Indian Evidence Act. Oral evidence cannot prove the electronic evidence, certificate U/s 65B is essential to prove that. Also, the opinion of the expert U/s 45A Indian Evidence Act is not an escaping gate to bypass the procedure of u/s 65b. 

Producing the original or its copy or counterpart attached with certificate u/s 65B are the only optional to prove the electronic evidence as primary or secondary evidence respectively. 

Conclusion

Admissibility and evidentiary value of electronic records have to be adjudged within the ambit of U/s 65B Evidence Act. The Supreme Court through its various landmark judgements made it clear about the manner in which the electronic records shall be admissible and their evidentiary value in the trial of civil, criminal and other judicial proceedings.  

It is now crystal clear and fact that any electronic evidence if it is secondary evidence then it has to be complying with the provision of 65B of the Indian Evidence Act; it is generally not admissible in the court of law without a certificate. Electronic devices can play a very crucial role in the investigation but the value of that electronic evidence is dependent on its compliance with provisions of the Indian Evidence Act. 

References

  1. Indian Evidence Act, 1872
  2. Arjun Pandit Rao v. Kailash Kushanrao Civil Appeal No. 20825-20826 of 2017 – Judgment dated July 14, 2020
  3. Anvar P.V. v. P.K. Basheer And Others (2014 10 SCC 473)

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