Image source - https://bit.ly/37O7VuG

This article is written by Ravi Singh, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com.

Introduction

Digital preservation of electronic documents is an important function for all types of organizations, both public and private, which allows them to comply with obligations and interests both within the public and legal sphere. It also offers many benefits, such as space saving, risk management – being able to keep copies in physical safe places or away from the production environment – while ensuring accuracy, reliability, integrity, and future access to information.

Since the Indian Evidence Act has been amended as a result of Section 92 of the Information Technology Act, 2000 (Prior to amendment). The Section 3 of the Act was amended and the phrase “All documents produced for Court examination” was replaced with “All documents including electronic records produced for Court examination”. 

Also with regard to documentary evidence the term “Content of the documents or electronic records” is substituted and Section 65A & 65B is inserted for the acceptance of electronic evidence. Under the provisions of Sections 61 to 65 of the Indian Evidence Act, the term “Text or content of documents” has not been substituted for the term “Electronic or electronic content”. Therefore, the purpose of the legislature is clear, that is, not to extend the provisions of section 61 to 65 in an electronic record. It is the basic premise of interpreting that when the legislature ceases to use any name, the idea is to be deliberately omitted. It is well established that the Legislature does not use any name unnecessarily. 

Concept of E- Evidence in India

The different types of Electronic Evidence / Digital Evidence are widely used in adjudication processes. At the trial stage, judges are often asked to rule on the admission of electronic evidence and it greatly affects the outcome of a civil law case or the conviction of a defendant. The Court continues to challenge this new electronic boundary as the unique nature of e-proof, as well as simplicity that can be written or falsified. This creates a barrier to acceptance that does not deal with other evidence such as various categories of electronic evidence such as CD, DVD, disk / memory card, website data, social networking, email, instant messaging, SMS / MMS and computer-generated texts create unique problems and verification challenges which should also depend on a different view set.

Case

In this regard, Apex Court in Utkal Contractors & Joinery Pvt. V. The State of Orissa states that “… Parliament is also not expected to present itself unnecessarily. Even if Parliament does not use any word without saying something, Parliament does not pass legislation where no law is required. Parliament will not be held accountable for legislation; and do not join the law simply to say what is not required to say or do what is already legally done.

Electronics Evidence : Primary or Secondary

In India Evidence law is categorized into Primary and Secondary Evidence. The primary evidence is being the original but the secondary evidence can be any number of copies or reproductions of the original ones. The general rule of law of evidence is that when primary evidence (the original) is not available, the secondary evidence (copies) is not admissible. 

This principle which governs primary and secondary evidence is applicable to electronic evidence also. The device which produces the electronic record is primary evidence, but the reproduction of such electronic records (like print outs and soft copy) is secondary evidence. Because the complexities associated with the primary electronic evidence (if data is an electronic device and stored in magnetic medium, also in in the case of data if available on online servers and cannot possibly be moved into court) this type of general rule is applied and that secondary evidence is only admissible when primary evidence is available is relaxed.

Case 1

A two-judge bench of the High Court, consisting of Judge L. Nageswara Rao and Justice SA Bobde, on 18.7.2017 in the case of Sau v State of Haryana, (Criminal Appeal No. 1416/2013, 1653/2014, 1652/1652 / 2014), confirmed his conviction. of the accused, Sonwa, on a charge of kidnapping and murder under the IPC, thereby dismissing his criminal plea. 

One of the main reasons given by the defendant during the appeal was that of the defendant’s cell phone, which was the most important part of the evidence, to prove the defendant’s case without hesitation and reliance on the prosecutor, should be removed from consideration. “) as it is admitted that they were not authorized in accordance with subsection (4) of section 65-B. 

Case 2

 The defendants relied heavily on the bench decision of the three-judge Supreme Court in Anvar P.V. v P.K. Basheer, (2014 10 SCC 473) in which the High Court ruled that a record made electronically by a second witness will not be accepted as evidence unless the requirements of Section 65-B are met.

Case 3

R.M. Malkani Vs. The State of Maharashtra, 1973 LR. 228 held that the tape is the most basic and direct evidence of mentioned and recorded. Records of speech tapes have “Documents”, as defined in Section 3 of the Evidence Act, stand nothing different than the pictures, and that they were acceptable as proof of fulfilment of the following conditions: 

(a) The word of the person alleged to be speaking must be properly identified by the perpetrator, a record or others who know it. 

(b) True accuracy of the recording had to be shown by the record maker and satisfied evidence, guidance or circumstance, had to be available for refusal chances of breaking the record. 

(c) Subject the recording should have been shown to be appropriate in terms of compliance values found in the Evidence Act.

Case 4

KuRam Singh vs. Col. Ram Singh, 1985 Supp. SCC 611 IN THE AIR 1986 SC 3) it was held that the appropriate authority must, in itself, indicate the location, time and name of the person making the statement. In all cases the affidavits made under oath were stated to exist another better way.

Case 5

Chandrakant R. Mehta vs. The State 1993 (3) Bom. C.R.99. It is considered that if it is accepted later, it should be closed early and not open without a court order. Failure to produce down that over time the humidity sounded poor and that critical evidence was inconclusive, there is no contradiction drawn since the failure to explain.

https://lawsikho.com/course/certificate-criminal-litigation-trial-advocacy

Indian Evidence Act and Information Technology Acts 

Section 2 (t) of the Information Technology Act 2000 provides that “(t)‘ electronic record ’means,“ data, record or data generated, the image or sound is stored, received or sent electronically or micro a film or computer made of small fiche; ” For example, the digital charging sheet was held as document and can be accepted as an electronic record. Honesty The Supreme Court ordered that a charter be provided in electronic form moreover in [Thana Singh Vs. Central Bureau Narcotic, (2013) 2 SCC 590].

Section 4 of the Information Technology Act also provides that if the document is in electronic form on CD / DVD etc., (a) provided or made available electronically; and (b) easily accessible using the following index, then that would be enough compliance. Sec.22A declares that “oral evidence by the content of electronic records are invalid, unless electronic authenticity of the record produced is in question.

Judicial Interpretation 

The Document Conservation Policy (described below) will ensure the safekeeping of records and protect documents for personal use, at the same time to avoid unnecessary counting of texts. The companies, therefore, formulates this policy, in accordance with Regulation 9 of the Securities Exchange Board of India (List of Bonds and Requirements for Disclosure) Regulations, 2015.

Case 1

The legal definition of Section 65B is not clear. Many courts across the country, including the Supreme Court, have attempted to draft the actual results of Section 65B. Perhaps no case is more important than the Anvar P.V. Vs. PK Basheer (18.09.2014- SC) 2014 (9) SC J 1. The Supreme Court chose Anvar P.V. if any electronic evidence can only be proved in accordance with the procedure set out in Section 65B. The Supreme Court held that the purpose of these provisions was to sanctify electronic evidence and the requirement to provide an electronic certificate under Section 65B relating to other electronic evidence or electronic record is mandatory in handling such legally acceptable evidence. 

Case 2

This understanding was from a previous State case (NCT of Delhi) v. Navjot Sandhu, 8 (2005) 11 SCC 600 where the High Court ruled that the requirement of a certificate under Section 65B is not always compulsory to comply with the requirements of Section 65B, there is no restriction on adding secondary evidence under other provisions of the Evidence Act. The Navjot Sandhu case was based on a well-established and well-established legal system that the process is a slave to justice and the purpose of setting the process is to advance the cause of justice, not to make it compliant with the process.

However, the decision of the Supreme Court in the case of Anvar P.V does not conflict with the principles of environmental justice, in fact if we wanted to further the cause of justice. It is a common misconception that digitally stored data is at risk of being manipulated and / or tampered with. Due to the existence of such circumstances, the requirement of the procedure set out under Section 65B is necessary. The purpose of the procedure set out in Section 65B is to establish legal evidence.

Conclusion

The 21st century brought a digital revolution when the use of computers became increasingly important and commonplace. People have been switching to computers as a digital solution to their domestic and business needs. Perhaps nothing indicates the beginning of the digital revolution in India better than the introduction of the Information Technology Act, 2000. The Information Technology Act incorporates Section 65A & Section 65B into the Indian Evidence Act, 1872. 

These sections deal with electronic evidence and their acceptance. Before discussing electronic evidence, it is necessary to first understand the meaning of the evidence. With the advancement of technology, the acceptance of secondary electronic evidence must be adjudicated within the limits of Section 65B of the Evidence Act and the legal proposal resolved in the recent judgment of the Supreme Court and various other High Courts as discussed above. 

The proposal is clear and explicit that if the second electronic evidence does not have a s 65B certificate of Evidence Act, it is not allowed and any opinion of an expert and the inclusion of witnesses in a court of law will not be considered by the court. However, there are a few unresolved issues as to whether the conclusion of the second evidence taken from the defendant, certificate / s 65B of the Evidence Act will not be taken and “No accused person in any case shall be compelled to be a witness against him” in terms of Article 20 (3) of the Indian Constitution.

References

  • https://cic.gov.in/sites/default/files/2017/ac/s2-3.pptx
  • https://www.lexology.com/library/detail.aspx?g=a4e619a2-30c9-4639-9e2e-f99c8cad3d66
  • https://www.ijlmh.com/wp-content/uploads/2019/04/Relevancy-and-Admissibility-Of-Digital-Evidence-A-Comparative-Study.pdf
  • http://www.legalservicesindia.com/article/2027/E-Evidence-in-India.html
  • https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms?from=mdr
  • https://medcraveonline.com/FRCIJ/admissibility-of-electronic-evidence-an-indian-perspective.html
  • https://www.lawteacher.net/free-law-essays/commercial-law/relevancy-and-admissibility-of-electronic-law-essays.php

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here