The advent of digital technology has revolutionized the manner in which evidence is collected, preserved and submitted before the court of law. In order to keep the pace with the changing trend, the Indian judiciary has also evolved and introduced provisions for the admissibility of electronic evidence. The Bharatiya Sakshya Adhiniyam, 2023 (The Indian Evidence Act, 1872) along with the amendments deals with the issue of the admissibility of electronic evidence.
Electronic evidence means any information which is stored or recorded in a digital form and such which can be translated and read. It includes emails, computer documents and prints, web pages and posts, SMS and other communications, databases, and any other data held in electronic devices. The authenticity of such evidence is highly questionable and hence, it has to be duly proved.
Sources of E-evidences
On daily basis we use electronic devices which has its own importance in life of an individual. Some of its sources are:
Sources of E-evidences: On daily basis we use electronic devices which has its own importance in life of an individual. Some of its sources are:
Digital/Video camera: This source can provide pictures, videos and files stored locally or on the media card of the camera.
Cell phone: Such a source can provide with all the call logs, text messages, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.
Computer/Laptop: Computers or laptops provide data like social media accounts, internet search history, documents saved in, email accounts if any and all other information present within the system.
Mobile device: Such a source can provide with all the call logs, text messages, pictures, videos, files stored, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.
File storage: These devices include hard drive, thumb drive, optical media, and Pendrive. These devices contain plenty of information of all sorts and are highly useful.
Wearables: These are the devices such as fit bits and Mi watches etc. They inform about an individual’s location. This is an essential source to track down people.
Automated Licence Plate Readers: They are termed as LPR. These show the pictures of the car, metadata and geolocation.
In-car cameras: This kind of evidence provides videos of the events of the activities inside a car or any other vehicle inside which it is placed.
Bord worn cameras: This kind of evidence provides videos of the events of the activities wherever the person wearing such a device travels.
Drones: This kind of evidence is also known as unmanned aerial systems. Such evidence captures the videos of places it is flown towards.
Closed-circuit television (CCTV): This evidence provides videos and places where it is placed. It captures all the necessary and other relevant minute details and can be viewed later and can be used as strong evidence.
Interview recording room system: Such a source of obtaining evidence helps to monitor the behaviour of people present inside the room and take videos of activities and events of the area in which it is placed.
Legal Framework for Admissibility
The Information Technology Act, 2000, and the subsequent amendment to the Indian Evidence Act, particularly Sections 65A and 65B, are pivotal in the legal treatment of electronic evidence.
Section 65A: Special Provisions
Section 65A introduces special provisions for electronic records, essentially mandating that the contents of electronic records may be proved in accordance with the provisions of Section 65B.
Section 65B: Admissibility of Electronic Records
Section 65B provides a detailed framework for the admissibility of electronic records. It specifies that any information contained in an electronic record which is printed, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed a document, and is admissible as evidence without further proof of the original, provided certain conditions are met.
Certification Requirement
Section 65B(4) provides that the person in charge of managing the relevant activity shall issue a certificate identifying the electronic record and specify the manner of its production. The certificate shall state that the electronic record has been produced by a computer during the relevant period and that the requirements as provided in Section 65B(2) are fulfilled. This certification is crucial in proving the authenticity of the electronic evidence. Without this certification, the electronic evidence will not be admissible in court.
Judicial Interpretations and Challenges
The judiciary has actively participated in the interpretation of the provisions of electronic evidence. Some notable judgements have brought various issues to the forefront:
Anvar P.V. v. P.K. Basheer (2014): The Supreme Court observed that an electronic record shall only be admitted if it meets the conditions under Section 65B. The Court specifically referred to the certification under Section 65B(4) and held that the requirements under said provision are directory. The procedural norms are mandatory for the admissibility of electronic evidence.
Shafhi Mohammad v. State of Himachal Pradesh (2018): The Supreme Court in this case recognized that there can be practical difficulties in obtaining the certificate for certain types of electronic evidences like chats, and messages on social media, etc. The court suggested that in such cases, the trial court or the appellate court may record the reasons for non-availability of the certificate. It further evolved a principle that if certification under Section 65B(4) is not available, the court may permit the production of electronic evidence by other means such as oral evidence, if any, in support of the electronic document. This creative interpretation of the Section was however clarified by a two-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which held that the certificate is mandatory and cannot be dispensed with or done away with by the courts.
Conclusion
The Indian Evidence Act is, thus, no more iginous to the acceptance of electronic evidence. Section 65A and 65B are very much equipped to deal with such challenges. It is provided that a certificate accompanying an electronic record, which is to be produced as evidence in any Court, shall be in the form of a certificate under the hand of the officer or person who has lawful control over the document or of any other person authorized to certify on behalf of the person or authority who has the control over the document. Further, it is also provided that the condition of integrity and authenticity of the electronic evidence is to be followed to admit it under the said two sections. The law makers and the Courts have to keep in tune with the fast developing technology so as to enable the legal proceedings to satisfy the dictates of justice. Lawyers, thus, must have adequate knowledge about electronic evidence so as to effectively deal with such evidences during trial and to satisfy the basic requirement of justice.
