Electronic Evidence

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Mandatory Conditions concerning admissibility of Electronic Evidence as per the law settled by the Supreme Court of India

With the digitalisation of communication almost complete in the 21st century, there has been a tremendous increase in its misuse and the authenticity of e-documents has always been debatable, considering how prone they are to be tampered with and the issues with regard to the admissibility of such electronic evidence.

Electronic evidence, as compared to conventional or traditional evidence, in so far as the method used for analysis of the data maintained or retrieved from electronic media for the purposes of presentation in a court of law, is of prime importance.

This column would discuss and examine the admissibility of electronic evidence in a court of law based on judicial pronouncements, most recent one being in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. (CA Nos. 20825 – 20826 of 2017) [(2020) 7 SCC 1].

As per these provisions, the electronic evidence gathered through various means by applying cyber forensics was deemed as a "document" and the printed reproductions were considered secondary evidence, which required certification of authenticity from a competent signatory who was susceptible to cross-examination relating to the certified document.

Admissibility of electronic evidence

Section 65A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act. Thus, any documentary evidence by way of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Evidence Act. Section 65B of the Evidence Act provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, whether it be the contents of a document or communication printed on a paper, or stored, recorded, copied in optical or magnetic media produced by a computer, it is deemed to be a document and is admissible in evidence without further proof of the production of the original, subject to satisfaction of the conditions set out in Section 65B(2) - (5) of the Evidence Act.

Certificate of Authenticity as per Section 65-B (4) of the Evidence Act.

Section 65B(4) of the Evidence Act provides for the requirement of a certificate of authenticity. The certificate is to be executed/signed by a person occupying a responsible position in relation to the device through which the data has been produced. The certificate must identify the electronic record containing the statement, describe the manner in which it was produced and also give such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer. The entire idea behind the certificate is also to ensure the integrity of the source and authenticity of the data, so that the Court may be able to place reliance on it. This is critical since electronic data is more prone to tampering and alteration.

Certificate as per Section 65-B (4) of the Evidence Act is Mandatory

In accordance with law settled by the Hon’ble Supreme Court of India in the case of Anvar P.V. v PK Basheer and Others (para 20 and 24) [(2014) 10 SCC 473], the certificate as per Section 65b (4) must accompany the electronic record when the same is produced in evidence. The same law has been reiterated in the case of Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao Phalke [(2015) 3 SCC 123] (Para 16), wherein it has been emphasised that “Source and authenticity are the two key factors for an electronic evidence, as has been held by this Court in Anvar P.V. Vs. Basheer” .

That, furthermore, in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors. (CA Nos. 20825 – 20826 of 2017) [(2020) 7 SCC 1] (Para Nos. 59, 62 and 72), the Hon’ble Supreme Court has been pleased to conclusively hold that the certificate required under Section 65-B (4) of the Indian Evidence Act, 1872 is a condition precedent to the admissibility of evidence by way of electronic record. It is mandatory to file a certificate as per Section 65-B (4) in all cases where a person cannot bring the computer device upon which “original information” is stored, to court.

Paragraphs 59, 62 and 72 of the above said Judgment are being reproduced herein below for reference:

59.       We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B (4) otiose.

62.       To obviate this, general directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act, which reads as follows:

67C. Preservation and retention of information by intermediaries – (1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.

(2) any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.”

 72.       The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

(b) The clarification referred to above is that the required certificate under Section 65B (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B (4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.                   

(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval, and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April 2016.

 

Conclusion

With the Supreme Court of India by way of pronouncement in the case of Arjun Pandit Rao (supra), stressing on the importance of the certificate as mandated in terms of the provisions in Section 65-B(4) of the Evidence Act, the certificate has ceased to remain a mere formality and is now a legal necessity.It is going to be of great help for the courts in the course of considering electronic evidence.

 

Mr. Rakesh Taneja

Advocate, Supreme Court of India

rakesh@netlawman.co.in

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