WE’LL breaak this topic into 3 parts .
1. What is evidence?
2. Electronic evidence and its admissibility.
“Evidence.”— “Evidence” means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2)[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.
Table of Contents
What is electronic evidence?
‗Electronic evidence‘ can be said to be a
piece of evidence generated by some mechanical or electronic processes. It includes, but
not restricted to, e-mails, text documents, spreadsheets, images, graphics, database files,
deleted files, data back-ups, located on floppy disks, zip disks, hard drives, tape drives,
CD-ROMs, cellular phones, microfilms, pen drives, faxes etc.
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.
ADmissibibilty
upon satisfying sec 65 b and getting a certificate from expert.
Some examples of electronic records could be
Electronic mail or e-mail is one of the most commonly utilized electronic media for transmission of information. With most formal interactions between people taking place through e-mails, the Courts in India have allowed such e-mails to be admissible in evidence upon filing of a printout of the e-mails along with the certificate under Section 65B of the Evidence Act.
SMS/Whatsapp
where the mobile phone containing the SMS or WhatsApp cannot be led into evidence, a certificate under Section 65B would be required to be filed by the person, who has received or sent the SMS / WhatsApp message. While the Courts in India are yet to independently adjudicate upon the admissibility of WhatsApp messages into evidence, it is prudent to ensure proper custody of the mobile phone. Since such messages shall be subject to judicial scrutiny, it is also important to ensure that there is no tampering of data, which may otherwise undermine the evidentiary value of these messages.
Call Records
Most criminal investigations often commence from an analysis of the call records of the accused. Such call records are often useful as a starting point for also establishing conspiracy with other individuals. While noting that call records are stored in huge servers which cannot be easily moved and produced in the court, the Hon’ble Supreme Court has held that printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer
Court findings
In Yusufalli Esmail Nagree v. State of Maharashtra, the Supreme Court observed that “since the tape-records are prone to tampering, the time, place, and accuracy of the recording must be proved by a competent witness. It is necessary that such evidence must be received with caution. The court must be satisfied, beyond reasonable doubt that the record has not been tampered with.”
Conclusion
With the enactment of the IT Act and the subsequent Amendments in the Evidence Act, the use of electronics records in judicial proceedings has gone a long way. However, despite various judicial precedents stressing on the importance of the certificate, the certificate has become a mere formality. With the requirement of a certificate under Section 65B of the Evidence Act being diluted by the ruling of the Supreme Court Shafhi Mohammed, it would be interesting to see how the same is clarified by the Supreme Court. Even thereafter, with the continuous evolution of the cyber space, it would be apposite that the courts keep up with the changes in cyber space, to promote certainty in the use of such electronic records, while taking into account all practical aspects.
Passionate about using the law to make a difference in people’s lives. An Advocate by profession.
