Documentary evidence under Chapter 5 of the Indian Evidence Act is of paramount importance during the course of trial in the Court of law. Sections 62 and 63 of the Indian Evidence Act deal with the admissibility of primary and secondary evidence respectively during the proceedings before a Court.
There exists a perpetual dilemma about manner and mode of admissibility of electronic evidence during trials. The various judicial pronouncements have helped resolve the dilemma.
Understanding Electronic Evidence:
An electronic record includes Compact Disc (CD), Video Compact Disc (VCD), pen drive, chip, computer print outs etc.
Sec 3 of the Indian Evidence Act:
‘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.
Section 2(1)(t) in the Information Technology Act, 2000:
"Electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
Primary and Secondary Evidence:
The original device which produced the electronic record in question is primary evidence for the content it produced. E.g., a phone used to take photograph is primary evidence for the photograph it produced.
The copy created or obtained from the original device is “secondary evidence”. E.g., printout of a reply obtained from the requested entity like TSPs.
In general, when primary evidence is available the secondary evidence is not admissible in the Court of law. The same principle cannot be strictly applied in case of electronic records. Expensive original devices, web servers etc cannot be expected to be brought before the court in each and every case.
As a result, secondary evidence is considered admissible in the Court of law, provided certain conditions are met.
Admissibility of Electronic Records:
Anvar P.V. vs P.K. Basheer, 2014:
Supreme Court in the aforesaid mentioned case has ruled that if an electronic record is produced as primary evidence under Section 62 of the Indian Evidence Act, the same would be admissible as evidence without meeting the requirements of Section 65 B of the Act.
Section 65 B: Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is a computer output shall be deemed to be also a document, if - the conditions mentioned in this section are satisfied in relation to the - information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein or of which direct evidence would be admissible.
Admissibility of Electronic Evidence:
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Section 65B (2) lays down the aforesaid conditions to ensure that:
Therefore, the reproduction of data is accurate and genuine.
Contents of the Certificate:
The certificate should ideally:
(a) Describe the manner in which the electronic record in question was produced.
(b) Give the particulars of the device involved in the production of the electronic record, to show that the evidence in question was produced by a computer.
(c) Satisfy the conditions mentioned in sub-section (2) of Section 65 B of the Indian Evidence Act.
(d) Signed by a person occupying a responsible official position in relation to – the operation of the relevant device or involved in the management of the relevant activities.
The contents of the certificate was laid down in Anvar P.V. vs P.K. Basheer, 2014.
Certificate U/s 65 B of the Indian Evidence Act:
By whom ?
One Certificate per case or many ?
There may be requirement of multiple certificates. For example, if it follows the given route – Server to Pen drive, and then Pen drive to Printouts.
Whether Certificate must be contemporaneous?
In K Ramajayam @ Appu vs Inspector of Police, 2016 Madras High Court, the Court ruled that even if the certificate is not obtained at the time of collection of evidence, yet at the time of trial the certificate may be given.
However, contrary view has been taken in Kamal Patel vs Ram Kishore Dogne, 2016 Madhya Pradesh High Court. It takes a view that in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer would be required.
Whether e record can be exhibited only by the person who has issued Certificate?
In K Ramajayam @ Appu Vs Inspector Of Police, 2016 Madras High Court clarified that it’s not mandatory to call the person issuing the certificate unless integrity is doubtful.
CERTIFICATE UNDER SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872 (Authenticity of Electronic Records)
1. I, < Name>state that I am employed in< Organization>as< Designation>.
2. I state that being employed in< Organization>, I have personally supervised in preparation of the following electronic records as noted below, through computer terminals in my / our office, by me / our staff under my direct supervision.
a. A DVD-R bearing Number< Actual>containing true copy of all electronic records pertaining to email account< Actual>, original of which are available in our computers. The hash value of the contents of the DVD-R is< Actual>.
Please note: (print out of an electronic records stored in a computer is also an electronic record) (a,b, …………… is the list of all the electronic documents which are being certified and sent under this certificate. It should be clearly identifiable and therefore the DVD-R or the printout should bear a seal / handwritten note/ printed note/ signature, and which should be made note of in the certificate) (Each page of printout should be carrying a seal of the office / officer sending it) (Furnishing the hash value of the contents of the record furnished is not compulsory but desirable in the certificate)
3. I further state that all the electronic records contained in digital media / print outs as noted in para 2 above are true copies made of the original electronic records maintained in our computers, in our establishment and the same have been produced using the computers in our establishment under my command identifiable as noted below:
(Section 65B (4b) requires that the certificate should “give such particular of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by the computer" and also “describing the manner in which the electronic records were produced")
4. In respect of the records provided above and the information contained therein, it is further certified that:
5. This is stated to the best of my knowledge and belief.
Anvar P.V. vs P.K. Basheer SCC (Full Bench):
The landmark judgement pronounced the following
The same was re-iterated in Harpal Singh @ Chhota vs State Of Punjab, 2016 SC.
Shafhi Mohammad vs State of HP, SC:
The requirement of certificate under Section 65 B (4) of the Indian Evidence Act is applicable only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. Thus, requirement of certificate is not always mandatory.
Recently the Supreme Court in Sonu @ Amar vs State of Haryana, 2017 has held that the mode or method of proof is procedural and objections if not taken at the trial, cannot be permitted at the appellate stage.
Admissibility of Proof of Electronic Evidence:
Mobile phones come under the ambit of “computer” as defined by the Information Technology Act. The contents of mobile phones including video and audio recordings, photographs, documents (created, received or sent), text messages, WhatsApp chats, posts on social media etc are often part of investigation.
The contents can be proved by either presenting the original device containing the electronic record or by producing an extracted copy of the content along-with certificate as mandated under Section 65 B of the Indian Evidence Act.
Admissibility of Cell Phone Recording:
In NCT vs Navjot Sandhu case Supreme Court while considering the print out of the computerized records of the calls, held that irrespective of compliance with the requirement of Section 65 B, there is no bar on adducing secondary evidence under other provisions of the Indian Evidence Act namely Section 63 and 65.
Also, in this case, the proof and admissibility of mobile telephone call records were considered. Supreme Court ruled that a cross examination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken are sufficient to prove the call records.
CDRs can be proved by printout of the original, along with certificate under Section 65 B of the Indian Evidence Act. As discussed earlier, it may require multiple certificates.
Admissibility of WhatsApp Chats:
Section 2 (i) of Information Technology Act, defines computer which includes mobile phones as well. Thus, WhatsApp chats are also admissible U/s 65 of the Indian Evidence Act. In fact, any electronic Act which can be printed on a paper, stored or copied in optical or magnetic media produced by a computer shall be deemed to be document and admissible as evidence in the Court of law. However, it must fulfill the 4 conditions mentioned in the Section 65 B.
WhatsApp chats and messages can be mailed directly and then it can proved like an email. Otherwise the original mobile device can be produced, and then device being the primary evidence, won’t require certificate under Section 65 B of the Indian Evidence Act.
Alternatively, printouts of the chats, coupled with production of certificate under Section 65 B of the Indian Evidence Act might be resorted to. Similarly, SMS can be proved by production of original phone containing the SMS/ MMS or their extracted copies along with certificate under Section 65 B of the Indian Evidence Act.
Among the various components of CCTV camera, the camera is the most important because it captures the images. It works in similar manner as ordinary cameras and type of lens determines it’s zooming capability.
Based on the aforesaid mentioned judgements, it can be safely inferred that:
When the original hard disk is produced in the Court, there is no requirement of certificate being primary evidence. However, in case of extracted copies (images) compliance of Section 65 B of the Indian Evidence Act is mandatory.
Camera Video or Audio or Photographs:
They are all electronic records for the purpose of Information Technology Act. In case of primary evidence i.e., memory card in case of camera there is no need of accompanying certificate under Section 65 B of the Indian Evidence Act. Similarly, in case of mobile phones if SD card is used to directly store images taken from camera or content created by phone, they do not require any certificate.
On the other hand, when internal memory of the camera or phone is used to store contents, original device (camera or phone) itself is the primary evidence. In case of printouts, a certificate in terms of the Section 65 B of the Indian Evidence Act is required.
Since the emails are stored in the server of the email service provider, therefore the only way to prove transmission or receipt of an email is to present the printout thereof. Normally, emails contain the following information – sender and receiver details, date and time of email, the message sent, the title etc.
The emails can be proved in Court of law by presenting the header of the email, along with certificate required under Section 65 B of the Indian Evidence Act, by the owner of the email account.
Analysis of header of an email has become crucial in wake of email spoofing.
Contents of Website:
Content of website may be proved by presenting printouts of contents i.e., screenshots. In this case, certificate under Section 65 B of the Indian Evidence Act is mandatory.
Anvar P.V vs P.K.Basheer and Others:
The honorable Supreme Court held that computer output is not admissible as evidence without meeting the requirements of Section 65 B of the Indian Evidence Act.
The legal interpretations of Sections 22 A, 45 A, 59, 65 A and 65 B of the Indian Evidence Act is as follows: Data stored in CD/ DVD/ pen drive etc is not admissible without a certificate U/s 65 B (4) of the Indian Evidence Act. In the absence of such certificate, the oral evidence to prove existence of such electronic evidence and the expert view under Section 45 A of the Indian Evidence Act cannot be availed to prove their authenticity.
State of Delhi vs Mohd Afzal and Others:
Electronic mails, SMS, MMS etc are admissible as evidence under the Indian Evidence Act. It also clarified that even if there is scope for misuse of system or failure of Operating System or interpolation as to affect the accuracy of such electronic data, then it is on the onus of the person who is challenging such electronic data.
The Court ruled that mere theoretical and general apprehension cannot make clear evidence inadmissible in the Court.
Nasscom vs Ajay Sood and Others:
In a landmark judgement in the case of National Association of Software and Service Companies vs Ajay Sood & Others, the Delhi High Court declared “phishing” on the internet an illegal act, entailing an injunction and recovery of damages.
In order to lay down a precedent in India, the Court stated that it is a form of internet fraud where a person pretends to be a legitimate association, such as bank or an insurance company in order to extract personal data or information from a customer such as password. Personal data so collected by misrepresenting the identity of the legitimate party is commonly used for the collecting party’s advantage.
The Delhi High Court held phishing to be an illegal act by defining it under Indian laws as a misrepresentation made in the course of trade leading to confusion as to the source and origin of the email causing immense harm not only to the customer but even to the person whose name, identity or password is being misused.
Other Important Aspects:
Veracity and Truthfulness of the Electronic Record:
In Kundan Singh vs State, 2015 Delhi High following aspects were discussed:
The computer output in relation to the information and computer in question are admissible as secondary evidence, when certificate under Section 65 B of the Indian Evidence Act are produced. However, Section 65 B of the Evidence Act nowhere states that the contents of the computer output shall be treated as the truth of the statement.
Section 65 B of the Indian Evidence Act deals only with the admissibility of the secondary evidence in the case of "electronic records" and not with the truthfulness or veracity of the contents. However, when a certificate under Section 65 B of Evidence Act is produced the Court may presume or form a prima facie opinion, which is rebuttable and may not be accepted.
The judgement further held that the courts must rule out tampering of records and read the data or information as it originally existed. Computer generated electronic records are not similar to a statement by a human and therefore, cannot be treated as hearsay. The credibility and evidentiary value of electronic record is determined on the reliability and accuracy of the process involved.
K. Ramajayam @ Appu vs Inspector of Police, 2016 Madras High Court:
The judgement ruled that certification under Section 65 B of the Indian Evidence Act is for the truthfulness of the content, but is essentially related to the working condition of the computer from where the stored record has been produced in a tangible form for the Courts to inspect.
Defense will always complain of manipulation, but Courts can reject fanciful objections bearing in mind the principle underlined in Section 114 of the Indian Evidence Act, 1872.
Recent Changes in the Indian Evidence Act:
The definition of “Evidence” under Section 3 of IEA has been amended to include electronic records. In turn, the term “electronic records” has been given the same meaning as under the Information Technology Act, 2000.
The definition of “admission” under Section 17 of IEA has also been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue.
Finally, new Section 22-A has been inserted into the Indian Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. New Sections 65-A and 65-B have been introduced to the Evidence Act, under the Second Schedule to the Information Technology Act, 2000.
Certificate under Section 65 B of the Indian Evidence Act plays a very crucial role in cyber crime cases. A proper certificate meetings the requirements mandated by the Evidence Act goes a long way in ensuring prosecution of cyber criminals.