ADMISSIBILITY OF EVIDENCE RELATED TO ELECTRONIC RECORDS UNDER INFORMATION TECHNOLOGY ACT AND INDIAN EVIDENCE ACT

ADMISSIBILITY OF EVIDENCE RELATED TO ELECTRONIC RECORDS UNDER INFORMATION TECHNOLOGY ACT AND INDIAN EVIDENCE ACT

WRITTEN BY: VIVEK NASA

ELECTRONIC EVIDENCE / EVIDENCE RELATED TO ELECTRONIC RECORDS NOT ADMISSIBLE WITHOUT CERTIFICATE UNDER SECTION 65B(4) OF INDIAN EVIDENCE ACT.

ANY AUDIO/VIDEO RECORDING OF ANY CRIMINAL OFFENCE GIVEN TO POLICE ON CD/DVD/PEN DRIVE, NOT ADMISSIBLE EVIDENCE PER SE.

After implementation of Information Technology Act 2000 (as amended), amendments were made to other statues like Indian Penal code and Indian Evidence Act, to recognize offences/ criminal acts done, using computer systems (including electronic devices). Amendments were also introduced to Indian Evidence Act to recognize evidence collected using computer systems. Section 65A and 65B were added to recognize admissibility of evidence related to electronic records. Section 65A of Indian Evidence Act reads as under:

“Section 65A: Special provisions as to evidence relating to electronic record - The contents of electronic records may be proved in accordance with the provisions of section 65B”

So it is evident that contents of electronic records can only be proved in accordance to provisions of section 65B of Indian Evidence Act. In the absence of any other law to prove contents of electronic records as admissible evidence, this provision is complete code / law in itself, and has overriding effect over other general provisions of admissibility of other evidence, due to presence of Non-obstante clause in this section. Hence this special provision related to admissibly of evidence related to electronic records, overrides general provisions relating to admissibility of other forms of evidence in the court of law, both in criminal and civil cases.

In this era of electronic devices, it is usual practice to record a conversation, or make a video of any act through mobile phones, or using other spying devices like spy camera or camera pens, to record criminal culpability of any person. Even some popular political leaders after coming to power have advised common people, to audio/video record conversations of bribe seeker, and further transmit the same though email/whatsapp/Facebook or any other social media, to investigating agencies and such investigating agencies shall take appropriate action and use that audio/video to ascertain / prove criminal culpability of bribe seeker. It is usual practice of investigating agencies not to comply with all the requirements of Section 65B of Indian Evidence Act, and as a consequence of this lapse the evidence adduced and supplied along with charge-sheet is not admissible in the court during trial.

Under section 65B of Indian evidence Act which is a special provision; complete law in itself, relating to admissibility of evidence related to electronic devices; this provision has overriding effect over the general rules of admissibility of any other non-electronic documents. Essential ingredients of admissibility of electronic evidence under section 65B of Indian evidence act are as under:

The conditions referred 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 any 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

In addition to above mentioned conditions, section 65B(4) has requirements of a certificate to be prepared at the time of collection of evidence related to electronic record

(a)     identifying the electronic record containing the statement and describing the manner in which it was produced;

(b)     giving such particulars 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 a computer;

(c)     dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

(d)     and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

It is a usual practice that once any offence is recorded through any electronic device, the same it fed over to a separate computer, the data is copied to hard disk of that separate computer, and data is deleted from device used to record such audio/video conversation and thereafter, that data is copied to some CD/DVD/Removable media/Pen Drives and given to investigating agencies/police, and such investigating agency do not collect the original device used to record such audio/video, nor do they comply with requirements of certificate under section 65B(4) of Indian Evidence Act. Hence in the absence of such certificate any person accused of any offence cannot be convicted only on the basis of such audio/video evidence arising out of such electronic record.

There has been controversy since conflicting judgements were passed by various High Courts in interpretation of above mentioned provision of Indian Evidence Act, which has recently been settled down by constitutional bench of Hon’ble Supreme court of India in a recent judgement passed on 18 September, 2014. I shall discuss that judgement in my next article.