Law 101 # A Primer On Electronic Evidence

Before making an attempt to understand how electronic evidence is treated in a court of law, it is essential to understand what is meant by the terms “electronic evidence” and “electronic record”. Once we establish that, we will see whether electronic records can be classified as “documents”?

It is only after we have established these links, that will we be in a position to examine as to how an electronic evidence is proved in a court of law.

PRESERVATION/RETENTION OF ORIGINAL/PRIMARY ELECTRONIC RECORD

Let us begin by taking a look at what is meant by “electronic record” and what are the various parameters of its classification under the Information Technology Act, 2000 (“IT Act”).

Some basics:

  • Anything “required by law to be in writing” – can be in the form of electronic record too now pursuant to certain provisions in the IT Act:
    • S. 4 – Legal Recognition of electronic records.
    • S. 5 – Legal Recognition of electronic signatures.
  • Is there a requirement of retention of the electronic record?
    • Section 4 (b) Electronic Record shall suffice when a written document is needed provided, of course, it is “useable for a subsequent reference”.
  • Section 7, among other things, requires metadata of electronic records to be retained.
  • What is meta-data?

Simply put data behind, or data about data. More specifically : “Details which will facilitate the identification of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record”.

  • Retaain original. As per Order XI of CPC & Section 91 of the Code of Criminal Procedure, 1973 (“CrPC”) – The Court can order production of the original electronic record at any time.

ELECTRONIC RECORDS AS DOCUMENTS UNDER THE INDIAN EVIDENCE ACT

As per the Indian Evidence Act (“IEA” or “Evidence Act”) electronic records are treated as documents. Section 3 of IEA provides:

“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.

ELECTRONIC RECORD

Having dealt with the basic statutory definitions, let us turn to more nuanced questions regarding electronic records.

WHETHER A ‘HARD DISK’ IS A DOCUMENT?

  • This issue came up before in a case before the Delhi High Court where the court answered in affirmative –Dharambir vs. CBI (2008) DHC. It reasoned that:
    • New Hard Disk (blank slate) is merely a storage device.
    • Hard Disk, once data/information is written on it, becomes an electronic record. (S.2(t) of the IT Act).
    • Since it’s an electronic record, by virtue of Section 3 of the Evidence Act, it is also a Document.
    • Two Levels of Electronic Record: Active memory & Subcutaneous memory;
    • Accused entitled to both at the time of supply of documents to him.
    • Right of the accused under sections 207 (v) and 173(5)(a) of the CrPC.

PROOF OF ELECTRONIC EVIDENCE – PRIMARY OR SECONDARY

  • In addition to knowing how a particular electronic device will be treated by a court of law, knowing its evidentiary value is equally important. 
  • The original device in such a case which produced the electronic record is ‘primary evidence’ and may be directly be admissible in evidence u/s 62 of the Evidence Act. For eg.: The sound recorder/CCTV Camera and attached hard disk (DVR) used to record a video/audio clip, or the server in case the clip is saved on a cloud, are primary evidence of its contents.
  • General rule of law of evidence – When primary evidence is available, secondary evidence is not admissible.
  • Primary electronic evidence, for example a mobile phone in case of text messages, or a hard drive in case of data or original DVR/memory card, can be admitted into evidence as is, as primary evidence. Raj Kumar vs. State(MANU/DE/0909/2016) – Certificate not needed when original mobile itself produced in court.
  • Similarly, in Kishan Tripathi vs. State (2016 – Delhi High Court) original hard drive containing CCTV footage produced is primary evidence.
  • An output in form of a printout or a soft copy in the form of CD/DVD etc. of the original contents is a “deemeddocument” as per Section 65-B of the IEA and it is this kind of an output that is required to be proved in accordance with Section 65-A and 65-B of the IEA.

Section 65B of the IEA is the cornerstone of court procedure surrounding electronic documents. At this juncture, it is essential to examine the ins and outs of this section. 

REASON FOR HAVING SOMETHING LIKE SECTION 65B OF THE EVIDENCE ACT

  • The general principle of primary-secondary cannot be strictly applied in cases of electronic records. Large servers or original devices cannot be expected to be brought before the court in each case.
  • Therefore, secondary evidence in the form of an output such as Printout or soft copy in the form of CD/DVD etc. has been made admissible in a court of law, provided certain conditions are met.
  • These conditions are laid down with a view to ensure that the secondary evidence is true and accurate representation of the original electronic record and has not been tampered with, in any manner. This is because electronic records, by their very nature, are more prone to tampering.

SECTION 65B(1)

Notwithstanding anything contained in this Actany information contained in an electronic record

  • which is printed on a paper;
    • stored, recorded or copied in optical or magnetic media produced by a computer
    • 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 of which direct evidence would be admissible.

CONDITIONS TO BE MET: SECTION 65(2)

CERTIFICATE UNDER SECTION 65B(4)

What should the Certificate contain?

  • identifying the electronic record containing the statement and describing the manner in which it was produced;
  • giving the particulars of any device involved in the production of that electronic record or any other info necessary to show that the electronic record was produced by such computer;
  • dealing with any of the matters to which the conditions mentioned in sub-section (2) relate.

Who is Competent to issue the certificate?

  • 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).

THE EVOLUTION OF SECTION 65B JURISPRUDENCE

State (NCT of Delhi) vs. Navjot Sandhu 2005 11 SCC 600

  • Section 65-B was only one method for admission of evidence, other methods of adducing secondary evidence at not excluded.
  • The Supreme Court favoured a relaxed approach to allow relevant evidence and let the judge deal with it, rather than exclude it as inadmissible altogether on account of what it considered a technicality.       

PV Anvar vs. PV Basheer [2014] 10 SCC 473

  • Section 65-B is a mandatory requirement for reception of electronic evidence and the certificate has to be contemporary.
  • Generalia Specialibus Non Derogant – Special law supercedes the more general one.
  • When something is categorically prescribed to be done in law in a certain manner, it has to be done in that manner alone and no other.
  • However, this strict approach affected existing cases adversely.

Sonu vs. Haryana (2017) 8 SCC 570

  • Drew distinction between issues of “inherent admissibility” (matter of law) and “mode of proof” (matter of procedure), held that non-compliance with S. 65-B was a ‘mode of proof issue’
  • This required parties to raise this objection at the time of exhibition of electronic record and barred them from raising it for the first time in appeal.
  • Thus, SC developed a different line to allow for curing the anomalies that might result from Anvar. Effectively, it had shielded trial court verdicts from a retrospective application of Anvar, something it specifically flagged as a concern.
  • But this is applicable only in cases where no objection was taken at the time of exhibition of documents, in other cases, where objection was taken but overruled, those can effectively be re-opened.

Shahfi vs. State of Himachal Pradesh (2018)2 SCC 801

  • Suppose a person relies on a computer-generated receipt or a bill of a departmental store, which computer is obviously not in possession of that person, can the court say ‘first go and get the certificate’ and in absence of certificate – we won’t look into that e-record?
  • Held – Sections 65-A and 65-B are supplemental in nature/not a complete code on the subject of electronic evidence and are procedural in nature.
  • Courts can relax the 65B requirements in the interests of justice if the original device is not in the possession of the person adducing evidence.

Arjun Panditrao Khotkar vs. Kailash Khusanrao CA – 2082520826/2017 SC

  • In this case SC held that, in view of Anvar, Shafhi needs reconsideration, and was referred to a larger bench.
  • Held – With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty.
  • Reference currently pending.

WHERE COMPUTER OUTPUT ADMITTED, IS A CERTIFICATE U/S 65B(4) STILL NEEDED?

  • Judicial admission acts as waiver of proof.
  • Section 294 of the CrPC in this regard may be relied upon.
  • Shamsher Singh Verma vs. State of Haryana, 2015 SCC ONLINE SC 1242.
  • Shamsher (supra) read with Sonu (supra) may be relied upon to argue that admitted electronic record is exempt from the rigours of Section 65B of the Evidence Act.

Food for thought; the way ahead for Section 65B.

  • The Indian draftsman, while inserting S. 65B in IEA in year 2000, had heavily relied on S. 5 of UK Civil Evidence Act, 1968 and S. 69 of Police and Criminal Evidence Act, 1984.
  • Notably, both of these provisions had been repealed at that point of time: S. 5 of UK CEA, 1968 was repealed in 1997 and S. 69 of UK PACE Act, 1984 was repealed in 1999.
  • Time to rethink S. 65B, IEA too and make the regime of admissibility of electronic evidence more relaxed, as has been done in the UK?

STAGE OF FURNISHING A CERTIFICATE U/S 65B(4):

  • Kundan Singh vs. The State, 2015 SCC OnLine Del 13647.
  • Paras Jain and Ors. vs. State of Rajasthan, 2015 SCC ONLINE RAJ 8331
  • TMS Prakash vs. The State, 2018 (1) ALD(Crl.) 297 (AP)
  • State of Karnataka vs. MR HireMath, (2019) 7 SCC 515
  • Certificate u/s 65B IEA can be filed even after receipt of document/Electronic evidence on record.
  • Court may utilize Sections 311, 91, 391 of the CrPC. Investigating authority (police) can also file the certificate along with a supplementary police report u/s 173(8) of the CrPC 
  • In civil proceedings, Ord. XVI R. 14, Ord. XVII R.17 r/w 151 CPC can be used to recall a witness for the purpose of certificate.

SECTION 65B(4) CERTIFICATE & DOCTRINE OF HEARSAY

  • In cases where information as to proper functioning of computer system/server is derived from system logs, made in the ordinary course of business, a witness deriving his knowledge from such written records can produce certificate u/s 65B(4) and prove the electronic record and his testimony is not barred by doctrine of hearsay.
  • This is premised on the fact that: Proper functioning of the computer in such cases is not a matter of personal testimonial knowledge but knowledge derived from records maintained in the usual course of working of the system.
  • Doctrine of hearsay primarily applies in the domain of oral evidence.
  • Doctrine of hearsay limited in its application in cases of Electronic Evidence. (Kundan Singh Vs. The State, 2015 SCC OnLine Del 13647).

S. 65B CERTIFICATE AT THE TIME OF BAIL

Pravata Kumar Tripathy vs. Union of India (C.B.I.) 19 (2015) CLT 177: 2014 (II) OLR 941

Held – At the time of consideration of bail application, it is not at all necessary to ask prosecution to first satisfy the fulfillment of all the criteria laid down in the case of Anvar P.V. Vs P.K. Basheer [2014] 10 SCC 473 before taking into account Forensic Voice Examination Report as well as transcription of CD.

IF A CERTIFICATE U/S 65B IS FAULTY, CAN ANOTHER ONE BE FILED?

Ignatius Topy Pereira vs. Travel Corporation (India) Pvt. Ltd – 2016 SCC Online Bom 97

  • If the certificate under S. 65B, Evidence Act which was originally produced was rejected as not being in compliance with the Section, a fresh certificate may be produced.

WHAT DOES A CERTIFICATE U/S 65B(4) PROVE?

A Certificate u/s 65B does not conclusively prove the facts contained in the electronic record, or that the same amount to truth.

  • S.65B deals with conditions precedent for admission of electronic evidence.
  • Compliance of S.65B allows the court to read the document.
  • The court still has to examine relevancy, genuineness, veracity and reliability of the document.
  • The probative worth, that is to say, whether the document has an actual bearing on the case or not or how much weight is to be attached to it, is also to be examined independently.

CASE STUDIES ON COLLECTION OF ELECTRONIC EVIDENCE

Now that we have analysed Section 65B in detail, it is pertinent to take note of a few real life examples which will assist in understanding the application of law and how the courts dealt with some of them.

CASE

  • An image taken with a mobile phone camera, first copied onto the laptop and, thereafter, printed out.

CERTIFICATE u/s 65B

  • To mention the process of transfer and printing so as to prove ‘integrity in the chain of movement’.
  • To be prepared and given by the operator of the mobile phone and the laptop and person producing the output.
  • To compulsorily conform to the conditions in S. 65B(2) & (4).
  • To identify the original mobile phone and the other devices used in preparing the output.

OTHER TIPS

Preserve the original in a dust/transmission resistant environment.

As far as possible, record in a device which directly saves it on a memory card, which becomes primary evidence.

Make a clone copy of the contents therein (after using devices such as write-blocker to ensure no data is written onto the device during access and process of copying). Access the document through the clone/mirror copy only, as accessing the data on the device itself may make the authenticity/integrity of the document suspect and may make it open to challenge.

Take the ‘Hash Value’ of the device at the time of seizure (Hash Value is a specific string of numbers that each file produces; any change in the file, even a space or a comma, leads to a total change of hash value; this algorithm is used to preserve the document in original shape and ensure no tampering takes place). Compare it with the Hash Value at the time of evidence before the court, to convince the court as to non-tampering with the device.

WHAT IF THE COMPUTER MALFUNCTIONS? – THE BANK ATM WITHDRAWAL CASE

Case – Sri. P. Padmanabh vs. Syndicate Bank Limited, [2008 (2) Kar. LJ 153] 

  • Facts – ATM link lost > person took out more money than he was entitled > bank alleged defendant took advantage of computer malfunction > sued for recovery of that amount > in evidence, relied on electronic evidence of withdrawal of money.
  • Held – when the ATM/Computer itself was admittedly malfunctioning, output not admissible in evidence.

Therefore, the proper functioning of the computer > accuracy of data > chain of integrity is extremely important.

MEMORY CARD / PEN DRIVE

P Gopal Krishnan v State of Kerala – 2019 SCC OnLine SC 1532

Held

  • Thus, the footage/clipping contained in such a memory card/pen drive, being an electronic record as envisaged by Section 2(1)(t) of the IT Act, 2000, is a “document” and cannot be regarded as a “material object”. 
  • Thus, the contents of a memory card or a pen drive in relation to a crime being a ‘document’ and not a ‘material object’, the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973.
  • To balance right of privacy of victim, right to inspection only may be given.

PROOF OF E-MAIL

  • In addition to the law in Section 65B, Section 88A, IEA Section 88A – Presumption as to Electronic Message 

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

  • Simply put – that data sent by email from X computer corresponds to data received at Y computer.
  • The court may not draw the presumption, or the same may be rebutted, being a rebuttable presumption of fact.
  • There is no presumption as to the identity of the sender as the section makes clear.
  • Preservation of ‘meta-data’ is extremely crucial. Simply put, meta-data is data about data and contains information relating to date/time/origin/authenticity/access date of the data, which goes on to strengthen, or destroy its evidentiary or believability quotient.

MOBILE PHONES

  • A Mobile Phone is a computer as envisaged under the IT Act, 2000. – Syed Asifuddin vs. State of A.P (2005 CriLJ 4314)
  • A mobile phone tendered in evidence is primary evidence of data/messages etc. in it, no 65B certificate needed – Raj Kumar vs. State (2016, Delhi HC)
  • A printout of screenshots of messages on a mobile phone is secondary evidence, admissible after complying with S. 65B. 
  • Call Details Records – play crucial part in any investigation today. Needs to be properly submitted in evidence.
  • IMEI number is irrefutable evidence that the device with accused or X person was used to make a call. – Gajraj vs. State (NCT of Delhi), (2011) 10 SCC 675) (What about IMEI Spoofs?)

PROOF OF BANK ACCOUNT STATEMENTS

  • Governed by a special law – the Bankers Book Evidence Act, 1891.
  • Sec 2A – Conditions in the printout
  • The following three certificates are required to prove a bank statement :-
  • A certificate regarding authenticity of entry/printout by the principal accountant or branch manager.
  • Authenticity certificate from person in-charge of computer system regarding (among others):-
    • Details of Computer System
    • Process of Data Storage
    • Safeguards adopted to protect Computer System and Data
  • A certificate to the effect that the fact that such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question.

Case Law:

State Bank of India vs. Rizvi Exports Ltd

(Debt Recovery Tribunal “DRT”, Allahabad)

  • SBI had filed for recovery, but the bank statements filed as evidence were not accompanied by certificates as required u/s 2A of BBEA.
  • DRT held such bank statements to be inadmissible.

ELECTRONIC EVIDENCE AND THE COMMERCIAL COURTS ACT, 2015 (“CCA”)

As we know, commercial courts deal with commercial involving disputes over and above a particular monetary limit. It is interesting to see how electronic evidence is treated by these courts.

  • Declaration on Oath, as required under CCA to be filed along with pleadings, when concerned with electronic evidence must contain all the information mentioned in Order XI Rule 6(3) for it to be accepted.
  • Order XI Rule 6(3) warrants more information than Section 65B, IEA and is also on oath unlike the latter.
  • This requires information such as:
    • Parties to E-record
    • Manner of production
    • Date and time of preparation or storage or issuance or receipt of such e-record;
    • Source of such e-record and date and time as to when it was printed;
    • In case of email ids, details of ownership, custody or access to such email ids;
    • In case of documents stored on a computer or computer resource (including external servers or cloud), etc……
    • When coupled with the fact that S. 21 of the CCA gives overriding effect to the Act, this warrants the question – 

“Does Rule 6(3) render it absolutely redundant to secure a separate Certificate under Section 65-B for cases under the CCA?”

ELECTRONIC EVIDENCE – SEIZURE & PRESERVATION

Regardless of the court dealing with the evidence, collection and preservation of the evidence need special mention. 

Three stages of a digital crime scene search and seizure:

  1. Preparation/Planning stage.
  2. Collection Stage.
  3. Preservation / Transportation stage.

AT A CRIME SCENE, HOW TO SEIZE DIGITAL EVIDENCE:

Now that we have dealt with seizure, preservation and submission of electronic evidence, let us take a look at a few interesting scenarios involving the interplay of tech and law.

IS IP ADDRESS CONCLUSIVE PROOF OF IDENTITY?

  • An IP Address only identifies a particular computer device, not a real person.
  • As such, an IP Address identified to be involved in the commission of a crime should not be held to be conclusive proof of identity of the person who committed the offence.
  • An IP address alone is not enough to prove that a particular person did any particular act (in this case, downloaded files illegally). 
  • It is no more likely that the subscriber to an IP address carried out a particular computer function — here the purported illegal downloading of a single pornographic film — than to say an individual who pays the telephone bill made a specific telephone call

EXPERT OPINION IN CASES OF ELECTRONIC RECORDS

  • Sec 79A – IT Act 2000 – Central Government may notify agency of government as an examiner of electronic evidence for expert opinion.
  • Sec 45A – Evidence Act – Opinion of examiner of electronic evidence notified U/s 79A of IT Act on Digital Evidence becomes a relevant fact.
  • Anvar P.V vs. P K Basheer, (2014) 10 SCC 473 – No expert opinion can be led w.r.t an electronic evidence without first complying with Section 65B of the IEA.

ELECTRONIC EVIDENCE – FOOD FOR THOUGHT!

How to Prove a Social Media Post Since Deleted

  • Scenario – A defamatory tweet about Y, posted by X. Y takes a printout of the screenshot – and along with certificate u/s 65B files it in court as evidence. In the meanwhile, X deletes the said tweet and his account.
  • Question – How to prove such a tweet?

Recent case – DELHI HIGH COURT

  • Woman filed a complaint in 2015 for harassment, receiving ‘filthy’ messages and pornographic pictures from a specific Facebook account.
  • A Letters Rogatory for Judicial Assistance sent to competent judicial authority in California, USA.
  • Facebook informed that the said account has been deleted 4 years back and thus no information can be provided.
  • Delhi HC directed Police to recover digital footprints or metadata relating to the post.
  • The case is pendin

In case of electronic information/evidence contained on servers outside India – assistance of Mutual Legal Assistance Treaties (MLATs)

  • A number of cloud based companies don’t maintain their data in servers located in India.
  • Resist S. 91 CrPC with “No contract with customer, it’s with the US entity”, “data not in our power or control”. 
  • Efficacy of MLATs and other ways in such scenario.

Electronic Evidence vis-à-vis Criminal Law & the Constitution

An Accused, while being arrested, is made to take a printout from his email account.

Now – 

  • Can the Accused be made to issue the certificate u/s 65B?
  • If yes, whether the same amounts to ‘self-incrimination’ and resultantly, runs afoul of Article 20(3) of the Constitution?

The jury is out on this one, and till an authoritative decision of the court is awaited. Till then, there are arguments for and against each position.

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