Lucknow, UP, India, 226028

ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIA: AN ANALYSIS

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INTRODUCTION

The 21st century entices a humongous part of evolution where the whole world has ceased to operate offline and is being carried on with the trade and business online. In such conditions, often there are directions and bearings when the happening of circumstances over the World Wide Web affects a large part of the society by the phenomenon of a crime or tort indulging a person operating in the Web of Online Networking. In such a scenario, it is significant to realize and recognize the rights administering the cybercrimes, and as well as the relevancy of any such evidence which may be compelling in substantiating the accused of a crime and punishing the same. The admissibility of numerous different types of evidence is discussed under the Indian Evidence Act, 1872. The term “Digital Evidence” implies any evidence that has been stored or preserved on a computer source or a cloud storage networking device. The admissibility of electronic or digital evidence is proportionate to the fact that such evidence has the capability of being used in the different trials of numerous criminals and as well as civil cases.

To ensure that in a world operating on the World Wide Web, the rights of the individuals are curtailed and as well as preserved, numerous steps need to be taken to digitalize and update the existing statutes to the norms of contemporary and modernized society. The existing statutes lack the admissibility and recognition of the crimes which are circumstantial on the World Wide Web. Even, in cases about cybercrimes, one contemporary statute is the Information Technology Act, 2000. This particular statute not only safeguards but also preserves the rights of the individuals operating on the World Wide Web.

It has been observed that most of the existing statutes are silent on the perspective and aspect of rights governing the laws related to cybercrimes and cybercriminals. With the influence of better data storage techniques such as on the cloud storage, personal computers, etc, it is important to perceive and note that such developments need to be admitted for the betterment of the future and the individuals residing in the state. There have been numerous instances where it has been observed that Indian Courts are moving towards better system governance of online data storage techniques. Formerly, any such evidence was not admissible in the Indian Courts, but with the advancement and numerous amendments in the statutes, the parties to the suit can now present and portray any such pieces of evidence to ensure that the concept of justice, equality, a good conscience is maintained.

WHAT IS ELECTRONIC EVIDENCE?

Electronic evidence entices all the pieces of evidence which are of the “Digital” in nature. The word digital or electronic has been more significant and widely used in the technicities of the computer and cyber-related world. Any information which had been regulated, modified, and even stored on such a device that can transmit and convert the real and physical information into binary values and operate upon them are termed to be as Electronic Evidences. Electronic shreds of evidence or data are capable of modifying, storing, and as well as destroying the data which is herein stored.

All the digital and electronic shreds of evidence include any sorts of evidence present or situated on an electronic source. Digital Evidences may include Text Messages, WhatsApp Messages, files stored on the hard drives, audio or video documents, etc. Digital evidence is supposed to be explored through internet searches and examination of sources present on the World Wide Web.

Electronic Devices are the devices that had been formulated and invented for the betterment of the citizens of the different states. Storing data on electronic devices has contributed in many different ways, which include making it easier to access, store, modify, and delete.

ADVANTAGES AND DISADVANTAGES OF ELECTRONIC EVIDENCE

Electronic Evidence and storage devices have been contributing ever since to mankind. Also, storing any sort of data over any of the electronic devices makes it an exception to the primary and secondary rule of evidence enticed under the Indian Evidence Act, 1872. Primary and Secondary forms of evidence are rules related to admissibility relating to the authenticity of the evidence. Following is how electronic evidence can possess a sense of merit and as well as demerit for the courts and as well as society.

  • It is easier to manipulate which makes room for tampering with the evidence.
  • It opens a new pathway to different statutes, making it easier for the court to admissible such a type of evidence and degrading the burden on the party which has to substantiate the evidence.
  • It makes the process of criminal trial much easier, which entices the concept of video recordings, audio recordings, storing them on a storage device that can be used against the accused.
  • It degrades primary and secondary sources of evidence by creating a dilemma between the type of evidence that digital evidence would be categorized with.

ADMISSIBILITY OF ELECTRONIC EVIDENCE

The legal relevance and admissibility of numerous different kinds of evidence have been elaborated under the Indian Evidence Act, 1872. The apt provision which amplifies the admissibility of electronic evidence is the Section 65B of the same act. It has been observed that numerous rules and procedures have been formulated under this particular provision to ensure better facilitation of electronic evidence and as well as their relevance. For the electronic evidence to be admissible, it is a pre-requisite that is relevant to the facts of the case or the fact in issue. This is a thumb rule and is universal in making most of the evidence admissible.

Following are certain criterion which needs to be fulfilled while pitching in electronic evidence;

  • Under the Indian Evidence Act, 1872, electronic evidence and electronic documents have been defined under Section 65 B, clause 1.
  • Clause 2 of the same provision defines that such an electronic document has been regularly stored or processed using a computer storage device. It is mandatory under this provision to ensure that such a computer source is working efficiently and effectively.
  • Clause 3 of the said provision entices and recognizes the process of storing such an electronic document or electronic evidence was carried on by numerous computers operating over different or in a similar period. All the computer storage devices shall be deemed to be treated as admissible evidence if they are in proper working condition.
  • Clause 4 of the said provision elaborates on the part that an electronic or physical certificate saying that the computer source worked effectively and productively would deem as the electronic evidence to be relevant.
  • Clause 5 of the said act discusses the part that the electronic evidence ought to have been produced by a digital computer networking source which is valid.

In the case of State (NCT of Delhi) v. Navjot Sandhu[i], it was held that where the witness had been cross-examined in the related to working of a computer source during the appropriate time and the methods in which the calls of the accused were traced, shall be treated as valid evidence.

In the case of Abdul Rahaman Kunji v. State of West Bengal[ii], it was held that where the witness uses any computer source to provide his testimony, it shall be deemed as perfectly valid evidence.

CONCLUSION

It has been observed that as time and places evolve and develop, a large community of people is moving towards using social media, irrespective of it being a boon or bane. Therefore, it is necessary in the public interest of the communal that the crimes which administer the digital world are well recognized and penalized by the appropriate lawmakers. In a world where a large population of the world is still unknown to the connotation of the digital world, necessary awareness relating to the same must be spread.

Section 65B of the Indian Evidence Act, 1872 swiftly recognizes the act of digital evidence and is an attempt at better penalizing and punishing of the digital crimes, and including the digital evidence which is prevailing on computer devices and as well as on the phone devices. It is necessary to assume that the legislature will take more expeditious and speedy steps towards the recognition of such devices and evidence entailing on such devices. This has been done to righteously construe the ends of justice, equality, and good conscience.

Author(s) Name: Anshit Minocha (UPES, Dehradun)

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[i] AIR 2005 SC 3820.

[ii] AIR 2016 CLRJ 1159.