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RECENT TRENDS IN RECORDING AND ADMISSIBILITY OF ELECTRONIC EVIDENCE By Y. Srinivasa Rao Introductory: New technology and the evolution of communications systems have substantially transformed the process of exchanging information. Our country that regulates evidence, electronic evidence, the admissibility of evidence or the admissibility of electronic evidence. It is not out of place to mull over the advantages and inconveniences in the process of Electronic Evidence Adv!nt!"e# c!n $e cl!##i%ied !#& ' In%or(!tion: exact, In%or(!tion: exact, complete, clear, precise, true, objective, novel and neutral. ) *roo%: solid, *roo%: solid, useful, reliable, viable, essential, to prove certain crimes that previously couldn’t be proven. + E!#y: collection, E!#y: collection, use, safekeeping and torage. , Electronic docu(ent#- together docu(ent#- together with !lectronic signatures, facilitate electronic "ommerce making it faster and more secure. Inconvenience# !re #uc. !#& • • • • • •
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scant#lack of suitable and systematic regulation$ scant jurisprudence$ unknown and very technical material$ few !xperts$ demands specific knowledge$ difficult to present at court in an understandable manner$ harder to be accepted accepted at court as judges ask for more guarantees than with other evidence$ lack of technical infrastructure in judicial departments$ high cost of examining and interpreting the information$ hard to know how to process the data and how how to interpret specific specific processing processing laws$ difficult to prove authenticity, reliability and origin of data$ volatility of data and ease of manipulation$ hard to identify perpetrator of the crime$ difficult to conserve, preserve and store$ hard to establish legal legal value value of evidence and lack lack of legal support support and and certification etc.
%ut, there is no dubiety to say that the information technology is a great tool for speedy justice.
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&he various categories of electronic evidence such as website data, social network communication, e'mail, (#(( and computer generated documents poses uni)ue problem and challenges for proper authentication and subject to a different set of views. ource and authenticity are the two key factors for electronic evidence.
De%inition o% /evidence0:& &he definition of *!vidence’ +Section +Section + o% t.e Indi!n Evidence Act- '12) '12) has been amended to include electronic records. &he term *electronic records’ has been given the same meaning as that assigned to it under the I& -ct. &he definition definit ion of *admission’ +Section +Section '2 o% t.e Evidence Act Act has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. New Section ))&A has been inserted into !vidence -ct, to provide for the relevancy of oral evidence regarding the contents of electronic records. New Section# 34&A !nd 34&B are 34&B are introduced to the !vidence -ct, under the econd chedule to the I& -ct.
' ADMISSIBILITY OF INTERVIE5S AS EVIDENCE: -ll digital evidence presents the possibility of alteration or fabrication. /rom an evidentiary standpoint, a traditional authentication foundation, however minimal, likely will suffice for admissibility. (See generally Fredric Lederer, The New Courtroom the !ntersection o" #vidence and Technology Some Thoughts $n the #videntiary %s&ects o" Technologically 'roduced or 'resented #vidence, ) S.*.+.L. R#. -) (/0.01
Interpreting Section )2+ o% t.e Cri(in!l *rocedure Code in Code in the light of technological advancements, in several recent rulings, our superior courts held that recording of evidence through video conferencing would be perfectly legal. Ref: State of Maharashtra vs. Dr. Praful B.Desai, 2003 (2) ALT (Crl.) ! (SC) &he amendments carried to the !vidence -ct by introduction of ections 01'- and 01'% are in relation to the electronic record. ection 02'- and 23'- were introduced as regards proof and verification of digital signatures. -s regards presumption to be drawn about such records, ections 41'-, 41'%,41'",44'-, and 56'- were added. &hese provisions are referred only to demonstrate that the emphasis, at present, is to recogni7e the electronic records and digital signatures, as admissible pieces of evidence. See: Bo"ala Murali #rish$a vs S%t. Bo"ala Prathi%a, 200& (2) ALD &2.
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"uriously enough, in 'ait si$h vs. State of *ar+a$a ((200) SCC ), the ), the 8on’ble -pex "ourt considered the digital evidence in the form of interview transcripts from the 9ee News television channel, the %a2 the %a2 Ta3 television television channel and the 8aryana News of :unjab &oday television channel and determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the "; were those of the persons taking action.
Ad(i##i$ility o% e(!il:& In A$dul R!.!(!n 6un7i V# T.e St!te o% 5e#t Ben"!l8MAN95B;1)1);',<-the 8MAN95B;1)1);',
An electronic record $y =!y o% #econd!ry evidence #.!ll not $e !d(itted in evidence: &heir
";, chip, etc., the same shall be accompanied by the certificate in terms of section 01'% obtained at the time t ime of taking evidence, without which, the secondary evidence pertaining to that electronic record, is not admissible.
Cell&>.one recordin" ? Evidenti!ry V!lue:& In St!te @NCT o% Del.i v N!v7ot N! v7ot S!nd.u A%#!n Guru: @);;4 '' SCC 3;;- the 3;;- the -pex "ourt while considering the print out of the computerised records of the calls pertaining to the cell phones in view of the production of electronic record held as follows? 4/56. 777 irres&ective o" the com&liance with the re8uirement o" section 95:B, which is a &rovision dealing with admissi;ility o" the electronic records, there is no ;ar to adducing secondary evidence under the other &rovisions o" the #vidence %ct, namely, sections 9- < 95. !t may ;e that the certi"icate containing the details in Su;= section (>0 o" section 95=B is not "iled in the instance case, ;ut that does not mean that secondary evidence cannot ;e given even i" the law &ermits such evidence to ;e
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given in the circumstances mentioned in the relevant &rovisions, namely, sections 9< 95.1
Ad(i##i$ility o% Tele>.one c!ll in ! CD !nd CDR:& In 'a"eo Si$h s. The State a$" rs, MA4D7403&4208 , the 8on’ble 8igh "ourt of ;elhi, while dealing with the admissibility of intercepted telephone call in a "; and ";@ which were without a certificate u#s 01% !vidence -ct, the court observed that the secondary electronic evidence without certificate u# s 01% !vidence -ct is inadmissible and cannot be looked into by the court for any purpose whatsoever.
Intervie= telec!#ted on Doord!#.!n:& In Shara" 9a"av a$" rs. s. $io$ of $"ia () a$" A$r, ;;; AD Delhi !2, !2 (;;;) DLT 3, ;;; (8) DR' 3&, 3&, hri harad Aadav in an interview recorded in 8indi, had admitted having received a sum of @s. 3 lac from one Bain and the said interview was telecasted on ;oordarshan after due editing. 8indi version of said interview has been produced before the "ourt, which is as under? 4?+@A# CA??%N BA%! '%T#L # S%%TA # @%!N %!Y% TA% +SN# T##N L%A R+'##Y# !Y# A%!N %+R *$A T##N L%A R+'##Y# @$ CA%N# # %!Y# A%!N *$A ?%!N N# !S$ !Y# A%!N '%RTY ! T%R%F T%R%F S# *$A BA! L!A% A+*% A%L1 In this case, it was observed that tested on the touchstone of the principles of law enunciated by their , AR ;85 SC 385?% Pra@ash vs. State of .P. a$" C.B. v. . C. Shu@la a$" rs, rs, it was observed that it would be unfair to t o admit only the statements against interest while excluding part of the same interview or series of interviews. See also:- Moh". Afal s. State Citatio$: MA4D74324200; or The Parlia%e$t Atta<@ Case.
Sai" Be Asif Be Mira s. State of uarat In this case, the 8on’ble Cujarat 8igh "ourt observed ?' DE*e are o" the view that the tal3 which %"al had with the T and &ress re&orters admittedly in the immediate &resence o" the &olice and while he was in &olice custody, should not ;e relied u&on irres&ective o" the "act whether the statement was made to a &olice o""icer within the meaning o" Section /9 Cr'C or not. *e are not
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&re&ared to attach any weight or credi;ility to the statements statements made in the course o" such interview &rearranged ;y the &olice. The &olice o""icials in their over= ealousness arranged "or a media interview which has evo3ed serious comments "rom the counsel a;out the manner in which &u;licity was sought to ;e given there;y. !ncidentally, we may mention that '* 96 the C', who was su&ervising the investigation, sur&risingly e7&ressed his ignorance a;out the media interview. *e thing that the wrong ste& ta3en ;y the &olice should not ensure to the ;ene"it or detriment o" either the &rosecution or the accused.EE
) MODE OF TREATING AND RECORDING EVIDENCE- INCL9DING RECORDING OF EVIDENCE TRO9G VIDEO CONFERENCING:& !lectronic record is documentary evidence under section 3 of the !vidence -ct. &aking and recording evidence would assume great significance in administration of justice. !lectronic record is documentary evidence under section 3 of of the !vidence -ct. -n electronic record may be like computer print out, "ompact ;isc +";, >ideo "ompact ;isc +>";, :en drive, "hip etc. -s was observed in Bo"ala Murali #rish$a vs S%t. Bo"ala Prathi%a, 200& (2) ALD &2 200& () ALT 23& . !xamination of witnesses in criminal cases, through video conferencing was approved by the upreme "ourt in a judgment reported in State of Maharashtra vs. Dr. Praful B.Desai,2003 (2) ALT (Crl.) ! (SC). Section )2+ o% Cr*C:& ection D23 of "r.:." says that ’evidence to be taken in presence of accused’. Now, a doubt arises in our mind whether evidence can be taken through video conferencing in the absence of accused. Now, the law is settled. ection D23 of "r.:." contemplates constructive presence. Indeed, actual physical presence of acused is not a must. &his indicates that the term Epresence, as used in section D23 of "r.:." is not incorporated in the sense of actual physical presence. Fnder section 3 of Indian !vidence -ct,!vidence can be both oral and documentary and electronic form.
*re#ent!tion o% #o%t=!re in Court:& "uriously enough, in'court electronic presentation of information is a skill that many lawyers have not yet ac)uired. &herefore, knowledge on computer side is essential for both judicial officers and lawyers. I suggest the following methods which are useful for presentation electronic evidence in court'room. G. (icrosoft’s :ower :oint and competing Eslideshow products can be used to present a wide variety of digital information. In our D663, this process was permitted in experimental terrorist case, Fnited tates v. tanhope, /&I "onsulting, Inc.,
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D. anction, &rial ;irector, and &rial :ro are some of the major multifaceted presentation programs with significant trial capabilities. &his type of technology is being used in Fnited tates.
o= to record evidence t.rou". Audio&Video Lin!"e:& In Te$tieth Ce$tur+ EoF Eil% Cor=oratio$ vs. R Eil% Pro"uideo
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S!%e"u!rd#:& For recordin" evidence t.rou". !udio&video lin li n o$#ervin":& In *A(it!$. *A(it!$. B!"c.i V# En! B!"c.i0- );;4 AIR @C!lcutt! '', '', while referring to St!te o% M!.!r!#.tr! V# Dr *r!%ul B De#!i0# case De#!i0# case +supra, the "ourt laid down various safeguards to be taken by the "ourt for the purpose of recording evidence through audio'video link observing?' +G %efore action of the witness under -udio'>ideo
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+G3 &he expenses and the arrangements are to be borne by the applicant who wants to this facility. +GH "ourt is empowered to put condition#s necessary for the purpose.
+ TECNOLOGICAL CO9RTS AND S*EEDY 9STICE
New technology will allow courts to better serve the public by protecting digital information. In criminal matters, during the investigation, it is t he police and the prosecutors who are responsible for guarding electronic evidence in criminal proceedings. ;uring the trial stage, it is the court that is in charge of guarding this evidence. In civil matters, it is mainly the parties who keep the evidence that will be presented before the civil court when the latter so re)uires, both in the t he pre'trial phase and during the same.
6ey >oint# %or i(>rovin" re"ul!tion !nd >r!ctice %or #>eedy 7u#tice:& G, Budges are the key actors in admitting electronic evidence and police experts hold the main position in gathering evidence. D.
I(>rove(ent# t.!t !re e##enti!l %or #>eedy 7u#tice:& In India, in my view, the main tendency in electronics is actually found to be well regulated. 8owever, judges, who are the ones that have to interpret the law because of a legal gap, are divided in their opinions according to their speciality, but the majority opinion favours those whose tend to think that the current legal situation is not the ideal one and needs changes to adapt the laws to technological reality.
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For t.i#- i(>rove(ent# %or %ollo=in" !re!# !re e##enti!l& G. &here must be simple rules# procedure$ D. tandards for e'documents$ 3. International ;ata regulation and International mutual assistance H. @egulating the use of digital signatures 1. "ollaboration between electronic service providers 0. Improvement of data retention and evidence gathering 2. imple policy for security issues 4. :rivacy data protection. 5. -dapt the law to reality G6. :reservation of records on !'ervices /or speedy justice, electronic media is an effective tool in the judicial administration. >ideo conferencing is a great tool that can be used to take evidences in all cases for speedy justice. It can be used in various situations both in civil and criminal matters.
, A**RECIATION OF EVIDENCE RECORDED TRO9G ELECTRONIC MEDIA: ;igital evidence is any probative information stored or transmitted in digital form. party in court case may use the same at trial. %efore accepting digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it is secondary evidence and whether a copy is acceptable or the original is re)uired. &o know the principles as to admissibility of such evidence, it is essential to go through the ruling in A$var in A$var P.. ersus, P.#. Basheer Basheer a$" thers, MA4SC40!354205 MA4SC40!354205 +Infra. &he essential ingredients of section 01'%, 01'% +D, 01'% +3, and 01'% +H of the Indian !vidence -ct, G42D are relevant as to appreciation of electronic evidence. In State of Maharashtra vs. Dr Praful B Desai (AR 2003 SC 2083), the 2083), the upreme "ourt observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. &he court allowed the examination of a witness through video conferencing. In this case, it was observed that, Dthere is no reason why the e7amination o" a witness ;y video con"erencing should not ;e an essential &art o" electronic evidence.E In A%ita>h In A%ita>h Ba
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In Dhara%>ir vs. Ce$tral Bureau of $vestiatio$ (5! (200!) DLT 2!;), the 2!;), the 8on’ble "ourt distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. &he other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. uch information that is accessible can be converted or copied as such to another magnetic or electronic device like a ";, pen drive etc. !ven a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.
In Bo"ala Murali #rish$a vs. S%t. Bo"ala Prathi%a (200& (2) ALD &2), the &2), the 8on’ble "ourt held that, EJthe amendments carried to the evidence act by introduction of ections 01'- and 01'% are in relation to the electronic record. ections 02'- and 23'- were introduced as regards proof and verification of digital signatures. -s regards presumption to be drawn about such records, ections 41'-, 41'%, 41'", 44'- and 56'- were added. &hese provisions are referred only to demonstrate that the emphasis, at present, is to recogni7e the electronic records and digital signatures, as admissible pieces of evidence. In State (CT of Delhi) vs. avot Sa$"hu (AR 2008 SC 3!20), the 3!20), the proof and admissibility of mobile telephone call records was considered. In this case, the 8on’ble -pex "ourt held that a cross'examination of the competent witness ac)uainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient t o prove the call records.
&he landmark ruling of the 8on’ble supreme court in -nvar :.>. >ersus, :.K. %asheer and Others, L(-NF#"#643H#D6GHM, that computer output is not admissible without compliance of 01 %, overrules the judgment laid down in the state +N"& of ;elhi v. Navjot andhu alias -f7al CuruL+D661 GG "" 066 by the two judge %ench of the upreme "ourt. &he court specifically observed that the Budgment of Navjot andhu supra, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and is re)uired to be overruled. &he legal interpretation by the court of the following f ollowing ections DD-, H1-, 15, 01- 01% of the !vidence -ct has confirmed that the stored data in ";#;>;#:en ;rive is not admissible without a certificate u#s 01 %+H of !vidence -ct and further clarified that in absence of such a certificate, the oral evidence to prove existence of such electronic evidence and the expert view under section H1- !vidence -ct cannot be availed to prove authenticity thereof.
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CONCL9SION: Now'a'days, we saw rapid strides in the field of information and technology. &he expanding hori7on of science and technology threw new challenges for the ones who had to deal with proof of facts f acts in disputes where advanced techni)ues in technology was used and brought in aid. torage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. "onventional means of records and data processing became outdated.
&he appropriate amendments in !vidence
ADDITIONAL LEGAL DEVLO*MENTS:
8owever, in a subse)uent case 8igh "ourt of ;elhi in 6und!n Sin". v St!te- SSC Online- Del.i '+3,2' in appeal against the conviction of the appellant had occasioned
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to examine the >ideo footage from the -&( as also "all ;ata @ecord including location of the mobile of the convict and it differed with the interpretation placed in the case of *Anur *Anur C.!=l! v Centr!l Bure!u o% Inve#ti"!tion, Inve#ti"!tion, "rl.(.". No.DH11#GD "rl. (.-. Nos. 4364 and 43G4#D6GH and "rl. @evision :. 341#D6GD decided on 6th Novem;er, 6/> ;y elhi Aigh Court. &he court examined the contours of ection 01% and it noted that the controversy as to whether a certificate under sub'section +H to ection 01% must be issued simultaneously with the production of the computer output, or a certificate under ection 01% can be issued and tendered when the computer output itself is tendered to be admitted as evidence in the court. &he i". Court o% Del.i Del.i in the case of 6und!n @Su>r! @Su>r! noted that *Anv!r *Anv!r * V @Su>r!0 used @Su>r!0 used the expression when the electronic evidence is Eproduced in evidence is emphasi7ing that the "ertificate must accompany the electronic record when the same is Eproduced in evidence. It was categorically held that t he expression used by the upreme "ourt of India does not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under sub'section sub'section +H to ection 01%. &he "ourt referred the decision of the r!0 @Su>r!0 does does not state or hold that the said certificate cannot be produced in exercise of powers of the &rial "ourt u# +'' Code o% Cri(in!l *rocedure Code or at the appellate stage u# +' Code o% Cri(in!l *rocedure Code &he "ourt also referred another case decided by the -pex "ourt in the case titled as To%aso Bru$o v. State of P, (208) & SCC &! on on importance of electronic evidence in investigation and increasing impact of technology in everyday life. In &omaso %runo the prosecution was castigated for withholding ""&> footage as also call records so as to decipher where the accused were during the relevant time of murder.
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It is interesting to note that in another case by the same %ench titled #isha$ Tri=athi G #isha$ Pai$ter v. The State, 20 SCC $li$e Del 3 in appeal against the conviction by the appellant, the court was examining electronic evidence in the form of ""&> footage and it was held that ""&> footage stored in the hard drive is the original media. .
&here have been divergent views on such issue by the other 8igh "ourts as well. &he %ombay 8igh "ourt, in the case of +ati Buil"ers v. Raat Di$esh Chauha$, 208 SCC $Li$e Bo%&8&!, the Bo%&8&!, the certificate under . 01% was not filed at the time of filing of electronic records +emails. &he learned trial Budge allowed application of plaintiffs to produce a fresh certificate. &he issue of admissibility was kept open at the stage of final hearing and thus, emails were neither discarded nor admitted in evidence. &he emails thereof were treated as primary evidence which was upheld by the %ombay 8igh "ourt. In Paras 'ai$ / rs. v. State of Raastha$, MA4R*4804208 , the files and certificates to be filed u#s 01% was not filed along with the charge'sheet and it was subse)uently filed during the course of the trial. &he "ourt, while accepting the .01% certificate at a later point observed = 4/5. Section 95=B o" the #vidence %ct deals with admissi;ility o" secondary evidence in the "orm o" electronic record and the &rocedure to ;e "ollowed and the t he re8uirements ;e "ul"illed ;e"ore such an evidence can ;e held to ;e admissi;le in evidence and not with the stage at which such a certi"icate is to ;e &roduced ;e"ore the Court. -. *hen legal &osition is that additional evidence, oral or documentary, can ;e &roduced during the course o" trial i" in the o&inion o" the Court &roduction o" o" it is essential "or the &ro&er dis&osal o" the case, how it can ;e held that the certi"icate as re8uired under Section 95=B o" the #vidence %ct cannot ;e &roduced su;se8uently in any circumstances i" the same was not &rocured along with the electronic record and not &roduced in the Court with the charge=sheet. !n my o&inion it is only an irregularity not going to the root o" the matter and is cura;le.1
8owever, in the case of State of Raastha$ v. Ra%saha+, MA4R*40380420 , the @ajasthan 8igh "ourt discarded the evidence of call detail report as it did not fulfill the re)uirement under .01%. imilarly, the (adras 8igh "ourt in the case of
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R.S. Raa #a$$a==a$ v. #.R. Peria@aru==a$, MA4T433;4208 MA4T433;4208 did did not admit electronic records in evidence in the absence of the certificate under .01%.
&his was also the view taken by the #ar$ata@a *ih Court i$ Ma$o #u%ar v. State of #ar$ata@a, MA4#A45!4208 where where it was held that, in the t he absence of certification under ection 01% of the !vidence -ct, secondary evidence of electronic records are totally inadmissible and cannot be looked into by the court while appreciating the case of the prosecution.
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