The Admissibility and Weight of Electronic Evidence: A Critical Analysis

Introduction

The widespread use of computers and the advent of digitalization are among the most significant developments in human history. Alongside these advancements, cyberspace has introduced new risks and the proliferation of crimes. The ease of access to vast amounts of information and content has amplified the misuse of the digital environment, presenting unique challenges. One major issue has been the legitimacy and reliability of electronic evidence, which remains a subject of intense debate.

Unlike traditional evidence, electronic evidence requires specialized training and knowledge in cyberspace for proper investigation and evaluation. The process of presenting such evidence in court necessitates specific protocols to ensure its authenticity and reliability.

Acceptance of Electronic Records

Under the Indian Evidence Act, Section 65A (now Section 62 BSA) provides guidelines for proving the contents of electronic records. Section 65B (now Section 63 BSA) establishes the framework for admitting electronic records as evidence in court. According to this section:

1. Any content stored, recorded, or copied from optical or magnetic media can be considered evidence without requiring the original record, provided the conditions under subsections (2) to (5) of Section 65B are satisfied.

2. This section mandates a specific process for proving electronic records, making compliance essential for admissibility.

Certificate of Authentication

Section 65B(4) (now Section 63 BSA) requires a certificate to meet the conditions of subsection (2). This certificate must:

• Be signed by the person controlling the device from which the data was extracted.

• Identify the electronic record in question and describe the process by which it was produced.

• Include details about the materials used in creating the record, if applicable.

• Address any issues that meet the eligibility criteria.

The primary objective of this certification is to ensure the source's authenticity and the information's accuracy. Given the susceptibility of electronic data to interference and alteration, this requirement provides the court with confidence in the reliability of the evidence.

Technical and Non-Technical Conditions

Section 65B specifies both technical and non-technical conditions for admitting electronic evidence:

1. Technical Conditions (Subsection 2):

   • The computer generating the record must have been used regularly at the time.

   • The data entered must be a routine part of the computer’s operations.

   • The computer must have been functioning properly.

   • The duplicate copy should accurately reproduce the original electronic record.

2. Non-Technical Conditions (Subsection 3):

   • When using networked devices, all connected systems are considered a single device.

These provisions ensure the data’s authenticity and prevent unauthorized modifications, thereby maintaining the reliability of the extracted information.

Trustworthiness, Validity, and Authenticity of Electronic Documents

Courts must assess the correctness, validity, and dependability of electronic evidence in each case. To ensure the integrity of records, courts must prioritize safeguarding against unauthorized use, alteration, or corruption of electronic data during its creation and use in legal proceedings. Over time, Indian courts have recognized alternative technologies and established precedents for the admissibility of electronic evidence.

Forms of Electronic Evidence

1. Emails:

   • Formal emails can be admitted as evidence if accompanied by a printed copy and a certificate under Section 65B (now Section 63 BSA).

   • The certificate must confirm the control of the computer by the witness at the relevant time and verify the routine entry of data.

2. SMS/WhatsApp Messages:

   • SMS and instant messaging apps are commonly used for formal and informal communication.

   • When presenting messages stored on a mobile device as evidence, a Section 65B certificate may not be required if the device itself is produced in court. However, disputes about device retention or content modification must be addressed.

3. Hard Drives:

   • Hard drives are primary sources of electronic data. Courts recognize their significance but stress that alterations on the drive must be transparently documented and accessible through specialized software.

4. Photographs:

   • Digital photographs must be authenticated by confirming how they were stored or printed. Courts have ruled that the absence of negatives does not invalidate photographs, especially those relying on digital technology.

Legal Precedents

1. State of Maharashtra vs. Dr. Praful B Desai:

   • The Supreme Court acknowledged video conferencing as a legitimate means of examining witnesses, emphasizing its equivalence to physical presence.

2. Anvar P.V. vs. P.K. Basheer & Ors:

   • The Court held that electronic records must be accompanied by a Section 65B certificate for admissibility. Without this certificate, secondary evidence of electronic records is inadmissible. This judgment underscored the necessity of strict compliance with the section.

Conclusion

The amendments to the Evidence Act and the IT Act have significantly advanced the use of electronic records in court proceedings. While judicial precedents emphasize the importance of certification, ambiguity remains about certain requirements under Section 65B. Courts must keep pace with evolving technologies, fostering trust in electronic records while addressing functional challenges. Clear guidelines and regular updates will ensure that electronic evidence maintains its integrity and reliability in the judicial system.

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