ADMISSIBILITY OF DIGITAL EVIDENCES

ADMISSIBILITY OF DIGITAL EVIDENCES

LEGAL VIEWS

INTRODUCTION

Digital evidences are the evidenced or can be said the digital data that can establish a commitment of the crime and can provide a link between the crime and its victim. In today’s world digital evidences are considered to be the strongest evidence that enable to find the criminal. These days there is one or the other link always connected to the Digital evidence that can be derived in any criminal or a civil case to be produced in the court of law.
This is because Indian evidence act has been amended and provisions are added primarily regarding the production of digital evidences in the court of law.


DEFINITION 

Digital Evidence or electronic evidence can be defined as any information stored or transmitted in any digital form can be used in the court.
“Electronic record” is defied under section 2(t) of Information Technology Act, 2000 –means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
Digital Evidence is not exhaustive and can includes anything from word documents to transaction logo, ftp logo of the server, GPS System tracks, Computer Memory, browser history and sort of window artefacts.


ADMISSIBILITY OF DIGITAL EVIDENCES

Computers are the Modern device of memory to store information. However computers are sometimes not reliable. They do occasionally malfunction, software system often have bugs. Unauthorised alteration of the information stored on a computer can be possible. Therefore a computer can be regarded as imperfect devices. Hence a document produced by a computer does not become the statement of a person initiating it if the purpose of doing so is merely to authorise the transaction rather to confirm or authenticate its content.

All the evidences must go through the test of admissibility and weight.
Admissibility is the set of the legal rules to be applied to use of evidence in the court of law & Weight is to measure the validity and importance of the evidence in the court.
Section 17 of the Indian Evidence Act defines admission and for the admission as a digital evidence the evidence must be in the ambit of the Section 65-A & 65-B of the Indian Evidence Act which provides that how electronic records may be proved an the condition as lain out it.


SECTIONS FOR DIGITAL EVIDENCES

Section 65-A and 65-B in Indian Evidence Act have been inserted by the Information Technology Act, 2000, which relates to the admissibility of the Electronic record as evidence.
Section 65-A provides that the contents of electronic records may be proved in accordance with the provision of the Section 65-B which provides for the mode of its proof.

Section65A. 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.

Section 65B - Admissibility of electronic records
(1) Notwithstanding anything contained in this Act, any 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 (hereinafter referred to as the computer output) 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 or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) 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 me 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 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.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in the section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(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 subsection (2) relate, 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 mailer to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process.]

In the case of Anvar P.V. v/s P.K. Basheer and others [ (2014) 10 SCC 473] the Supreme Court held that any documentary evidence in the form of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Indian Evidence Act.
In this case Supreme Court also overruled the case of State (NCT of Delhi) v/s Navjot Sandhu.

EXAMINATION OF WITNESS BY VIDEO CONFERENCING

A witness can be examined by the way of video conferencing, it is a essential part of the electronic method and such prayer cannot be ignored without a reason.

In Amitabh Bagchi V. Ena Baghchi [AIR 2005 Cal 11], the Supreme Court observed that if the court do not permit technology in the court proceedings then it would be lagging behind compared to other sectors. And introduced the concept of the Video - Conferencing.

The Supreme Court of India fixed the following method to be taken for the purpose of recording evidence through Video conferencing –

1. The witness will have to file an affidavit that the person shown as the witness is the same person as who is going to depose on the screen.
2. The person who wishes to examine the witness on the screen will also file an affidavit with regard to the identification.
3. After the identification process, Oath will be administered as per media.
4. The witness will be examined during the working hours of Indian Courts
5. The witness actions, as far as possible, be proceeded without any interruption without granting unnecessary adjournments.
6. Witness includes parties to the proceeding.
7. In case of non party witness, a set of plaint, written statement and all other related documents will be send to him for  his acquaintance.
8. Court must record any remark as in material regarding  the witness.
9. Mode of digital signature, if can be adopted.
10. The visual is to be recorded at both the ends.
11. The expense and arrangements are to be borne by the applicants who want this facility.
12. Court is empowered to put any further condition necessary for this purpose.



CONCLUSION

Digital evidences or the electronic records are the evidences stored information in the electronic form or transmitted in any digital form can be given as the evidence in the court of law. The electronic record cannot be fully relied upon as they can be changed or can be tampered as what they were stored originally.
Information Technology act 2000, introduce the Admissibility of the digital evidences in the court of law through a process which was given in the section65-B of the Indian Evidence Act.
All the digital evidences introduced in the court of law are accepted with the applicability of the section 65-B of the Indian Evidence Act by the court of law.
Indian Courts have also introduced the technology like other industries so that they do not lag behind and introduced digital ways of proceeding like Examination of witness through video conferencing etc.