Admissibility & Evidentiary Value of Electronic Records

 Anvar P.V Versus P.K. Basheer and others. CIVIL APPEAL NO. 4226 OF 2012 (Supreme Court
of India)

 in cases where Primary Evidence which is in electronic form could not be produced.
Secondary Evidence could be printed on a paper, stored, recorded or copied in optical or
magnetic media produced by a computer. These computer outputs will only be admissible
after satisfying conditions under section 65(B). These conditions are only to be complied with
in case of Secondary Evidence, which is in electronic form, and not in case of Primary
Evidence.  if a CD is a Secondary Evidence, i.e., if it is a copy of the original and is a
duplicated version, then it has to pass the test of authenticity, by complying with the
conditions under section 65(B)

 State Of Gujarat vs. Shailendra Kamalkishor Pande

CD, DVD, chip, Hard-Drive, Memory Chip, Pen Drive. – These kind of electronic records
are admissible as Primary Evidence as well as Secondary Evidence.

 Kishan Tripathi @ Kishan Painter vs. The State

 if the CD in question is Primary Evidence, then it is admissible without a doubt. For a
CD/DVD/Hard-Drive/Memory Chip/Pen Drive to be Primary Evidence, it is necessary that the
data, picture, video or anything which is to be presented to the court for Evidence is
generated or recorded in that CD/DVD/ Hard-Drive/Memory Chip/ Pen Drive at the source. In
other words, original media should be stored or recorded directly in that CD/DVD/hard
drive/Hard-Drive/Memory Chip/ Pen Drive that was self-generated and created without any
human intervention.

 Alagaapuram R. Mohanraj & Others Versus Tamil Nadu Legislative Assembly Rep.
by its Secretary & Another
As much as video recordings are concerned, they hold the same evidentiary value as that of
an audio recording

 Sidhartha Vashisht @ Manu Sharma Versus State (NCT of Delhi)

Video recording could be in the form of a media file generated by a Handycam or it could be
in the form of CCTV footage, but there is no doubt pertaining to its admissibility.
 K. Ramajayam alias Appu v. Inspector of Police 2016 Cri. L.J. 1542

When a video recording is to be submitted in a court of law, it can be submitted as Primary

Evidence, if the Memory-Chip/ CD/DVD/Hard-Drive along with the video camera through
which the file was generated, are tendered in Evidence In cases where Primary Evidence is
not available or not practically possible to be submitted in court, a copy of such video
recording created through a computer program is admissible as Secondary Evidence subject
to conditions mentioned under section 65(B).
he Indian Evidence Act has been amended by virtue of Section 92 of Information
Technology Act, 2000 (Before amendment). Section 3 of the Act was amended and the
phrase “All documents produced for the inspection of the Court” were substituted by “All
documents including electronic records produced for the inspection of the Court”. Regarding
the documentary evidence, in Section 59, for the words “Content of documents” the words
“Content of documents or electronic records” have been substituted and Section 65A & 65B
were inserted to incorporate the admissibility of electronic evidence.
Filing of a false affidavit 
Mahesh Tiwari vs State Of U.P. And Another on 24 August, 2016
Filing of a false affidavit in a proceedings pending before the Civil Court would amount to an
offence falling under Section 193 IPC and proceedings would have to be initiated on a complaint
in writing by that court

Murray & Co. v. Ashok Kr. Newatia, (2000) 2 SCC 367 : AIR 2000 SC 833,
the Supreme Court held that a false statement deliberately made in an affidavit
before the court amounted to contempt of court

 making a false statement in an affidavit before a court amounts to an offence of

perjury, which may be punished under Section 193 of the IPC or under other
relevant sections.

Ranjeet Singh vs. State of Pepsu AIR 1959 SC 843 the accused, a police officer, was
called upon to make a statement against an application under Article 226 of the
Constitution for a writ of habeas corpus in which it was alleged that the accused had
illegally detained a man in police custody. In his written (statement), the accused filed an
false affidavit denying that the man was never arrested by the police or was in his
custody. It was held that the accused was legally bound to place the true facts before
the court in his affidavit and since the statements made by him in the affidavit were
found to be false, it was held that he has committed the offence under Section 193 IPC
for giving false evidence as defined in Section 191 IPC.

IT ACT
A. Section 2: Definitions – Computer, Computer Network, etc
1. K. Ramajayam V. The Inspector Of Police
[The DVR is an electronic record withinn the meaning of Section 2(t) of the Information
Technology Act, 2000, as it stores data in electronic form and is also capable of output]
2. Syed Asifuddin And Ors. vs The State Of Andhra Pradesh [2005 CriLJ 4314]
Summary: Reliance model handsets were to be exclusively used by Reliance India Mobile
Limited but the TATA Indicom staff members who were figured as an accused tampered
with pre-programmed CDMA digital handsets belonging to Reliance Infocomm and
activated with TATA Indicom network with all dubious means. Offence was held to be
made out under Section 65 of IT Act.
3. Diebold Systems Pvt. Ltd. vs The Commissioner Of Commercial Tax [2006 144 STC 59
Kar]
B. Section 43: Penalty and Compensation for damage to computer, computer system,
etc
1. Poona Auto Anillaries Pvt. Ltd., Pune Versus Punjab National Bank, HO New Delhi &
Others
Summary: In 2013, in one of the largest compensation awarded in legal adjudication of a
cyber crime dispute, Maharashtra’s IT secretary Rajesh Aggarwal had ordered PNB to
pay Rs 45 lakh to the Complainant Manmohan Singh Matharu, MD of Pune-based firm
Poona Auto Ancillaries. A fraudster had transferred Rs 80.10 lakh from Matharu’s
account in PNB, Pune after Matharu responded to a phishing email. Complainant was
asked to share the liability since he responded to the phishing mail but the Bank was
found negligent due to lack of proper security checks against fraud accounts opened to
defraud the Complainant.

C. Section 65: Tampering with Computer Source Document

1. Syed Asifuddin And Ors. vs The State Of Andhra Pradesh [2005 CriLJ 4314]
2. Bhim Sen Garg vs State Of Rajasthan and Others. on 13 June, 2006 [2006 CriLJ 3643]

E. Section 66: Computer Related Offences

1. A. Shankar vs State Rep. [2010] The petitioner had secured access unauthorisedly to
the protected system of the Legal Advisor.

E. Section 66A: Punishment for sending offensive messages through communication

service, etc.
1. Supreme Court Judgment (in PDF) as to scrapping of Section 66A in the matter of
Shreya Singhal V Union of India (2015)
Summary: Section 66A of the Information Technology Act, 2000 is struck down in its
entirety being violative of Article 19(1)(a) and not saved under Article 19(2). )Section 69A
and the Information Technology (Procedure & Safeguards for Blocking for Access of
Information by Public) Rules 2009 are constitutionally valid. Further, Section 79 is valid
subject to Section 79(3)(b) being read down and so on.

F. Section 67: Punishment for publishing or transmitting obscene material in electronic

form
1. Avnish Bajaj vs State, famously known as Bazee.com case (2005)
Summary :  CEO of E-Commerce Portal was arrested and given bail later under Section 67
of IT Act on account of an obscene video uploaded on Bazee.com for sale. He proved Due
Diligence but in 2005,  Information Technology Act did not have any provisions related to
‘Intermediary’ !
2. Sharat Babu Digumarti vs State, Govt. of NCT of Delhi (Bazee.com Case, Appeal)
Summary: Petitioner was working as Senior Manager, Trust and Safety, BIPL on the day
when DPS MMS was put up for sale on Bazee.com. That is, the office responsible for the
safety of the Portal, taking action on suspect lists when reported by our users, and block
the user or close items listed accordingly. It was held that there is prima-facie sufficient
material showing petitioner‟s involvement to proceed against him for the commission of
offence punishable under Section 292 IPC. Though he was alrady discharged of offences
only under Section 67 read with Section 85 of IT Act and Section 294 IPC.
3. Dr. L. Prakash vs State Of Tamil Nadu (2002)
Summary:  Petitioner was arrested by the Inspector of Police, R8 Vadapalani Police
Station, Chennai for various offences, particularly Section 67 of the Information
Technology Act, 2000, Section 4 read with Section 6 of the Indecent Representation of
Women (Prohibition) Act, 1986 and Section 120-B of the Indian Penal Code. 
4. Mohammed vs State on (2010)
Summary: Section 67 of Information Technology Act analyzed and held it is not
applicable to the case of threatening email received by Chief Minster of Gujarat, hence
ordered to be deleted from the matter. 
5. Sreekanth C.Nair vs Licensee/Developer (2008) [Blocking of Website]
Summary: A student of ASCL, came across the website “www.incometaxpune.com”, and
on visiting the said site, the complainant was taken to a pornographic site and move the
court for blocking order against the website. The court ordered that only when the
authorities enumerated under Clauses (i) to (vii) when moved were either not inclined or
had refused to prefer a complaint to the Director, CERT-In, then the court could be
moved for a direction to the officer concerned.

F. Section 70: Protected system

1. A. Shankar vs State Rep. [2010] The petitioner had secured access unauthorisedly to
the protected system of the Legal Advisor.
2. Firos vs State Of Kerala (2006)

G. Section 79: Exemption of Liability of Intermediary in certain cases and Information

Technology (Intermediary Guidelines) Rules, 2011
1. CHRISTIAN LOUBOUTIN SAS Versus NAKUL BAJAJ & ORS (Intermediary Liability as an
E-commerce Operator – November 2018)
Great analysis of section 79 of IT Act, 2000 and the Intermediary Guidelines done by
honorable Judge Ms Pratibha M Singh. Importantly, it lays down the circumstances, in
which the Intermediary will be assumed to be abetting the sale of online
products/services and therefore, cannot go scott free. In the said matter, the
Complainant, a manufacturer of Luxury Shoes filed for injunction against an e-commerce
portal www.darveys.com for indulging in  Trademark violation, along with the seller of
spurious goods.
2. KENT RO SYSTEMS LTD & ANR Versus AMIT KOTAK & ORS (EBAY – January 2017)
Kent RO had lodged Complaint with eBay as to IPR violation of its rights by a seller on
later’s platform and wanted Ebay to verify the products before it is uploaded on it’s
platform. Court said the IT Intermediary Rules only require the intermediary to publish
the Rules and Regulations and Privacy Policy and to inform the users of its computer
resources not to host, display, uphold or publish any information that infringes any
Intellectual Proprietary Rights. Further, the IT Rules require the eBay as an intermediary
to, upon any person as the plaintiffs approaching it in writing, of products infringing that
person’s patent, trademark or copyright rights to within 36 hours disable the infringing
information. Court held that hosting of information on such portals is automatic and it is
not expected of the eBay to screen each and every information except when the same is
brought to it’s knowledge. Therefore, to require an intermediary to do such screening
would be an unreasonable interference with the rights of the intermediary to carry on
its business.
3. Google India Pvt Ltd VS. Visaka Industries Limited (2009)
[Google liable as Intermediary (if proved guilty) as criminal complaint instituted before
the Information technology (Amendment) Act 2008 came into force]
4. Gaussian Network Pvt. Ltd V Monica Lakhanpal & Another (2012)
[Whether there is any restriction on playing the Games of Rummy, Chess, Golf, Poker,
Bridge, and Snooker of skill with stakes on the websites making profit and whether
wagering and betting on games of skill make the activity “Gambling”, as covered under
Rule 3 of Intermediary Guidelines ?]
5. Vyakti Vikas Kendra & other vs Jitender Bagga & Google (2012)
[Art Of Living Foundation filed for interim relief against a blogger and the intermediary
Google owned Blogger.com for cyber defamation. The latter was ordered to remove all
the defamatory content within 36 hours]

H. Section 65B of Indian Evidence Act, 1872: Admissibility Of Electronic Records

1. Anvar P.V vs P.K. Basheer & Others
[An electronic record by way of secondary evidence shall not be admitted in evidence
unless the requirements under Section 65B are satisfied]
2. SC: Harpal Singh V. State of Punjab (2016) – Electronic Evidence [November 2016]
[Apparently the prosecution has relied upon the secondary evidence in the form of
printed copy of the call details, even assuming that the mandate of Section 65B(2) had
been complied with, in absence of a certificate under Section 65B(4), the same has to be
held inadmissible in evidence]
3. K. Ramajayam V. The Inspector Of Police
[If an electronic record as such is used as primary evidence under Section 62 of the
Indian Evidence Act, 1872 the same is admissible in evidence, without compliance with
the conditions in Section 65B of the Evidence Act. In this case, DVR which contains the
information is before the Court]

I. Effects Test – Jurisdiction

1. Banyan Tree Holding (P) Limited vs A. Murali Krishna Reddy & Anr (2009)
[While courts have more readily applied the “effects” test in defamation cases, there
have been problems in its application to trademark infringement cases]
2. United States Supreme Court in the matter of CALDER v. JONES, (1984)
[The United States District Court for the Western District of Texas applied the “effects
test” set forth by the United States Supreme Court in Calder v. Jones, 465 U.S. 783
(1984), to deny a defendant’s motion to dismiss an Internet defamation case for lack of
personal jurisdiction]

J. Blocking of Website
1. Sreekanth C.Nair vs Licensee/Developer (2008) [Blocking of Website]

K. Domain Names – Domain & Trademark issues

1. Infosys Technologies Limited vs Akhil Gupta (2005)
2. Yahoo! Inc. vs Akash Arora (1999)
3. Satyam Infoway Ltd vs Siffynet Solutions Pvt. Ltd (2004)
L. .IN Domain Name Disputes
1. Eterno Infotech Pvt Ltd V. Zheng Wei (Domain: HuntNews.in by Arbitrator Ankur
Raheja)

M. Software Piracy
1. Adobe Systems Inc. vs Sachin Naik (Delhi High Court – 2013)
Section 24 to 30 of Indian Evidence Act deals with confessions. Confessions should be voluntary. There
are four kinds of Confession a) judicial confession, b) Extra-Judicial Confession, c) Retracted Confession,
d) Confession by co-accused.

Confession
The meaning of Confession:

          The expression confession means a statement made by an accused admitting his guilt. It is an
admission as to the commission of an offence. If a person accused of an offence makes a statement
against himself, it is called confession or confessional statement. Confessions are the special form of
admissions. Thus it is popularly said that "All Confessions are admissions, but all Admissions are not
confessions."

Definition of Confession:

      According to Sir James Stephen "An admission made at any time by a person charged with a crime
stating or suggesting the inference that he committed a crime".

     The term confession no where defined in the Indian Evidence Act 1872, But the definition of
admission under section 17 of Indian evidence Act becomes applicable to confession also. Section 17
provides " A statement, oral or documentary which suggests any inference as to any fact in issue or
relevant fact."

    If a statement made by a party in the civil proceeding, it is called as admission while if it is made by
the party charged with the crime, in a criminal proceeding, it is called as a confession. Thus, the
confession is a statement made by the person charged with a crime suggesting an inference as to any
fact in issue or as to relevant fact.  The inference that the statement should suggest that he is guilty of a
crime.

Confession, in short, is an admission by the accused charged with an offence in the criminal proceeding.

Example :
      
         If X is charged with the murder of Y, If X said that he has killed B, it is a confession.

Kinds of Confession: 

         There are four kinds of Confession, are as follows:

 1) Judicial confession

 2) Extra-Judicial Confession

 3) Retracted Confession

 4) Confession by co-accused

 1) Judicial confession: 

        A Judicial Confession is that which is made before Magistrate or in a court due course of judicial
proceeding. Judicial Confession is relevant and is used as an evidence against the maker provided it is
recorded in accordance with provisions of Section 164 of Cr.P.C.The magistrate who records a confession
under Section 164, Criminal Procedure Code, must, therefore, warn the accused who is about to confess
that he may or may not be taken as an approval. After warning the accused he must give time to think
over the matter and then only record the confession. Such a confession is called judicial confession.
 2) Extra-Judicial Confession

       Extra-Judicial Confession is made not before a Magistrate or any Court in due course of judicial
proceeding but is made either to police during the investigation or into police custody or made otherwise
than to the police. Extra-Judicial confession is not relevant. (See Detail Note on Extra-Judicial
Confession)
  
 3) Retracted Confession

      The Accused person who confessed earlier and later denied such confession does not destroy the
evidentiary value of the confession as originally recorded. The Supreme Court has stated that a
Retracted confession may form the basis of a conviction if it receives some general corroboration from
other independent evidence. But if the court finds that the confession originally recorded was voluntary,
it should be acted upon.

 4) Confession by co-accused  

     Section 30.Consideration of proved confession affecting person making it and others

jointly under trial for the same offense

            When more persons than one are being tried jointly for the same offense, and a confession
made by one of such persons affecting himself and some other of such persons is proved, the Court may
take into consideration such confession as against such other person as well as against the person who
makes such confession.

Explanation: “Offence” as used in this Section, includes the abetment of, or attempt to commit, the
offense.

Illustrations 

(a) A and B are jointly tried for the murder of C. It is proved that A said – “B and I murdered C”. the
court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B and
that B said, “A and I murdered C”. The statement may not be taken into consideration by the Court
against A and B is not being jointly tried.