A RESEARCH PROJECT ON-

RELEVANCY OF ELECTRONIC RECORDS AND

ITS ADMISSIBILITY IN CRIMINAL
PROCEEDINGS

SUBMITTED BY-
ANUSHTHAN TRIPATHI

BA.L.L.B(H) VIIth SEM

DR. RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY, LUCKNOW
 TABLE OF CONTENTS

CHAPTER I

1.INTRODUCTION,

CHAPTER II

2.ELECTRONIC RECORDS - MEANING,

3.ELECTRONIC RECORDS – DEFINITION,

CHAPTER III

4.RELEVANCY OF ELECTRONIC RECORDS,

5.BASIC EVIDENTIARY STATUS OF ELECTRONIC
EVIDENCE,
6.AUTHENTICITY OF ELECTRONIC EVIDENCE,
7.ADMISSIBILITY OF ELECTRONIC EVIDENCE IN
CRIMINAL PROCEEDINGS,
8.EFFECTS OF CONSIDERING ELECTRONIC
EVIDENCE

CHAPTER IV

9.PRESUMPTION AS TO ELECTRONIC EVIDENCE,

CHAPTER V

10. CONCLUSION,
11. SUGGESTIONS.
 CHAPTER I
1. INTRODUCTION:
We are the generation living in the electronic world. Due to the enormous growth in
electronic correspondence, electronic writings have evolved into a fundamental pillar of
communication in today‟s society. The evolution of a paperless environment
characterized by three principal trends, namely; dematerialization of the work place;
1
Omnipresence, and malleability of electronic devices. Ninety one percent of today‟s
online adults use some form of electronic communication regularly in their everyday
lives.2 At the same time, the use of closed circuit televisions (“CCTV”) to nab thieves and
other miscreants has increased in shopping complexes and other public places, where
instead of guards being posted at multiple places, one guard sits at a counter and keeps
watch over the entire place through the CCTV recordings. Not surprisingly, various
forms of electronic evidence (i.e., e-evidence) are increasingly being used in both civil
and criminal litigation.3
As courts continue to grapple with this new electronic frontier it is important to stress
that electronic evidence is subject to the same rules of evidence as paper documents.
However, the unique nature of e-evidence, as well as the ease with which it can be
manipulated or falsified, creates hurdles to admissibility not faced with other
evidence.Court of law relied up on Oral as well as documentary evidence. Oral evidence
is most often full of discrepancies and human error because every human being feels or
observe with the help of the senses. Even documentary evidence also sometime contains
errors. Electronic evidence challenge evidentiary rules grounded in a more
tangible former reality. Authentication of such evidence is perhaps the most
difficult challenge as courts seek to determine its admissibility.

1
Nweze C, “Contentious Issues And Responses in Contemporary Evidence Law in Nigeria”, Vol. 2, Enugu ,
Institute For Development Studies, 2006 p209, see also Widdison R, “electronic law practice. An exercise in
legal futurology‟ the Modern Law Review”, vol. 60, No. 2 143 at 144.
2
Authenticate or Identify.” Pursuant to Minn. R. Evid. 901(a), authentication means the party offering the
electronic evidence must present sufficient evidence to support a finding that the exhibit in question is what the
proponent claims it to be. The most common method of authentication is the use of testimony by a witness
with knowledge that the exhibit is what it claims to be.
3
Relevancy and Admissibility of Electronic Evidence | Law Teacher, http://www.lawteacher.net/commercial-
law/essays/relevancy-and-admissibility-of-electronic-law-essays.php#ixzz2ptSX9VTj.
 During trials, judges are often asked to rule on the admissibility of electronic evidence.
How the court rules on questions of admissibility could substantially impact the outcome
of a civil lawsuit or determine the difference between conviction and acquittal of a
defendant. These devices, the product of technology can be used for legal and illegal
acts.4 For instance, when information recorded or stored in the memory of a computer is
printed out in paper if it is not easy to say that the version in the memory is a document.
Nor is it easy to assert that the print out is an original or a copy. Also, even if such things
(audio, tape recording, a video tape recording, electronic mail on computer screen) when
presented as evidence and such things as electronically transmitted mandates in
commercial transactions can be regarded as document. The proliferation of computers,
the social influence of information technology and the ability to store information in
digital form have all required Indian law to be amended to include provisions on the
appreciation of digital evidence. In 2000 Parliament enacted the Information Technology
(IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility
of digital evidence. The IT Act is based on the United Nations Commission on
International Trade Law Model Law on Electronic Commerce and, together with
providing amendments to the Indian Evidence Act 1872, the Indian Penal Code 1860 and
the Banker's Book Evidence Act 1891, it recognizes transactions that are carried out
through electronic data interchange and other means of electronic communication.5

CHAPTER II
2. ELECTRONIC EVIDENCE – MEANING:
The term Evidence means the available body of facts or information indicating whether a
belief or proposition is true or valid. As legal Jargon it means information drawn from
personal testimony, a document, or a material object, used to establish facts in a legal
investigation or admissible as testimony in a law court. This word has its origin traced back
to Latin word „evidentia‟, which means „obvious to the eye or mind‟.6

4
Adegboro, A M, the Relevance of Electronic Evidence in the Nigeria Legal System. Long Essay. Igbinedon
University, Okada, Edo State 2008, p45.
5
http://www.internationallawoffice.com/newsletters/detail.aspx?g=93c76fe9-e156-470b-b84d-3f4cf73da391.
6
https://www.google.co.in/webhp?hl=en#hl=en-IN&q=evidence+etymology
In the term electronic evidence, electronic refers to having or operating with components
such as microchips and transistors that control and direct electric currents (i.e) carried out or
accessed by means of a computer or other electronic device, especially over a network.7

In legal parlance, Digital evidence or electronic evidence is any probative information stored
or transmitted in digital form that a party to a court case may use at trial. Before accepting
digital evidence a court will determine if the evidence is relevant, whether it is authentic, if it
is hearsay and whether a copy is acceptable or the original is required.8

3. ELECTRONIC RECORDS – DEFINITION:

The Indian Evidence Act, 1872 contains set of rules and regulations regarding admissibility
of evidence in the Indian Courts of law. Indian Evidence Act was passed by the British
Parliament in 1872 setting up a path-breaking judicial measure by changing traditional legal
systems of different social groups and communities. Since then from time to time
amendments are made in the Indian Evidence Act to make it compatible with changing
times.9
As per provision Sec 2(t) of Information Technology Act 2000, electronic record means; “(t)
„electronic record‟ 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;”.10

The section has made electronic record legally admissible in the court of law.

 Sec. 3 (a) – Scope of definition of evidence expanded to include electronic records.

 Sec. 65B – Admissibility of electronic records

The person owning or in-charge of the computer from which the evidence is taken has to give
certificate as to the genuineness of electronic record.

 Sec. 88A – Presumption as to electronic messages

The Court may presume that an electronic message forwarded by the originator through an
electronic mail server to the addressee to whom the message purports to be addressed

7
https://www.google.co.in/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF- 8#q=electronic
%20etymology
8
Eoghan Casey, Digital Evidence and Computer Crime: Forensic Science, Computers and the Internet,
Academic Press, 2004.
9
http://www.chmag.in/article/apr2013/indian-evidence-act-and-digital-evidence.
10
Adv Prashant Mali, Digital or Electronic Evidence in Indian Law or in Indian Courts, retrieved from
http://www.slideshare.net/cyberlawconsulting/electronic-evidence-digital-evidence-in-india.
corresponds with the message as fed into his computer for transmission; but the Court shall
not make any presumption as to the person by whom such message was sent.11

CHAPTER III
4. RELEVANCY OF ELECTRONIC RECORDS,
New Sections 65A and 65B are introduced to the Evidence Act under the Second Schedule to
the IT Act. Section 5 of the Evidence Act provides that evidence can be given regarding only
facts that are at issue or of relevance. Section 136 empowers a judge to decide on the
admissibility of the evidence. New provision Section 65A provides that the contents of
electronic records may be proved in accordance with the provisions of Section 65B. Section
65B provides that notwithstanding anything contained in the Evidence Act, any information
contained in an electronic record (i.e., the contents of a document or communication printed
on paper that has been stored, recorded and copied in optical or magnetic media produced by
a computer ('computer output')), is deemed to be a document and is admissible in evidence
without further proof of the original's production, provided that the conditions set out in
Section 65B(2) to (5) are satisfied.12

Before a computer output is admissible in evidence, the following conditions as set out in
Section 65(B)(2) must be fulfilled:

"(2) the conditions referred to in subsection (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 the 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;

11
Sagar Rahurkar, Article on Indian Evidence Act and Digital Evidence, Downloaded from
http://www.chmag.in/article/apr2013/indian-evidence-act-and-digital-evidence
12
Tejas Karia, Article on Digital Evidence an Indian Perspective, retrieved from
http://www.internationallawoffice.com/newsletters/detail.aspx?g=93c76fe9-e156-470b-b84d-3f4cf73da391
 (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 subsection
(2) was regularly performed by computers, whether:

(a) By a combination of computers operating over that period;

(b) By different computers operating in succession over that period;

(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 this section to a computer
shall be construed accordingly."

Section 65 B (4) provides that in order to satisfy the conditions set out above, a certificate of
authenticity signed by a person occupying a responsible official position is required. Such
certificate will be evidence of any matter stated in the certificate. The certificate must:

 Identify the electronic record containing the statement;

 describe the manner in which it was produced; and
 Give such particulars of any device involved in the production of the electronic
record as may be appropriate for the purpose of showing that the electronic record
was produced by a computer.
The certificate must also deal with any of the matters to which the conditions for
admissibility relate.

5. BASIC EVIDENTIARY STATUS OF ELECTRONIC

EVIDENCE,
There is no intrinsic barrier in the law of evidence to the admissibility of electronic evidence.
For example, e-mail may be admissible, but it also may be excluded from evidence even
13
though relevant to the issues. In general, however, decisions excluding e-mail from
evidence do so for reasons other than the intrinsic nature of its electronic form the evidence
may not be relevant, or its receipt in evidence may have unfair prejudicial value that exceeds
its probative value, or it may contain hearsay, etc. As e-mail has become a pervasive part of
decisions, exclusion of e-mails from evidence merely because they are e-mails is a feature of
decisions from the last century.

It is axiomatic that the discovery of information does not give rise to any presumption that it
will be admissible at trial. Indeed, just the opposite is so: clearly inadmissible information
may well be discoverable. To be discoverable under the rules of civil procedure, information
need only be admissible or “reasonably calculated to lead to the discovery of admissible
evidence.”14

ADMISSIBILITY OF ELECTRONIC EVIDENCE IN UK:

In the UK, hearsay computer records were made admissible in 1995 through an amendment
to their Civil Evidence Act, 1968 because of the lack of objections raised by parties to such
evidence over a period of time, indicating its acceptance amongst the general public. With
respect to criminal cases, the decision in R v. Wood15 changed with the decision in Castle v.
Cross16 wherein the prosecution sought to rely on a print out from a computerised breath-
testing device. The Court held that the print-out was admissible evidence. The position of
law was clarified in the leading case of R v. Shepherd.17 The Court held that so long as it

13
Strauss v. Microsoft Corp., No. 91 Civ. 5928, 1995 WL 326492, (denying motion in limine to exclude e-
mail), with Monotype Corp. PLC v. Int‟l Typeface Corp., 43 F.3d 443, 449 (9th Cir. 1994) (holding that e-mail
messages are not business records and thus inadmissible hearsay).
14
Ramsey County v. S. M. F., 298 N.W.2d 40 (Minn. 1980).
15
R v. Wood, [2008] NSWSC 817.
16
Castle v. Cross, 1984] 1 WLR 1372.
17
R v. Shepherd, (1992), 97 Nfld & P.E.I.R. 144 (Nfld. S.C.)
could be shown that the computer was functioning properly and was not misused, a computer
record can be admitted as evidence.

6. AUTHENTICITY OF ELECTRONIC EVIDENCE,

It is hard to think of a piece of evidence that would be relevant in electronic form but not
relevant in paper or some other format. Authenticity is a simple prerequisite to master.
Authenticity is often the central battleground for determining admissibility of electronic evidence, as
electronic records may be readily altered and made to appear to be something they are not. It is not at
all difficult to create a document that looks like an e-mail sent by one of the parties to the case. 18 As
we all know from the spam in our inboxes, it is also possible to create an actual e-mail message sent
from a purported author who has never seen, sent, or authorized it.19 This was also true in the era of
typewriters and carbon paper, when parties would occasionally seek to create a document out of
whole cloth or fabricate some detail, such as backdating it. 20 Aside from potentially subjecting its
21
creator to sanctions, the document would not be authentic and therefore not admissible (except
possibly in a prosecution of the fabricator). Medical records have long been targets of individuals or
organizations seeking to rewrite or at least “polish up” history.22 Medical records are increasingly
found only in electronic form; most medical record systems have, or should have, specific
mechanisms to permit the record custodian to verify when an entry was made, by whom, and that it
hasn‟t been altered.

7. ADMISSIBILITY OF ELECTRONIC EVIDENCE IN

CRIMINAL PROCEEDINGS,
The evidence relating to electronic record, as noted herein before, being a special provision,
the general law on secondary evidence under Section 63 read with Section 65 of the Evidence
Act shall yield to the same. Generalia specialibus non derogant, special law will always
prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A
dealing with the admissibility of electronic record. Sections 63 and 65 have no application in
the case of secondary evidence by way of electronic record; the same is wholly governed by

18
Jimenez v. Madison Area Technical Coll., 321 F.3d 652, (involving falsified letters and e-mails in an
employment discrimination suit).
19
United States v. Kilbride, 507 F. Supp. 2d 1051, (discussing the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003, aimed at preventing spam senders from deceiving intended recipients
as to the source or subject matter of the e-mail messages).
20
Herbert L. Packer, A Tale of Two Typewriters, 10 STAN. L. REV. 409, (analyzing a typewritten forgery).
21
Derzack v. County of Allegheny, 173 F.R.D. 400, 403 (W.D. Pa. 1996) (imposing dismissal as sanction for
fabricating evidence).
22
Pisel v. Stamford Hosp., 430 A.2d 1, 15 (Conn. 1980) (examining the substitution of a falsified document in a
patient chart after adverse incident).
Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary
evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case
(supra), does not lay down the correct legal position. It requires to be overruled and we do so.
An electronic record by way of secondary evidence shall not be admitted in evidence unless
the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc.,
the same shall be accompanied by the certificate in terms of Section 65B obtained at the time
of taking the document, without which, the secondary evidence pertaining to that electronic
record, is inadmissible.23

The amended definition of "evidence" in section 3 of the Evidence Act, 1872 read with the
definition of "electronic record" in section 2(t) of the Information Technology Act 2000,
includes a compact disc containing an electronic record of a conversation. Section 8 of
Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit,
in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is
relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and
whether it was previous or subsequent thereto.24

25
In R.M Malkani vs. State of Maharastra -, this court made it clear that electronically
recorded conversation is admissible in evidence, if the conversation is relevant to the matter
in issue and the voice is identified and the accuracy of the recorded conversation is proved by
eliminating the possibility of erasure, addition or manipulation. This Court further held that a
contemporaneous electronic recording of a relevant conversation is a relevant fact
comparable to a photograph of a relevant incident and is admissible as evidence under
Section 8 of the Act. There is therefore no doubt that such electronic record can be received
as evidence.26

State of Punjab v Amritsar Beverages Ltd27 involved a search by the Sales Tax Department
and the seizure of computer hard disks and documents from the dealer's premises. The
computer hard disk was seized under the provisions set out in Section 14 of the Punjab
General Sales Tax Act 1948, which requires authorities to return seized documents within a
stipulated time frame (Section 14 (3)), provided that the dealer or person concerned is given a

23
Anvar P.V vs P.K.Basheer & Ors, retrieved from http://indiankanoon.org/doc/187283766/
24
K. K. Velusamy vs N. Palaanisamy, retrieved from http://indiankanoon.org/doc/1126109/
25
R.M Malkani vs. State of Maharastra, AIR 1973 SC 157
26
K. K. Velusamy vs N. Palaanisamy, retrieved from http://indiankanoon.org/doc/1126109/
27
State of Punjab v Amritsar Beverages Ltd, AIR 2007 SC 590
receipt for the property. This section entitles the officer concerned to affix his or her signature
and seal at one or more places on the seized document and to include in the receipt the
number of places where the signature and seal have been affixed. In the case at hand, the
officers concerned called upon the dealer, but the dealer ignored their requests. After
examination, the Sales Tax Authority was required to return all documents seized within 60
days. However, the authority failed to return the hard disk, claiming that it was not a
document. When the matter came before the Supreme Court, a creative interpretation was
adopted, taking into account the fact that the Punjab General Sales Tax Act was enacted in
1948 when information technology was far from being developed. It was determined that the
Constitution of India is a document that must be interpreted in light of contemporary life.
This meant that a creative interpretation was necessary to enable the judiciary to respond to
technological developments. The court was permitted to use its own interpretative principles
since Parliament had failed to amend the statute with regard to developments in the field of
science. The court stated that the Evidence Act, which is part of the Procedural laws, should
be construed to be an ongoing statute, similar to the Constitution, which meant that in
accordance with the circumstances, a creative interpretation was possible. It was held that the
proper course of action for officers in such circumstances was to make copies of the hard disk
or obtain a hard copy, affix their signatures or official seal on the hard copy and furnish a
copy to the dealer or person concerned.28

ADMISSIBILITY OF EVIDENCE RECORDED ON CD:

In Jagjit Singh v State of Haryana29 the speaker of the Legislative Assembly of the State of
Haryana disqualified a member for defection. When hearing the matter, the Supreme Court
considered the appreciation of digital evidence in the form of interview transcripts from the
Zee News television channel, the Aaj Tak television channel and the Haryana News of
Punjab Today television channel. The Supreme Court of India indicated the extent of the
relevance of the digital materials in Paragraph 25 of his ruling:

"The original CDs received from Zee Telefilms, the true translation into English of the
transcript of the interview conducted by the said channel and the original letter issued by Zee
Telefilms and handed over to Ashwani Kumar on his request was filed on June 23 2004. The

28
Justice P. SATHASIVAM, Appreciation of Evidence including Evidence recorded through Electronic Media
for Sessions Cases
29
Jagjit Singh v State of Haryana, AIR 2007 SC 590
original CDs received from Haryana News channel along with the English translation as
above and the original proceedings of the Congress legislative party in respect of proceedings
dated June 16 2004 at 11.30am in the Committee room of Haryana Vidhan Sabha containing
the signatures of three out of four independent members were also filed." In Paragraphs 26
and 27 the court went on to indicate that an opportunity had been given to the parties to
review the materials, which was declined. The court 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 CD were
those of the persons taking action. The Supreme Court found no infirmity in the speaker's
reliance on the digital evidence and the conclusions reached.30

ADMISSIBILITY OF INTERCEPTED TELEPHONE CALLS:

State (NCT of Delhi) v Navjot Sandhu 31 was an appeal against conviction following the
attack on Parliament on December 13 2001, in which five heavily armed persons entered the
Parliament House Complex and killed nine people, including eight security personnel and
one gardener, and injured 16 people, including 13 security men. This case dealt with the
proof and admissibility of mobile telephone call records. While considering the appeal
against the accused for attacking Parliament, a submission was made on behalf of the accused
that no reliance could be placed on the mobile telephone call records, because the prosecution
had failed to produce the relevant certificate under Section 65B(4) of the Evidence Act. The
Supreme Court concluded that a cross-examination of the competent witness acquainted 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 to prove the call records.

EXAMINATION OF A WITNESS BY VIDEO CONFERENCE:

State of Maharashtra v Dr Praful B Desai 32 involved the question of whether a witness can be
examined by means of a video conference. The Supreme Court 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. The legal requirement for the presence of the witness does not mean

30
Justice P. SATHASIVAM, Appreciation of Evidence including Evidence recorded through Electronic Media
for Sessions Cases
31
State (NCT of Delhi) v Navjot Sandhu, AIR 2005 SC 3820
32
State of Maharashtra v Dr Praful B Desai, AIR 2003 SC 2053
actual physical presence. The court allowed the examination of a witness through video
conferencing and concluded that there is no reason why the examination of a witness by
video conferencing should not be an essential part of electronic evidence.

This Supreme Court decision has been followed in other high court rulings (eg, Amitabh
Bagchi v Ena Baqchi33 More recently, the High Court of Andhra Pradesh in Bodala Murali
Krishna v Bodala Prathima 34 held that necessary precautions must be taken to identify the
witness and ensure the accuracy of the equipment being used. In addition, any party wishing
to avail itself of the facility of video conferencing must meet the entire expense.
In Amitabh Bagchi vs. Ena Bagchi35, The court held that the physical presence of person in
Court may not be required for purpose of adducing evidence and the same can be done
through medium like video conferencing. Sections 65-A and 65-B provide provisions for
evidences relating to electronic records and admissibility of electronic records, and that
definition of electronic records includes video conferencing.36

ADMISSIBILITY OF VIDEO EVIDENCE:

In Twentieth Century Fox Film Corporation vs. NRI Film Production Associates (P) Ltd.37,
certain condition for video-recording of evidence has been laid down:
a) Before a witness is examined in terms of the Audio-Video Link, witness is to file
an affidavit or an undertaking duly verified before a notary or a judge that the person
who is shown as the witness is the same person as who is going to depose on the
screen. A copy is to be made available to the other side.
b) The person who examines the witness on the screen is also supposed to file an
affidavit/undertaking before examining the witness with a copy to the other side with
regard to identification.
c) The witness has to be examined during working hours of Indian Courts. Oath is to
be administered through the media.
d) The witness should not plead any inconvenience on account of time difference
between India and USA.

33
Amitabh Bagchi v Ena Baqchi, AIR 2005 Cal 11
34
Bodala Murali Krishna v Bodala Prathima, 2007 (2) ALD 72
35
Amitabh Bagchi vs. Ena Bagchi AIR 2005 Cal 11
36
Adv Prashant Mali, Digital or Electronic Evidence in Indian Law or in Indian Courts, retrieved from
http://www.slideshare.net/cyberlawconsulting/electronic-evidence-digital-evidence-in-india.
37
Twentieth Century Fox Film Corporation vs. NRI Film Production Associates (P) Ltd., AIR 2003 KANT 148
 e) Before examination of the witness, a set of plaint, written statement and other
documents must be sent to the witness so that the witness has acquaintance with the
documents and an acknowledgement is to be filed before the Court in this regard.
f) The learned judge is to record such remarks as is material regarding the demur of
the witness while on the screen.
g) The learned judge must note the objections raised during recording of witness and
to decide the same at the time of arguments.
h) After recording the evidence, the same is to be sent to the witness and his signature
is to be obtained in the presence of a Notary Public and thereafter it forms part of the
record of the suit proceedings.
i) The visual is to be recorded and the record would be at both ends. The witness also
is to be alone at the time of visual conference and notary is to certificate to this effect.
j) The learned judge may also impose such other conditions as are necessary in a
given set of facts.
k) The expenses and the arrangements are to be borne by the applicant who wants this
facility.38

39
In Bodala Murali Krishna vs. Smt. Bodala Prathima , The court held that, “…the
amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in
relation to the electronic record. Sections 67-A and 73-A were introduced as regards proof
and verification of digital signatures. As regards presumption to be drawn about such records,
Sections 85-A, 85-B, 85-C, 88-A and 90-A were added. These provisions are referred only to
demonstrate that the emphasis, at present, is to recognize the electronic records and digital
signatures, as admissible pieces of evidence.”40

ADMISSIBILITY OF INFORMATION RECORDED IN THE HARD DISC IN THE

FORM OF A TEXT FILE, OR SOUND FILE OR A VIDEO FILE ETC.:

In Dharambir vs. Central Bureau of Investigation 41, The court arrived at the conclusion that
when Section 65-B talks of an electronic record produced by a computer referred to as the
computer output, it would also include a hard disc in which information was stored or was

38
Adv Prashant Mali, Digital or Electronic Evidence in Indian Law or in Indian Courts, retrieved from
http://www.slideshare.net/cyberlawconsulting/electronic-evidence-digital-evidence-in-india.,
39
Bodala Murali Krishna vs. Smt. Bodala Prathima, 2007 (2) ALD 72
40
Adv Prashant Mali, Digital or Electronic Evidence in Indian Law or in Indian Courts, retrieved from
http://www.slideshare.net/cyberlawconsulting/electronic-evidence-digital-evidence-in-india.
41
Dharambir vs. Central Bureau of Investigation, 148 (2008) DLT 289
earlier stored or continues to be stored. It 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. The 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. Such information that is accessible can be
converted or copied as such to another magnetic or electronic device like a CD, pen drive etc.
Even 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.42

8. EFFECTS OF CONSIDERING ELECTRONIC

EVIDENCE

Blurring the Difference between Primary and Secondary Evidence - By bringing all forms of
computer evidence into the fold of primary evidence, the statute has effectually blurred the
difference between primary and secondary forms of evidence. While the difference is still
expected to apply with respect to other forms of documents, an exception has been created
with respect to computers. This, however, is essential, given the complicated nature of
computer evidence in terms of not being easily producible in tangible form. Thus, while it
may make for a good argument to say that if the word document is the original then a print
out of the same should be treated as secondary evidence, it should be considered that
producing a word document in court without the aid of print outs or CDs is not just difficult,
but quite impossible.43

Making Criminal Prosecution Easier - In light of the recent spate of terrorism in the world,
involving terrorists using highly sophisticated technology to carry out attacks, it is of great
help to the prosecution to be able to produce electronic evidence as direct and primary
evidence in court, as they prove the guilt of he accused much better than having to look for
traditional forms of evidence to substitute the electronic records, which may not even exist.

42
Adv Prashant Mali, Digital or Electronic Evidence in Indian Law or in Indian Courts, retrieved from
http://www.slideshare.net/cyberlawconsulting/electronic-evidence-digital-evidence-in-india.
43
Law Teacher, UK, Relevancy And Admissibility Of Electronic Law Essays. Retrieved from
http://www.lawteacher.net/free-law-essays/commercial-law/relevancy-and-admissibility-of-electronic-law-
essays.php?cref=1
As we saw in the Ajmal Kasab case, terrorists these days plan all their activities either face-
to-face, or through software. Being able to produce transcripts of internet transactions helped
the prosecution case a great deal in proving the guilt of the accused.44

Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, the links
between the slain terrorists and the masterminds of the attack were established only through
phone call transcripts obtained from the mobile service providers.45

Risk of Manipulation - While allowing all forms of computer output to be admissible as

primary evidence, the statute has overlooked the risk of manipulation. Tampering with
electronic evidence is not very difficult and miscreants may find it easy to change records
which are to be submitted in court. However, technology itself has solutions for such
problems. Computer forensics has developed enough to find ways of cross checking whether
an electronic record has been tampered with, when and in what manner. 46

Opening Potential Floodgates - Computers are the most widely used gadget today. A lot of
other gadgets involve computer chips in their functioning. Thus, the scope of Section 65A
and 65B is indeed very large. Going strictly by the word of the law, any device involving a
computer chip should be adducible in court as evidence. However, practical considerations as
well as ethics have to be borne in mind before letting the ambit of these Sections flow that
far. For instance, the Supreme Court has declared test results of narco-analysis to be
inadmissible evidence since they violate Article 20(3) of the Constitution. It is submitted that
every new form of computer technology that is sought to be used in the process of production
of evidence should be subjected to such tests of Constitutionality and legality before
permitting their usage.47

CHAPTER IV

9. PRESUMPTION AS TO ELECTRONIC EVIDENCE:

A fact which is relevant and admissible may not have to be construed as a proved fact. The
judge has to appreciate the fact to come to conclusion that it is proved fact. The exception to

44
Law Teacher, UK, Relevancy And Admissibility Of Electronic Law Essays. Retrieved from
http://www.lawteacher.net/free-law-essays/commercial-law/relevancy-and-admissibility-of-electronic-law-
essays.php?cref=1
45
Ibid.
46
Ibid.
47
ibid
this general rule is the existence of certain facts specified in the Evidence Act that could be
presumed by the court. The Evidence Act has been amended to introduce various
presumptions regarding digital evidence, as described below.

GAZETTES IN ELECTRONIC FORM:

Under the provisions of section 81A, the court presumes the genuineness of electronic
records purporting to be the Official Gazette or an electronic record directed by any law,
providing the electronic record is kept substantially in the form required by law, and it is
produced from proper custody.48

ELECTRONIC AGREEMENTS:

Section 84A provides a presumption that a contract is concluded where the digital signatures
of the parties are affixed to an electronic record that purports to be an agreement.49

SECURE ELECTRONIC RECORDS AND DIGITAL SIGNATURES:

Section 85B provides that where a security procedure has been applied to an electronic record
at a specific point of time, then the record is deemed to be a secure electronic record from
such point of time to the time of verification. Unless the contrary is proved, the court is to
presume that a secure electronic record has not been altered since the specific point of time to
which the secure status relates. The provisions relating to a secure digital signature are set out
in section 15 of the IT Act, and such a signature is a digital signature, which by application of
a security procedure agreed by the parties concerned, at the time it was affixed was, was:

 Unique to the subscriber affixing it;

 Capable of identifying such subscriber;
 Created in a manner or using a means under the exclusive control of the subscriber
and is linked to the electronic record to which it relates in such a manner that if the
electronic record was altered the digital signature would be invalidated.

In the case of a secure digital signature, there is a presumption that the secure digital
signature was

48
Tejas D. Karia, paper on Digital Evidence an Indian Perspective, retrieved from http://sas-
space.sas.ac.uk/5368/1/1872-2608-1-PB.pdf.
49
Ibid.
affixed by the subscriber with the intention of signing or approving the electronic record, and
in respect of digital signature certificates (section 85C), it is presumed that the information
listed in the certificate is correct, with the exception of information specified as subscriber
information that has not been verified, if the certificate was accepted by the subscriber.50

ELECTRONIC MESSAGES:

Under the provisions of section 88A, there is a presumption that an electronic message
forwarded by the sender through an electronic mail server to the addressee to whom the
message purports to be addressed, corresponds with the message fed into his computer for
transmission. However, there is no presumption as to the person by whom such message was
sent. This provision only presumes the authenticity of the electronic message, and not the
sender of the message.51

ELECTRONIC RECORDS FIVE YEARS OLD:

The provisions of section 90A make it clear that where an electronic record is produced from
any custody which the court in a particular case considers proper, and it purports to be or is
proved to be five years old, it may be presumed that the digital signature affixed to the
document was affixed by the person whose signature it was or any person authorized by them
on their behalf. An electronic record can be said to be in proper custody if it is in the place in
which, and under the care of the person with whom, they naturally be. At the same time, the
custody is not improper if it is proved to have had a legitimate origin, or the circumstances of
the particular case are such as to render the origin probable. The same rule is also applicable
to the Official Gazette in electronic form.52

CHANGES IN THE BANKER’S BOOK EVIDENCE ACT, 1891:

The definition of „banker‟s book‟ has been amended to include the printout of data stored in
a floppy, disc or any other electro-magnetic device (section 2 (3)), and section 2A provides
that the printout of an entry or a copy of a printout must be accompanied by a certificate
stating that it is a printout of such entry or a copy of such printout by the principal accountant
or branch manager, together with a certificate by a person in charge of the computer system

50
Tejas D. Karia, paper on Digital Evidence an Indian Perspective, retrieved from http://sas-
space.sas.ac.uk/5368/1/1872-2608-1-PB.pdf.
51
Ibid.
52
Ibid.
containing a brief description of the computer system and certain other particulars of the
safeguards adopted by the system.53

CHAPTER V
10. CONCLUSION:

It has thus been seen that with the increasing impact of technology in everyday life, the
production of electronic evidence has become a necessity in most cases to establish the guilt
of the accused or the liability of the defendant. The shift in the judicial mindset has occurred
mostly in the past twenty years and most legal systems across the world have amended their
laws to accommodate such change.

In February 2010, the city of Pune was endangered by a terrorist attack in a much-frequented
bakery. The German Bakery blast accused was finally identified by the police on the basis of
a CCTV recording. The only proof available will be that recorded in the computer system
controlling the CCTV unit. With the facility of writing letters over the internet being widely
available now, more and more contracts are being entered into online.

Thus, people can now order products online, and the sellers will ship the consignment across,
the payment being made through e-banking. Thus, if any of the parties to the contract were to
sue each other for breach of contract, the only adducible evidence would be the text of the
emails. On the other side of the spectrum, technology is also being used to plan out criminal
activities. The gruesome case of the “terrorist attacks in Mumbai, 2008” brought to light how
well terrorists are versed with technology these days, and how they use them to their benefit.
The terrorist controllers had purchased Voice Over Internet Protocol (VOIP) connections,
making payments through Western Union Money Transfer, so as to stay in touch with the
attackers and give them instructions from Pakistan. The details of the internet transactions
were provided as evidence by the prosecution in the Trial Court.

In India, the change in attitude came with the amendment to the Indian Evidence Act in 2000.
Sec. 65B provides that shall be considered documents, thereby making it primary evidence, if
the computer which produced the record had been regularly in use, the information fed into
the computer was part of the regular use of the computer and the computer had been

53
Ibid.
operating properly. It further provides that all computer output shall be considered as being
produced by the computer itself, whether it was produced directly or indirectly, whether with
human intervention or without. This provision does away with the concept of computer
evidence being hearsay. Thus, with the amendments introduced into the statute, electronic
evidence in India is no longer either secondary or hearsay evidence, but falls within the best
evidence rule.

11. SUGGESTIONS:

'Science and law, two distinct professions have increasingly become commingled, for
ensuring a fair process and to see that justice is done. On one hand, scientific evidence holds
out the tempting possibility of extremely accurate fact-finding and a reduction in the
uncertainty that often accompanies legal decision making. At the same time, scientific
methodologies often include risks of uncertainty that the legal system is unwilling to tolerate.
And there is a need for overhauling the entire justice system by adopting E-governance in
Judiciary. E-Governance to the judiciary means, use of information and communication
technology to smoothen and accelerate case progression to reach its logical end within the set
time frame, with complete demystification of the adjudicatory process ensuing transparency.
This would perhaps make us closer to the pursuit of truth and justice. Because of the potential
for electronic records to be manipulated, however, courts should be open to considering good
faith challenges to the authenticity of evidence, and hold proponents of questionable evidence
to their burdens of establishing admissibility.

In India, all electronic records are now considered to be documents, thus making them
primary evidence. At the same time, a blanket rule against hearsay has been created in respect
of computer output. These two changes in the stance of the law have created paradigm shifts
in the admissibility and relevancy of electronic evidence, albeit certain precautions still being
necessary. However, technology has itself provided answers to problems raised by it, and
computer forensics ensure that manipulations in electronic evidence show up clearly in the
record. Human beings now only need to ensure that electronic evidence being admitted is
relevant to the fact in issue and is in accordance with the Constitution and other laws of the
land.

It is hoped that if information technology make new devices available, Indian courts would
confirm their admissibility at the earliest opportunity. This streak of “judicial activism” in the
face of legislative inertia in a dizzyingly dynamic age should continue. In addition, the judges
also have a role to play. They don‟t have to lag behind in the course of Global technological
advancement being witnessed presently in the world. Therefore, the judges must not allow
life and business of the courts to be stifled by the insensitivity of electronic evidence. Some
of them like e-mails, electronic funds transfers especially through the use of personal
identification Numbers (PIN), and even the run-off-the- mill computer typesetting and book
keeping are very susceptible to manipulations and fraud which need to be specifically
provided for. Henceforth, the judges can take the opinion from the experts in forensic science
and other related studies in giving judgments for which evidence is through electronic
devices.

BIBLIOGRAPHY
ARTICLES:

1. Adegboro, A M, the Relevance of Electronic Evidence in the Nigeria Legal System.

Long Essay. Igbinedon University, Okada, Edo State 2008.
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retrieved from http://www.slideshare.net/cyberlawconsulting/electronic-evidence-
digital-evidence-in-india.
3. Eoghan Casey, Digital Evidence and Computer Crime: Forensic Science, Computers
and the Internet, Academic Press, 2004.
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http://www.internationallawoffice.com/newsletters/detail.aspx?g=93c76fe9-e156-
470b-b84d-3f4cf73da391.
10. Widdison R, “electronic law practice. An exercise in legal futurology‟ the Modern
Law Review”, vol. 60, No. 2 143 at 144.

CASES:

1. Amitabh Bagchi v Ena Baqchi, AIR 2005 Cal 11.

2. Anvar P.V vs P.K.Basheer & Ors.
3. Bodala Murali Krishna v Bodala Prathima, 2007 (2) ALD 72.
4. Castle v. Cross, 1984] 1 WLR 1372.
5. Derzack v. County of Allegheny, 173 F.R.D. 400, 403 (W.D. Pa. 1996).
6. Dharambir vs. Central Bureau of Investigation, 148 (2008) DLT 289.
7. Jagjit Singh v State of Haryana, AIR 2007 SC 590.
8. Jimenez v. Madison Area Technical Coll., 321 F.3d 652.
9. K. K. Velusamy vs N. Palaanisamy, ILC-2011-SC-CIVIL-Mar 14.
10. Pisel v. Stamford Hosp., 430 A.2d 1, 15.
11. R v. Shepherd, (1992), 97 Nfld & P.E.I.R. 144 (Nfld. S.C.).
12. R v. Wood, [2008] NSWSC 817.
13. R.M Malkani vs. State of Maharastra, AIR 1973 SC 157.
14. Ramsey County v. S. M. F., 298 N.W.2d 40 (Minn. 1980).
 15. State (NCT of Delhi) v Navjot Sandhu, AIR 2005 SC 3820.
16. State of Maharashtra v Dr Praful B Desai, AIR 2003 SC 2053.
17. State of Punjab v Amritsar Beverages Ltd, AIR 2007 SC 590.
18. Strauss v. Microsoft Corp., No. 91 Civ. 5928, 1995 WL 326492.
19. Twentieth Century Fox Film Corporation vs. NRI Film Production Associates (P)
Ltd., AIR 2003 KANT 148.
20. United States v. Kilbride, 507 F. Supp. 2d 1051.

INDIAN KANOON DOC:

1. Anvar P.V vs P.K.Basheer & Ors, retrieved from

http://indiankanoon.org/doc/187283766/
2. K. K. Velusamy vs N. Palaanisamy, retrieved from
http://indiankanoon.org/doc/1126109/

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470b-b84d-3f4cf73da391.
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