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ADMISSIBILITY OF DIGITAL EVIDENCES: AN OVERVIEW

OF THE LEGISLATIVE AND JUDICIAL PERSPECTIVES

Aneesh V Pillai1

Introduction
Human civilization has, with the passage of time, made tremendous progress and
consequently resulted in numerous inventions and discoveries. One of the greatest
inventions of mankind is the development of personal computers and internet which led
to the development of cyberspace. Like any other development in the science and
technology, the developments in computers and internets are also not free from dangers.
This is because internet cyberspace being one of the easiest and fastest media to spread
information, there is a likelihood of its misuse by unscrupulous individuals. The
cyberspace because of its diversity of contents, information, posts, pictures, opinions,
ease accessibility and wide reach, pose several dangers to the society.

During the last few years, investigation agency in different parts of the Country have
been exposed various Cyber Crimes and more and more cases are being registered for
investigation. For an effective investigation of these cyber-crimes and its prosecution
requires evidences derived from computers, Internet and other devices. Such evidences
derived from computers, Internet and other devices are generally termed as digital
evidence. The identification and collection of digital evidence is a herculean task as it
requires expertise in cyber technology. In this context Cyber forensics, the art and
science of applying computer science to collect digital evidence has emerged as an
important aid to criminal prosecution of cyber-crimes. However, this new method of
investigation has raised several significant legal issues. This paper seeks to examine one
of the most important legal issues in cyber forensics, i.e. the admissibility of digital
evidences in India.

1
Aneesh V Pillai is an Assistant Professor (Law), at School of Legal Studies, Cochin University
of Science and Technology, Email id: advavpillai@gmail.com.

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Evidence: Concept and Importance

It is generally considered that, the word „evidence‟ is derived from the Latin word
„Evidentia‟ (Stevenson, 2003: 607), which means „the state of being evident, i.e., plain,
apparent clear‟. It is also argued that, the term evidence is derived from the Latin words
' evidence evidere' which means to show clearly, to make plain, certain or to prove.
According to the Oxford English Dictionary, the word evidence means „the available
body of facts or information indicating whether a belief or proposition is true or valid‟.
In terms of Section 3 of the Indian Evidence Act, 1872, „Evidence means and includes-
1) all statements which the court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry such statements are called oral evidence; 2)
all documents including electronic records produced for the inspection of the court; such
documents are called documentary evidence‟.

According to Charles P. Nemeth (2011), „Evidence is what leads us to the truth; it is a

piece of life; a fact, a real or tangible thing elucidates a proposition. Without evidence
there is no proof; without proof burdens are not met and convictions, verdicts or
judgements are impossibility‟. Thus evidence is an essential pre-requisite for deciding a
legal dispute. There are various cases in which collection of evidence is considered as a
herculean task and as a result effective control of such cases are in a dilemma. One of
such situation is the collection of evidence in cyber-crimes. If the investigator lacks a
standard, robust approach to properly conduct crime scene research, some important
information can be lost, and judges can discard case evidence because the acquisition
process was faulty. In this situation, a formal process could guarantee the evidence
veracity and integrity (Nassif, 2014). In this context cyber forensics assumes great
importance.

Cyber Forensics and Digital Evidence

Cyber forensics is the science of obtaining, preserving and documenting evidence from
digital electronic storage devices, such as computers, digital cameras, smart phones and
other memory storage devices (ISFS, 2004). It is the application of disciplined
investigative techniques in the automated environment and the search, discovery, and
analysis of potential evidence. It is the method used to investigate and analyze data
maintained on or retrieved from electronic data storage media for the purposes of
presentation in a court of law, civil or administrative proceeding. Thus it can be seen
that the cyber forensic is the scientific examination and analysis of data held on, or
retrieved from, computer storage media in such a way that the information can be used
as evidence in a court of law”. The basic objective of this branch of knowledge is to
provide digital evidence which is obtained from digital device (Diaz et al, 2007).
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According to Cyber Center2, digital evidence means any information or data of value to
an investigation that is stored on, received by, or transmitted by an electronic device.
Text messages, emails, pictures and videos, and internet searches are some of the most
common types of digital evidence. Digital evidences can be collected from a digital
storage device in two ways, either directly or indirectly. The direct method is almost the
same with theft collection, except the theft here is intangible existing in some tangible
digital media. E.g. pirated CD, unauthorized access record to the other computers, and
digital photograph which could prove guilt of a criminal. The indirect method includes
two parts. The first one is evidences obtained by analyzing data retrieved from the
digital media, e.g. the calling record stored in a mobile phone which indicates a suspect
has communicated with another one who has already been proven to be guilty. The
other part is evidences that have been deleted but are still possible to be recovered using
certain tools and technology (Diaz et.al, 2007). The development in cyber forensics has
opened a new and easy way for collection of evidences in cyber crimes. Since cyber
forensics and digital evidences are too technical in nature, there is always an
apprehension about its veracity and its admissibility.

Admissibility of Digital Evidence

The law relating to admissibility of evidence in India is dealt under Indian Evidence
Act, 1872. Before the introduction of Information Technology Act, 2000, the digital
evidences collected through all means including through cyber forensics was considered
as a document and secondary evidence of these electronic „documents‟ was adduced
through printed reproductions or transcripts, the authenticity of which was certified by a
competent signatory. The signatory would identify his signature in court and be open to
cross examination. All these was done in accordance with the conditions mentioned
under sections 63 and 65 of the Evidence Act. However, Bairav (2014) in his analysis of
Anwar v. Basheer, a Supreme Court case of 2014, suggests that as the pace and
proliferation of technology expanded, and as the creation and storage of electronic
information grew more complex, the law relating to admissibility of electronically
stored information was also underwent substantial changes.

The enactment of IT Act along with the amendments in Indian Evidence Act and Indian
Penal Code has introduced the concept of „electronic record‟ and declared it as

2
Cyber Center is a collaborative project of the International Association of Chiefs of Police
(IACP), the National White Collar Crime Center (NW3C) of United States, and the Police
Executive Research Forum (PERF). Website: www.iacpcybercenter.org

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admissible evidence subject to certain conditions. According to Section 2(1)(t) of IT

Act, the term 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‟. Section 4 of the IT Act expressly recognised the validity and use of electronic
records in place of ordinary paper based records. The Section provides that, „Where any
law provides that information or any other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding anything contained in such law, such
requirement shall be deemed to have been satisfied if such information or matter is: (a)
rendered or made available in an electronic form; and (b) accessible so as to be usable
for a subsequent reference. Since the Section says „notwithstanding anything contained
in such law‟, the intention of the legislatures is very clear that, electronic records can
have the same legal effect of conventional paper based evidence. The various provisions
relating to „electronic records‟ under Indian Evidence Act are contained in sections 17,
22A, 39, 45A, 59, 65A and 65B. Out of which Sections 65A & 65B is most important
as it provides the rules relating to admissibility of electronic records as evidence.

Section 65A expressly states that, „the contents of electronic records may be proved in
accordance with the provisions of section 65B‟. Section 65B (1) states that, „if 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 of any contents of the original or of any fact
stated therein of which direct evidence would be admissible‟. Thus an electronic record
printed on a paper, stored, recorded or copied in optical or magnetic media produced by
a computer is admissible as documentary evidence before the court of law if it satisfies
the conditions mentioned under 65B.

Section 65B provides for both technical conditions and non-technical grounds. Sub-
section (2) lists the technological conditions upon which a duplicate copy (including a
print-out) of an original electronic record may be used (Dubey, 2017): a) At the time of
the creation of the electronic record, the computer that produced it must have been in
regular use; b) The kind of information contained in the electronic record must have
been regularly and ordinarily fed in to the computer; c) The computer was operating
properly; and, d) The duplicate copy must be a reproduction of the original electronic
record.

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The non-technical conditions are provided under Section 65B(4) it provides for the
requirement of a certificate of authenticity in order to satisfy the conditions set out
above, signed by a person occupying a responsible official position. Such a 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 also 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 (Karia, 2014). Thus if any
electronic record printed on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer, if duly proved in the manner provided in sec 65-B, can
be considered as strong evidence for civil or criminal trial under Indian Evidence Act.

Other than Section 65A & 65 B there are some other provisions dealing with
admissibility of digital evidence were introduced under the Indian Evidence Act, 1872.
Some of the important provisions are Section 17 which changed the definition of
'admission' so as to include a statement in oral, documentary or electronic form which
suggests an inference to any fact at issue or of relevance. Section 22A has been inserted
into the Evidence Act to provide for the relevancy of oral evidence regarding the
contents of electronic records. According to Monir (2013: 92) the section provides that
oral admissions regarding the contents of electronic records are not relevant unless the
genuineness of the electronic records produced is in question. As per Section 39 when
any statement is part of an electronic record the evidence of the electronic record must
be given as the court considers it necessary in that particular case to understand fully the
nature and effect of the statement and the circumstances under which it was made.

Further the Indian Evidence Act, 19872 was amended on account of Information
Technology Act, 2000 and inserted various provisions which create presumptions
regarding electronic records in different situations. They are firstly, Section 81A, which
contains presumption as to genuineness of every electronic record purporting to be the
Official Gazette. Secondly, Section 85A creates a presumption that every electronic
record purporting to be an agreement containing the digital signatures of the parties was
so concluded by affixing the digital signature of the parties. Thirdly, Section 85B also
creates a presumption of authenticity of secured digital signatures unless proven
otherwise. Fourthly, Section 85C provides a presumption of authenticity of secured
DSC unless proven otherwise. Fifthly, Section 88A also creates a presumption as to the
contents of electronic messages, but not the originator of the electronic messages.

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Finally Section 90A creates a presumption as to the authenticity electronic records five
years old, which is produced from the custody of a person.

Indian Judiciary and Digital Evidence

Over the years, with increased exposure to electronic records, there has been a
progression from an age of treating electronic records as ordinary documents. However,
it took nine years before the Supreme Court conclusively decided that documentary
evidence in the form of an electronic record can be proved only in accordance with the
procedure set out under section 65B of the Evidence Act (Karia et. al, 2015). In the very
first time (NavjotSandhu case, 2005), the Indian judiciary was not ready to appreciate
the significance of Section 65B. As a result, the Hon‟ble Supreme Court held that,
„irrespective of the compliance of the requirements of Section 65B which is a provision
dealing with admissibility of electronic records, there is no bar to adducing secondary
evidence under the other provisions of the Evidence Act, namely Sections 63 & 65‟.
Further it is stated that, even if a certificate containing the details in sub-Section (4) of
Section 65B is not filed, that does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the circumstances mentioned in the
relevant provisions, namely Sections 63 & 65‟.

However in the Anvar P. V. case (2015), departing from its earlier ruling in
NavjotSandhu case (2005), the importance of Section 65 B was recognised. Hence, the
Supreme Court observed that, „any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in
accordance with the procedure prescribed under Section 65B. Section 65B deals with
the admissibility of the electronic record. The purpose of these provisions is to sanctify
secondary evidence in electronic form, generated by a computer. It may be noted that
the Section starts with a non obstante clause. Thus, notwithstanding anything contained
in the Evidence 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 shall be deemed to be a document only if the conditions mentioned under sub-
Section (2) are satisfied, without further proof or production of the original. The very
admissibility of such a document, i.e., electronic record which is called as computer
output, depends on the satisfaction of the four conditions under Section 65B(2)‟. Further
the Court points out that, „only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as to the genuineness thereof
and in that situation, resort can be made to Section 45A – opinion of examiner of
electronic evidence‟. Thus after this judgment it was clarified that any evidence

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obtained by way of cyber forensics can be considered as admissible only if it satisfies

the conditions mentioned under 65B of Indian Evidence Act, 1872.

In the case of Abdul RahmanKunji (2009), the Calcutta High Court has dealt with the
issue of admissibility of emails as evidence. The Court pointed out that such evidences
in connection with an email can be admitted as evidence only if it satisfies the
conditions mentioned under Section 65B. In the case of Rakesh Kumar (2009), the High
Court of Delhi, while appreciating the reliance placed by the prosecution upon the call
records, observed that 'computer generated electronic records is evidence, admissible at
a trial if proved in the manner specified by Section 65B of the Evidence Act.

In the 2008 case of Dharmbir before Delhi High Court, the question was whether a hard
disc can be considered as an electronic record or not. The Court points out that, „While
there can be no doubt that a hard disc is an electronic device used for storing
information, once a blank hard disc is written upon it is subject to a change and to that
extent it becomes an electronic record. Even if the hard disc is restored to its original
position of a blank hard disc by erasing what was recorded on it, it would still retain
information which indicates that some text or file in any form was recorded on it at one
time and subsequently removed. By use of software programmes it is possible to find
out the precise time when such changes occurred in the hard disc. Therefore, when
Section 65B 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 earlier stored or continues to be stored‟.

In the Jagjit Singh case (2006), 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 digital evidence in the form of interview transcripts from the Zee
News television channel, the AajTak television channel and the Haryana News of
Punjab Today television channel. The Court held 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.

With respect to the use of Video Conferencing and the legality of evidence obtained
therein in a criminal case was discussed in the case of Praful Desai (2003). The Hon‟ble
Supreme Court observed that, „in cases where the attendance of a witness cannot be

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procured without an amount of delay, expense or inconvenience the Court could

consider issuing a commission to record the evidence by way of video conferencing‟.

In a 2003 case involving Twentieth Century Fox Film Corporation and NRI Film
Production Associates (P) Ltd., the Karnataka High Court laid down several safeguards
for recording evidence through audio-video Link. They are:

1. 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.
(Identification affidavit).
2. The person who examines the witness on the screen is also to file an
affidavit/undertaking before examining the witness with a copy to the other
side with regard to identification.
3. The witness has to be examined during working hours of Indian Courts. Oath is
to be administered through the media.
4. The witness should not plead any inconvenience on account of time different
between India and USA.
5. 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.
6. Learned Judge is to record such remarks as is material regarding the demur of
the witness while on the screen.
7. Learned Judge must note the objections raised during recording of witness and
to decide the same at the time of arguments.
8. 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.
9. 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.
10. The learned Judge may also impose such other conditions as are necessary in a
given set of facts.
11. The expenses and the arrangements are to be borne by the applicant who wants
this facility.

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In case filed by BodalaMurali Krishna (2007) at Andhra Pradesh High Court, the
question of use of video conferencing in a civil case was discussed. The Court observed
that, „When such is the facility accorded in criminal cases, there should not be any
plausible objection for adopting the same procedure, in civil cases as long as the
necessary facilities, with assured accuracy exist‟. Further in Bagchi case (2005), the
Calcutta High Court held that, „it is to be remembered that by virtue of an amendment
and insertion of Sections 65A and 65B of the Evidence Act a special provision as to
evidence relating to electronic record and admissibility of electronic records has been
introduced with effect from 17th October, 2000. Consequential amendments are also
made therein. Therefore there is no bar of examination of witness by way of Video
Conferencing being essential part of electronic method‟.

Conclusion
The introduction of IT Act and the corresponding amendments in Indian Evidence Act,
1872 have to an extent established a legal framework for the admissibility of digital
evidences. Though initially there was confusion regarding the application of these new
provisions while dealing with the question of admissibility, the Indian judiciary
especially in the case of Anwar PV (2015) clarified the law regarding the admissibility
of digital evidence in India. The subsequent decisions of various high courts also
clarified the issue of different types of digital evidences. Hence, the digital evidences or
electronic records are admissible in India, if it satisfies the conditions prescribed by
Section 65B. Thus the law relating to admissibility of digital evidence is very well
crystallised. However one of the concerns still arising is in cases where if a secondary
electronic record is seized from the accused, the certificate under 65B(4) naturally could
not be obtained. Moreover, due to the bar of self-incrimination under Article 20(3) of
the Constitution of India, the accused cannot be made a witness against himself. Hence,
in such situation the question of admissibility such electronic record is in peril. It can be
envisioned that in future through judicial intervention, our judiciary may find a solution
for this dilemma also.

References

*Abdul RahmanKunji vs State of West Bengal, In the High Court of Calcutta,

C.R.A. Nos. 454 & 624 of 2009 decided on Friday, November 14, 2014.

*Amitabh Bagchi vs EnaBagchi AIR 2005 Cal. 11.

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Angus Stevenson (2003) (ed.), Oxford Dictionary of English, Oxford University

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*AnvarP.V. vs P.K. Basheer and others, AIR 2015 SC 180.

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*Twentieth Century Fox Film Corporation vs NRI Film Production Associates (P)
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