RELEVANCY OF ELECTRONIC

 RECORDS AND ITS

ADMISSIBILITY IN CRIMINAL
PROCEEDINGS

AKASH JHA
LLB (HONS.)
GD GOENKA UNIVERSITY
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.

 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.

 Authentication of such evidence is perhaps the most

difficult challenge as courts seek to determine it’s
admissibility.
WHAT IS ELECTRONIC EVIDENCE?
 Evidence 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.

 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.
ELECTRONIC RECORDS
 The Indian Evidence Act, 1872 contains set of
rules and regulations regarding admissibility of
evidence in the Indian Courts of law.
 From time to time amendments are made in
the Indian Evidence Act to make it compatible
with changing times.
 As per provision Sec 2(t) of Information
Technology Act 2000, 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;”
HOW ARE ELECTRONIC RECORDS
LEGALLY ADMISSIBLE?
 The following sections have 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

 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 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.

 
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.
ADMISSIBILITY OF ELECTRONIC
EVIDENCE IN CRIMINAL PROCEEDINGS
 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.

 In R.M Malkani vs. State of Maharashtra, 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.
 ADMISSIBILITY OF EVIDENCE RECORDED ON CD:

 In Jagjit Singh v State of Haryana 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 his ruling.
 ADMISSIBILITY OF INTERCEPTED TELEPHONE CALLS:

 State (NCT of Delhi) v Navjot Sandhu 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. 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.
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 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, some of them are:

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.
 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.

 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.
 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 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 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.
THANK
YOU!