Admissibility and Evidentiary Value of Electronic Records | Criminal Law - CLAT PG PDF Download

Introduction

One of humanity's greatest achievements is the invention of computers and the advent of digitalization. In today's digital age, many governments around the world have embraced digitalization in their administrative processes. In India, the government has launched the 'Digital India' campaign to encourage the incorporation of digital technologies into everyday life, which is expected to accelerate the country's development. The rapid expansion of digitalization in governance, commerce, and various sectors has made it a crucial foundation for documentation, processing, and communication. Electronic means have significantly enhanced human life. The Indian judiciary has recognized and accepted electronic records as evidence, provided they adhere to the guidelines set forth in the Indian Evidence Act.

• However, while electronic records offer convenience, they also present unique challenges regarding proper authentication and differing perspectives. With the rapid growth of cyberspace, there has been a simultaneous surge in the misuse of this space, leading to an increase in cybercrimes. 
• This has posed significant challenges for investigative agencies and the judiciary concerning the admissibility of electronic records, as there is a higher risk of manipulation. During legal proceedings, electronic records can greatly influence the outcomes of civil, criminal, and other judicial cases. 
• Therefore, it is essential to comprehend electronic records, their types, admissibility, evidentiary value, and their role as evidence.

Evidence

According to the Indian Evidence Act of 1872 (Section 3), evidence can be classified as either oral or documentary. Oral evidence refers to statements made by witnesses in court, while documentary evidence includes materials presented for the court's examination, such as electronic records. A closer examination of evidence reveals different types relevant to legal proceedings.

Types of Evidence

Evidence can be categorized into:

• Oral or Documentary
• Primary or Secondary

Primary and Secondary Evidence

Primary Evidence: This refers to the original electronic record, which involves producing the document itself.

Secondary Evidence: This includes computer-generated outputs of electronic records. Secondary evidence may involve certified copies or counterparts of documents that cannot be produced in court, as well as statements from experts or individuals who have seen the document themselves.

It is a legal principle that primary evidence takes precedence over secondary evidence when available. However, due to practical challenges in producing primary evidence stored on hard disks, cloud servers, and other electronic storage devices, the Supreme Court allows secondary evidence.

Secondary evidence can be presented in court through printed copies, magnetic or optical media, or electronic devices. However, it is only admissible if it meets the conditions outlined in Section 65B of the Indian Evidence Act.

Electronic Records as Evidence

Section 65 of the Indian Evidence Act addresses the admissibility of secondary evidence in specific cases. Section 65B outlines the procedure for proving the contents of electronic records.

The admissibility of electronic records under Section 65B of the Indian Evidence Act states that printed information from electronic records on paper or copies of records on optical or magnetic media can be considered secondary evidence. This is valid if it satisfies the conditions in Section 65B. The original source of the information, i.e., the electronic device, is also admissible without further proof in court proceedings.

The essential elements of electronic evidence as per the Indian Evidence Act include:

• The information from electronic records must be produced by a person legally authorized to control the electronic device.
• The storage of information must occur in the ordinary course of the person's activities.
• The information must be stored on the electronic device during the person's routine activities.
• The electronic device used for storage or copying must be functioning properly to ensure accuracy and authenticity.
• Any storage, copying, or counterpart creation for electronic evidence must be free from distortion, manual edits, or manipulation, ensuring the information is authentic and trustworthy for court admission.

Different Types of Electronic Records

The Information Technology Act, 2008 defines electronic records to encompass various formats for data production. Examples include DVDs, CDs, pen drives, telephonic recordings, hard drives, emails, pictures, video recordings, sound recordings, and more. Each electronic record format presents different conditions regarding evidentiary value and admissibility in court.

Evidence in the Form of DVD, CD, Hard Drive, Chip, Memory Chip, Pen Drive:

• These electronic records are admissible as both primary and secondary evidence.
• The evidentiary value depends on how the records are submitted to the court.
• If submitted as original, they hold more value.
• If submitted as copies on different devices, compliance with Section 65B of the Indian Evidence Act is necessary, along with a certificate for admission in court.

Audio and Video Recordings:

• Original audio or video recordings are valid and authentic sources of electronic evidence.
• Copied versions must comply with Section 65B of the Indian Evidence Act for court admission.

Evidence Generated Through Mobile Phone in the Form of Media, Calls, and Emails:

• Email: Considered a valid and authentic source of evidence. Typically submitted as printouts with certification under Section 65B of the Indian Evidence Act.
• Media and Calls Generated Through Mobile Phone: Mobile phones are valuable electronic devices for tracing locations, capturing media, and recording calls. Electronic records from mobile phones are admissible if submitted in original form. Copied versions must comply with Section 65B of the Indian Evidence Act for court admission.

Leading Case Laws

Arjun Pandit Rao v. Kailash Kushanrao (July 2020)

• In a recent judgment, the Apex Court emphasized the importance of compliance with Section 65B of the Indian Evidence Act for admitting electronic records as evidence.
• The certificate submitted under this provision must include details about the electronic records and their identity, along with the authorized signature of a person responsible for managing and operating the relevant device.

Anvar P.V. v. P.K. Basheer And Others (2014)

• The Supreme Court delivered a significant judgment in this case, clarifying the admissibility of electronic record evidence and resolving conflicts among various High Court judgments.
• The Court ruled that secondary data stored in CD, DVD, or Pen Drive is admissible only with a certificate under Section 65B(4) of the Indian Evidence Act.
• Oral evidence cannot be used to prove electronic evidence, making the Section 65B certificate essential. Moreover, the opinion of an expert under Section 45A of the Indian Evidence Act cannot replace the requirements of Section 65B.
• To prove electronic evidence as primary or secondary, producing the original or its copy or counterpart with the Section 65B certificate is the only option.

Conclusion

• The admissibility and evidentiary value of electronic records are determined under Section 65B of the Indian Evidence Act. The Supreme Court has clarified through various landmark judgments the criteria for the admissibility and evidentiary value of electronic records in civil, criminal, and other judicial proceedings.
• It is now evident that if electronic evidence is considered secondary evidence, it must comply with the provisions of Section 65B of the Indian Evidence Act to be admissible in a court of law. Without a certificate, such evidence is generally not acceptable. While electronic devices can significantly aid investigations, the value of the electronic evidence is contingent upon its adherence to the provisions of the Indian Evidence Act.