Electronic Evidence: A Comprehensive Guide

Electronic Evidence refers to any information or data stored or transmitted in digital form that can be used in legal proceedings. This type of evidence has gained significant importance with the advent of technology and the widespread use of digital devices in daily life. Electronic evidence can include emails, text messages, social media posts, digital photographs, audio and video recordings, data stored on computers, and more. In India, the admissibility, preservation, and handling of electronic evidence are governed by specific legal provisions under the Indian Evidence Act, 1872, the Information Technology Act, 2000, and other relevant laws.

1. Understanding Electronic Evidence

Electronic evidence is any information or data that is created, stored, or transmitted electronically. This evidence is often referred to as digital evidence and can be crucial in both civil and criminal cases. The nature of electronic evidence is such that it can be easily altered, duplicated, or destroyed, making its handling and admissibility in court a matter of significant legal importance.

2. Legal Provisions Governing Electronic Evidence

The Indian legal system has incorporated various provisions to address the admissibility and authenticity of electronic evidence. These provisions ensure that electronic evidence is treated with the same level of scrutiny as traditional forms of evidence.

A. Indian Evidence Act, 1872

The Indian Evidence Act, 1872, was amended by the Information Technology Act, 2000, to include provisions related to electronic evidence. The relevant sections are:

Section 3 (Amendment): The definition of “evidence” under this section was expanded to include electronic records.
Section 65A: This section states that the contents of electronic records may be proved in accordance with the provisions of Section 65B.
Section 65B: This is the most critical section dealing with the admissibility of electronic evidence. It provides the procedure for admitting electronic records as evidence in court. According to Section 65B, any electronic record that is produced before the court as evidence must be accompanied by a certificate, referred to as a “65B Certificate,” issued by a person responsible for managing the device from which the data was retrieved.
65B Certificate: This certificate should state that:
- The electronic record was produced by the computer during its ordinary course of activities.
- The computer was operating properly during the period of data creation, storage, or transmission.
- The information contained in the electronic record is a true and accurate reproduction of the original data.
Section 79A: The Central Government may notify certain agencies as “Examiner of Electronic Evidence,” whose opinions are admissible as evidence.

B. Information Technology Act, 2000

The Information Technology Act, 2000, supplements the Indian Evidence Act concerning electronic evidence. Key provisions include:

Section 2(t): Defines “electronic record” as data, record, or data generated, image, or sound stored, received, or sent in an electronic form.
Section 4: Equates the legal recognition of electronic records with paper-based records.
Section 85B: Provides for the presumption of the authenticity of electronic records if the electronic signature is affixed in a manner prescribed by law.
Section 88A: The court may presume the authenticity of electronic messages.
Section 85A, 85B, 85C: Deal with the presumptions regarding electronic records and electronic signatures.

3. Admissibility of Electronic Evidence in Court

The admissibility of electronic evidence is contingent upon several factors, primarily the compliance with Section 65B of the Indian Evidence Act. For electronic evidence to be admissible, the following conditions must be met:

Integrity of Data: The data must be unaltered and maintained in its original form.
Proper Certification: As mentioned earlier, a 65B Certificate must accompany the electronic record, verifying its authenticity and the conditions under which it was produced.
Original vs. Secondary Evidence: If the original electronic record is available, it should be produced in court. However, if only a copy is available, it must be accompanied by the certificate under Section 65B.

4. Types of Electronic Evidence

Electronic evidence can be categorized into several types, including but not limited to:

Digital Documents: Emails, word documents, PDFs, spreadsheets, and other text files.
Multimedia: Photos, videos, audio recordings, and graphics.
Computer-Generated Records: Logs, metadata, timestamps, and database entries.
Communications: SMS, instant messaging (WhatsApp, Telegram), and social media posts.
Network Data: Logs from routers, firewalls, and network traffic.

5. Challenges in Handling Electronic Evidence

The handling of electronic evidence poses unique challenges due to its digital nature:

Alterability: Electronic data can be easily altered, making it essential to maintain a proper chain of custody.
Preservation: Ensuring that electronic evidence is preserved in its original form is crucial to avoid tampering.
Authentication: Establishing the authenticity of electronic evidence through technical means and certificates is necessary.
Expert Testimony: In many cases, expert testimony is required to explain the technical aspects of electronic evidence to the court.

6. Recent Judicial Pronouncements

Indian courts have provided various rulings that clarify the application of laws related to electronic evidence. Some notable cases include:

Anvar P.V. v. P.K. Basheer (2014): The Supreme Court held that the provisions of Section 65B of the Indian Evidence Act are mandatory for the admissibility of electronic records.
Shafhi Mohammad v. State of Himachal Pradesh (2018): The Supreme Court relaxed the mandatory requirement of a 65B certificate in cases where the original document is produced and proved as per the general evidence rules.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020): The Supreme Court reaffirmed that the certificate under Section 65B is mandatory and cannot be dispensed with, except in situations where the party is not in possession of the device from which the document is produced.

7. Conclusion

Electronic evidence plays a pivotal role in modern legal proceedings, given the ubiquity of digital technology. The Indian legal framework, through the Indian Evidence Act, 1872, and the Information Technology Act, 2000, has laid down comprehensive provisions to govern the admissibility, preservation, and handling of electronic evidence. Legal practitioners must ensure compliance with these provisions, particularly the requirements under Section 65B, to ensure the smooth admissibility of electronic evidence in court. As technology continues to evolve, the legal standards surrounding electronic evidence will likely continue to adapt, making it essential for legal professionals to stay updated on these developments.

Evidencing electronic records in court involves a systematic approach that ensures the integrity, authenticity, and admissibility of the digital information presented. The process is governed by specific provisions under the Indian Evidence Act, 1872, and the Information Technology Act, 2000. Below is a detailed guide on how to produce electronic evidence in court, including all relevant legal provisions.

How to educe electronic evidence in court?

1. Understanding Electronic Evidence in Court

Electronic evidence refers to any information stored or transmitted in digital form that can be used in legal proceedings. It encompasses a wide range of data, including emails, text messages, social media content, digital documents, audio/video recordings, and more.

2. Legal Provisions Governing Electronic Evidence

The admissibility and handling of electronic evidence are primarily governed by the following sections of the Indian Evidence Act, 1872, and the Information Technology Act, 2000:

Section 65A of the Indian Evidence Act, 1872: States that the contents of electronic records may be proved in accordance with the provisions of Section 65B.
Section 65B of the Indian Evidence Act, 1872: Provides a detailed procedure for admitting electronic records as evidence in court. This section mandates that a certificate (commonly referred to as a “65B Certificate”) must accompany the electronic evidence, validating its authenticity.
Section 67A of the Indian Evidence Act, 1872: Relates to proof of electronic signatures and states that the validity of an electronic signature must be verified in the manner prescribed by law.
Sections 85A, 85B, and 85C of the Indian Evidence Act, 1872: Deal with presumptions regarding electronic records and electronic signatures, giving certain presumptions in favor of electronic evidence.

3. Steps to Produce Electronic Evidence in Court

A. Collection of Electronic Evidence

The first step in producing electronic evidence is its collection. This process involves gathering digital data in a manner that preserves its authenticity and integrity.

Data Preservation: Ensure that the data is preserved in its original form. This may include creating forensic images or copies of the electronic records, capturing metadata, and maintaining logs of how the data was collected.
Chain of Custody: Maintain a clear chain of custody for the electronic evidence. This involves documenting every person who handled the evidence, the dates and times of transfers, and the conditions under which the evidence was stored.

B. Certification Under Section 65B of the Indian Evidence Act

For electronic evidence to be admissible in court, it must be accompanied by a 65B Certificate. This certificate is crucial in establishing the authenticity of the electronic record.

Contents of the Certificate: The 65B Certificate should include:
A statement that the electronic record was produced by a computer during its ordinary course of activities.
Confirmation that the computer was operating properly at the time of creating the record.
Assurance that the information contained in the record is a true and accurate reproduction of the original data.
The certificate should be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
Issuance of the Certificate: The certificate can be issued by any person who was in control of the relevant computer system at the time the electronic record was generated or who is in a position to vouch for its accuracy.

C. Submission of the Electronic Evidence

Once the electronic evidence is collected and certified, it must be submitted to the court.

Physical Submission: Depending on the type of electronic evidence, it may be submitted in various formats, such as CDs, DVDs, USB drives, or even printed copies. Along with the evidence, the 65B Certificate should also be submitted.
Presentation in Court: The evidence can be presented during the trial, where it will be examined for its relevance and authenticity. The court may also require the presence of an expert witness to explain the technical aspects of the evidence.

D. Examination and Cross-Examination

After the submission, the electronic evidence will be subjected to examination and cross-examination in court.

Expert Testimony: In cases where the authenticity or technical details of the electronic evidence are in question, expert witnesses may be called to testify. They may be asked to explain how the evidence was collected, preserved, and verified.
Cross-Examination: The opposing party has the right to cross-examine the person who issued the 65B Certificate or any expert witnesses to challenge the validity of the electronic evidence.

4. Ensuring Admissibility of Electronic Evidence

For electronic evidence to be admissible in court, it must meet certain criteria:

Relevance: The evidence must be relevant to the case and must contribute to proving or disproving a fact in issue.
Authenticity: The electronic record must be authentic, which is established through the 65B Certificate and, if necessary, expert testimony.
Integrity: The evidence must be shown to have remained unaltered from the time it was collected until it was presented in court. This is where the chain of custody becomes critical.

5. Judicial Pronouncements on Electronic Evidence

Several landmark judgments have shaped the handling and admissibility of electronic evidence in Indian courts:

Anvar P.V. v. P.K. Basheer (2014): The Supreme Court held that Section 65B of the Indian Evidence Act is mandatory for the admissibility of electronic records. If the electronic record is not accompanied by the 65B Certificate, it cannot be admitted as evidence.
Shafhi Mohammad v. State of Himachal Pradesh (2018): The Supreme Court allowed some relaxation in the requirement of a 65B Certificate in cases where the electronic record is produced and proved in the original.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020): The Supreme Court reaffirmed that the 65B Certificate is mandatory for the admissibility of electronic records, except in cases where the original device from which the record is produced is brought to court.

6. Challenges in Producing Electronic Evidence

Despite the legal framework, several challenges persist in the production of electronic evidence:

Technical Complexity: The technical nature of electronic evidence often requires expert knowledge, which can complicate the presentation and examination of such evidence in court.
Risk of Tampering: Electronic data is susceptible to tampering, which makes it essential to maintain a strict chain of custody and use secure methods for data preservation.
Jurisdictional Issues: In cases involving cross-border electronic evidence, issues related to jurisdiction, data privacy, and international cooperation may arise.

7. Conclusion

Producing electronic evidence in court requires careful adherence to legal provisions, particularly those outlined in Sections 65A and 65B of the Indian Evidence Act, 1872. The process involves collecting, preserving, certifying, and presenting electronic records in a manner that ensures their authenticity and integrity. With the increasing reliance on digital data in legal proceedings, understanding the nuances of electronic evidence has become essential for legal practitioners. Properly handling electronic evidence can significantly impact the outcome of a case, making it a critical component of modern litigation.

Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304