This article discusses Neoteric Inclusion in Evidence Law in India. It analyses the changing society with the advent of technology.
INTRODUCTION
The society today is dependent on technology for everything. Law is a dynamic concept and in direct relation to society i.e., it has to keep changing as per the needs of society. The amendment in the Indian Evidence Act, 1872 apropos to Information Technology Act, 2000 has been done in view of the great usage of electronic evidences. There have been numerous cases where the prosecution could make up a case by the help of electronic evidences, which was difficult otherwise. In 2010, German bakery case [i] where the accused could only be identified by the police through CCTV recording and in case of Ajmal Kasab [ii], where the prosecution relied on the internet transactions and communication data to prove the guilt of the accused. The use of electronic evidences in criminal trial is advantageous but at the same time these are of such nature, making it vulnerable to tampering and manipulation, violating accused’s rights of fair trial.
ANALYSIS:
Traditionally the electronically stored information was treated as a document, had a simple procedure meeting the conditions of section 63 and 65 of the Indian Evidence Act [iii]. These secondary evidences which are in electronic forms are presented before the court in hard copy format or a printed reproduction of it or as transcripts. These are to be authenticated by the certification with signature from the person in possession of the device storing such e records. The signatory would identify and accept such signing in court and cross examination of the person can be conducted.
Realising the need to statutory changes, by the amendment of 2000, two important provisions section 65A and B are added, providing the elaborated process relating to the admissibility of electronic evidences under the Indian Evidence Act, 1872 which can be of actual aid to plunge the issue of distortion of e-records. The intention of the Legislators to introduce the special provisions is that evidences in electronic forms can’t be produce before the court of law because that it is either stored in a computer or on server. Section 65A and 65B are special laws of evidence for electronic records. Section 65B is a non-obstante clause [iv] as it starts with the word ‘Notwithstanding’. The provision being a Non-obstante clause is defined by the apex court to be in full operation irrespective of any enactment or existing provision. These provisions are special law, having the overriding effect over the general law of evidence. Therefore it is mandatory to adduce electronic evidence fulfilling the requirement of Section 65B. It acts as a protective gauge from any possible manipulation or tampering of electronic records because these are vulnerable to such inconsistencies. The Apex Court in, State vs. Mohd. Afzal [v] it was observed, that under the law electronic records are recognised and admissible as evidence in a trial only if procurement is done in the manner specified by Section 65B of the Evidence Act. New forms of electronic records are being admissible by courts in the judicial trials, where the provision of section 65B is satisfied (Emails [vi], Interviews [vii] telephone records in an e-medium and CD’s [viii] etc.).
The rule of satisfying the requirements of section 65B for an electronic record to be
admissible in court was recognized as the standard norm only till Supreme Court’s erroneous judgement of State v. Navjot Sandhu [ix], where the submission made by the defendant’s council that no reliance to be placed to mobile records as the prosecution had failed to produce the relevant certificate under section 65B (4) of the Evidence Act. Party arguing that the procedure established in section 65B of the Evidence Act was not followed in procurement of e-documents in the present case. The Court rejecting the above argument held affirmatively for the admission of electronic records such as printouts and compact discs as prima facie evidence without authentication. Section 65B was held to be only one of the ways in which a computer output can be adduced. This erroneous judgement was taken as a precedent in the following years by courts in deciding cases. Subsequently in Ratan Tata’s Case [x], CD containing intercepted telephone calls was admitted as evidence by the court though the prescribed procedure was not followed. Further many questions for the need of authentication of e-evidences were raised in the case which remained unanswered. Again the issue if authenticity of electronic evidences came up before the court in Amar Singh v Union of India [xi], where authenticity of the electronic record produced in the court was questioned by the State and telephone company. Courts, for long have ignored the provisions of section 65B (4) and overlooked the intrinsic nature of electronic evidence, exposing e-evidences to the risk of manipulations. Only after Nine years the Supreme Court could rule a strict and standard rule to fully satisfy the procedure given u/s 65B for admissibility of electronic evidences in Anvar v Basheer [xii], overruling the judgment of Sandhu [xiii] by reinterpreting sections 63, 65 and 65B of the Act. To ensure the credibility and evidentiary value of electronic evidence the apex court held that in case of any electronic record it is must that it is accompanied by certificate in terms of section 65B while obtaining documents, without which, the secondary evidence pertaining to that electronic record is inadmissible. Section 65B is a special law require strict adherence and have the power to override general laws in existence. Thereby to conclude presently the law in India stands in favour of conditional admission of electronic records as evidence at a trial in accordance with section 65A and 65B of Indian Evidence Act. Section 22A of evidence act comes in consideration only after satisfying section 65B; the responding party challenges the genuineness of the original electronic records. Oral evidence under section 22A is not permitted for approving the content of the e-records.
CONCLUSION (RECOMMENDATIONS)
Section 65A and 65B is considered to be a complete statute when it comes to electronic evidences and admissibility of such documents as evidence. Still there happen to be certain loopholes in its application.
Following are the suggestive possible in abridging the gap:
i) It is the need of hour today to establish the cyber forensic investigation body to evaluate the evidences, as the technology is growing with the pace so are crimes. It is important for better investigation into these crimes that there should be induction of highly trained professionals in police stations and detective departments to conduct such scientifically H-tech investigation. Further in 2016 by the government’s notification it was notified that Section 79A of IT Act, 2008 empowers Central Government to incorporate a post of an examiner of electronic evidence.
ii) Further as section 65B lays down strict requirement to be satisfied in case of electronic records being presented as evidence before court of law. In India there exist a common evidence law for all disputes. The satisfaction of the requirements of Section 65B in all cases is not possible. For instance in case of Cyber crime the requirement, to prove that the output produced from the computer was regularly fed or that certain activity was carried by the person, having a lawful ownership of the computer. In certain cyber crimes which are incidental crimes, the above mentioned conditions are impossible to be proved. Therefore it can be said that the requirements laid down under the said section don’t have universal applicability.
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i. The State of Maharashtra vs. Mirza Himayat Baig, 2016 (2) Crimes 191 (Bom.)
ii. Mohd. Ajmal Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1
iii. Section 63 & Section 65A and 65B Indian Evidence Act, 1872
iv. Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram, AIR 1987 SC 117
v. State vs. Mohd. Afzal and Ors, 2003(71)DRJ 178
vi. Abdul Rahaman Kunji vs. The State of West Bengal, 2016 CriLJ 1159
vii. Jagjit singh vs. State of Haryana, (2006) 11 SCC 1
viii. Jagdeo Singh vs. The State and Ors, 2015 III AD(Delhi)268
ix. State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820
x. Ratan Tata vs. Union of India, (2014)1 SCC 93, (Writ Petition (Civil) 398 of 2010)
xi. Amar Singh vs. Union of India, (2011)7 SCC 69
xii. Anvar P.V. vs. P.K. Basheer, AIR 2015 SC 180
xiii. Supra note. 6
This article is written by Arshiya Chaturvedi
of Symbiosis Law School, Pune