The various categories of electronic evidence such
as website data, social network communication, e-mail, SMS/MMS and computer
generated documents poses unique problem and challenges for proper
authentication and subject to a different set of views.
The information technology has
brought into existence a new kind of document called the electronic record. This
document can preserved in same quality and state for a long period of time
through encryption processes reducing the chance of tampering of evidence. This
document can be in various forms like a simple e-mail or short message or
multimedia message or other electronic forms.
The Indian Evidence
Act, 1872 and Information Technology Act, 2000 grants legal recognition to
electronic records and evidence submitted in form of electronic records.
According to 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. The Act
recognizes electronic record in a wide sense thereby including electronic data
in any form such as videos or voice messages. The Information technology has
made it easy to communicate and transmit data in various forms from a simple
personal computer or a mobile phone or other kinds of devices. The Information
Technology Amendment Act, 2008 has recognized various forms of communication
devices and defines a “communication device”.
“communication device” means cell phones, personal digital assistance or
combination of both or any other device used to communicate, send or transmit
any text, video, audio or image.
The Indian IT Act 2000 lays down a blanket permission for records not to
be denied their legal effect if they are in electronic form as long as they are
accessible for future reference.
The evidentiary value of an electronic record totally depends upon its
quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary
value of the electronic records. According to section 3 of the Act, “evidence”
means and includes all documents including electronic records produced for the
inspection of the court and such documents are called documentary evidence.
Thus the section clarifies that documentary evidence can be in the form of
electronic record and stands at par with conventional form of documents.
The evidentiary value
of electronic records is widely discussed under section 65A and 65B of the
Evidence Act, 1872. The sections provide that if the four conditions listed are
satisfied any information contained in an electronic record which is printed on
paper, stored, recorded or copied in an optical or magnetic media, produced by
a computer is deemed to be a document and becomes admissible in proceedings
without further proof or production of the original, as evidence of any
contacts of the original or any facts stated therein, which direct evidence
would be admissible.
The four conditions referred to above are:
(1) The computer output containing such
information should have been produced by the computer during the period when
the computer was used regularly to store or process information for the purpose
of any activities regularly carried on during that period by the person having
lawful control over the use of the computer.
(2) During such period, information of the kind
contained in the electronic record was regularly fed into the computer in the
ordinary course of such activities.
(3) Throughout the material part of such period,
the computer must have been operating properly. In case the computer was not
properly operating during such period, it must be shown that this did not
affect the electronic record or the accuracy of the contents.
(4) The information contained in
the electronic record should be such as reproduces or is derived from such
information fed into the computer in the ordinary course of such activities.
It is further
provided that where in any proceedings, evidence of an electronic record is to
be given, a certificate containing the particulars prescribed by 65B of the
Act, and signed by a person occupying a responsible official position in
relation to the operation of the relevant device or the management of the
relevant activities would be sufficient evidence of the matters stated in the
The apex court in
State Vs. Navjot Sandhu while examining the provisions of newly added section 65B, held that in a given case, it
may be that the certificate containing the details is not filed, but that does
not mean that secondary evidence cannot be given. It was held by the court that
the law permits such evidence to be given in the circumstances mentioned in the
relevant provisions, namely, sections 63 and 65 of the Indian Evidence Act
Section 65 enables
secondary evidence of the contents of a document to be adduced if the
original is of such a nature as not to be easily movable. Hence, printouts
taken from the computers/servers by mechanical process and certified by a
responsible official of the service-providing company can be led in evidence
through a witness who can identify the signatures of the certifying officer or
otherwise speak of the facts based on his personal knowledge. Irrespective of
the compliance with the requirements of section 65-B, which is a provision
dealing with admissibility of electronic records, there is no bar to adducing
secondary evidence under the other provisions of the Indian Evidence Act 1872,
namely, sections 63 and 65.
The position of electronic
documents in the form of SMS, MMS and E-mail in India is well demonstrated
under the law and the interpretation provided in various cases. In State of
Delhi v. Mohd. Afzal & Others, it was held that electronic records are
admissible as evidence. If someone challenges the accuracy of a computer
evidence or electronic record on the grounds of misuse of system or operating
failure or interpolation, then the person challenging it must prove the same
beyond reasonable doubt. The court observed that mere theoretical and general
apprehensions cannot make clear evidence defective and inadmissible. This case
has well demonstrated the admissibility of electronic evidence in various forms
in Indian courts.
The basic principles
of equivalence and legal validity of both electronic signatures and hand
written signatures and of equivalence between paper document and electronic
document has gained universal acceptance. Despite technical measures, there is
still probability of electronic records being tampered with and complex
scientific methods are being devised to determine the probability of such
tampering. For admissibility of electronic records, specific criteria have been
made in the Indian Evidence Act to satisfy the prime condition of authenticity
or reliability which may be strengthened by means of new techniques of security
being introduced by advancing technologies.