I am an accused in a criminal case, and I want to produce some evidence which I stored in my laptop and pen drive. How to present that electronic evidence in the trial? What is the procedure for the production of electronic evidence?
The advent of information technology has changed the scenario of crime. It also influenced a drastic impact on the judicial system. Today, most information stored in electronic devices like the server, computer, mobile, cloud storage, memory card, DVD, pen drive.
Data stored in these devices form a distinct piece of document, i.e. electronic document. Therefore, the Indian Evidence Act includes this electronic information as a piece of documentary evidence. Hence, the court admits such an electronic record stored in these devices as evidence of the fact.
Evidence Act divides the evidence into oral and document. Section 59 of the Indian Evidence Act, provides that every fact except the content of the document or electronic record may be proved by oral evidence. Hence, except oral, all the facts may be established by the documentary evidence.
The electronic evidence is also a part of documentary evidence. Again documentary evidence is divided into primary and secondary evidence. The document itself is the primary evidence if it is in the original form. Moreover, the copy of such original document is called secondary evidence.
An electronic record is a piece of documentary evidence because stored in the electronic device. Like WhatsApp, the messages stored in the mobile phone. When I want to produce such messages as evidence, I need to convert those messages into a readable format. After that, you can present it before the court as evidence in a printable form.
When it is printed on paper or copied from the mobile or laptop, it may be possible that during such process some changes may occur. These changes can raise doubt about the genuineness of the document.
Indian Evidence Act has amended in the year 2000 to make electronic evidence admissible in a specific condition. According to section 65 A, every electronic evidence shall be proved in the manner provided in section 65 B. Section 65 B laid down the procedure for admissibility of the electronic document.
It is necessary to prove the genuineness of the electronic device and output of such equipment. These are the requirement for admissibility of electronic document:
- The identity of the electronic device must be established.
- The identity of the output of such a device must be proved.
- Such a device must be in operation at the time of recording of such statement/information.
- Such a device must be in proper custody at the time of recording of such statement/information.
- That statement must be recorded in its original format.
- Such device was in operation at the time of recording of such statement/information.
- The statement/information was fed or stored by the person having lawful control over the device.
- A certificate must be issued by a person having lawful possession over the device or having a responsible official position in the relation of the operation of such equipment.
In-State (NCT Delhi) vs Navjot Sandhu (2005) 11 SCC; the supreme court has held that output of the electronic device is secondary evidence and it may be produced before the court as secondary evidence of the statement stored in the electronic device. Certificate, as mentioned under section 65-B(4) of the Indian Evidence Act is not necessary.
In Anvar P. V. vs P. K. Basheer (2015) 1 SCC; the supreme court has overruled the decision given by the supreme court in Navjot Sandhu case. The court has held that the identity of the electronic device and its output must be proved under Section 65-B(4). The court must follow the procedure mentioned in section 65-B. Because this section devises a complete process for admissibility of the electronic document, the output of the electronic device is not a piece of secondary evidence, and it must be proved in the manner prescribed in section 65-B.
