Electronic evidence for delhi judicial academy prashant mali

Digital or Electronic Evidence

in Indian Law or in Indian Courts Advocate Prashant Mali

Masters in Computer Science(MSc.), Masters in Law(LLM), Ph.D(Persu.) Certified Computer Forensics Professional(CCFP) High Court Lawyer – Mumbai, India Speaker, Author & Expert in Cyber Law, Cyber Security & Privacy Law President – Cyber Law Consulting(Advocates & Attorneys) Session For Senior Judges at Delhi Judicial Academy, Delhi High Court [email protected])

Definition of Evidence..

The Act amends the definition of „Evidence 'in

Section 3, the interpretation clause of the Indian

Evidence Act 1872, to state:

‘Evidence’ means and includes

1) ..

2) All documents including electronic records

produced for the inspection of the Court

Adv Prashant Mali - Cyber Lawyer ([email protected])

What is an Electronic Record ?

• According to section 2(t) of the

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.


What is Data ? 2(o) "Data" means a representation of

information, knowledge, facts, concepts or

instructions which are being prepared or have

been prepared in a formalised manner, and is

intended to be processed, is being processed

or has been processed in a computer system

or computer network, and may be in any form

(including computer printouts magnetic or

optical storage media, punched cards,

punched tapes) or stored internally in the

memory of the computer;


Legal Recognition of electronic records

Section 4 of The IT Act,2000

Where any law provides that information or any

other matter shall be in writing or in the

typewritten or printed form, then, notwithstanding

anything contained in such law, such requirement

shall be deemed to have been satisfied if such

information or matter is-

• a) rendered made available in an electronic

form; and

• b) accessible so as to be usable for a

subsequent reference.


Are all Documents also

Electronic Records ?

• In Section 61 to 65, the word “Document

or content of documents” have not been

replaced by the word “Electronic

documents or content of electronic

documents”.


Admissibility of Electronic Records

• Section 65-B (Admissibility of Electronic Records)

–any information contained in an electronic record which is printed on a paper, stored, recorded or copies in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document

– Conditions for admissibility

• the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that periodby the person having lawful control over the use of the computer;

• during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

• throughout the material part of the said period, the computer was operating properly or, if not; then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents;

• the information contained in the electronic record reproduces oris derived from such information fed into the computer in the ordinary course of the said activities.

Admissibility of Electronic Records

• Section 65-B (Admissibility of Electronic Records)

–Making statements:

In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say-

(a)identifying the electronic record containing the statement and describing the manner in which it was produced;

(b)giving such particulars of any device involved in the productionof that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c)dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be 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 (whichever is appropriate)

shall be evidence of any matter sufficient for a matter to be stated to the best of knowledge and belief of the person stating it.


Computer Printouts Admissible?

• State (NCT of Delhi) v. Navjot Sandhu, SAR Gilani& Ors.

(AIR 2005 SUPREME COURT 3820) (Now over ruled by Anwar v Bashir)

• It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 and 65.

• Above all, the printouts pertaining to the call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specifically deposed to by the witness or not. – Position of Law is Changed NOW

Email Printout as a Evidence

• The Hon‟ble High Court of Calcutta while deciding

the admissibility of email held that an email

downloaded and printed from the email account of

the person can be proved by virtue of Section 65B

r/w Section 88A of Evidence Act. The testimony of

the witness to carry out such procedure to

download and print the same is sufficient to prove

the electronic communication.

• Abdul Rahaman Kunji Vs. The State of West

Bengal [MANU/WB/0828/2014]


Case Law on Email as evidence

When Email is considered

Received

M/s. P. R. Transport Agency v. Union of India

(AIR 2006 ALLAHABAD 23)

Thus, the acceptance of the tender,

communicated by the respondents to the

petitioner by e-mail, will be deemed to be

received by the petitioner at Varanasi or

Chandauli, which are the only two places where

the petitioner has his place of business


ANVAR P.V. V/S P.K. BASHEER & Ors.

2015 Judgement

Supreme Court has interpreted the Sections 22A,

45A, 59, 65A & 65B of the Indian Evidence Act and

held that : Secondary Data in CD/DVD/Pen Drive

are not admissible without a certificate Under

Section 65B(4) of The Indian Evidence Act.

It has been elucidated that electronic evidence

without certificate Under Section65B cannot be

proved by oral evidence and also the opinion of

the expert U/s 45A Evidence Act cannot be resorted

to make such electronic evidence admissible.


Implications of Judgment

Cases of anticorruption where the reliance is

being placed on the audio-video recordings

which are being forwarded in the form of

CD/DVD to the Court. In all such cases, where

the CD/DVD are being forwarded without a

certificate Under Section 65B Indian Evidence

Act, such CD/DVD are not admissible in

evidence.

Adv Prashant Mali - Cyber Law Expert ([email protected])

Not Obstante clause and this judgment

• The Court has held that Section 65B of the Evidence Act

being a „not obstante clause‟ would override the general

law on secondary evidence under Section 63 and 65 of

the Evidence Act.

• The Section 63 and Section 65 of the Evidence Act have

no application to the secondary evidence of the

electronic evidence and same shall be wholly governed

by the Section 65A and 65B of the Evidence Act.

• The Constitution Bench of the Supreme Court overruled

the judgment laid down in the State (NCT of Delhi) v.

Navjot Sandhu alias Afsal Guru[(2005) 11 SCC 600 by

the two judge bench of the Supreme Court of India


At What Stage of trial, the Certificate

Under Section 65B CAN BE FILED?

• Certificate U/S 65B of The IEA can be

filed at any stage of the trial

Case Law :

• Paras Jain v. State of Rajasthan,

[MANU/RH/1150/2015]


Stage of Trial..Contd

• In all the cases where the police has not

filed the certificate under Section 65B IEA,

the same can be filed by way of

supplementary charge sheet under

section 173(8) Cr.P.C. and this in no way

even stops the police to generate the same

electronic record as fresh and file in the

court by way of charge sheet under section

173(8) Cr.P.C.


IP Address as an Evidence • IP address alone I feel cannot only be a conclusive

evidence and I have proved in many cases while arguing

in lower courts .

• Judge Gary Brown in the United States District Court of

the Eastern District of New York adjudged below :

• "The assumption that the person who pays for Internet access at a

given location is the same individual who allegedly downloaded a

single sexually explicit film is tenuous, and one that has grown more

so over time," he writes. "An IP address provides only the location at

which one of any number of computer devices may be deployed,

much like a telephone number can be used for any number of

telephones."

• "Thus, it is no more likely that the subscriber to an IP address carried

out a particular computer function – here the purported illegal

downloading of a single pornographic film – than to say an individual

who pays the telephone bill made a specific telephone call," .


CDR(Call Data Records) as an Evidence

• Today Investigation agencies gets paralyzed when a

accused doesn‟t use Mobile phone.as the investigation

starts majorly around CDR.

• Call Data Records do aid in preliminary investigation but

cannot be taken as conclusive evidence because of

following problems

1. The mobile handset or SIM could be on someone else

name, as written in receipt/invoice.

2. Call Data Records are not certified

3. SIM card was cloned or IMEI number Spoofed(changed)

4. Mobile Number snooping had taken place using S/W

In Bombay Bomb Blast case Sanjay Dutt CDR were admitted

and the same were in Parliament Attack case


Case Law for CD & CDR as Evidence

• In the recent judgment by Hon. High Court of

Delhi, while dealing with the admissibility of

intercepted telephone call in a CD and CDR which

were without a certificate under S65B Evidence

Act, the court observed that the secondary

electronic evidence without certificate under S65B

Evidence Act is inadmissible & cannot be looked

into by the court for any purpose whatsoever.

• Jagdeo Singh @ jagga V the State of Delhi Supreme Court 11th Feb 2015


Phone Call Data Records-CDR as Evidence

• Mobile Call Details Record Admissibility in

evidence - Requisite certificate under Section

65B(4) of IEA on CDR as per law not filed -

Absence of such certificate would render CDR

inadmissible in law.

• Case Law :

• Balasaheb Gurling Todkari Vs. State of

Maharashtra 2015 ALL MR (Cri) 3464


Case Law: Admissibility of transcription

of a recorded conversation

While considering the admissibility of transcription of

recorded conversation in a case where the recording

has been translated and the same has been verified

by the panch witnesses., the SC held that as the

voice recorder had itself not subjected to analysis,

there is no point in placing reliance on the translated

version. Without source, there is no authenticity for

the translation. Source and authenticity are the 2 key

factors for electronic evidence. • Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao phalke & anr

SC 16th Jan 2015 | CRIMINAL APPEAL NO. 97 OF 2015


Case Law on SMS,MMS as Evidence In State of Delhi v. Mohd. Afzal & ors,

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 in admissible. This case has well demonstrated

the admissibility of electronic evidence in various

forms in Indian courts.


Case Law: Electronic Record | Device

Dharambir vs CBI (pronounced on 11thMarch 2008)

• Certain data (i.e. call records) were copied from Hard Disk to a CD.

• Cyber Forensics Lab in Hyderabad confirmed that the recorded data (i.e. call conversation) on CD were true copies of the originals and that the Hard Disk was in working condition.

• A question came: difference between “electronic device” and “electronic record”.. It was held that if the electronic device has ever recorded any data which is relevant for a case, such “electronic device” shall be treated as “electronic record” for the purpose of evidence.

• Scope of definition of the word “data” was contended and was held that “data” would include active memory as well as subcutaneous memory


Evidence –Bankers’ Books Evidence Act, 1891

• What is permissible as evidence?A “certified copy”of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the original entry itself. {Section 4}

• What are banker’s book in electronic form?Any record stored in a micro film, magnetic tape or in any other form of mechanical or electronic data retrieval mechanism, either onsite or at any offsite location including a back-up or disaster recovery site of both. {Section 2(3)}

• How a certified copy of electronic record be obtained?{Section 2(8)}

–A copy obtained through mechanical process can be certified if a certificate of the principal accountant or the manager of the bank.

–A printout containing a certificate in accordance with Section 2A.


Evidence –Bankers’ Books Evidence Act, 1891

• Nature of certificate for a copy obtained through mechanical process:

A certificate from principal accountant or manager of the branch that the mechanical or other process adopted to obtain the copy has ensured the accuracy of the copy.

• Nature of certificate for a copy obtained through mechanical process:

Authenticity certificate from principal accountant or branch manager, AND

Certificate from person in-charge of computer system regarding

•Details of computer system

•Process of data storage

•Safeguard to protect computer system and data

• A further certificate from the person in-charge of the computer system to the effect that to the best of his knowledge and behalf, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.


Bank Statement as Evidence When accepted

State Bank of India vs. Rizvi Exports Ltd (DRT, Allahabad)

• State Bank of India (SBI) had filed a case to recover money from some persons who had taken various loans from it.

• As part of the evidence, SBI submitted printouts of statement of accounts maintained in SBI‟s computer systems.

• The relevant certificates as mandated by the Bankers Books of Evidence Act (as amended by Information Technology Act) had not been attached to these printouts.

• The Court held that these documents were not admissible as evidence.


Challenges in E-evidence

What would happen when secondary

electronic evidence seized from the accused ?

Now, If certificate under Section 65B(4) of The

Indian Evidence Act is taken then it would be

violative of the Article 20(3) of the Constitution

of India.

As the accused cannot be made witness

against himself .

Immunity from Self Incrimination Adv Prashant Mali - Cyber Lawyer ([email protected])


• Evidence from WhatsApp mobile application –

No support for prosecution by the company.

• Evidence from websites abroad or websites

with no contact details for LEA to connect

with.

• Evidence from Cloud & Big Data in courts.

• No examiner of Electronic Evidence appointed

under Section 45A of the Indian Evidence Act

on which courts are supposed to be relied

upon



• Section 32,36,74,75 & 91 of The IEA are

not amended

• Section 91 incorporates important legal

principle, that if the terms of a contract are

reduced in a document , oral evidence

cannot be led with respect to the terms of

such contract etc. Will apply to written Doc

and not to Electronic Contract or

Electronic Record ?


THANKYOU

Adv. Prashant Mali [ MSc.(Computer Sci.),LLM, Ph.D(Persu.)]

President - Cyber Law Consulting(Advocates & Attorneys)

Legal Counsel, Author, Speaker, International Thought Leader

www.prashantmali.com | www.cyberlawconsulting.com