Digital Evidence in Criminal Trials: Admissibility & Chain of Custody Issues

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Digital Evidence in Criminal Trials: Admissibility & Chain of Custody Issues

Written by Nancy Srivastava

Table of Contents

Introduction

The proliferation of digital technology has fundamentally transformed the landscape of criminal investigations and prosecutions. From mobile phone records and CCTV footage to emails, social media posts, GPS logs, and data from cloud storage, digital evidence now plays a pivotal role in criminal trials across the globe. In India, too, law enforcement agencies and courts increasingly rely on such evidence to establish guilt or innocence.

However, the growing dependence on digital data brings with it complex legal and procedural challenges—particularly concerning its admissibility in court and the maintenance of an unbroken chain of custody. These two aspects are critical to ensure that the evidence presented is both authentic and reliable, and that it has not been tampered with or fabricated.

This article delves into the legal framework governing digital evidence in India, explores the principles of admissibility, examines chain of custody requirements, and highlights key judicial pronouncements that have shaped the law.

What Is Digital Evidence?

Digital evidence, also known as electronic evidence or e-evidence, refers to any information of probative value that is stored or transmitted in a digital format. This includes:

  • Emails and instant messages
  • Digital photographs and videos
  • Audio recordings
  • Call data records (CDRs)
  • Internet browsing history
  • Files retrieved from hard drives, cloud storage, or mobile phones
  • CCTV footage
  • Metadata (information about data)

Given the fragile, easily alterable, and replicable nature of digital data, its collection, preservation, and presentation must follow strict procedural protocols to ensure its integrity.

1. Indian Evidence Act, 1872

The cornerstone of evidence law in India, the Indian Evidence Act, was amended by the Information Technology Act, 2000 to include provisions for electronic records.

  • Section 3 (Amended): Includes electronic records as part of the definition of “evidence.”
  • Section 65A & 65B: These sections specifically deal with the admissibility of electronic records.
Section 65A

It provides that the contents of electronic records may be proved in accordance with Section 65B.

Section 65B

This is the crux of electronic evidence admissibility. It mandates that:

  • A certificate must accompany electronic evidence (65B(4)) to confirm authenticity, source, and method of extraction.
  • The certificate must be signed by a person in a responsible official position in relation to the operation of the relevant device or management of the relevant activities.

Key Takeaway: Without this certificate, electronic records are generally inadmissible unless they fall under certain exceptions (e.g., original media is produced).

2. Information Technology Act, 2000

The IT Act also supplements the Evidence Act, providing legal recognition to electronic records (Section 4) and digital signatures (Section 5).

Admissibility of Digital Evidence: Key Requirements

To admit digital evidence in court, the following criteria must be satisfied:

1. Relevance

Like any evidence, electronic evidence must be relevant to the facts in issue.

2. Authenticity

It must be proven that the digital evidence is genuine and not altered or fabricated.

3. Reliability

The process by which the data was obtained must be credible and well-documented.

4. Compliance with Section 65B

A valid certificate under Section 65B(4) must be provided, unless the original device is produced.

Landmark Judgments on Admissibility

1. State (NCT of Delhi) v. Navjot Sandhu (2005) – Parliament Attack Case

The Supreme Court held that even if a Section 65B certificate was not produced, courts could still admit electronic evidence under other provisions like Sections 63 and 65 of the Evidence Act.

✅ This was later overruled.

2. Anvar P.V. v. P.K. Basheer (2014)

A landmark judgment that overruled Navjot Sandhu.

📌 Held: Electronic records are admissible only if accompanied by a certificate under Section 65B(4). Oral evidence or secondary evidence is not sufficient.

3. Shafhi Mohammad v. State of Himachal Pradesh (2018)

Created an exception for situations where a party does not have access to the device or is not in a position to produce the 65B certificate.

⚠️ This created confusion.

4. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

A 3-judge bench reaffirmed Anvar’s view, overruling Shafhi Mohammad.

✅ Held: Section 65B certificate is mandatory for the admissibility of electronic evidence unless the original device is produced before the court.

Chain of Custody: Ensuring Integrity

Chain of custody refers to the documented process that records the seizure, custody, control, transfer, analysis, and disposition of digital evidence. It is essential to prove that the evidence presented in court is the same as what was originally collected, and that it has not been tampered with.

Key Elements:

  1. Collection
    • Must be carried out using forensically sound methods.
    • Hash values (digital fingerprints) should be generated at the time of acquisition.
  2. Preservation
    • Original media must be preserved in secure, tamper-evident storage.
    • Any forensic copies should be verified using hash values.
  3. Documentation
    • Every transfer of custody must be logged, including time, date, person responsible, and purpose.
  4. Presentation
    • The individual who handled or analyzed the data must be able to testify to its integrity and handling.

Consequences of Broken Chain of Custody

  • The defense may challenge the authenticity or reliability of the evidence.
  • The court may deem the evidence inadmissible or give it less evidentiary value.

Challenges and Concerns

  1. Tampering and Fabrication
    • Digital evidence can be easily edited or manipulated, especially without proper forensic handling.
  2. Lack of Expertise
    • Investigating agencies and courts often lack adequate training in digital forensics.
  3. Delays in Obtaining Certificates
    • In cases involving third-party service providers or foreign platforms, obtaining Section 65B certificates can be time-consuming or impossible.
  4. Privacy and Data Protection
    • The seizure and examination of personal digital devices raise questions about the right to privacy.
  5. Cross-border Data Jurisdiction
    • Platforms like Google, Facebook, and WhatsApp store data on servers outside India, complicating the process of evidence retrieval.

Best Practices for Digital Evidence Handling

  • Digital Forensics Units: Dedicated teams with trained forensic examiners.
  • Use of Certified Tools: Tools that maintain logs, hash verification, and metadata integrity.
  • Real-time Hashing: To ensure data integrity from the moment of seizure.
  • Judicial Training: Continuous education of judges and lawyers on emerging technologies.
  • Standard Operating Procedures (SOPs): For investigating and presenting digital evidence in court.

Conclusion

Digital evidence has become indispensable in the pursuit of justice in the modern era. However, its potential to assist in criminal trials can only be realized if it is collected, preserved, and presented with meticulous adherence to legal standards. The mandatory nature of the Section 65B certificate and the critical role of the chain of custody serve as the bedrock for ensuring the authenticity and admissibility of electronic evidence.

As cybercrime and digital footprints continue to grow, it is imperative that India’s legal system evolves in tandem—by updating laws, improving digital forensics infrastructure, and building institutional capacity to handle the intricacies of digital evidence effectively and fairly.

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