Evidentiary Value of Newspaper Report and Call Records of Cellular Phones

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Written by : GOGULA MADHAVI LAKSHMI

INTRODUCTION

The 21st century saw a technological revolution that enthralled not only India but the whole world. The use of computers is not limited to established organizations or institutions but available to every individual at the swipe of a finger. Information Technology has eased out almost every humanized action. In this age of the cyber world, as the application of computers became more popular, there was expansion in the growth of technology.

The evolution of Information Technology (IT) gave birth to cyberspace wherein the internet provides equal opportunities to all the people to access any information, data storage, analyse etc. with the use of high technology. This increasing reliance on electronic means of communications, e-commerce and storage of information in digital form has most certainly caused a need to transform the law relating to information technology and rules of admissibility of electronic evidence both in civil and criminal matters in India.

The proliferation of computers and the influence of information technology on society as a whole, coupled with the ability to store and amass information in digital form have all necessitated amendments in Indian law to incorporate the provisions on the appreciation of digital evidence. The Information Technology Act, 2000 and its amendment are based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce. The Information Technology (IT) Act 2000 was amended to allow for the admissibility of digital evidence. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 provides the legislative framework for transactions in the electronic world.[1]

With the change in law, Indian courts have developed case law regarding reliance on electronic evidence. Judges have also demonstrated perceptiveness towards the intrinsic ‘electronic’ nature of evidence, which includes insight regarding the admissibility of such evidence, and the interpretation of the law in relation to the manner in which electronic evidence can be brought and filed before the court.[2] 

Digital evidence or electronic evidence is any probative information stored or transmitted in digital form that a party to a court case may use at trial. Before accepting digital evidence it is vital that the determination of its relevance, veracity and authenticity be ascertained by the court and to establish if the fact is hearsay or a copy is preferred to the original. Digital Evidence is “information of probative value that is stored or transmitted in the binary form”. Evidence is not only limited to that found on computers but may also extend to include evidence on digital devices such as telecommunication or electronic multimedia devices.

The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word processing, documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups, Computer printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks, Digital video or audio files. Digital Evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive and more readily available.[3]

MEANING

The type of evidence that we are dealing with has been variously described as ‘electronic evidence’, ‘digital evidence’ or ‘computer evidence’. The word digital is commonly used in computing and electronics, especially where physical-world information is converted to binary numeric form as in digital audio and digital photography.[4] D

efinitions of digital evidence include ‘Information of probative value stored or transmitted in binary form; and ‘Information stored or transmitted in binary form that may be relied on in court. While the term ‘digital’ is too wide, as we have seen the use of ‘binary’ is too restrictive, because it only describes one form of data.

Electronic evidence : data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any man-made device, computer or computer system or transmitted over a communication system, that has the potential to make the factual account of either party more probable or less probable than it would be without the evidence. 

This definition has three elements. First, it is intended to include all forms of evidence that is created, manipulated or stored in a product that can, in its widest meaning, be considered a computer, excluding for the time being the human brain. Second, it aims to include the various forms of devices by which data can be stored or transmitted, including analogue devices that produce an output.

Ideally, this definition will include any form of device, whether it is a computer as we presently understand the meaning of a computer; telephone systems, wireless telecommunications systems and networks, such as the Internet; and computer systems that are embedded into a device, such as mobile telephones, smart cards and navigation systems.

The third element restricts the data to information that is relevant to the process by which a dispute, whatever the nature of the disagreement, is decided by an adjudicator, whatever the form and level the adjudication takes. This part of the definition includes one aspect of admissibility – relevance only – but does not use ‘admissibility’ in itself as a defining criterion, because some evidence will be admissible but excluded by the adjudicator within the remit of their authority, or inadmissible for reasons that have nothing to do with the nature of the evidence – for instance, because of the way it was collected. The last criteria, however, restricts the definition of electronic evidence to those items offered by the parties as part of the fact-finding process.[5]

Electronic Evidence And The Indian Evidence Act 1872

The definition of evidence as given in the Indian Evidence Act, 1872 covers a) the evidence of witness i.e. oral evidence, and b) documentary evidence which includes electronic record produced for the inspection of the court.[6] Section 3 of the Act was amended and the phrase “All documents produced for the inspection of the Court” was substituted by “All documents including electronic records produced for the inspection of the Court”.[7] Regarding the documentary evidence, in Section 59, for the words “Content of documents” the words “Content of documents or electronic records” have been substituted and Section 65A & 65B were inserted to incorporate the admissibility of electronic evidence. Traditionally, the fundamental rule of evidence is that direct oral evidence may be adduced to prove all facts, except documents.

The hearsay rule suggests that any oral evidence that is not direct cannot be relied upon unless it is saved by one of the exceptions as outlined in sections 59 and 60 of the Evidence Act dealing with the hearsay rule. However, the hearsay rule[8] is not as restrictive or as straightforward in the case of documents as it is in the case of oral evidence. This is because it is settled law that oral evidence cannot prove the contents of a document, and the document speaks for itself.

Therefore, where a document is absent, oral evidence cannot be given as to the accuracy of the document, and it cannot be compared with the contents of the document. This is because it would disturb the hearsay rule (since the document is absent, the truth or accuracy of the oral evidence cannot be compared to the document). In order to prove the contents of a document, either primary or secondary evidence must be offered.[9]

While primary evidence of the document is the document itself,[10] it was realized that there would be situations in which primary evidence may not be available. Thus secondary evidence in the form of certified copies of the document, copies made by mechanical processes and oral accounts of someone who has seen the document, was permitted under section 63 of the Evidence Act for the purposes of proving the contents of a document. Therefore, the provision for allowing secondary evidence in a way dilutes the principles of the hearsay rule and is an attempt to reconcile the difficulties of securing the production of documentary primary evidence where the original is not available. Section 65 of the Evidence Act sets out the situations in which primary evidence of the document need not be produced, and secondary evidence – as listed in section 63 of the Evidence Act – can be offered. This includes situations when the original document

  1. Is in hostile possession.
  2. Or has been proved by the prejudiced party itself or any of its representatives.
  3. Is lost or destroyed.
  4. Cannot be easily moved, i.e. physically brought to the court.
  5. Is a public document of the state.
  6. Can be proved by certified copies when the law narrowly permits; and
  7. Is a collection of several documents.[11]

An electronic record by way of secondary evidence shall not be admitted in evidence

Their Lordships observed, inter alia, that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65–B are satisfied. Anvar P.V. v. P.K. Basheer & Others,[12]. In the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of section 65-B obtained at the time of taking evidence, without which, the secondary evidence pertaining to that electronic record, is not admissible.   

Cell-Phone Recording

In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru[13] , the Apex Court while considering the print out of the computerized records of the calls pertaining to the cell phones in view of the production of electronic record held as follows:  irrespective of the compliance with the requirement of section 65–B, which is a provision dealing with admissibility of the electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, sections 63 & 65. It may be that the certificate containing the details in Sub-section (4) of section 65-B is not filed in the instance case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, sections 63 & 65.

Admissibility of Telephone call in a CD and CDR

In Jagdeo Singh Vs. The State and Ors,[14], the Hon’ble High Court of Delhi, while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s 65B Evidence Act, the court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever.

CONCLUSION

The admissibility of the secondary electronic evidence has to be adjudged within the parameters of Section 65B of the Evidence Act and the proposition of the law settled in the recent judgment of the Apex Court and various other High Courts as discussed above. The proposition is clear and explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act, it is not admissible and any opinion of the forensic expert and the deposition of the witness in the court of law cannot be looked into by the court. However, there are few gaps that are still unresolved as what would be the fate of the secondary electronic evidence seized from the accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot be made a witness against himself as it would be violative of the Article 19 of the Constitution of India.

REFERANCE

https://www.mondaq.com/india/court-procedure/824974/admissibility-evidentiary-value-of-electronic-records

https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms?from=mdr

https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms

http://mja.gov.in/Site/Upload/GR/Title%20NO.168(As%20Per%20Workshop%20List%20title%20no168%20pdf).pdf


[1] https://www.linkedin.com/pulse/electronic-evidence-digital-cyber-law-india-adv-prashant-mali-, last accessed on 15 feb 2017.

[2] The Supreme Court of India re-defines admissibility of electronic evidence in India by Tejas Karia, Akhil Anand and Bahaar Dhawan.

[3] https://www.linkedin.com/pulse/electronic-evidence-digital-cyber-law-india-adv-prashant-mali-, last accessed on 10 feb 2017.

[4] Electronic Evidence and its Challenges by Dr. Swaroopa Dholam.

[5] Burkhard Schafer and Stephen Mason, The characteristics of electronic evidence in digital format, in Electronic Evidence, Edited by Stephen Mason, LexisNexis, 2013.

[6] Section 3 of the Indian Evidence Act, 1872.

[7] The Indian Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000.

[8] Hearsay evidence is anything said outside a court by a person absent from a trial, but which is offered by a third person during the trial as evidence. The law excludes hearsay evidence because it is difficult or impossible to determine its truth and accuracy, which is usually achieved through cross examination. Since the person who made the statement and the person to whom it was said cannot be cross examined, a third person’s account of it is excluded. There are a few exceptions to this rule which need no explanation here.

[9] Anvar v. Basheer and the New (Old) Law of Electronic Evidence – The Centre for Internet and Society, available at http://cisindia.org/internetgovernance/blog/anvarvbasheernewoldlawofelectronicevidence last accessed on 10/02/2017.

[10] Section 62 of the Indian Evidence Act, 1872.

[11] Manisha T. Karia and Tejas D. Karia, ‘India’ (Chapter 13) in Stephen Mason, ed, Electronic Evidence (3rd edn, LexisNexis Butterworths, 2012).

[12] [MANU/SC/0834/2014].

[13] (2005) 11 SCC 600

[14] MANU/DE/0376/2015


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