DIGITAL/ ELECTRONIC EVIDENCE- ADMISSIBILITY & SAFEGUARDS

Summary: This post explains when will digital/ electronic evidence be admissible and what safeguards may be taken. 

The world changed in the last century. It started using computers and electronic gadgets but antiquated laws failed to take advantage of the same. It resulted into failure of justice. The relevant evidence was ignored as inadmissible e.g. R Vs Pettigrew, (1980) 71 CrlAR 39 (the Pettigrew Case) and Myers Vs Director of Public Prosecutions, 1964 (2) All ER 88: (1965) 1 AC 1001 (HL) (the Myers case). 

The Pettigrew Case 

Pettigrew was accused of committing a burglary and handling stolen goods. He was also found with new notes that had come from a bundle of stolen notes. The prosecution produced a computer printout from the Bank of England. It tended to prove that the notes found in the possession of the accused came from the bundle of notes, stolen in that burglary. The court of appeal did not admit these computer printouts on the ground that no witness could claim first hand knowledge of the various contents, hence was hearsay. 

The Myers Case 

Myers was prosecuted on several counts including stealing and selling stolen cars. His defence was that he purchased written off cars from insurance companies, repaired, and then sold them. They had the chassis and engine number of the written off car. However, according to the prosecution, 

• The chassis and engine number is on a detachable plate, which is easy to substitute and replace. 
• Myers used to buy written off cars, steal a car of the same make and year then replace the chassis and engine number of the stolen car with the chassis and engine number of the written off car, purchased by him. 

Every car has a block number that is permanently stamped on the engine. In order to prove its case, apart from other evidence, the prosecution produced records to show that the block numbers of the cars sold by Myers were the same as the block numbers of the stolen cars. 

The records were kept on a card index rather than on a computer, as is the case today. The House of Lords rejected these records on the principle of hearsay evidence though the conviction was maintained on the basis of other evidence. 

These questions never arose in our country but had they arisen, the result would have been the same. It is for this reason that amendments in the Evidence Act was necessary. 

Information Technology Act - Amendments - Evidence Act 

The Information Technology Act (the Act) was enacted in the year 2000. Sections 91 to 94 of the Act amended four enactments. The Evidence Act was amended by section 92 of the Act. By the amendments, Sections 65A and 65B, dealing with admissibility of electronic records, were substituted in the Evidence Act. The Act was amended in 2008 (the 2008 Amendment Act). It further amended the Evidence Act but section 92 of the Act (that had earlier amended the Evidence Act) was omitted. Despite its omission, amendments made by section 92 continue. This is because of section 6A of the General Clauses Act (see Appendix-1). 

Sections 65A & 65B - Scope 

Section 65A is titled ‘Special provisions as to evidence relating to electronic record’ and section 65B is titled as ‘Admissibility of electronic records’. These sections are clear, yet confusion remained and divergent views were expressed. Now, they are clarified in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal 2020 (7) SCC 1: AIR 2020 SUPREME COURT 4908: AIR 2021 SC (Criminal) 259 (the Arjun-Panditrao case). The ruling clarifies that: 

• Sections 65A and 65B are special provisions relating to admissibility of the electronic record. They override other sections. The admissibility of such evidence is to be dealt with only in light of section 65B. 
• Section 65B permits primary as well as secondary evidence to be produced. However, different conditions apply in respect to their admissibility. 
• Primary electronic evidence is the original electronic record as stored in the computer and the secondary evidence is its output. It may be a print out or electronic copy from the original. 
• The secondary evidence or the computer output is admissible only if the all the conditions mentioned in sub-section 2 of section 65B {section 65B(2)} are satisfied and there is a certificate fulfilling the terms of sub-section 4 of section 65B {section 65B(4)} of the Act. However, no such certificate is required, if primary or original evidence is produced. 
• Nevertheless, if despite all efforts, such a certificate is not given under section 65B(4) of the Act then it may be summoned by the court under section 165 of the Evidence Act, or order 16 rules 6 to 10 of the Civil Procedure Code, or section 91 and 311 of the Criminal Procedure Code. 
• In a criminal case, the prosecution is obliged to supply all material to the accused before the trial begins. However, the court may consider such application, balancing the likely prejudice to the accused; 
• If all efforts to obtain the certificate under section 65B(4) fail then its mandatory obligation may be relaxed as the law does not demand the impossible. 

Computer output is verifiable if the original data exists. Under the licenses, a licensee is obliged to preserve and maintain the data for a year. It may not be preserved after this period. If it is erased/ destroyed/ removed, then veracity of the certificate is questionable. The central government is empowered to issue directions for preservation and retention of information under section 67C of the Act. However, no directions have been issued so far. In order to avoid the hardship, general directions have been issued in the Arjun-Panditrao case, to keep call detail records (CDRs) or other material in a in segregated and secure manner, if they are seized during investigation. These general directions are to be applied, in criminal trials, till appropriate directions are issued under 67-C of he Act. 

Nevertheless, it is just possible that a licensee may fail to keep the data in segregated and secure manner. So in order to avoid this contingency, the certificate may be obtained at the time, when computer output is taken or within a year or request should be made or proper order may be obtained from the court in light of the Arjun-Panditrao case. 

The electronic evidence collected in the case should be kept so that it is not compromised till it is filed in the court. It will then be the duty of the court to keep it in safe condition. 

Appendix-1 

The 2008 Amendment Act omitted section 92 of the Act that had amended the Evidence Act. But, its repeal does not affect the amendments already made. It is because of section 6A of the General Clauses Act. 

Section 6A is titled 'Repeal of Act making textual amendment in Act or Regulation'. It provides that where any Central Act repeals any enactment by which the text of any other Central Act was amended then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed. Here, there is no intention to repeal: in fact, it is to the contrary. 

The Evidence Act was further amended by the 2008 Amendment Act. If earlier amendments are not in the Evidence Act then these new amendments become meaningless. This shows that the intention was not to repeal the amendments made by section 92 of the Act. 

 Objects and reason as well as notes on different clauses are printed with the bill rather than with the enactment. They are relevant to interpret a section. Note on the relevant clause of the bill states that as necessary modifications have already been carried out in the Evidence Act: section 92 has become redundant and is being omitted.

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