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Admissibility of electronic evidence an Indian perspective 2017 Dubey 59. or stored in a product that can in its widest meaning be considered admissibility of electronic evidence Traditionally the fundamental. a computer excluding for the time being the human brain Second rule of evidence is that direct oral evidence may be adduced to prove. it aims to include the various forms of devices by which data can all facts except documents The hearsay rule suggests that any oral. be stored or transmitted including analogue devices that produce evidence that is not direct cannot be relied upon unless it is saved by. an output Ideally this definition will include any form of device one of the exceptions as outlined in sections 59 and 60 of the Evidence. whether it is a computer as we presently understand the meaning of a Act dealing with the hearsay rule However the hearsay rule10 is not. computer telephone systems wireless telecommunications systems as restrictive or as straightforward in the case of documents as it is. and networks such as the Internet and computer systems that are in the case of oral evidence This is because it is settled law that oral. embedded into a device such as mobile telephones smart cards and evidence cannot prove the contents of a document and the document. navigation systems The third element restricts the data to information speaks for itself Therefore where a document is absent oral evidence. that is relevant to the process by which a dispute whatever the cannot be given as to the accuracy of the document and it cannot be. nature of the disagreement is decided by an adjudicator whatever compared with the contents of the document This is because it would. the form and level the adjudication takes This part of the definition disturb the hearsay rule since the document is absent the truth or. includes one aspect of admissibility relevance only but does not use accuracy of the oral evidence cannot be compared to the document In. admissibility in itself as a defining criteria because some evidence order to prove the contents of a document either primary or secondary. will be admissible but excluded by the adjudicator within the remit evidence must be offered 11. of their authority or inadmissible for reasons that have nothing to do. While primary evidence of the document is the document itself 12 it. with the nature of the evidence for instance because of the way it. was realized that there would be situations in which primary evidence. was collected The last criteria however restricts the definition of. may not be available Thus secondary evidence in the form of certified. electronic evidence to those items offered by the parties as part of the. copies of the document copies made by mechanical processes and. fact finding process 6, oral accounts of someone who has seen the document was permitted. Due to enormous growth in e governance throughout the Public under section 63 of the Evidence Act for the purposes of proving. Private Sector and ecommerce activities Electronic Evidence have the contents of a document Therefore the provision for allowing. involved into a fundamental pillar of communication processing and secondary evidence in a way dilutes the principles of the hearsay. documentation The government agencies are opening up to introduce rule and is an attempt to reconcile the difficulties of securing the. various governance policies electronically and periodical filings to production of documentary primary evidence where the original is. regulate and control the industries are done through electronic means not available Section 65 of the Evidence Act sets out the situations in. These various forms of Electronic Evidence Digital Evidence are which primary evidence of the document need not be produced and. increasingly being used in the judicial proceedings At the stage of secondary evidence as listed in section 63 of the Evidence Act can. trial Judges are often asked to rule on the admissibility of electronic be offered This includes situations when the original document. evidence and it substantially impacts the outcome of civil law suit. 1 Is in hostile possession, or conviction acquittal of the accused The Court continue to grapple. with this new electronic frontier as the unique nature of evidence as 2 Or has been proved by the prejudiced party itself or any of its. well as the ease with which it can be fabricated or falsified creates representatives. hurdle to admissibility not faced with the other evidences The various. categories of electronic evidence such as CD DVD hard disk memory 3 Is lost or destroyed. card data website data social network communication email instant 4 Cannot be easily moved i e physically brought to the court. chat messages SMS MMS and computer generated documents poses. unique problem and challenges for proper authentication and subject 5 Is a public document of the state. to a different set of views 7 6 Can be proved by certified copies when the law narrowly. permits and,Electronic evidence and the Indian evidence. act 1872 7 Is a collection of several documents 13. The definition of evidence as given in the Indian Evidence Act Electronic document. 1872 covers a the evidence of witness i e oral evidence and b. documentary evidence which includes electronic record produced for As documents came to be digitized the hearsay rule faced several. the inspection of the court 8 Section 3 of the Act was amended and the new challenges While the law had mostly anticipated primary. phrase All documents produced for the inspection of the Court was 10. Hearsay evidence is anything said outside a court by a person absent from a. substituted by All documents including electronic records produced trial but which is offered by a third person during the trial as evidence The law. for the inspection of the Court 9 Regarding the documentary excludes hearsay evidence because it is difficult or impossible to determine its. evidence in Section 59 for the words Content of documents the truth and accuracy which is usually achieved through cross examination Since. words Content of documents or electronic records have been the person who made the statement and the person to whom it was said cannot. substituted and Section 65A 65B were inserted to incorporate the 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. Burkhard Schafer and Stephen Mason The characteristics of electronic 11. Anvar v Basheer and the New Old Law of Electronic Evidence The Centre. evidence in digital format in Electronic Evidence Edited by Stephen Mason for Internet and Society available at http cisindia org internetgovernance. LexisNexis 2013 blog anvarvbasheernewoldlawofelectronicevidence last accessed on. Infra note 18 10 02 2017,Section 3 of the Indian Evidence Act 1872 12. Section 62 of the Indian Evidence Act 1872, The Indian Evidence Act has been amended by virtue of Section 92 of 13.
Manisha T Karia and Tejas D Karia India Chapter 13 in Stephen Mason. Information Technology Act 2000 ed Electronic Evidence 3rd edn LexisNexis Butterworths 2012. Citation Dubey V Admissibility of electronic evidence an Indian perspective Forensic Res Criminol Int J 2017 4 2 58 63 DOI 10 15406 frcij 2017 04 00109. Admissibility of electronic evidence an Indian perspective 2017 Dubey 60. evidence i e the original document itself and had created special secures other interests such as the authenticity of the technology and. conditions for secondary evidence increasing digitisation meant that the sanctity of the information retrieval procedure But section 65A is. more and more documents were electronically stored As a result the further distinguished because it is a special law that stands apart from. abduction of secondary evidence of documents increased 14 In the the documentary evidence procedure in sections 63 and 65. Anvar case 15 the Supreme Court noted that there is a revolution in. Section 65B of the Evidence Act details this special procedure. the way that evidence is produced before the court In India before. for adducing electronic records in evidence Sub section 2 lists the. 2000 electronically stored information was treated as a document. technological conditions upon which a duplicate copy including a. and secondary evidence of these electronic documents was adduced. print out of an original electronic record may be used. through printed reproductions or transcripts the authenticity of. which was certified by a competent signatory The signatory would 1 At the time of the creation of the electronic record the computer. identify her signature in court and be open to cross examination This that produced it must have been in regular use. simple procedure met the conditions of both sections 63 and 65 of. the Evidence Act In this manner Indian courts simply adapted a law 2 The kind of information contained in the electronic record must. drafted over one century earlier in Victorian England However as the have been regularly and ordinarily fed in to the computer. pace and proliferation of technology expanded and as the creation 3 The computer was operating properly and. and storage of electronic information grew more complex the law had. to change more substantially 16 Under the provisions of Section 61 to 4 The duplicate copy must be a reproduction of the original. 65 of the Indian Evidence Act 1872 the word Document or content electronic record. of documents have not been replaced by the word Electronic The Section 65B of the Evidence Act makes the secondary. documents or content of electronic documents Thus the intention of copy in the form of computer output comprising of printout or the. the legislature is explicitly clear i e not to extend the applicability of data copied on electronic magnetic media admissible It provides 21. section 61 to 65 to the electronic record It is the cardinal principle of Notwithstanding anything contained in this Act any information. interpretation that if the legislature has omitted to use any word the contained in an electronic record which is printed on a paper stored. presumption is that the omission is intentional It is well settled that recorded or copied in optical or magnetic media produced by a. the Legislature does not use any word unnecessarily 17 In this regard computer shall be deemed to be also a document if the conditions. the Apex Court in Utkal Contractors Joinery Pvt Ltd v State of mentioned in this section are satisfied in relation to the information. Orissa18 held that Parliament is also not expected to express itself and computer in question and shall be admissible in any proceedings. unnecessarily Even as Parliament does not use any word without without further proof or production of the original as evidence of any. meaning something Parliament does not legislate where no legislation contents of the original or of any fact stated therein of which direct. is called for Parliament cannot be assumed to legislate for the sake evidence would be admissible. of legislation nor indulge in legislation merely to state what it is. unnecessary to state or to do what is already validly done Parliament Sec 65B 2. may not be assumed to legislate unnecessarily, The computer from which the record is generated was regularly. The IT Act amended section 59 of the Evidence Act 1872 to used to store or process information in respect of activity regularly. exclude electronic records from the probative force of oral evidence in carried on by a person having lawful control over the period and. the same manner as it excluded documents This is the re application relates to the period over which the computer was regularly used. of the documentary hearsay rule to electronic records But instead of Information was fed in computer in the ordinary course of the. submitting electronic records to the test of secondary evidence which activities of the person having lawful control over the computer The. for documents is contained in sections 63 and 65 it inserted two new computer was operating properly and if not was not such as to affect. evidentiary rules for electronic records in the Evidence Act section the electronic record or its accuracy Information reproduced is such. 65A and section 65B The intention of the legislature is to introduce as is fed into computer in the ordinary course of activity 22. the specific provisions which has its origin to the technical nature of. the evidence particularly as the evidence in the electronic form cannot Sec 65 B 3. be produced in the court of law owing to the size of computer server The following computers shall constitute as single computer. residing in the machine language and thus requiring the interpreter. to read the same 19 Section 65A of the Evidence Act creates special 1 By a combination of computers operating over that period or. law for electronic evidence The contents of electronic records may 2 By different computers operating in succession over that period. be proved in accordance with the provisions of section 65B 20 This or. section performs the same function for electronic records that section. 61 does for documentary evidence it creates a separate procedure 3 By different combinations of computers operating in succession. distinct from the simple procedure for oral evidence to ensure that over that period or. the adduction of electronic records obeys the hearsay rule It also. 4 In any other manner involving the successive operation over that. Supra note 12 period in whatever order of one or more. Anvar P K vs P K Basheer Ors 2014 10 SCC 473, Supra note 12 5 In any other manner involving the successive operation over that. E Evidence in India by Prashanti available at www legalservicesindia com period in whatever order of one or more computers and one or. last accessed on 09 02 2017 more combinations of computers. Utkal Contractors Joinery Pvt Ltd v State of Orissa reported as AIR 1987. SC 1454 Section 65B provides for Admissibility of Electronic Records. Supra note 18 Section 65 B 2 of the Indian Evidence Act 1872 lists the technological. Section 65 A of the Indian evidence Act 1872 Special provisions as to conditions upon which a duplicate copy including a print out of an original. evidence relating to electronic record electronic record may be used. Citation Dubey V Admissibility of electronic evidence an Indian perspective Forensic Res Criminol Int J 2017 4 2 58 63 DOI 10 15406 frcij 2017 04 00109. Admissibility of electronic evidence an Indian perspective 2017 Dubey 61. Sec 65B 4 Act comprehends It is easier to carry on treating electronically stored. information as documentary evidence The reasons for this are systemic. Regarding the person who can issue the certificate and contents in India and I suspect endemic to poor developing countries India s. of certificate it provides the certificate doing any of the following justice system is decrepit and poorly funded As long as the judicial. things identifying the electronic record containing the statement and system is not modernized India s trial judges will remain clueless. describing the manner in which it was produced giving the particulars about electronic evidence and the means of ensuring its authenticity 27. of device dealing with any of the matters to which the conditions By bypassing the special law on electronic records Indian courts. mentioned in subsection 2 relate and purporting to be signed by have continued to apply the provisions of sections 63 and 65 of the. a person occupying a responsible official position in relation to the Evidence Act which pertain to documents to electronically stored. operation of the relevant device or the management of the relevant information Simply put the courts have basically ignored sections. activities whichever is appropriate shall be evidence of any matter 65A and 65B of the Evidence Act Curiously this state of affairs. stated in the certificate and for the purposes of this subsection it shall was blessed by the Supreme Court in Navjot Sandhu the Parliament. be sufficient for a matter to be stated to the best of the knowledge and Attacks case 28 which was a particularly high profile appeal from an. belief of the person stating it 23 This contention is further strengthened emotive terrorism trial On the question of the defence s challenge to. by the insertion words Notwithstanding anything contained in this the authenticity and accuracy of certain call data records CDRs that. Act to Section 65A 65B which is a non obstante clause further the prosecution relied on which were purported to be reproductions of. fortifies the fact that the legislature has intended the production or the original electronically stored records a Division Bench of Justice. exhibition of the electronic records by Section 65A 65B only A P Venkatarama Reddi and Justice P P Naolekar held. non obstante clause is generally appended to a Section with a view to. give the enacting part of the Section in case of conflict an overriding According to Section 63 secondary evidence means and includes. effect over the provision in the same or other act mentioned in the non among other things copies made from the original by mechanical. obstante clause It is equivalent to saying that despite the provisions processes which in themselves ensure the accuracy of the copy and. or act mentioned in the non obstante clause the provision following copies compared with such copies Section 65 enables secondary. it will have its full operation or the provisions embraced in the non evidence of the contents of a document to be adduced if the original. obstante clause will not be an impediment for the operation of the is of such a nature as not to be easily movable It is not in dispute that. enactment or the provision in which the non obstante clause occurs the information contained in the call records is stored in huge servers. The aforesaid principles of interpretation with respect to the non which cannot be easily moved and produced in the court That is what. obstante clause in form of Notwithstanding anything contained in the High Court has also observed at para 276 Hence printouts taken. this Act is further supported by the Hon ble Apex Court in Union of from the computers servers by mechanical process and certified by. India and Anr v G M Kokil and Ors 24 observed It is well known a responsible official of the service providing company can be led. that a non obstante clause is a legislative device which is usually into evidence through a witness who can identify the signatures of the. employed to give overriding effect to certain provisions over some certifying officer or otherwise speak to the facts based on his personal. contrary provisions that may be found either in the same enactment or knowledge 29. some other enactment that is to say to avoid the operation and effect. of all contrary provisions Further the Hon ble Apex Court in the Electronic evidence and the indian supreme. case cited as Chandavarkar Sita Ratna Rao v Ashalata S Guram 25 court. explained the scope of non obstante clause as It is equivalent to saying. that in spite of the provision of the Act or any other Act mentioned in In Som Prakash vs State Of Delhi 30 the Supreme Court has rightly. the non obstante clause or any contract or document mentioned the observed that in our technological age nothing more primitive can. enactment following it will have its full operation be conceived of than denying discoveries and nothing cruder can. retard forensic efficiency than swearing by traditional oral evidence. Non application the special legal provisions only thereby discouraging the liberal use of scientific aids to prove. guilt Statutory changes are needed to develop more fully a problem. The special law and procedure created by sections 65A and solving approach to criminal trials and to deal with heavy workload. 65B of the Evidence Act for electronic evidence were not used on the investigators and judges In SIL Import USA v vs Exim Aides. Disappointingly the cause of this non use does not involve the law Exporters Bangalore 31 the Supreme Court held that Technological. at all 26 India s lower judiciary the third tier of courts where trials advancement like fascimile Internet e mail etc were in swift. are undertaken is vastly inept and technologically unsound With progress even before the Bill for the Amendment Act was discussed. exceptions trial judges simply do not know the technology the IT by Parliament So when Parliament contemplated notice in writing. to be given we cannot overlook the fact that Parliament was aware. Section 65B 4 of the Evidence Act lists additional non technical qualifying. conditions to establish the authenticity of electronic evidence This provision of modern devices and equipment already in vogue In State vs. requires the production of a certificate by a senior person who was responsible Mohd Afzal And Ors 32 the court held that Computer generated. for the computer on which the electronic record was created or is stored electronic records is evidence admissible at a trial if proved in the. The certificate must uniquely identify the original electronic record describe 27. Supra note 12, the manner of its creation describe the device that created it and certify 28. State NCT of Delhi v Navjot Sandhu 2005 11 SCC 600. compliance with the technological conditions of sub section 2 of section 29. Available at www cidap gov in State N C T Of Delhi vs Navjot. Sandhu Afsan Guru o Last accessed on 11 02 2017, Union of India and Anr v G M Kokil and Ors 1984 SCR196 30. Som Prakash vs State Of Delhi AIR 1974 SC 989 1974 Cri LJ 784 MANU. Chandavarkar Sita Ratna Rao v Ashalata S Guram 1986 3SCR866. SC 0213 1974, Prior to 2000 in India electronically stored information was dealt with as 31.
SIL Import USA v vs Exim Aides Exporters Bangalore MANU. a document and secondary evidence of electronic records were adduced as. SC 0312 1999 1999 4 SCC 567, documents in accordance with section 63 of the Evidence Act 32. State vs Mohd Afzal And Ors 2003 DLT 385 2003 71 DRJ 17. Citation Dubey V Admissibility of electronic evidence an Indian perspective Forensic Res Criminol Int J 2017 4 2 58 63 DOI 10 15406 frcij 2017 04 00109. Admissibility of electronic evidence an Indian perspective 2017 Dubey 62. manner specified by Section 65B of the Evidence Act In State vs In Avnish Bajaj vs State 40 the question as to what kind of distinction. Navjyot Sandhu33 the court held that merely because a certificate do we draw between Internet Service Provider and Content Provider. containing the details in sub Section 4 of Section 65B is not filed was raised The burden rests on the accused that he was the Service. in the instant case does not mean that secondary evidence cannot Provider and not the Content Provider It also raises a lot of issues. be given even if the law permits such evidence to be given in the regarding how the police should handle the cyber crime cases and a. circumstances mentioned in the relevant provisions namely Sections lot of education is required. 63 65 The Supreme Court s finding in Navjot Sandhu case34 raised. The trend of ignoring the special procedure prescribed for adducing. uncomfortable questions about the integrity of prosecution evidence. electronic records as evidence was seen even in subsequent cases For. especially in trials related to national security or in high profile cases. example the case of Ratan Tata v Union of India41 was another case. of political importance The state s investigation of the Parliament. where a CD containing intercepted telephone calls was introduced in. Attacks was shoddy with respect to the interception of telephone calls. the Supreme Court without following the procedure laid down under. The Supreme Court s judgment notes in prs 148 153 and 154 that. section 65B of the Evidence Act In Anvar vs Basheer 42 the court. the law and procedure of wiretaps was violated in several ways 35. held that Section 65B of the Evidence Act has been inserted by way. The Evidence Act mandates a special procedure for electronic of an amendment by the Information Technology Act 2000 In as. records precisely because printed copies of such information are much it is a special provision which governs digital evidence and will. vulnerable to manipulation and abuse This is what the veteran override the general provisions with respect to adducing secondary. defence counsel Mr Shanti Bhushan pointed out in Navjot Sandhu evidence under the Evidence Act In 2007 the United States District. where there were discrepancies in the CDRs led in evidence by the Court for Maryland handed down a landmark decision in Lorraine v. prosecution Despite these infirmities which should have disqualified Markel American Insurance Company43 241 FRD 534 D Md 2007. the evidence until the state demonstrated the absence of mala fide that clarified the rules regarding the discovery of electronically stored. conduct the Supreme Court stepped in to certify the secondary information In American federal courts the law of evidence is set out. evidence itself even though it is not competent to do so The court in the Federal Rules of Evidence Lorraine held when electronically. did not compare the printed CDRs to the original electronic record stored information is offered as evidence the following tests need to. Essentially the court allowed hearsay evidence This is exactly be affirmed for it to be admissible. the sort of situation that section 65B of the Evidence Act intended. 1 Is the information relevant, to avoid by requiring an impartial certificate under sub section 4. that also speaks to compliance with the technical requirements of 2 Is it authentic. sub section 2 36 When the lack of a proper certificate regarding the. authenticity and integrity of the evidence was pointed out this is what 3 Is it hearsay. the Supreme Court said in pr 150 Irrespective of the compliance 4 Is it original or if it is a duplicate is there admissible secondary. of the requirements of Section 65B which is a provision dealing evidence to support it and. with admissibility of electronic records there is no bar to adducing. secondary evidence under the other provisions of the Evidence Act 5 Does its probative value survive the test of unfair prejudice. namely Sections 63 and 65 It may be that the certificate containing In a small way Anvar does for India what Lorraine did for US. the details in sub section 4 of Section 65B is not filed in the instant federal courts In Anvar the Supreme Court unequivocally returned. case but that does not mean that secondary evidence cannot be given Indian electronic evidence law to the special procedure created. even if the law permits such evidence to be given in the circumstances under section 65B of the Evidence Act It did this by applying the. mentioned in the relevant provisions namely Sections 63 and 65 37 maxim generalia specialibus non derogant the general does not. In the years that followed printed versions of CDRs were admitted detract from the specific which is a restatement of the principle. in evidence if they were certified by an officer of the telephone lex specialis derogat legi generali special law repeals general law. company under sections 63 and 65 of the Evidence Act The special The Supreme Court held that the provisions of sections 65A and 65B. procedure of section 65B was ignored This has led to confusion and of the Evidence Act created special law that overrides the general. counter claims For instance the 2011 case of Amar Singh v Union law of documentary evidence Proof of electronic record is a special. of India38 saw all the parties including the state and the telephone provision introduced by the IT Act amending various provisions under. company dispute the authenticity of the printed transcripts of the the Evidence Act The very caption of Section 65Aof the Evidence. CDRs as well as the authorisation itself Currently in the case of Act read with Sections 59 and 65B is sufficient to hold that the special. Ratan Tata v Union of India 39 a compact disc CD containing provisions on evidence relating to electronic record shall be governed. intercepted telephone calls was introduced in the Supreme Court by the procedure prescribed under Section 65B of the Evidence Act. without following any of the procedure contained in the Evidence Act That is a complete code in itself Being a special law the general law. under Sections 63 and 65 has to yield By doing so it disqualified. State vs Navjyot Sandhu AIR 2005 SC 3820 oral evidence offered to attest secondary documentary evidence. Supra note 29 The Evidence Act does not contemplate or permit the proof of an. Supra note 30, Anvar v Basheer and the New Old Law of Electronic Evidence The Centre 40. Avnish Bajaj vs State Bazee com case 2008 105 DRJ 721 MANU. for Internet and Society available at http cisindia org internetgovernance DE 0851 2008. blog anvarvbasheernewoldlawofelectronicevidence last accessed on 41. Ratan Tata v Union of India Writ Petition Civil 398 of 2010 before. 21 02 2017 Supreme Court of India, Anvar vs Basheer AIR 2015 SC 180 MANU SC 0834 2014. Amar Singh v Union of India 2011 7 SCC 69 43, Lorraine v Markel American Insurance Company 241 FRD 534 D Md.
Ratan Tata v Union of India Writ Petition Civil 398 of 2010 2007. Citation Dubey V Admissibility of electronic evidence an Indian perspective Forensic Res Criminol Int J 2017 4 2 58 63 DOI 10 15406 frcij 2017 04 00109. Admissibility of electronic evidence an Indian perspective 2017 Dubey 63. electronic record by oral evidence if requirements under Section 65B adverse in interest to the proponent of the record and the record was. of the Evidence Act are not complied with as the law now stands in being used against the adverse party the risk of the manipulation. India 44 of the records would be reduced significantly This is because it is. argued no disinterested party would want to certify the authenticity of. The scope for oral evidence is offered later Once electronic. the record which to his knowledge had been tampered with The law. evidence is properly adduced according to section 65B of the Evidence. also needs to creatively address the requirement of the burden being. Act along with the certificate of sub section 4 the other party may. on the proponent to provide testimony as to the author of a document. challenge the genuineness of the original electronic record If the. to determine whether there was any manipulation or alteration after. original electronic record is challenged section 22A of the Evidence. the records were created the reliability of the computer program that. Act permits oral evidence as to its genuineness only Note that section. generated the records 20 and whether the records are complete or not. 22A disqualifies oral evidence as to the contents of the electronic. The courts also have to be mindful that data can be easily forged or. record only the genuineness of the record may be discussed In this. altered and section 65B of the Evidence Act does not address these. regard relevant oral evidence as to the genuineness of the record can. contingencies For instance when forwarding an e mail the sender. be offered by the Examiner of Electronic Evidence an expert witness. can edit the message Such alterations are often not detectible by the. under section 45A of the Evidence Act who is appointed under section. recipient and therefore a certificate of a third party to the dispute may. 79A of the IT Act In Sanjaysinh Ramrao Chavan vs Dattatray. not always be a reliable condition to provide for the authenticity of. Gulabrao Phalke 45 The court relying upon the judgment of Anvar. the document, case while considering the admissibility of transcription of recorded. conversation in a case where the recording has been translated it was Serious issues have been raised in the digital world due to. held that as the voice recorder had itself not subjected to analysis malpractices such as falsification of information and impersonation. there is no point in placing reliance on the translated version Without in relation to the authenticity of information relied upon as evidence. source there is no authenticity for the translation Source and It raises queries as to how it is possible to prove the creation and. authenticity are the two key factors for electronic evidence transmission of electronic communication by one party when the. party s name as the author of the post could have been inserted by. In the recent judgment Jagdeo Singh vs The State and Ors46. anyone Perhaps it may be prudent for the courts or the government. pronounced by Hon ble High Court of Delhi while dealing with the. to set up a special team of digital evidence specialists who would. admissibility of intercepted telephone call in a CD and CDR which. assist the courts and specifically investigate the authenticity of the. were without a certificate u s 65B Evidence Act the court observed. electronic records The challenges with respect to the admissibility. that the secondary electronic evidence without certificate u s 65B. and appreciation of electronic evidence India still has a long way. Evidence Act is inadmissible and cannot be looked into by the court. to go in keeping pace with the developments globally Although the. for any purpose whatsoever, amendments were introduced to reduce the burden of the proponent. Conclusion of records they cannot be said to be without limitations It is clear. that India has yet to devise a mechanism for ensuring the veracity of. Strict compliance with section 65B is now mandatory for persons contents of electronic records which are open to manipulation by any. who intend to rely upon e mails web sites or any electronic record party by obtaining access to the server or space where it is stored. in a civil or criminal trial before the courts in India This outlook. The admission of electronic evidence along with advantages can. of the Supreme Court of India is to ensure that the credibility and. also be complex at the same time It is upon the courts to see that. evidentiary value of electronic evidence is provided for since the the whether the evidence fulfils the three essential legal requirements. electronic record is more susceptible to tampering and alteration of authenticity reliability and integrity After Anvars case decision. In its judgment Kurian J observed that Electronic records being by the Supreme Court laying down the rules for admissibility of. more susceptible to tampering alteration transposition excision etc electronic evidence it can be expected that the Indian courts will. without such safeguards the whole trial based on proof of electronic adopt a consistent approach and will execute all possible safeguards. records can lead to travesty of justice Therefore the computer for accepting and appreciating electronic evidence. generated electronic record cannot be solely relied upon because. there is a possibility of it being hampered The Indian Evidence Act Acknowledgments. could be further amended to rule out any manipulation at least for the None. purposes of presuming prima facie authenticity of the evidence of the. electronic record by adding a condition that the record was created Conflicts of interest. in the usual way by a person who was not a party to the proceedings. and the proponent of the record did not control the making of the. record By ensuring that the record was created by a party who was. Supra note 43, Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke MANU. SC 0040 2015, Jagdeo Singh vs The State and Ors MANU DE 0376 2015. Citation Dubey V Admissibility of electronic evidence an Indian perspective Forensic Res Criminol Int J 2017 4 2 58 63 DOI 10 15406 frcij 2017 04 00109.

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Graduate Texts in Mathematics 9 5 Editorial Board F. W. Gehring P.R. Halmos (Managing Editor) C. C. Moore "Order out of chaos" (Courtesy of Professor A. T. Fomenko of the Moscow State University) A. N. Shiryayev Probability Translated by R. P. Boas With 54 Illustrations Springer Science+Business Media, LLC . A. N. Shiryayev Steklov Mathematical Institute Vavilova 42 GSP-1 117333 Moscow U.S.S.R ...