The various categories of electronic evidence such as website data, social network communication, e-mail, SMS/MMS and computer generated documents poses unique problem and challenges for proper authentication and subject to a different set of views.
The information technology has brought into existence a new kind of document called the electronic record. This document can be preserved in same quality and state for a long period of time through encryption processes reducing the chance of tampering with evidence. This document can be in various forms like a simple e-mail or short message or multimedia message or other electronic forms.
The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition to electronic records and evidence submitted in form of electronic records. According to 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. The Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages. The Information technology has made it easy to communicate and transmit data in various forms from a simple personal computer or a mobile phone or other kinds of devices. The Information Technology Amendment Act, 2008 has recognized various forms of communication devices and defines a “communication device”.
“communication device” means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image”
The Indian IT Act 2000 lays down a blanket permission for records not to be denied their legal effect if they are in electronic form as long as they are accessible for future reference.
The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence. Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with a conventional form of documents.
The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities.
It is further provided that where in any proceedings, evidence of an electronic record is to be given, a certificate containing the particulars prescribed by 65B of the Act, and 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 would be sufficient evidence of the matters stated in the certificate.
The apex court in State Vs. Navjot Sandhu while examining the provisions of newly added section 65B, held that in a given case, it may be that the certificate containing the details is not filed, but that does not mean that secondary evidence cannot be given. It was held by the court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, sections 63 and 65 of the Indian Evidence Act 1872.
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of section 65-B, which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Indian Evidence Act 1872, namely, sections 63 and 65.
The position of electronic documents in the form of SMS, MMS, and E-mail in India is well demonstrated under the law and the interpretation provided in various cases. In the State of Delhi v. Mohd. Afzal & Others, 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 a reasonable doubt. The court observed that mere theoretical and general apprehensions cannot make clear evidence defective and inadmissible. This case has well demonstrated the admissibility of electronic evidence in various forms in Indian courts.
The basic principles of equivalence and legal validity of both electronic signatures and hand wrote signatures and of equivalence between the paper document and electronic document has gained universal acceptance. Despite technical measures, there is still a probability of electronic records being tampered with and complex scientific methods are being devised to determine the probability of such tampering. For admissibility of electronic records, specific criteria have been made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability which may be strengthened by means of new techniques of security being introduced by advancing technologies.