Electronic evidence for delhi judicial academy prashant mali

Digital or Electronic Evidence
in Indian Law or in Indian Courts
Advocate Prashant Mali
Masters in Computer Science(MSc.), Masters in Law(LLM), Ph.D(Persu.)
Certified Computer Forensics Professional(CCFP)
High Court Lawyer – Mumbai, India
Speaker, Author & Expert in Cyber Law, Cyber Security & Privacy Law
President – Cyber Law Consulting(Advocates & Attorneys)
Session For Senior Judges at
Delhi Judicial Academy, Delhi High Court
prashant.mali@cyberlawconsulting.com)

Definition of Evidence..
The Act amends the definition of „Evidence 'in
Section 3, the interpretation clause of the Indian
Evidence Act 1872, to state:
‘Evidence’ means and includes
1) ..
2) All documents including electronic records
produced for the inspection of the Court
Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)

What is an Electronic Record ?
• According to section 2(t) of the
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.

What is Data ?
2(o) "Data" means a representation of
information, knowledge, facts, concepts or
instructions which are being prepared or have
been prepared in a formalised manner, and is
intended to be processed, is being processed
or has been processed in a computer system
or computer network, and may be in any form
(including computer printouts magnetic or
optical storage media, punched cards,
punched tapes) or stored internally in the
memory of the computer;

Legal Recognition of electronic records
Section 4 of The IT Act,2000
Where any law provides that information or any
other matter shall be in writing or in the
typewritten or printed form, then, notwithstanding
anything contained in such law, such requirement
shall be deemed to have been satisfied if such
information or matter is-
• a) rendered made available in an electronic
form; and
• b) accessible so as to be usable for a
subsequent reference.

Are all Documents also
Electronic Records ?
• In Section 61 to 65, the word “Document
or content of documents” have not been
replaced by the word “Electronic
documents or content of electronic
documents”.

Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–any information contained in an electronic record which is printed on a
paper, stored, recorded or copies in optical or magnetic media produced
by a computer (hereinafter referred to as the computer output) shall be
deemed to be also a document
– Conditions for admissibility
• the computer output containing the information was produced by the
computer during the period over which the computer was used regularly
to store or process information for the purposes of any activities regularly
carried on over that periodby the person having lawful control over the
use of the computer;
• during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived
was regularly fed into the computer in the ordinary course of the said
activities;
• throughout the material part of the said period, the computer was
operating properly or, if not; then in respect of any period in which it
was not operating properly or was out of operation during that part of the
period, was not such as to affect the electronic record or the accuracy of
its contents;
• the information contained in the electronic record reproduces oris derived
from such information fed into the computer in the ordinary course of
the said activities.

Admissibility of Electronic Records
• Section 65-B (Admissibility of Electronic Records)
–Making statements:
In any proceedings where it is desired to give a statement in evidence
by virtue of this section, a certificate doing any of the following things,
that is to say-
(a)identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b)giving such particulars of any device involved in the productionof that
electronic record as may be appropriate for the purpose of showing
that the electronic record was produced by a computer;
(c)dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate,
and purporting to be 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 (whichever is appropriate)
shall be evidence of any matter sufficient for a matter to be stated to the
best of knowledge and belief of the person stating it.

Computer Printouts Admissible?
• State (NCT of Delhi) v. Navjot Sandhu, SAR Gilani& Ors.
(AIR 2005 SUPREME COURT 3820) (Now over ruled by Anwar v Bashir)
• It is not in dispute that the information contained in the call records is
stored in huge servers which cannot be easily moved and produced in the
Court. That is what the High Court has also observed at para 276. Hence,
printouts taken from the computers/servers by mechanical process and
certified by a responsible official of the service providing Company can be
led into evidence through a witness who can identify the signatures of the
certifying officer or otherwise speak to the facts based on his personal
knowledge. Irrespective of the compliance of the requirements of Section
65B which is a provision dealing with admissibility of electronic records,
there is no bar to adducing secondary evidence under the other provisions
of the Evidence Act, namely Sections 63 and 65.
• Above all, the printouts pertaining to the call details exhibited by the
prosecution are of such regularity and continuity that it would be legitimate
to draw a presumption that the system was functional and the output was
produced by the computer in regular use, whether this fact was specifically
deposed to by the witness or not. – Position of Law is Changed NOW

Email Printout as a Evidence
• The Hon‟ble High Court of Calcutta while deciding
the admissibility of email held that an email
downloaded and printed from the email account of
the person can be proved by virtue of Section 65B
r/w Section 88A of Evidence Act. The testimony of
the witness to carry out such procedure to
download and print the same is sufficient to prove
the electronic communication.
• Abdul Rahaman Kunji Vs. The State of West
Bengal [MANU/WB/0828/2014]

Case Law on Email as evidence
When Email is considered
Received
M/s. P. R. Transport Agency v. Union of India
(AIR 2006 ALLAHABAD 23)
Thus, the acceptance of the tender,
communicated by the respondents to the
petitioner by e-mail, will be deemed to be
received by the petitioner at Varanasi or
Chandauli, which are the only two places where
the petitioner has his place of business

ANVAR P.V. V/S P.K. BASHEER & Ors.
2015 Judgement
Supreme Court has interpreted the Sections 22A,
45A, 59, 65A & 65B of the Indian Evidence Act and
held that : Secondary Data in CD/DVD/Pen Drive
are not admissible without a certificate Under
Section 65B(4) of The Indian Evidence Act.
It has been elucidated that electronic evidence
without certificate Under Section65B cannot be
proved by oral evidence and also the opinion of
the expert U/s 45A Evidence Act cannot be resorted
to make such electronic evidence admissible.

Implications of Judgment
Cases of anticorruption where the reliance is
being placed on the audio-video recordings
which are being forwarded in the form of
CD/DVD to the Court. In all such cases, where
the CD/DVD are being forwarded without a
certificate Under Section 65B Indian Evidence
Act, such CD/DVD are not admissible in
evidence.
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsultiung.com)

Not Obstante clause and this judgment
• The Court has held that Section 65B of the Evidence Act
being a „not obstante clause‟ would override the general
law on secondary evidence under Section 63 and 65 of
the Evidence Act.
• The Section 63 and Section 65 of the Evidence Act have
no application to the secondary evidence of the
electronic evidence and same shall be wholly governed
by the Section 65A and 65B of the Evidence Act.
• The Constitution Bench of the Supreme Court overruled
the judgment laid down in the State (NCT of Delhi) v.
Navjot Sandhu alias Afsal Guru[(2005) 11 SCC 600 by
the two judge bench of the Supreme Court of India

At What Stage of trial, the Certificate
Under Section 65B CAN BE FILED?
• Certificate U/S 65B of The IEA can be
filed at any stage of the trial
Case Law :
• Paras Jain v. State of Rajasthan,
[MANU/RH/1150/2015]

Stage of Trial..Contd
• In all the cases where the police has not
filed the certificate under Section 65B IEA,
the same can be filed by way of
supplementary charge sheet under
section 173(8) Cr.P.C. and this in no way
even stops the police to generate the same
electronic record as fresh and file in the
court by way of charge sheet under section
173(8) Cr.P.C.

IP Address as an Evidence
• IP address alone I feel cannot only be a conclusive
evidence and I have proved in many cases while arguing
in lower courts .
• Judge Gary Brown in the United States District Court of
the Eastern District of New York adjudged below :
• "The assumption that the person who pays for Internet access at a
given location is the same individual who allegedly downloaded a
single sexually explicit film is tenuous, and one that has grown more
so over time," he writes. "An IP address provides only the location at
which one of any number of computer devices may be deployed,
much like a telephone number can be used for any number of
telephones."
• "Thus, it is no more likely that the subscriber to an IP address carried
out a particular computer function – here the purported illegal
downloading of a single pornographic film – than to say an individual
who pays the telephone bill made a specific telephone call," .

CDR(Call Data Records) as an Evidence
• Today Investigation agencies gets paralyzed when a
accused doesn‟t use Mobile phone.as the investigation
starts majorly around CDR.
• Call Data Records do aid in preliminary investigation but
cannot be taken as conclusive evidence because of
following problems
1. The mobile handset or SIM could be on someone else
name, as written in receipt/invoice.
2. Call Data Records are not certified
3. SIM card was cloned or IMEI number Spoofed(changed)
4. Mobile Number snooping had taken place using S/W
In Bombay Bomb Blast case Sanjay Dutt CDR were admitted
and the same were in Parliament Attack case

Case Law for CD & CDR as Evidence
• In the recent judgment by Hon. High Court of
Delhi, while dealing with the admissibility of
intercepted telephone call in a CD and CDR which
were without a certificate under S65B Evidence
Act, the court observed that the secondary
electronic evidence without certificate under S65B
Evidence Act is inadmissible & cannot be looked
into by the court for any purpose whatsoever.
• Jagdeo Singh @ jagga V the State of Delhi
Supreme Court 11th Feb 2015

Phone Call Data Records-CDR as Evidence
• Mobile Call Details Record Admissibility in
evidence - Requisite certificate under Section
65B(4) of IEA on CDR as per law not filed -
Absence of such certificate would render CDR
inadmissible in law.
• Case Law :
• Balasaheb Gurling Todkari Vs. State of
Maharashtra 2015 ALL MR (Cri) 3464

Case Law: Admissibility of transcription
of a recorded conversation
While considering the admissibility of transcription of
recorded conversation in a case where the recording
has been translated and the same has been verified
by the panch witnesses., the SC held that as the
voice recorder had itself not subjected to analysis,
there is no point in placing reliance on the translated
version. Without source, there is no authenticity for
the translation. Source and authenticity are the 2 key
factors for electronic evidence.
• Sanjaysinh Ramrao Chavan Vs. Dattatray Gulabrao phalke & anr
SC 16th Jan 2015 | CRIMINAL APPEAL NO. 97 OF 2015
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)

Case Law on SMS,MMS as Evidence
In State of Delhi v. Mohd. Afzal & ors,
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 reasonable doubt. The court
observed that mere theoretical and general
apprehensions cannot make clear evidence defective
and in admissible. This case has well demonstrated
the admissibility of electronic evidence in various
forms in Indian courts.

Case Law: Electronic Record | Device
Dharambir vs CBI (pronounced on 11thMarch 2008)
• Certain data (i.e. call records) were copied from Hard Disk
to a CD.
• Cyber Forensics Lab in Hyderabad confirmed that the
recorded data (i.e. call conversation) on CD were true
copies of the originals and that the Hard Disk was in
working condition.
• A question came: difference between “electronic device”
and “electronic record”.. It was held that if the electronic
device has ever recorded any data which is relevant for a
case, such “electronic device” shall be treated as
“electronic record” for the purpose of evidence.
• Scope of definition of the word “data” was contended and
was held that “data” would include active memory as well
as subcutaneous memory

Evidence –Bankers’ Books Evidence Act, 1891
• What is permissible as evidence?A “certified copy”of any
entry in a banker's book shall in all legal proceedings be
received as prima facie evidence of the original entry itself.
{Section 4}
• What are banker’s book in electronic form?Any record
stored in a micro film, magnetic tape or in any other form of
mechanical or electronic data retrieval mechanism, either onsite
or at any offsite location including a back-up or disaster
recovery site of both. {Section 2(3)}
• How a certified copy of electronic record be
obtained?{Section 2(8)}
–A copy obtained through mechanical process can be certified
if a certificate of the principal accountant or the manager of the
bank.
–A printout containing a certificate in accordance with Section
2A.

Evidence –Bankers’ Books Evidence Act, 1891
• Nature of certificate for a copy obtained through mechanical
process:
A certificate from principal accountant or manager of the branch that the
mechanical or other process adopted to obtain the copy has ensured the
accuracy of the copy.
• Nature of certificate for a copy obtained through mechanical
process:
Authenticity certificate from principal accountant or branch manager, AND
Certificate from person in-charge of computer system regarding
•Details of computer system
•Process of data storage
•Safeguard to protect computer system and data
• A further certificate from the person in-charge of the computer system to
the effect that to the best of his knowledge and behalf, such computer
system operated properly at the material time, he was provided with all
the relevant data and the printout in question represents correctly, or is
appropriately derived from, the relevant data.

Bank Statement as Evidence When accepted
State Bank of India vs. Rizvi Exports Ltd (DRT, Allahabad)
• State Bank of India (SBI) had filed a case to recover
money from some persons who had taken various loans
from it.
• As part of the evidence, SBI submitted printouts of
statement of accounts maintained in SBI‟s computer
systems.
• The relevant certificates as mandated by the Bankers
Books of Evidence Act (as amended by Information
Technology Act) had not been attached to these printouts.
• The Court held that these documents were not admissible
as evidence.

Challenges in E-evidence
What would happen when secondary
electronic evidence seized from the accused ?
Now, If certificate under Section 65B(4) of The
Indian Evidence Act is taken then it would be
violative of the Article 20(3) of the Constitution
of India.
As the accused cannot be made witness
against himself .
Immunity from Self Incrimination

• Evidence from WhatsApp mobile application –
No support for prosecution by the company.
• Evidence from websites abroad or websites
with no contact details for LEA to connect
with.
• Evidence from Cloud & Big Data in courts.
• No examiner of Electronic Evidence appointed
under Section 45A of the Indian Evidence Act
on which courts are supposed to be relied
uponAdv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)

• Section 32,36,74,75 & 91 of The IEA are
not amended
• Section 91 incorporates important legal
principle, that if the terms of a contract are
reduced in a document , oral evidence
cannot be led with respect to the terms of
such contract etc. Will apply to written Doc
and not to Electronic Contract or
Electronic Record ?

THANKYOU
Adv. Prashant Mali [ MSc.(Computer Sci.),LLM, Ph.D(Persu.)]
President - Cyber Law Consulting(Advocates & Attorneys)
Legal Counsel, Author, Speaker, International Thought Leader
www.prashantmali.com | www.cyberlawconsulting.com

Electronic evidence for delhi judicial academy prashant mali

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