ADMISSIBILITY OF ELECTRONIC EVIDENCE IN INDIA- (Blog)


INTRODUCTION:

            One of the major amendments that were brought into the brilliant piece of legislation- The Evidence Act 1872, was the inclusion of provisions regarding the admissibility of electronic evidence. Electronic evidence or otherwise know as digital evidence or advanced proof is any probative information stored or transferred in digital form that a party in legal dispute may produce in a trial.  The framing of the Information Technology Act 2000, set the way for the use of electronic records as evidence to prove the facta probanda.

ISSUES WITH ADMISSIBILITY OF ELECTRONIC EVIDENCE:

            One of the most cliched issues with the admissibility of electronic evidence is about the genuineness and authenticity of the evidence so produced. Another issue includes the possibility of alteration or manipulation made to the original evidence before being produced in the court. Electronic devices are very well prone to the threat of being hacked unethically. This questions the nexus between the data produced as evidence and the person who is answerable for the creation of the data. Reliance placed on information extracted from social media platforms like Instagram, Facebook, Snapchat, etc., seems problematic as it is difficult to track down the origin and authenticity of such information. Adding on, it is also quite challenging to prove who actually had access to the device which created the data. Although the cyber forensics has come up with advanced algorithms, Evidence tampering is still controversial and up for a discussion.

ANALYSIS OF TREND SET BY JUDICIAL PRONOUNCEMENTS:

            One can trace the onset of admissibility of evidence from Som Prakash v. State of Delhi (AIR 1974 SC 989) where the Supreme Court of India connoted the need for inclusion of electronic evidence in the statute and ascribed that denying the discoveries of sciences is crude. In the case of SIL Import v. Exim Aides Exporters ((1999) 4 SCC 567), the apex court once again encouraged the technological usage by saying that when the parliament contemplated the advancements in technology while framing the laws then the courts should not ignore the usage of the same at trials and information from it ought to be included. These cases set the path to the admissibility of electronic evidence in the court. The requirement of electronic evidence for the very first time arose in the case of State v. Mohd. Afzal and Ors. (2003) DLT 385), also known as Parliament attack case in which the High Court of Delhi held that the only pre-requisite for admissibility of electronic evidence is that is should adhere to the provisions mentioned under Section 65B of the Act. The landmark judgement was given in Anvar P.V.v. P.K.Basheer (AIR 2015 SC 180) where the court held that unless the evidence is accompanied with certificate (Section 65B) it cannot be admissible and the certificate ascertains the authenticity of the evidence. In Shafhi Mohammad vs. State of Himachal Pradesh (MANU/SC/0331/2018), it was held that the certificate required under Section 65B need not be produced by the party who is not in possession of the device from which the document is created.

LATEST JUDGEMENT:

            On 14 July 2020, the Supreme Court of India in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal and others (CIVIL APPEAL NOS. 20825-20826 OF 2017), held that certificate required under Section 65B is a condition precedent to the admissibility of electronic evidence and also clarified that it is unnecessary if the original document itself is produced. It also overruled the decision made in Shafhi Mohammad vs. State of Himachal Pradesh and also implied that the decision made in Anvar P.V.v. P.K.Basheer need not be revisited.


-Sowjanya B
Sastra Deemed University.

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