ADMISSIBILITY OF E-EVIDENCE:

Electronic record is documentary evidence under section 3 of the Evidence Act. Taking and recording evidence would assume great significance in administration of justice. Electronic record is documentary evidence under section 3 of the Evidence Act. An electronic record may be like computer print out, Compact Disc (CD), Video Compact Disc (VCD), Pen drive, Chip etc.

The law with regard to admissibility of E-Evidence can be studied under the following heads:

1. RECORDING OF EVIDENCE THROUGH VIDEO CONFERENCING

In the case of State of Maharashtra vs. Dr. Praful B.Desai, (2003) 4 SCC 601 The Hon’ble Supreme Court while interpreting Section 273 of the Criminal Procedure Code in the light of technological advancements held that recording of evidence through video conferencing would be perfectly legal.

The amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in relation to the electronic record. Section 67-A and 73-A was introduced as regards proof and verification of digital signatures. As regards presumption to be drawn about such records, Sections 85-A, 85-B, 85-C, 88-A, and 90-A were added. These provisions are referred only to demonstrate that the emphasis, at present, is to recognize the electronic records and digital signatures, as admissible pieces of evidence.

In Jagjit singh vs. State of Haryana ((2006) 11 SCC 1), the Hon’ble Apex Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel and determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action.

2. ADMISSIBILITY OF E-MAIL:-

In Abdul Rahaman Kunji Vs. The State of West Bengal 2016 CriLJ 1159 In this case 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.

3. AN ELECTRONIC RECORD BY WAY OF SECONDARY EVIDENCE :

In the case of Anvar P.V. vs. P.K. Basheer and others AIR 2015 SC 180

With this significant judgment in the year 2014, the Supreme Court has settled the controversies arising from the various conflicting judgments as well as the practices being followed in the various High Courts and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has interpreted Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence Act. It has been elucidated that electronic evidence without certificate U/s 65B 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.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

However, Recently, The position is further clarified by the Hon’ble SC in the case of SHAFHI MOHAMMAD VS STATE OF HIMACHAL PRADESH 2018 SC decided on 30.01.2018 by Hon’ble Bench of Justice A.K. Goel and U.U Lalit, whereby it is held that that if a person is not in a position to produce such certificate the provision of 65B should not be applied. Relevant paras are reproduced below:

“(11) The applicability of procedural requirement under 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B is not always mandatory.

(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

4. CELL-PHONE RECORDING – EVIDENTIARY VALUE:-

In the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600

The Apex Court while considering the print out of the computerized records of the calls pertaining to the cell phones in view of the production of electronic record held as follows: “150. xxx irrespective of the compliance with the requirement of section 65–B, which is a provision dealing with admissibility of the electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, sections 63 & 65. It may be that the certificate containing the details in Sub-section (4) of section 65-B is not filed in the instance case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, sections 63 & 65.”

5. ADMISSIBILITY OF TELEPHONE CALL IN A CD AND CDR:-

In Jagdeo Singh Vs. The State and Ors, MANU/DE/0376/2015,

the Hon’ble High Court of Delhi, while dealing with the admissibility of intercepted telephone call in a CD and CDR which were without a certificate u/s 65B Evidence Act, the court observed that the secondary electronic evidence without certificate u/s 65B Evidence Act is inadmissible and cannot be looked into by the court for any purpose whatsoever.

6. INTERVIEW TELECASTED ON DOORDASHAN:-

In Sharad Yadav and Ors. Vs. Union of India (UOI) and Anr  82 (1999) DLT 13,  Shri Sharad Yadav in an interview recorded in Hindi, had admitted having received a sum of Rs. 3 lac from one Jain and the said interview was telecasted on Doordarshan after due editing. Hindi version of said interview has been produced before the Court, which is as under :

“MUJHE CHMMAN BHAI PATEL KE SAATH EK JAIN AIYA THA USNE TEEN LAKH RUPEEYE DIYE HAIN AUR WOH TEEN LAKH RUPEEYE JO CHANDE KE AIYE HAIN WOH MAIN NE KISKO DIYE HAIN PARTY KI TARAF SE WOH BHI LIKHA HUWA HAL”

In this case, it was observed that tested on the touchstone of the principles of law enunciated by their Lordships of the Privy Council and the Supreme Court, the aforesaid video recorded interviews of Shri Sharad Yadav do not amount to confessions and cannot, therefore, be used to complete the offence, with which Shri Sharad Yadav was charged. In this case, it was observed that ”it would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews.”

Sajidbeg Asifbeg Mirza Vs. State of Gujarat (2007) 1 Guj LH 400

In this case, the Hon’ble Gujarat High Court observed :- We are of the view that the talk which Afzal had with the TV and press reporters admittedly in the immediate presence of the police and while he was in police custody, should not be relied upon irrespective of the fact whether the statement was made to a police officer within the meaning of Section 162 CrPC or not. We are not prepared to attach any weight or credibility to the statements made in the course of such interview prearranged by the police. The police officials in their over-zealousness arranged for a media interview which has evoked serious comments from the counsel about the manner in which publicity was sought to be given thereby. Incidentally, we may mention that PW 60 the DCP, who was supervising the investigation, surprisingly expressed his ignorance about the media interview. We think that the wrong step taken by the police should not ensure to the benefit or detriment of either the prosecution or the accused.

EFFECT OF ANVAR P.V. VS. P.K. BASHEER AND OTHERS AIR 2015 SC 180: WHETHER PROSPECTIVE OR RETROSPECTIVE?

In the case of Sonu @ Amar v. State of Haryana, (SC) 2017(3) Law Herald 2481 The Court in the last part of this judgment noted that the court in Anvar has not applied the principle of prospective ruling. While noting this, the Court expressed concerns over the law laid in Anvar being applied retrospectively on one hand, and on the other hand, it refrained from answering whether the judgment in Anvar could be made prospective in nature and has left this question open.