Electronic Evidence with Case Laws for Maharashtra Judicial Academy by Prashant Mali

Digital or Electronic Evidence
Laws of India or in Indian Courts
With Case Laws
August 2016
Adv. Prashant Mali
Masters in Computer Science(MSc.), Masters in Law(LLM), Ph.D.(Persu.)
Certified Computer Forensics Professional(CCFP), CISSA
High Court Lawyer – Mumbai, India
Speaker, Author & Expert in Cyber Law & Cyber Security
President – Cyber Law Consulting (Advocates & Attorneys)
Chairman – Cyber & Law Foundation (Regd. NGO)
Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
For Maharashtra Judicial Academy
“ Training of Trainers Program for Judges ”

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

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.

Retention of Electronic records
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsultiung.com)
Section 7 of the IT Act provides for the retention of electronic records. Sub
section (1) of the section 7 lays down:
“(1) where any law provides that documents, records or information shall be
retained for any specific period, then, that requirement shall be deemed to
have been satisfied if such documents, records or information are retained in
the electronic form, if-
a. the information contained therein remains accessible so as to be usable
for a subsequent reference;
b. the electronic record is retained in the format in which it was originally
generated, sent or received or in a format which can be demonstrated to
represent accurately the information originally generated, sent or
received;
c. the details which will facilitate the identification of the origin,
destination, date and time of despatch or receipt of such electronic
record are available in the electronic record; provided that this clause
does not apply to any information which automatically generated solely
for the purpose of enabling an electronic record to be despatched or
received.”

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
The conditions which have to be satisfied so as to make a computer output
as evidence U/S65B(2) are:
• It is necessary that the computer output containing the information
was produced by the computer which was used regularly to store or
process the information for the purposes of any activities being
regularly carried on by the person having lawful control over the use
of the computer.
•The information is of the kind which was regularly fed into the
computer in the ordinary course of its activities;
•The computer should be operating properly during the period of
the data feeding. If it was not operating properly during that period or
was out of operation, it is necessary that the gap was not such as to
affect the electronic record or the accuracy of its contents;
•The information contained in the electronic record was derived or
was reproduced from the information fed into the computer in the
ordinary course of its activities.

Admissibility of Electronic Records
• Section 65B (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. NavjotSandhu, 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 Changed

Case Law on Email as evidence
M/s. P. R. Transport Agency vs. Union of India
(AIR, 2006 ALL, 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.
Refer Section 13(3) of The IT Act, 2000

ANVAR P.V. V/S P.K. BASHEER & Ors.
The 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 Section 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.

Equivalent US Case Law
• Lorraine v. Markel American Insurance
Company 241 FRD 534 (D. Md. 2007)
It was held when electronically stored information is offered as
evidence, the following tests need to be affirmed for it to be
admissible:
(i) is the information relevant; (ii) is it authentic;
(iii) is it hearsay; (iv) is it original or, if it is a
duplicate, is there admissible secondary
evidence to support it; and (v) does its
probative value survive the test of unfair
prejudice?Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)

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@cyberlawconsulting.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.

What Stage of trial Certificate
Under Section 65B CAN BE FILED?
• Certificate U/S 65B of The IEA can be
filed at any stage of the trial
• 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.

Fresh Certificate Under S65B
• If the certificate under S.65B, Evidence
Act which was produced was rejected as
not compliance with the Section, fresh
certificate may be produced.-
• Ignatius Topy Pereira Vs. Travel
Corporation (India) Pvt. Ltd and
another, 2016 SCC Online Bom 97 (Hon.
Shri Justice S.B. Shukre).-
Adv Prashant Mali - Cyber Law Expert
(prashant.mali@cyberlawconsultiung.com)

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]

Paper printouts of electronic record
• Hon'ble S.C. in Tomso Bruno and anr. V. State of
U.P. on Dt. 20/01/2015
Held that the computer generated electronic records
in evidence are admissible at a trial if proved in the
manner specified by section 65 B of the Evidence
Act. Sub-section (1) of section 65 B makes
admissible as a document, paper print out of
electronic records stored in optical or magnetic
media produced by a computer, subject to the
fulfillment of the conditions specified in sub-section
(2) of section 65-B. Adv Prashant Mali - Cyber Law Expert
(prashant.mali@cyberlawconsultiung.com)

IP Address as an Evidence
• IP address alone I feel cannot be a conclusive evidence
and I have proved in many cases 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

CD / DVD as Evidence
In view of the definition of ‘document’ in Evidence Act,
we hold that the compact disc is also a document. It is
not necessary for the court to obtain admission or denial
on a document under sub-section (1) to Section 294
CrPC personally from the accused or complainant or the
witness. The endorsement of admission or denial made
by the counsel for defence, on the document filed by the
prosecution or on the application/report with which same
is filed, is sufficient compliance of Section 294 CrPC.
CRIMINAL APPEAL NO. 1525 OF 2015
Shamsher Singh Verma Versus State of Haryana
(prashant.mali@cyberlawconsulting.com)

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 V the State & Ors. [MANU/DE/0376/2015]

When certificate is not needed?
• Raj Kumar v. State, CRL.A. 232/16,
19.4.16 Delhi High Court
• Held that, Since the mobile phone of
witness (containing the photograph) itself
was produced in the Court and exhibited,
there was no need of a certificate under
Section 65-B Indian Evidence Act-
• The evidence is admissible.
**Facts Judicially Noticeable need not be
proved S(56) Adv Prashant Mali - Cyber Law Expert

Original needs to be preserved?
•Civil court may pass an Order under Order
11 Rule 12 CPC to rely on the Evidence
purported along with certificate under S65(B)
if application for discovery is made – Original
not needed as it increases complexity

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
CRIMINAL APPEAL NO. 97 OF 2015

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.

CCTV Evidence & Statement
• Rajesh Dhannalal Daware Vs. State of Maharashtra {Bombay
High Court, 5 May 2016}
• Evidence Act, 1872 - Section 65-B - Footage of CCTV Camera -
Under S. 65B(4) 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.

Electronic Device is A Electronic Record
Dharambir vs CBI (pronounced on 11th
March 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

Distinction between
hacker and cracker
• Abhinav vs. State of Haryana, Cr. Misc. No. 9245-M-
2008 the subtle difference between a hacker and cracker:
A hacker is a computer expert whose intrinsic curiosity persuades him to break in
computers. Hacking is computer trespass. To make hacking an offence
depends on mens rea. Based on the intention, hackers are divided into two
groups: (1) hackers who have no intent to do any criminal activity. These
hackers do not consider breaking into computer system a crime. They consider
themselves members of an elite meritocracy based on ability and trade hacker
techniques. They are skilled computer users, who penetrate computer system
with a sole purpose to gain knowledge about computer system and their actual
working. (2) crackers who intend to engage in criminal activity. This dichotomy
of hacker and cracker has come on the scene in 1985 to distinguish between
“benign” hackers from hackers who have malicious intention. Crackers
maliciously sabotage computers, steal information located on secure
computers and cause disruption to the networks for personal or political
motives.

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: Section 2A
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
• What would happen when secondary
electronic evidence seized from the
accused wherein, the certificate under
Section 65B of Evidence Act cannot be
taken and the accused cannot be made
witness against himself as it would be
violative of the Article 20(3) of the
Constitution of India. {Self Incrimination}

Challenges
• Evidence from WhatsApp
• Evidence from websites abroad or
websites with no contact details for LEA to
connect with.
• No examiner of Electronic Evidence
appointed under Section 45A of the IEA

Challenges
• Section 32,36,74,75 & 91 of IEA 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 ?

Group Photo with Judges
Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsultiung.com)

THANKYOU
Adv. Prashant Mali [BSc.(Phy.), MSc.(Computer Sci.),CCFP,LLM]
President - Cyber Law Consulting
Legal Counsel, Author, Speaker & Expert
Mob: +91-9821763157 | 022-25401515
Web : www.prashantmali.com
www.cyberlawconsulting.com
Email: cyberlawconsulting@gmail.com
facebook.com/cyberlawconsultant
Twitter : @CyberMahaGuru

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