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Electronic evidence for delhi judicial academy prashant mali

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Presentation on Electronic Evidence - Digital Evidence including appreciation,admissibility of electronic evidence , case laws and challenges in India

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Electronic evidence for delhi judicial academy prashant mali

  1. 1. 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)
  2. 2. 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)
  3. 3. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  4. 4. 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; Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  5. 5. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  6. 6. 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”. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  7. 7. 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.
  8. 8. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  9. 9. 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
  10. 10. 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] Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  11. 11. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  12. 12. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  13. 13. 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)
  14. 14. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  15. 15. 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] Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  16. 16. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  17. 17. 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," . Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  18. 18. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  19. 19. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  20. 20. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  21. 21. 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)
  22. 22. 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. Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)
  23. 23. 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 Adv Prashant Mali - Cyber Law Expert (prashant.mali@cyberlawconsulting.com)
  24. 24. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  25. 25. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  26. 26. 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. Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  27. 27. 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 Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  28. 28. Challenges in E-evidence • 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)
  29. 29. Challenges in E-evidence • 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 ? Adv Prashant Mali - Cyber Lawyer (prashant.mali@cyberlawconsulting.com)
  30. 30. 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

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