Electronic evidence digital evidence in india

Digital or Electronic Evidence
in Indian Law or in Indian Courts
Adv. Prashant Mali
Masters in Computer Science(MSc), Masters in Law(LLM),
Certified Computer Forensics Professional(CCFP)
High Court Lawyer – Mumbai, India
Speaker, Author & Expert in Cyber Law & Cyber Security
President – Cyber Law Consulting(Advocates & Attorneys)
Adv Prashant Mali - Cyber Law Expert (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

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.

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.

Electronic Evidence
(Recent Case Law)
• Mohinder Sharma, a resident of Budhpur in
northwest Delhi was Sent to 20 years of
Imprisonment and 1.02 Lakhs Penalty was
charged.”Electronic Evidence was Relied upon”
• Mohinder Sharma V/S State , Delhi HC
• Surveillance with the help of its unique
international mobile equipment identity (IMEI)
number and was found being used by Sharma
with a different SIM. He had destroyed the
original SIM.

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

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.

Forensics Labs
• Cyber Forensics Labs where electronic
records can be taken for obtaining
certificate:
• –3 Labs at Hyderabad including CFSL
• –1 Lab at Trivandrum
• –1 Lab at CBI, Delhi
• –1 Lab at CBI, Navi Mumbai
• –1 Lab at Himachal
• –1 Lab at Ahemdabad
• –1 Lab at Mumbai

Computer Printouts Admissible
• State (NCT of Delhi) v. NavjotSandhu, SAR Gilani& Ors.
(AIR 2005 SUPREME COURT 3820)
• 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.

Case Law on Email as evidence
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

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

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
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.

THANKYOU
Adv. Prashant Mali [BSc.(Phy.), MSc.(Computer Sci.),CCFP,LLM]
President - Cyber Law Consulting
Author, Speaker & Expert
Mob: 09821763157
facebook.com/cyberlawconsultant
Web : www.prashantmali.com
www.cyberlawconsulting.com
cyberlawconsulting@gmail.com

Electronic evidence digital evidence in india

More Related Content

What's hot

Viewers also liked

Similar to Electronic evidence digital evidence in india

More from Adv Prashant Mali

Recently uploaded

Electronic evidence digital evidence in india