Admissibility of Electronic Records

Technology has changed and evolved refined over a period. Hence it becomes the requirement of the hour to embrace and modify according to the remodelling of technology. This requirement of evolving has been wholesome estimable by the both courts and legislature in India. Further the we get to known certain aspects with regards to electronic records used as an evidence under the legal setup.

As per the knowledge it should be clear that electronic record has been estimable and explained under the Information Technology Act 2008. In accordance with the Act, electronic records consisits of data, sound, image generated or recorded and sent or received in electronic form. Indian Evidence Act shows the license of the admissibility of electronic records. It is a well-recognized principle of law that where Primary Evidence is accessible, it is given first concern over the Secondary Evidence. Sometimes the data relating to Primary Evidence which is in electronic form is gathered on virtual platforms like cloud, Google drives, big servers, etc. and also on hard drives, CPU, etc., which makes it practically impossible to present all these resources in court, every time a dispute arises.

Hence, now it has become a standard procedure [M/s Chemicals (India) Versus M/s Bhartiya Hindu Shudhi Sabha Trust ( Regd.) – CM(M) 193/2018 & CM Nos.6332- 6334/2018(High Court of Delhi)] to allow Secondary Evidence, in cases where Primary Evidence which is in electronic form could not be formed. Secondary Evidence could be printed on a paper, stored, recorded or copied in optical or magnetic media formed by a computer . These computer outputs will only be admissible after satisfying terms under section 65(B). These conditions are only to be abide with in case of Secondary Evidence, which is in electronic form, and not in case of Primary Evidence ( Anvar P.V Versus P.K. Basheer and others.- CIVIL APPEAL NO. 4226 Of 2012 ).

The facts as per the case confront with Dhanaram and his deceased younger brother Gunaram were running a Pawn Broking & Jewellery Shop in the name and style of ‘Balaji Pawn Brokers’ at No.1, 13th Street, Sakthi Nagar. The deceased Gunaram opened the shop around 8.00 a.m. At about 9.00 a.m. Dhanaram (PW-1) came there and after being there for some time, he left for other work. When he returned to the shop around 12.00 noon, he was shocked to see his younger brother Gunaram lying dead in a pool of blood.

On the complaint Inspector of Police, registered a case for the offences under Section 302 read with 380 IPC. Dhanaram was in such a state of shock that he was unable to give the details of the lost jewels to the Police. Hence, Bawarlal who also has a Pawn shop nearby, and is known to Dhanaram took stock of the items and reported that seven items weighing 48 grams were missing.. When Bawarlal informed this, Dhanaram told him that from the Video recordings shown to the Police, it seems that the interlopper has taken only the covering jewellery. Luckily for the Police, but unfortunately for the accused, CCTV cameras were eqipped in the shop, the existence of which has been referred to in the Observation Mahazar.

The trial Court has condemn the accused and sentenced him as follows:

• Conviction under section Sentence rnforce 449 IPC 10 years R.I. 392 IPC 10 years R.I. 404 IPC 3 years R.I.302 IPC Death Sentence The sentences of imprisonment imposed for the offences under Sections 449, 392 and 404 IPC were ordered to run jointly.
• With the some modification in sentence and directions, Crl.A.No.110 of 2015 is dismissed and R.T.No.1 of 2015 is answered correspondingly.

Case Analysis

In the below mention material we had included certain minute analysis of the main substance of the case and judgment.

During the proceedings of the case, we noticed that the trial Court had not played the DVR and seen the CCTV footages in the presence of the accused. In this regard we propose to disperse misgivings, if any, in the mind of trial Judges about their power to view such evidences. There will be example where, by the time the case comes up for trial in one court, the electronic record would have had a natural death for want of proper storage facilities in the Court property room. To precludes these difficulties, we direct that, on a petition filed by the prosecution, the Judicial Magistrate, who receives the electronic record, may himself view it and take a back up, without disturbing the integrity of the source, in a CD or Pendrive or any other gadget, by drawing proceedings.

The back up can be kept in safe custody by wrapping it in anti static cover and should be sent to the Sessions Court at the time of committal. The present generation of Magistrates are computer savvy and they only require legal sanction for taking a back up. They can avail the service of an expert to assist them in their endeavour.

Recently the Supreme Court in Shamsher Singh Verma v. State of Haryana, 2015 (12) Scale 597, has held that CD is a ‘document’ within the meaning of Section 3 of the Indian Evidence Act, 1872. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, the Supreme Court has held that tape records of speeches are ‘documents’ as defined in Section 3 of the Indian Evidence Act, 1872. This Judgment has been relied upon in Shamsher Singh Verma’s case (cited supra). Therefore, we hold that articles like Memory Card, Hard Disc, CD, Pen-drive, etc., containing relevant data in electronic form are ‘documents’ as defined under Section 3 of the Indian Evidence Act, 1872, albeit, marking them as material objects. After all, nomenclature cannot have the effect of altering the characteristics of an object.

This does not mean that, if a secondary evidence of a document is admitted lawfully, the Court is denuded of the power to inspect it. Such an inference will lead to absurdity. Therefore, we hold that a Court has the power to view CCTV footage and video recordings, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether the individual seen in the footage is the accused in the dock. The trial Court should also specifically put questions to the accused when he is examined under Section 313 Cr.P.C. about his overt acts appearing in the footage and record his answers.

The Supreme Court has stated that, if an electronic record as such is used as primary evidence under Section 62 of the Indian Evidence Act, 1872 the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.

In this case, DVR which contains the information is before the Court. There may be occasions when in large establishments like Railways, Airports where large number of cameras are installed and the information is stored digitally in huge servers, it may not be possible for the Police to seize the server and send them either to the Forensic Science Department or produce them before the Court. Only to obviate this difficulty and to satisfactorily meet the objections relating to admissibility of secondary evidence in electronic form, the Parliament thought it fit to provide a certification under Section 65B.

Even if the certification is not obtained at the time of collection of evidence, yet, at the time of trial, evidence aliunde can be given through the person who was in charge of the Server, in terms of Section 65B of the Act, as held by a Division Bench of the Delhi High Court in Kundan Singh v. State. The Police can also requisition the services of Computer Experts and Experts from the Forensic Sciences Department to retrieve data from a huge server through USB drive or CD drive or any other gadget for the purpose of investigation and production of the same before the Court without disturbing the integrity of the original source. If we fail to provide this facility to the Police, the Criminal Justice Delivery System will become a lame duck.

One has to understand the system of CCTV Recordings in the glare of the Information and I.T. Act, 2000, for the purpose of its optimum usage as evidence in the Court of Law. Gone are the days when Hindustan Photo Films produced film rolls for loading in the camera and on the click of the button the image gets imprinted on the film. The imprint is called the negative, which is the primary evidence, and the positive developed therefrom is considered as the secondary evidence. That method has now not in functioning. Today, the physical images catch by the camera is converted by a computer software into information, capable of being stored as data in electronic form and the stored data is electronic record.

Meanwhile during the interpretation of the section 65B (4) of the Evidence Act, the provision must be applied only when such electronic evidences is presented by a person who is in a position to produce such certificate.

Conclusion

Lastly as a matter of fact electronic records are pertinent in Primary as well as in Secondary state subject to the fact that they are accurate, eviction of the possibility of abate or manipulation, relevant custody, are compatible and reliable. An important term which cannot be over looked is the certificate under section 65B(4), without which an electronic record in the form of Secondary Evidence is not admissible. CCTV footage thought termed as the, best evidence is not the exclusive determination in the case.

Author Details: Aditi Yaduvanshi