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Home / Bharatiya Sakshya Adhiniyam & Indian Evidence Act

Criminal Law

Impact of Information Technology Act on Indian Evidence Act

    «    »
 10-Jun-2024

    Tags:
  • Indian Evidence Act,1872 (IEA)
  • The Information Technology Act, 2000 (IT Act)

Introduction

With the enactment of the Information Technology Act, 2000 (IT Act) several provisions of the Indian Evidence Act,1872 (IEA) was amended. These amendments give legal recognition to evidence produced by way of electronic record.

IT Act

  • The object and purpose of the IT Act was to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce".
  • The second schedule of IT Act provides for amendments introduced in the IEA.

Amendments by the IT Act 21 of 2000

  • The amendments introduced by IT Act in the IEA are as follows:
    • Section 3:
      • The definition of “evidence” was amended to include all documents including electronic records produced for inspection by the Court.
      • The expressions “Certifying Authority”, “electronic signature”, “electronic signature certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the same meaning as under the IT Act.
    • Section 17:
      • The definition of admission was amended to include a statement in electronic form.
    • Section 22A
      • This Section talks about oral admissions as to contents of electronic record.
      • The Section provides that oral admissions as to contents of electronic records are relevant if the genuineness of the electronic record is in question.
    • Section 34
      • This Section talks about relevancy of entries in books of account.
      • The Amendment of 2000 provided that the entries in books of account including those maintained in electronic form are relevant.
    • Section 35
      • This Section was amended to provide that for relevancy of entry in public record or an electronic record made in performance of duty.
    • Section 39
      • This Section provides what evidence is to be given when a statement forms part of a document, conversation or series of letters or papers.
      • The effect of amendment was that when a statement of which evidence has to be given forms part of an electronic record, evidence shall be given of so much of electronic record as the Court considers necessary.
    • Section 59
      • The result of the amendment to this Section was that all facts except contents of electronic records or documents may be proved by oral evidence.
    • Section 65A
      • This Section provides that contents of electronic records may be proved in accordance with provisions of Section 65B.
    • Section 65B
      • Section 65 B of the IEA provides for what shall be deemed to be a document and how the evidence would be admissible.
      • Section 65B (1) provides “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”
      • There is a legal fiction created here.
      • The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records.
      • Clause 2 of Section 65B states that the conditions provided for computer output must be complied with.
      • Clause 4 of Section 65B provides that there should be a certificate produced identifying the electronic record, giving particulars of the device involved in production of electronic record, dealing with “any” of the conditions mentioned under Clause 2 which should be signed by a person occupying a responsible official position in relation to the device.
      • It has been well settled by the Hon’ble Court that the word “may” used in clause 4 shall be read as “all” given the context.
        • It is important to analyze the case laws with respect to Section 65B of the IEA.
        • Anvar P.V. (s) v. P.K. Basheer and others (2014):
          • In this case the Hon’ble Supreme Court overruled the law laid down in State NCT of Delhi v. Navjot Sandhu alias Afshan Guru (2005)
          • The Hon’ble Court held that Section 65B is a complete code and special law, the general law under Section 63 and Section 65 must yield.
          • The Hon’ble Court here invoked the rule of interpretation Generalia specialibus non derogant.
          • Thus, the Hon’ble Court held that Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B.
        • Shafhi Mohammed v. State of Himachal Pradesh (2018):
          • The Hon’ble Court in this case laid down the position of law when the electronic evidence is produced by a party who is not in possession of the device.
          • The Court held that applicability of Section 63 and Section 65 of IEA cannot be held to be excluded.
          • The Hon’ble Court laid down 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. The Court held that such a party cannot be required to produce a certificate under Section 65B(4) of the Evidence Act.
          • Thus, the Court held that the applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
        • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantayal and others (2020):
          • Finally, the controversy surrounding the electronic evidence was settled by the Hon’ble Supreme Court in this case.
          • The Hon’ble Court first of all overruled the case of Shafi Mohammed v. State of Himachal Pradesh and held that the law laid down in Anvar P.V. v. P.K. Basheer is the correct law.
          • The Court further held that the certificate under Section 65B (4) is unnecessary if the original document itself is produced. This can be done by the owner of the laptop, mobile phone etc by stepping into the witness box. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).
          • Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.
    • Section 73A:
      • This Section provides proof as to verification of digital signature.
    • Section 90A:
      • This Section provides for presumption as to electronic records five years old.
      • This Section provides that where the electronic record is five years old and it is produced from a custody which the Court considers proper, the Court may presume that the electronic signature (as amended by IT Act 10 of 2009) which purports to be electronic signature of a particular person was so affixed by him or any person authorized by him.
    • Section 131:
      • This Section provides for production of documents or electronic records which another person having possession could refuse.

Amendments by the IT Act 21 of 2000

  • The Amendments made by this Act are as follows:
    • Section 47 A:
      • This Section provides when the opinion as to electronic signature is relevant.
      • It is to be noted that this provision was added by I.T. Act of 2000, however, the 2009 IT Act replaced the term “digital signature” with “electronic signature”.
    • Section 45 A:
      • This Section provides that opinion of Examiner of Electronic Evidence is admissible.
    • Section 85 A:
      • This Section provides for Presumption as to electronic agreements.
    • Section 85B:
      • This Section provides for Presumption as to electronic records and electronic signatures.
    • Section 85C:
      • This Section provides for presumption as to Electronic Signature Certificate.

Conclusion

The Amendment by way of IT Act brought major changes to the IEA and filled a vacuum with respect to evidence by way of electronic record. The Hon’ble Supreme Court has held that for the purpose of giving evidence with respect to contents of electronic records Section 65B is a complete code and other provisions will not come into picture. Thus, the Amendments by way of IT Act hold massive importance.