Is Electronic Evidence Appreciated and Admissible in India?

Is electronic evidence appreciated and admissible in india?

The digital form of any document or piece of evidence is admitted in judicial proceedings, but is subject to certain specified formalities. The amendment has been made to enable the Courts to accept evidence in digital form.

Digitalization has extended its arms to all sectors; the legal sector cannot be left behind.

In the modern period, phone call records, text messages and emails are used as tools of communication, as well as commitment. Post the pandemic, many offices run remotely, the employees are getting the opportunity to work from home, in that situation, emails and text messages are the modes of valid communication.

Similarly in personal matters, anyone threatening to cause harm on call or text is enough to show the intention of the person.

However, the question always arises regarding the admissibility of electronic evidence in judicial proceedings.

What are the legal provisions?

The Information Technology Act, 2000 introduced the concept of electronic evidence and caused relevant amendments to the Evidence Act 1872, as well as to the Indian Penal Code 1860.

Following the model law on Electronic Commerce by the United Nations Commission on International Trade Law, the IT Act introduced under Sec. 2(1)(t) the concept of "electronic record" which includes - data, record or generated data in the form of an image or sound, received or sent in an electronic form or microfilm or computer generated microfiche.

Moreover, the use of electronic records in the place of a paper-based documentary record has been recognised by Sec. 4 of the IT Act.

By the virtue of Sec. 92 of the IT Act, the Evidence Act amended to recognise the admissibility of the evidence in digital form.

Sec. 63 and 65 of the Evidence Act specified the terms and conditions of admissibility of the electronic recordings as a valid form of evidence to be produced during a judicial proceeding.

Admissibility of electronic evidence

The Evidence Act, under the provision of Sec. 65A, legally validates the electronic contents are records can be used as evidence subject to the terms and conditions mentioned under Sec. 65B of the Act.

Therefore, to produce any electronic document as evidence must comply with the provision of Sec. 65B of the Evidence Act.

Section 65B of the Evidence Act provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record, whether it be the contents of a document or communication printed on a paper, or stored, recorded, copied in optical or magnetic media produced by a computer, it is deemed to be a document and is admissible in evidence without further proof of the production of the original, subject to satisfaction of the conditions set out in Section 65B(2) to Sec. 65B(5) of the Evidence Act.

What are the technical and none technical grounds of admissibility of electronic evidence?

Sec. 65B of the Evidence Act further specified the technical and none technical grounds in case of admissibility of electronic records as evidence. They are as follows:

• For the purpose of presenting evidence as to the electronic record, the computer that produced it must be in regular use;

• The information which is contained in the electronic record should ordinarily and regularly be fed into the computer;

• The computer must be functioning properly and appropriately;

• The duplicate copy should be a reproduction of the original electronic record without any editing or modification.

Is it necessary to obtain an authenticity certificate?

Section 65B(4) of the Evidence Act provides for the non-technical conditions being the requirement of a certificate of authenticity.

It is necessary to mention that initially the certificate was required to be filed along with the reproduction of the electronic record but the rule has been modified in subsequent times. In a matter before the High Court of Delhi, the submission of the certificate was not mandatory to be filed along with the reproduction of the electronic data. Similar instances were followed by the Orissa High Court while considering a bail petition.

What are the presumptions with respect to the electronic record under the Evidence Act?

The presumptions under the Evidence Act are for the purpose to facilitate the electronic record as evidence. Even the Sec, 85A of the Evidence Act, the court will be presuming that the records in relevance to an agreement purporting as evidence before the court, is verified and affixed by the digital signature of the concerned parties. It is also presumed under Sec. 85B of the Act that the electronic record has not been altered since the specific point of time when the cause of action has arisen until the contrary is proven.