Introduction
With the implementation of the new Criminal Laws, the landscape of criminal litigation will change, both in practice and theory. The three constituents of Criminal Law namely, Bharatiya Nagarik Suraksha Sanhita, Bharatiya Nyaya Sanhita, and Bharatiya Sakshya Sanhita have been devised to acknowledge and accommodate the contemporary needs and situations. Former Laws dating back to the 19th century under the British regime, however suitable to conditions and jurisprudence of crime and criminality of that time, hold little merit to relevancy and reliability two centuries later. Technological Advancement namely, extensive use of Artificial Intelligence, hyper-dependence on gadgets, and increased screen time on Social Media have shaped the mindset and behavior of society as a whole, thus, change in the concept of Crime is only natural. With electronic devices obtaining the position of the primary source of communication in modern times, the question of the admissibility and credibility of electronic records based on or arising from such devices comes into play. The author puts forth two conundrums for answer, how much reliance could be placed upon them i.e. if it is to be considered primary or secondary evidence, and what steps could be taken to ensure the evidence is untampered. To solve these problems, it is crucial to understand the changes brought forth in Bharatiya Sakshya Sanhita, 2023 compared to the Indian Penal Code, 1872 regarding the admissibility of electronic records.
Former Law (Indian Penal Code, 1872)
Sections 65A and 65B of the Indian Evidence Act, 1872 were added by the Amendment Act, 2000. With the advent of Information Technology and the Internet, the amendment was crucial to keeping up with the evolving aspect of electronic records and increasing reliance upon them in legal proceedings. However, ambiguities started to arise in its interpretation and admissibility. For instance, whether such a record will be primary or secondary evidence? Does the certificate mentioned under section 65B (4) have to be produced under all circumstances, even where it is nearly impossible to obtain so? At what civil or criminal trial stage must a certificate be produced? Through interpretation, the judiciary clarified the questions of reliability and admissibility in multiple cases.
Primary or Secondary Evidence?
At this juncture, it is also important to refer to Section 62 and Section 63 of the Evidence Act. Section 62 defines the term ‘primary evidence’ – which means the document itself that is produced before the Court. Under Section 63, secondary evidence includes copies made from the original, certified copies, oral accounts of the contents of a document, etc. Electronic Records are Secondary Evidence until or unless original records are brought in a court of law. To illustrate, if a pen drive containing some files as electronic records to support the case is brought forth in court it will be classified as primary evidence, if print-outs or copies of such files as stored in the pen drive are presented as evidence, they will be under the category of secondary evidence.
Interpretation by court
Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal [1]
FACTS: In this case, the Court had to adjudicate on an election petition that challenged the election of Mr. Arjun Panditrao Khotkar from Jalna-101 Legislative Assembly Constituency, on the ground that the nomination papers were filed after the stipulated deadline. The Respondents wished to rely on video camera recordings to prove that the candidate had filed his nomination after the stipulated time. The Election Commission produced CDs containing a copy of the video camera recordings, per the direction given by the High Court. However, the necessary certificates were not produced per Section 65B4) by the Election Commission, despite multiple requests made by the Petitioner.
JUDGMENT: In the present case, the original electronic record would be the computer of the Election Commission in which the video footage is first stored. The CDs where the content of the video recording is copied shall constitute the secondary copies of the electronic record. It was held that a certificate under Section 65(4) shall have to be obtained only when the secondary copies of the electronic record are produced before the Court.
Production of a certificate shall not be necessary when the original electronic record is produced. The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him. If the “computer” where the electronic record was first stored happens to be part of a “computer network” or “computer system” (as defined under the Information Technology Act, 2000), and it is not possible to bring such a network/system physically to the Court, then secondary copies can be produced along with the certificate stipulated by Section 65B(4). Justice Nariman implies here that it is not necessary to refer to Section 62, as Section 65B (1) itself distinguishes between the original electronic record and the secondary copies of the electronic record.
Issuing of certificates in civil and criminal cases
In its interpretation of Section 65B, the court also distinguishes the use of certificates in civil and criminal cases. In civil cases, if defective or no certificates are provided despite a demand made to the concerned authority, the judge conducting the trial should summon the person(s) mentioned and require them to provide the necessary certificate. This applies when the electronic record is presented as evidence without the required certificate. In such cases, the authority lies with the trial judge.
As per the provisions of Section 65B (4) read with Sections 207, 91, and 311 of the Criminal Procedure Code (CrPC), electronic evidence must be furnished no later than before the trial commences. Although it is within the discretion of the court to permit the filing of electronic evidence at a later stage before the trial concludes.
However, CDs, VCDs, chips, and similar storage media must be accompanied by a certificate obtained at the time of taking the document, according to the provisions of Section 65B. Without such a certificate, the secondary evidence related to that electronic record becomes inadmissible.
Newly Introduced Framework
1. Definitions
Definition of “document” as per Bharatiya Sakshya Sanhita, 2023
Section 2(d)
“document means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, to record that matter and includes electronic and digital records.”
Definition of “Evidence” as per Bharatiya Sakshya Sanhita, 2023
Section 2(e)
“Evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;
2. Admissibility
One of the most notable changes brought about is that the Bhartiya Sakshya Sanhita 2023 has broadened the definition of e-evidence by including “electronic and digital records” in the definition of “document.”
Section 61 of the Bhartiya Sakshya Sanhita states:
“Nothing in this Act shall be used to deny the admissibility of an electronic or digital record as evidence on the basis that it is an electronic or digital record. Such records, subject to Section 63, shall have the same legal effect, validity, and enforceability as other documents.”
This provision places electronic records on par with primary documentary evidence. Section 61 ensures that electronic or digital records cannot be denied admissibility solely because they are electronic. These records have the same legal effect, validity, and enforceability as other documents, subject to Section 63.
Section 57 of the Bhartiya Sakshya Sanhita defines “primary evidence” and carries four other explanations named 4, 5, 6, and 7, in addition to the three explanations mentioned in the IEA. According to the BSS provisions, electronic or digital records would be treated as primary evidence in the following four circumstances:
a. Explanation 4 states that “Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.”
b. Explanation 5 states that “Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.”
c. Explanation 6 states that “Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.”
d. Explanation 7 states that “Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”
3. Authentication
The Sanhita emphasizes robust authentication methods, including digital signatures and hash values for verifying the origin and integrity of electronic records, a documented chain of custody to maintain evidence integrity, and expert testimony to explain technical aspects and validate the evidence collection and preservation process.
It is important to note that the sub-section (4) of the BSS Section 63 maintains the mandatory requirement of a certificate as specified under Section 65B (4) of the IEA but specifies that the certificate must be submitted along with the electronic record each time electronic evidence is presented before a court. Additionally, the revised provision clarifies that the certificate can be provided by any person ‘in charge of the computer or communication device and an expert (whichever is appropriate),’ replacing the previous requirement for a person ‘occupying a responsible official position.’ Section 63(4)(c) of BSS introduces Schedule A and B for this purpose. Part A needs to be filled by the Party producing the electronic record/output of the digital record, and Part B needs to be filled by an expert to submit that the HASH value/s of the electronic/digital record/is produced from the given algorithms in the form itself.
4. Expanding the reach of ‘Electronic Evidence’ under section 63
Subsection (1): Words “or semiconductor memory” and “or any communication device or otherwise stored, recorded, or copied in any electronic form” are added.
Subsection (2): The words “communication device” and “create” are added in subsection 63(2)(a)
Subsection (3): The word “computer” is replaced by “by means of one or more computers or communication devices,” and new clauses (a) to (e) are added.
Subsection (4): The words “that is to say” are replaced by “shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:”. The words “or a communication device referred to in clauses (a) to (e) of sub-section (3)” are added to clause (b) of subsection (4), and in clause (c), the words “person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities” are replaced by “person in charge of the computer or communication device or the management of the relevant activities”. The words “and an expert” and “in the certificate specified in the schedule” are added. Clause (b) of subsection (5) of IEA is excluded and now (c) corresponds to (b), where words “communication device” and “or by other electronic means as referred to in clauses (a) to (e) of sub-section (3)”. are added
The BSS, 2023 introduces significant modifications in the realm of electronic evidence, bringing about substantive changes alongside primary/secondary evidence considerations. Section 63 of BSS expands its reach to electronic records in semiconductor memories, in addition to those on paper and stored/recorded/copied in optical or magnetic media. Furthermore, the provision extends its applicability to encompass ‘any communication device,’ broadening its scope. Subsection (3) of the provision refines the definition of a computer or a communication device, providing it with a more comprehensive interpretation.
Challenges Ahead
Despite the explicit provisions of the Bhartiya Sakshya Sanhita 2023, implementing regulations governing electronic evidence presents significant challenges. Safeguarding the integrity of digital evidence, preventing tampering, and ensuring a reliable chain of custody necessitate robust technical infrastructure and specialized expertise. Law enforcement agencies and the judiciary must invest in advanced technologies and cybersecurity measures to protect electronic records effectively. Additionally, the rapid evolution of technology requires continuous updates to legal frameworks and practices, ensuring alignment with technological advancements.
Clear guidelines on admissibility and authentication ensure that digital evidence receives the same stringent scrutiny as traditional forms, simplifying legal proceedings and reducing disputes. This transformation promises to enhance efficiency and bolster trust in the judicial system.
Nevertheless, this transition demands substantial investments in digital forensics capabilities and comprehensive training for law enforcement and judiciary personnel. Building the capacity to handle and analyze digital evidence, is crucial. Legal professionals must acquire technical proficiency to navigate digital evidence in practice.
[1] Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal AIR 2020 SC 4908
Bhumika Mittal, Intern Student, AMU, Aligarh
DUCTUS EDGE 