Digital Evidence Nature, Collection & production before court of law

Changes in IT Act w.r.t. evidence

Amendments to Indian Evidence Act

For production of any electronic record, digital signature, electronic message etc. in any court proceedings

Amendments to Bankers Book Evidence Act

Mode of proof of entries in bankers books

Evidence The Indian Evidence Act, 1872

Nature: Electronic Form, Electronic Records & Information (all as defined in IT Act) E-records to be admissible as documentary evidence. (Sections 3, 65A, 65B) Primary Evidence Provisions relating to proving of digital signatures. (Section 67A) Presumptions as to e-agreements; e-records and digital signatures; DSCs; e-messages (important to eCommerce); e-records 5 years old. (Sections 85A,85B,85C,88A,90A)

Evidence The Indian Evidence Act, 1872 Capturing & Producing

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 period by 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 or is derived from such information fed into the computer in the ordinary course of the said activities.

Evidence The Indian Evidence Act, 1872 Capturing & Producing

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 production of 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 subsection (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.

Evidence The Indian Evidence Act, 1872 Capturing & Producing

Cyber Forensics Labs where electronic records can be taken for obtaining certificate: 3 Labs at Hyderabad 1 Lab at Trivandrum 1 Lab at CBI, Delhi 1 Lab at Himachal 1 Lab at Ahmadabad 1 Lab at Mumbai

Case law for Admissibility of Electronic Records

- Supreme Court

State (NCT of Delhi) v. Navjot Sandhu, 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 for Admissibility of Electronic Records

- High Courts

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.

NESTLE S.A. and ANR v. ESSAR INDUSTRIES and ORS. (I.A.No.3427/2005 in CS(OS) No.985/2005 ) The plaintiffs in the instant case seek to prove the electronic data already on record and the updated electronic data under Sub-section 1 of Section 65B after complying with the provisions of Sub-section 4 by filing affidavit of an officer accompanied by the requisite certificate

Case law for Admissibility of Electronic Records - TADA Court (prior to IT Act)

TADA COURT (MUMBAI) Bombay Bomb Blast Case Sanjay Dutts call records (prior to IT Act)

The court observed that the print-outs are not a copy of the magnetic tape because the tape by itself cannot be termed as a document. It does not fall within the definition of a document under section 3 of Indian Evidence Act. Evidence is something which can be perceived by the human senses. Matter, which cannot be perceived by the human senses by a Judge cannot fall within the definition of the word 'document' or the word 'evidence'. Even if the magnetic tape had been produced before the court, the court would have been unable to directly perceive i.e. to read, hear or see the matter stored on it and consequently, would have been unable to act upon the said matter. The print-outs, on the other hand constitute the direct evidence of the matter. They were taken by technicians from the computer in the presence of the witness and after satisfying that at the relevant time the computer was properly working. It was therefore, ruled that the print-outs were primary evidence.

Case law on the nature of Electronic Records - a very recent Delhi High Court judgment

Dharambir v. CBI (pronounced on 11th March 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 bankers 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 backup 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.

Evidence Bankers Books Evidence Act, 1891

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 SBIs 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.