Digital Evidence

This short paper is based on the presentationmade at the first International Conference onDigital Evidence held at London on 26 and 27 June2008, and primarily deals with the amendmentsto Indian law, to include the provisions relating todigital evidence and rules regarding therecognition and admissibility of digital evidenceunder Indian law. The recent decisions of theIndian courts on digital evidence are alsodiscussed briefly.

Law relating to digital evidence in IndiaThe proliferation of computers and the influence ofinformation technology in human lives and the storageof information in digital form required amendments toIndian law to include the provisions regarding theappreciation of digital evidence. In 2000, the IndianParliament enacted the Information Technology Act,2000 (IT Act), which brought in correspondingamendments to existing Indian statutes to make digitalevidence admissible. The IT Act is based on theUNCITRAL Model Law on Electronic Commerce and,apart from providing amendments to Indian EvidenceAct, 1872 (Evidence Act), the Indian Penal Code, 1860and the Bankers Book Evidence Act, 1891, mainlyrecognizes transactions that are carried out by means ofelectronic data interchange and other means ofelectronic communications.

Changes in the Evidence ActAlthough the Evidence Act has been in force for manyyears, it has been amended from time to time toacknowledge important developments. Similarly,amendments have been made to the Evidence Act tointroduce the admissibility of electronic records alongwith paper based documents.

EvidenceThe definition of evidence was amended to includeelectronic records (section 3(a), Evidence Act). Evidenceis of two types: oral and documentary. The definition ofdocumentary evidence has been amended to include alldocuments, including electronic records produced forthe inspection of the court. The term electronic recordshas been given the same meaning as assigned to it inthe IT Act, which provides, data, record or datagenerated, image or sound stored, received or sent inan electronic form or micro film or computer generatedmicro fiche.

AdmissionsThe definition of Admission (section 17, Evidence Act) ischanged to include a statement, oral or documentary, orcontained in electronic form, which suggests anyinference as to any fact in issue or relevant fact. Newsection 22A has been inserted into the Evidence Act toprovide for the relevancy of oral evidence as to thecontents of electronic records. It provides that oraladmissions as to the contents of electronic records arenot relevant, unless the genuineness of the electronicrecords produced is in question.

Evidence to be given when the statement formspart of electronic recordWhen any statement of which evidence is contained ispart of electronic record (section 39 Evidence Act),evidence must be given of so much and no more of theelectronic record as the court considers necessary inthat particular case to the full understanding of thenature and effect of the statement and of thecircumstances under which it was made. This provisiondeals with statements that form part of a longerstatement or of a conversation or part of an isolated

By Tejas D. Karia1

DIGITALEVIDENCE: AN INDIANPERSPECTIVE

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PAPER:

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1 For more information on India, see Manisha T.Karia and Tejas D. Karia, India, in StephenMason, general editor, Electronic Evidence:Disclosure, Discovery & Admissibility, (LexisNexisButterworths, 2007).

document, or is contained in a document that forms partof a book or series of letters or papers.

Admissibility of digital evidence New sections 65A and 65B were introduced to theEvidence Act under the Second Schedule to the IT Act.Section 5 of the Evidence Act provides that evidence canbe given only regarding facts that are in issue or wherethey are relevant, but no other facts, and section 136empowers a judge to decide as to the admissibility ofthe evidence. A new provision introduced to theEvidence Act, section 65A, provides that the contents ofelectronic records may be proved in accordance with theprovisions of section 65B. Section 65B provides thatnotwithstanding anything contained in the Evidence Act,any information contained in an electronic record,whether it be the contents of a document orcommunication printed on a paper, or stored, recorded,copied in optical or magnetic media produced by acomputer (also referred to as computer output in theAct), it is deemed to be a document and is admissible inevidence without further proof of the production of theoriginal, providing the conditions set out in section 65B(2) (5) are satisfied.

Conditions for the admissibility of digitalevidence Before a computer output is admissible in evidence,following conditions must be fulfilled, as set out insection 64(B)(2):

(2) The conditions referred to in sub-section

(1) in respect of a computer output shall be thefollowing, namely: -

(a) the computer output containing theinformation was produced by the computerduring the period over which the computer wasused regularly to store or process information

for the purposes of any activities regularlycarried on over that period by the personhaving lawful control over the use of thecomputer;

(b) during the said period, information of the kindcontained in the electronic record or of the kindfrom which the information so contained isderived was regularly fed into the computer inthe ordinary course of the said activities;

(c) 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 notoperating properly or was out of operationduring that part of the period, was not such asto affect the electronic record or the accuracy ofits contents; and

(d) the information contained in the electronicrecord reproduces or is derived from suchinformation fed into the computer in theordinary course of the said activities.

(3) Where over any period, the function of storing orprocessing information for the purposes of anyactivities regularly carried on over that period asmentioned in clause (a) of sub-section (2) wasregularly performed by computers, whether-

(a) by a combination of computers operating overthat period; or

(b) by different computers operating in successionover that period; or

(c) by different combinations of computersoperating in succession over that period; or

(d) in any other manner involving the successiveoperation over that period, in whatever order, ofone or more computers and one or morecombinations of computers, all the computersused for that purpose during that period shallbe treated for the purposes of this section asconstituting a single computer; and references

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Section 5 of the Evidence Act provides that evidence can be

given only regarding facts that are in issue or where they are

relevant, but no other facts, and section 136 empowers a judge

to decide as to the admissibility of the evidence.

in this section to a computer shall be construedaccordingly.

Section 65B (4) provides for the requirement of acertificate of authenticity in order to satisfy theconditions set out above, signed by a person occupyinga responsible official position. Such a certificate will beevidence of any matter stated in the certificate. Thecertificate must identify the electronic record containingthe statement, describe the manner in which it wasproduced, and also give such particulars of any deviceinvolved in the production of the electronic record asmay be appropriate for the purpose of showing that theelectronic record was produced by a computer. Thecertificate must also deal with any of the matters towhich the conditions for admissibility relate.

Presumptions regarding digital evidence A fact which is relevant and admissible may not have tobe construed as a proved fact. The judge has toappreciate the fact to come to conclusion that it isproved fact. The exception to this general rule is theexistence of certain facts specified in the Evidence Actthat could be presumed by the court. The Evidence Acthas been amended to introduce various presumptionsregarding digital evidence, as described below.

Gazettes in electronic formUnder the provisions of section 81A, the court presumesthe genuineness of electronic records purporting to bethe Official Gazette or an electronic record directed byany law, providing the electronic record is keptsubstantially in the form required by law, and it isproduced from proper custody.

Electronic agreementsSection 84A provides a presumption that a contract isconcluded where the digital signatures of the partiesare affixed to an electronic record that purports to be anagreement.

Secure electronic records and digital signaturesSection 85B provides that where a security procedurehas been applied to an electronic record at a specificpoint of time, then the record is deemed to be a secureelectronic record from such point of time to the time ofverification. Unless the contrary is proved, the court is topresume that a secure electronic record has not beenaltered since the specific point of time to which the

secure status relates. The provisions relating to a securedigital signature are set out in section 15 of the IT Act,and such a signature is a digital signature, which byapplication of a security procedure agreed by theparties concerned, at the time it was affixed was, was:

(a) unique to the subscriber affixing it;(b) capable of identifying such subscriber;(c) created in a manner or using a means under the

exclusive control of the subscriber and is linked tothe electronic record to which it relates in such amanner that if the electronic record was alteredthe digital signature would be invalidated.2

In the case of a secure digital signature, there is apresumption that the secure digital signature wasaffixed by the subscriber with the intention of signing orapproving the electronic record, and in respect of digitalsignature certificates (section 85C), it is presumed thatthe information listed in the certificate is correct, withthe exception of information specified as subscriberinformation that has not been verified, if the certificatewas accepted by the subscriber.

Electronic messagesUnder the provisions of section 88A, there is apresumption that an electronic message forwarded bythe sender through an electronic mail server to theaddressee to whom the message purports to beaddressed, corresponds with the message fed into hiscomputer for transmission. However, there is nopresumption as to the person by whom such messagewas sent. This provision only presumes the authenticityof the electronic message, and not the sender of themessage.

Electronic records five years oldThe provisions of section 90A make it clear that wherean electronic record is produced from any custody whichthe court in a particular case considers proper, and itpurports to be or is proved to be five years old, it maybe presumed that the digital signature affixed to thedocument was affixed by the person whose signature itwas or any person authorized by them on their behalf.An electronic record can be said to be in proper custodyif it is in the place in which, and under the care of theperson with whom, they naturally be. At the same time,the custody is not improper if it is proved to have had alegitimate origin, or the circumstances of the particular


2 Although note the flaws in these characteristics inStephen Mason, Electronic signatures in Law(Tottel, 2nd edn, 2007), 4.6 4.10.

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case are such as to render the origin probable. Thesame rule is also applicable to the Official Gazette inelectronic form.

Changes in the Bankers Book Evidence Act,1891 The definition of bankers book has been amended toinclude the printout of data stored in a floppy, disc orany other electro-magnetic device (section 2 (3)), andsection 2A provides that the printout of an entry or acopy of a printout must be accompanied by a certificatestating that it is a printout of such entry or a copy ofsuch printout by the principal accountant or branchmanager, together with a certificate by a person incharge of the computer system containing a briefdescription of the computer system and certain otherparticulars of the safeguards adopted by the system.

Changes in Indian Penal Code, 1860A number of offences were introduced under theprovisions of the First Schedule of the IT Act, amendedthe Indian Penal Code (IPC) with respect to offences forthe production of documents that have been amendedto include electronic records. The range of additionaloffences includes absconding to avoid the production ofa document or electronic record in a court (section 172,IPC); intentionally preventing the service of summons,notice or proclamation to produce a document orelectronic record in a court (section 173, IPC);intentionally omitting to produce or deliver up thedocument or electronic record to any public servant(section 175, IPC); fabricating false evidence by makinga false entry in an electronic record or making anyelectronic record containing a false statement, intendingthe false entry or statement to appear in evidence injudicial proceedings (sections 192 and 193, IPC); thedestruction of an electronic record, where a personsecrets or destroys an electronic record, or obliteratesor renders illegible the whole or part of electronic recordwith an intention of preventing the record from beingproduced or used as evidence (section 204, IPC);making any false electronic record (section 463 and465, IPC).

Recent rulings of Indian courts on digitalevidenceSearch and seizure The case of State of Punjab v. Amritsar Beverages Ltd.

(2006) 7 SCC 607, involved a search by the Sales TaxDepartment and the seizure of computer hard disks anddocuments from the dealers premises. The computerhard disk was seized under the provisions set out insection 14 of the Punjab General Sales Tax Act, 1948,which requires the authorities to return the seizeddocuments within the stipulated period (section 14 (3))provided the dealer or the person concerned is given areceipt for the property:

14. Production and inspection of books, documentsand accounts.

(1) The commissioner or any person appointed toassist him under sub-section (1) of section 3 notbelow the rank of an [Excise and Taxation Officer],may, for the purpose of the Act, require any dealerreferred to in section 10 to produce before him anybook, document or account relating to hisbusiness and may inspect, examine and copy thensame and make such enquiry from such dealerrelating to his business, as may be necessary.

Provided that books, documents and accounts of aperiod more than five years prior to the year inwhich assessment is made shall not be sorequired.

(2) Every registered dealer shall -

(a) maintain day to day accounts of his business;(b) maintain a list of his account books, display it

along with his registration certificate andfurnish a copy of such list to the AssessingAuthority;

(c) Produce, if so required, account books of hisbusiness before the Assessing Authority forauthentication in the prescribed manner;

(d) retain his account books at the place of hisbusiness, unless removed therefrom by anofficial for inspection, by any official agency, orby auditors or for any other reason which maybe considered to be satisfactory by theassessing authority.

(3) If any officer referred to in sub-section (1) hasreasonable ground for believing that any dealer istrying to evade liability for tax or other dues underthis Act, and that anything necessary for thepurpose of an investigation into his liability may


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be found in any book, account, register ordocument, he may seize such book, account,register or document, as may be necessary. Theofficer seizing the book, account, register ordocument shall forthwith grant a receipt for thesame and shall, -

(a) in the case of book, account, register ordocument which was being used at the time ofseizing, within a period of ten days from thedate of seizure; and

(b) in any otter case, within a period of sixty daysfrom the date of seizure;

Return it to the dealer or the person from whosecustody it was seized after the examination orafter having such copies or extracts takentherefrom as may be considered necessary,provided the dealer or the aforesaid person givesa receipt in writing for the book, account, registeror document returned to him. The officer may,before returning the book account register ordocument affix his signature and his official seal atone or more places thereon, and in such case thedealer or the aforesaid person will be required tomention in the receipt given by him the number ofplaces where the signature and seal of suchofficers have been affixed on each book, account,register or document.

(4) For the purpose of sub-section (2) or sub-section(3), an officer referred to in sub-section (1) mayenter and search any office, shop, godown, vessel,vehicle, or any other place of business of thedealer or any building or place except residentialhouses where such officer has reason to believethat the dealer keeps or is, for the time being,keeping any book account, register, document orgoods, relating to his business.

(5) The power conferred by sub-section (4) shallinclude the power to open and search any box orreceptacle in which any books, accounts, registeror other relevant document of the dealer may becontained.

(6) Any officer empowered to act under sub-section(3) or sub-section (4) shall have power to seizeany goods which are found in any office shop,godown, vessel, vehicle or any other place of

business or any building or place of the dealer, butnot accounted for by the dealer in his books,accounts registers, records and other documents.

The section entitles the officer concerned to affix hissignature and seal at one or more places on thedocument seized, and to include in the receipt thenumber of places where the signature and seal of theofficer had been affixed. In this instance, the officersconcerned called upon the dealer, but the dealer failedto pay heed to their requests.

The Sales Tax Authority was required to return all thedocuments seized after examination within 60 days.However, the Authority failed to return the hard disk,claiming it is not a document. When the matter camebefore the Supreme Court, a creative interpretation wasadopted, taking into account the fact that the Act wasenacted in 1948, when information technology at thattime was far from being developed. It was determinedthat the Constitution of India is a document that mustbe interpreted in the light of contemporary life. Thismean a creative interpretation was necessary to enablethe judiciary to respond to the development oftechnologies, and the court could use its owninterpretative principles to achieve a balance in theabsence of the failure of Parliament to respond to theneed to amend the statute having regard to thedevelopments in the field of science. The court statedthat the Evidence Act, which is part of the procedurallaws, should be construed to be an ongoing statute,similar to the Constitution, which meant a creativeinterpretation was possible, in accordance with thecircumstances.

It was held that the proper course for the officers insuch circumstances was to make out copies of the harddisk or to obtain a hard copy and affix their signaturesor official seal in physical form upon the hard copy andfurnish a copy to the dealer or the person concerned.

Evidence recorded on to CD In the case of Jagjit Singh v. State of Haryana (2006) 11SCC 1, the Speaker of the Legislative Assembly of theState of Haryana disqualified a Member for defection.The Supreme Court, whilst hearing the matter, alsoconsidered the appreciation of digital evidence in theform of transcripts of digital media including the ZeeNews television channel, the Aaj Tak television channel,and the Haryana News of Punjab Today televisionchannel. Y.K. Sabharwal, CJ, indicated the extent of therelevant digital materials at paragraph 25:



The original C.D.s received from Zee Telefilms, truetranslation into English of the transcript of theinterview conducted by the said channel and theoriginal letter issued by Zee Telefilms and handedover to Ashwani Kumar on his request were filed on23rd June, 2004. The original C.D.s received fromHaryana News channel along with English translationas above and the original proceedings of theCongress legislative party in respect of proceedingsdated 16th June, 2004 at 11.30 a.m. in the Committeeroom of Haryana Vidhan Sabha containing thesignatures of three out of four independent memberswere also filed.

The learned Chief Justice went on, in paragraphs 26 and27, to indicate that an opportunity had been given tothe parties to review the materials, which was declined:

26. It has to be noted that on 24th June, 2004counsel representing the petitioners were asked bythe Speaker to watch the interviews conducted inNew Delhi on 14th June, 2004 by Zee News andHaryana News (Punjab Today Television Channel)which was available on the compact disc as part ofthe additional evidence with application dated 23rdJune, 2004 filed by the complainant. The counsel,however, did not agree to watch the recording whichwas shown on these two channels. The copies of theapplication dated 23rd June, 2004 were handed overto the counsel and they were asked to file the replyby 10 a.m. on 25th June, 2004. In the replies,petitioners merely denied the contents of theapplication without stating how material by way ofadditional evidence that had been placed on recordwas not genuine.

27. It is evident from the above facts that thepetitioners declined to watch the recording, failed toshow how and what part of it, if any, was not genuinebut merely made general denials and soughtpermission to cross-examine Ashwani Kumar andopportunity to lead evidence.

The Speaker was required to rule on the authenticity ofthe digital recordings, as indicated by the learned ChiefJustice at paragraph 30:

Under these circumstances, the Speaker concludedthat there is no room for doubting the authenticityand accuracy of the electronic evidence produced by

the petitioner. The Speaker held:

In this regard, it is to be noted that the petitionerhas produced the original Compact disks (CDs),containing the interviews conducted by Zee Newsand Haryana News (Punjab Today Televisionchannel) of the six independent Members of theHaryana Vidhan Sabha including the respondentand the same have been duly certified by both theTelevision Channels as regards its contents as wellas having been recorded on 14.6.2004 at NewDelhi. It has also been certified by both theTelevision Channels through their original letters(P-9 and P-12) duly signed by their authorizedsignatures that the original CDs were handed overto Ashwani Kumar who was authorized by thepetitioner in this regard and whose affidavit is alsoon the record as Annexure - P-8 wherein he statesthat he had handed over the original CDs to thepetitioner. The letters, Annexures P-9 and P-12,also give out that the coverage of their interviewson 14.6.2004 was also telecast by both theTelevision Channels. In fact, the certificate givenby the Haryana News (Punjab Today TelevisionChannel) authenticates the place of the interviewas the residence of Mr. Ahmed Patel at 23, MotherTeresa Crescent in Delhi which interview as per thecertificate was conducted by the correspondent ofthe said Television Channel, namely Shri AmitMishra on 14.6.2004. the same certificate P-12also authenticates the coverage of the CLPmeeting held in Chandigarh on 16.6.2004conducted by their correspondent Mr. RakeshGupta.

The court determined that the electronic evidenceplaced on the record was admissible, and upheld thereliance placed by the Speaker on the interviewrecorded on the CDs for reaching the conclusion that thepersons recorded on the CDs were the same as thosetaking action, and their voices were identical. TheSupreme Court found no infirmity in the reliance placedon digital evidence by the Speaker, and the conclusionsreached by Y.K. Sabharwal, CJ, in paragraph 31 bearrepeating in full:

Undoubtedly, the proceedings before the Speakerwhich is also a tribunal albeit of a different naturehas to be conducted in a fair manner and bycomplying with the principles of natural justice.


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However, the principles of natural justice cannot beplaced in a strait-jacket. These are flexible rules.Their applicability is determined on the facts of eachcase. Here, we are concerned with a case where thepetitioners had declined to avail of the opportunity towatch the recording on the compact disc. They hadtaken vague pleas in their replies. Even in respect ofsignatures on CLP register their reply was utterlyvague. It was not their case that the said proceedingshad been forged. The Speaker, in law, was the onlyauthority to decide whether the petitioners incurredor not, disqualification under the Tenth Schedule tothe Constitution in his capacity as Speaker. He hadobviously opportunity to see the petitioners and hearthem and that is what has been stated by theSpeaker in his order. We are of the view that theSpeaker has not committed any illegality by statingthat he had on various occasions seen and heardthese MLAs. It is not a case where the Speaker couldtransfer the case to some other tribunal. The doctrineof necessity under these circumstances would alsobe applicable. No illegality can be inferred merely onthe Speaker relying upon his personal knowledge ofhaving seen and heard the petitioners for coming tothe conclusion that persons in the electronicevidence are the same as he has seen and so alsotheir voices. Thus, even if the affidavit of AshwaniKumar is ignored in substance it would have no effecton the questions involved.

The comments in this case indicate the trend of Indiancourts: judges are beginning to recognize andappreciate the importance of digital evidence in legalproceedings.

Admissibility of intercepted telephone callsThe case of State (NCT of Delhi) v. Navjot Sandhu,(2005) 11 SCC 600, AIR 2005 SC 3820, , 2005 Cri LJ3950, 122 (2005) DLT 194(SC) was an appeal againstconviction after the attack on Indian Parliament on 13December 2001, in which five heavily armed personsentered the Parliament House Complex and killed ninepeople, including eight security personnel and onegardener, and 16 people, including 13 security men,received injuries. This case also dealt with the proof andadmissibility of the records of mobile telephone calls.While considering the appeal against the accused forattacking the Indian Parliament, a submission wasmade on behalf of the accused that no reliance could beplaced on the mobile telephone call records, becausethe prosecution failed to produce the relevant certificateunder section 65B (4) of the Evidence Act. The Supreme

Court concluded that a cross-examination of thecompetent witness acquainted with the functioning ofthe computer during the relevant time and the mannerin which the printouts of the call records were taken wassufficient to prove the call records.

Examination of a witness by video conferenceThe State of Maharashtra v. Dr. Praful B Desai (2003) 4SCC 601 involved the question as to whether a witnesscan be examined by means of a video conference. TheSupreme Court observed that video conferencing is anadvancement of science and technology, which permitsone to see, hear and talk with someone far away withthe same facility and ease as if they are physicallypresent. The requirement of law for the presence of thewitness does not mean actual physical presence. Thecourt came to conclusion, while allowing theexamination of witness through video conferencing, thatthere is no bar to the examination of a witness by videoconferencing being essential part of the electronicmethod.

This decision of the Supreme Court of India has beenfollowed in other rulings of the High Court, such asAmitabh Bagchi v. Ena Bagchi AIR 2005 Cal 11, and morerecently, the High Court of Andhra Pradesh in the case ofBodala Murali Krishna v. Bodala Prathima 2007 (2) ALD72 held that necessary precautions should be taken toidentity the witness and the accuracy of equipmentused for the purpose of video conferencing, and theparty who intends to avail themselves of the facility ofvideo conferencing shall be under an obligation to meetthe entire expense.

Concluding remarksThe changes made to Indian Law with respect to digitalevidence and the positive approach of Indian courts inrecognizing and appreciating digital evidence indicatethat the law with respect to the admissibility andappreciation of digital evidence in India has to go a longway in keeping pace with the developments globally.

Tejas D. Karia, 2008


Mr Karia, a Principal Associate with Amarchand & Mangaldas& Suresh A. Shroff & Co, Advocates & Solicitors, New Delhi,India obtained his LLB from ILS Law College, Pune (2000), andLLM from Gujarat University, India (2002) and the LSE, London(2003). He specializes in international commercial arbitrationand IT law

Mr Karia is a member of the editorial board.


Digital Evidence

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