Electronic Evidence: Indian Procedures and Admissibility.

Particularly in the digital age, electronic evidence has grown to be an essential part of court cases. The admissibility and process for electronic evidence in India are governed by the Indian Evidence Act, 1872, as well as procedural rules such as the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (previously CrPC). The legal framework, admissibility standards, and procedural elements pertaining to electronic evidence in India are covered in depth below.

1. The Law’s Position on Electronic Evidence

The 1872 Indian Evidence Act (as amended by the 2000 IT Act)

The Information Technology (IT) Act of 2000 added provisions for electronic records as evidence to the Indian Evidence Act of 1872.• “Electronic records” are included as evidence under Section 3 (Definition of Evidence).• Sections 65A and 65B: Specify requirements for In 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS)

By permitting digital records, electronic communications, and forensic reports as legitimate forms of evidence, the BNSS, 2023, enhances the use of electronic evidence in criminal cases.• Making it possible for courts to accept emails, digital signatures, CCTV footage, and electronic documents.

2. Electronic Evidence Admissibility (Section 65B of the Indian Evidence Act, 1872).

Important Requirements for Admissibility

Only when electronic records meet the requirements of Section 65B are they admissible in court. These requirements include:1. Computer Output Requirement: During the relevant time period, the electronic record must be generated from a computer that was frequently used.2. System Integrity: The computer must have been operating correctly, free from errors or tampering.3. Data Authenticity: The electronic document needs to be created, saved, or obtained in the regular course of operations or business.4. Section 65B(4) Certificate:• The person in charge of overseeing the computer system needs to produce a 65B certificate. In order to verify the evidence, the certificate must be signed by the individual providing it, identify the electronic record, specify its source, and attest to the system’s good operation.

Section 65B: Judicial Interpretation• In the 2005 case of State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court first held that electronic recordings could be proven just as easily as other types of documentary evidence.• In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court made it clear that electronic evidence cannot be admitted unless Section 65B is followed.• Kailash Kushanrao Gorantyal v. Arjun Panditrao Khotkar (2020): confirmed that a certificate issued under 65B is can be presented at any point during the trial, but it is necessary for admissibility.

3. How Electronic Evidence Is Presented in Court

Step 1: Gathering Electronic Proof• Seizure and Preservation: Digital items, such as hard drives, cell phones, CCTV film, etc., must be properly seized and preserved by authorities.• Hashing Value Calculation: To confirm the legitimacy of the digital evidence, a cryptographic hash value needs to be produced.• Forensic Analysis: To find any signs of tampering or changes, certified forensic labs should review the evidence.

Step 2: Accreditation As per Section 65B• The person in charge of the system that created or stored the electronic record shall prepare the 65B certificate.•The following should be included in the certificate: • The storage mechanism.• The computer system’s dependability.• The retrieval procedure of the document. Verification that the document was not changed.

Step 3: Court submission• As part of the court procedures, the electronic evidence and the 65B certificate must be shown. Forensic specialists could be asked to testify about the veracity of the evidence if necessary.

Step 4: Authentication and Cross-Examination• The right to contest the electronic record’s authenticity belongs to the opposing party. In court, experts, forensic analysts, or IT specialists may be questioned.

4. Electronic Evidence Types and Their Acceptability

Admissibility of Electronic Evidence Type
With a 65B certificate and metadata verification, emails and WhatsApp messages are acceptable.
CCTV footage needs a time stamp, date, and source certification.
Call logs that are legally obtained and certified by the operator are admissible.
Acceptable Posts on Social Media using forensic authentication and metadata verification.
Cloud data, USBs, and hard drives must be confiscated, stored, and subjected to forensic analysis.
Under the IT Act of 2000, digital signatures and e-contracts with cryptographic verification are permitted.

5. Difficulties with Electronic Evidence Admission
6. Ignorance

The technical specifications for digital evidence are not well known by many law enforcement officers and legal experts.

2. Risks of Manipulation and Tampering Since digital material is quickly altered, authenticity can be challenging to verify. Forensic analysis and hash value techniques aid in establishing integrity.
3. The Need for a 65B Certificate• Evidence may be rejected if a 65B certificate is not shown. Legal issues may arise in certain situations when the individual creating the electronic record is unavailable.
4. Jurisdictional Concerns: Digital evidence kept on servers located abroad (such as Google, Facebook, WhatsApp) presents issues with jurisdiction.• In order to obtain data, international corporations must cooperate.
5. Trial Process Delays: Courts frequently lack technical know-how, which causes delays in the acceptance and analysis of electronic documents.
6. BNSS Provisions on Electronic Evidence and Upcoming Developments• By enabling courts to accept electronic records without imposing undue procedural restrictions, BNSS, 2023, enhances the significance of digital evidence.• It makes forensic authentication, online evidence submission, and electronic trials possible.• Promotes the use of blockchain and AI for proof verification in order to guard against manipulation.

In conclusion

In contemporary legal procedures, electronic evidence is essential; yet, its admissibility is contingent upon rigorous adherence to legal criteria, namely Section 65B of the Indian Evidence Act. Digital documents must be properly gathered, certified, and authenticated to guarantee their approval in court. Although there are still obstacles to overcome, the procedure of admitting electronic evidence in India is progressively getting better because to developments in digital forensics, revised BNSS law provisions, and judicial clarification.