evidence law

CASE COMMENT

STATE OF MAHARASHTRA V. DR. PRAFUL B. DESAI

AIR 2003 SC 2053

INTRODUCTION:

The rapid development of information and communication technologies over the past decade has revolutionized both business and individual practices. The proliferation of computers has created a number of problems for the law, as traditionally evidence relies on paper records but as more and more activities are carried out by electronic means, it becomes important that evidence of these activities be available to demonstrate the legal rights that flow from them. Now a days most electronic records are, in practice, being admitted in litigation. However, courts have struggled with the traditional rules of evidence, with inconsistent results. The common term reliability has caused confusion between the principles of authentication, best evidence, hearsay, and weight.

With specific reference to evidence, following are considerations to be borne in mind when legislating: the nature of threshold that should apply to the admissibility of electronic evidence, the burden of proof on the proponent or opponent of the evidence, and the procedural requirements to ensure a proper examination of electronic evidence adduced before the court. As one of the largest world powers to undertake comprehensive electronic transaction legislation, India should enact statutes that are state of the art.[1]

The Indian Evidence Act, 1872 contains set of rules and regulations regarding admissibility of evidence in the Indian Courts of law. Indian Evidence Act was passed by the British Parliament in 1872 setting up a path-breaking judicial measure by changing traditional legal systems of different social groups and communities. Since then from time to time amendments are made in the Indian Evidence Act to make it compatible with changing times.

The Information Technology Act was originally passed on 17th October 2000 with one of the aim to provide legal recognition to digital/electronic evidence. Hence, amendments were made in the Indian Evidence Act regarding collection and production of digital evidence in the court of law.

Some of the important provisions of the Indian Evidence Act pertaining to digital/electronic evidence are as follows –

Sec. 2(1) (t) Defining Electronic Record

"Electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

The section has made electronic record legally admissible in the court of law.

Sec. 3 (a) – Scope of definition of evidence expanded to include electronic records.

Sec. 65B – Admissibility of electronic records

The person owning or in-charge of the computer from which the evidence is taken has to give certificate as to the genuineness of electronic record.

Sec. 88A – Presumption as to electronic messages

The Court may presume that an electronic message forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

VARIOUS LAWS RELATING TO ELECTRONIC EVIDENCE IN INDIA:

The era of Information technology has brought new methods and modes of commission of crime. Each time a crime is committed whether in physical form or in cyber space, the success of prosecution largely depends on the quality of evidence presented at the trial . With the sophistication in Information technology the weapons of commission of crime are changing thereby posing a serious challenge before the investigation agencies to collect and preserve the evidence. A conviction or acquittal largely depends on the quality of evidence produced by the prosecution.

The advent information technology has brought into existence a new kind of document called the electronic record. This intangible document is of new species has certain uniqueness as compared to conventional form of documents. This document can preserved in same quality and state for a long period of time through encryption processes reducing the chance of tampering of evidence. This document can be in various forms like a simple e-mail or short message or multimedia message or other electronic forms.

The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition to electronic records and evidence submitted in form of electronic records. According to section 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. The Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages.

The Information technology has made it easy to communicate and transmit data in various forms from a simple personal computer or a mobile phone or other kinds of devices. The Information Technology Amendment Act, 2008 has recognized various forms of communication devices and defines a “communication device” under section 2 (ha)of the Act “communication device” means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image. The Indian IT Act 2000 lays down a blanket permission for records not to be denied legal effect if they are in electronic form as long as they are accessible for future reference.

All documents including electronic records produced for the inspection of the Court.

Further, in s 4, the IT Act 2000 provides:

Section 4: Legal Recognition of electronic records.—Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-

a) rendered made available in an electronic form; and

b) accessible so as to be usable for a subsequent reference.

The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence. Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with conventional form of documents.

The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.

The four conditions referred to above are:

(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.

(2) During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.

(3) Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.

(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities.

It is further provided that where in any proceedings, evidence of an electronic record is to be given , a certificate containing the particulars prescribed by 65B of the Act, and 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 would be sufficient evidence of the matters stated in the certificate.

The apex court in State v Navjot Sandhu[2]  while examining the provisions of newly added     s 65B held that in a given case, it may be that the certificate containing the details in sub- s 4 of s 65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by the court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, s. 63 and 65 of the Indian Evidence Act 1872. Paragraph 150 of the judgment which is apposite, reads as under:

 According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.

Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of s 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Indian Evidence Act 1872, namely, ss 63 and 65.

It is pertinent to note herein a recent development, that as per the IT Amendment Bill 2008 (passed by both houses of Indian Parliament and yet to be enforced), s 79A empowers the Central Government to appoint any department, body or agency as examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. ‘Electronic form of evidence’ herein means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cellphones, digital fax machines.

Further as per Section 85 B of the Indian Evidence Act, there is a presumption as to authenticity of electronic records in case of secure electronic records ( i.e records digitally signed as per Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and presumption will not operate in case of documents which do not fall under the definition of secure electronic records. It is pertinent to

point out herein that with the passage of the Information Technology Amendment Act 2008, India would become technologically neutral due to adoption of electronic signatures as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures.

The position of electronic documents in the form of SMS, MMS and E-mail in India is well demonstrated under the law and the interpretation provided in various cases. In State of Delhi v. Mohd. Afzal & Others[3], it was held that electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation, then the person challenging it must prove the same beyond reasonable doubt. The court observed that mere theoretical and general apprehensions cannot make clear evidence defective and in admissible. This case has well demonstrated the admissibility of electronic evidence in various forms in Indian courts.

The basic principles of equivalence and legal validity of both electronic signatures and hand written signatures and of equivalence between paper document and electronic document has gained universal acceptance. Despite technical measures, there is still probability of electronic records being tampered with and complex scientific methods are being devised to determine the probability of such tampering. For admissibility of electronic records, specific criteria have been made in the Indian Evidence Act to satisfy the prime condition of authenticity or reliability which may be strengthened by means of new techniques of security being introduced by advancing technologies.

THE INDIAN EVIDENCE ACT, 1872:

The Indian Evidence Act, originally passed by the British parliament in 1872, during the British Raj, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.

The enactment and adoption of the Indian Evidence Act was a path-breaking judicial measure introduced in India, which changed the entire system of concepts pertaining to admissibility of evidences in the Indian courts of law. Until then, the rules of evidences were based on the traditional legal systems of different social groups and communities of India and were different for different people depending on caste, religious faith and social position. The Indian Evidence Act and introduced a standard set of law applicable to all Indians.

The law is mainly based upon the firm work by Sir James Fitzjames Stephen, who could be called the founding father of this comprehensive piece of legislation.

The Indian Evidence Act, identified as Act no. 1 of 1872[4], and called the Indian Evidence Act, 1872, has eleven chapters and 167 sections, and came into force 1 September 1872. At that time, India was a part of the British Empire. Over a period of more than 125 years since its enactment, the Indian Evidence Act has basically retained its original form except certain amendments from time to time.

When India gained independence on 15 August 1947, the Act continued to be in force throughout the Republic of India and Pakistan, except the state of Jammu and Kashmir.[5] Then, the Act continues in force in India, but it was repealed in Pakistan in 1984 by the Evidence Order 1984 (also known as the "Qanun-e-Shahadat"). It also applies to all judicial proceedings in the court, including the court martial. However, it does not apply on affidavits and arbitration.

This Act is divided into three parts and there are 11 chapters in total under this Act.

PART-1

Part 1 deals with relevancy of the facts. There are two chapters under this part: the first chapter is a preliminary chapter which introduces to the Evidence Act and the second chapter specifically deals with the relevancy of the facts.

PART-2

Part 2 consists of chapters from 3 to 6. Chapter 3 deals with facts which need not be proved, chapter 4 deals with oral evidence, chapter 5 deals with documentary evidence and chapter 6 deals with circumstances when documentary evidence has been given preference over the oral evidence.

PART-3

The last part, that is part 3, consists of chapter 7 to chapter 11. Chapter 7 talks about the burden of proof. Chapter 8 talks about estoppel, chapter 9 talks about witnesses, chapter 10 talks about examination of witnesses, and last chapter which is chapter 11 talks about improper admission and rejection of evidence.

INFORMATION TECHNOLOGY ACT, 2000:

The Information Technology Act 2000 (also known as ITA-2000, or the IT Act) is an Act of the Indian Parliament (No 21 of 2000) notified on October 17, 2000. This act is being opposed by Save Your Voice campaign and other civil society organizations in India. User-review and consumer social networking site MouthShut.com has filed a writ petition in the Supreme Court of India to repeal and nullify parts of IT Act 2000.

The United Nations General Assembly by resolution A/RES/51/162, dated the 30 January 1997 has adopted the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. This is referred to as the UNCITRAL Model Law on E-Commerce. Following the UN Resolution India passed the Information Technology Act 2000 in May 2000, which came into force on October 17, 2000. The Information Technology Act 2000 has been substantially amended through the Information Technology (Amendment) Act 2008 which was passed by the two houses of the Indian Parliament on December 23, and 24, 2008. It got the Presidential assent on February 5, 2009 and came into force on October 27, 2009.

Information technology Act 2000 consisted of 94 sections segregated into 13 chapters. Four schedules form part of the Act. In the 2008 version of the Act, there are 124 sections (excluding 5 sections that have been omitted from the earlier version) and 14 chapters. Schedule I and II have been replaced. Schedules III and IV are deleted.

Information Technology Act 2000 addressed the following issues:

Legal Recognition of Electronic Documents

Legal Recognition of Digital Signatures

Offenses and Contraventions

Justice Dispensation Systems for Cybercrimes

The Government of India has brought major amendments to ITA-2000 in form of the Information Technology Amendment Act, 2008. ITAA 2008 (Information Technology Amendment Act 2008) as the new version of Information Technology Act 2000 is often referred has provided additional focus on Information Security. It has added several new sections on offences including Cyber Terrorism and Data Protection. A set of Rules relating to Sensitive Personal Information and Reasonable Security Practices (mentioned in section 43A of the ITAA, 2008) was released in April 2011.[6]

The amendment was passed in an eventful Parliamentary session on 23rd of December 2008 with no discussion in the House. Some of the cyber law observers have criticized the amendments on the ground of lack of legal and procedural safeguards to prevent violation of civil liberties of Indians. There have also been appreciation about the amendments from many observers because it addresses the issue of Cyber Security.

Section 69 empowers the Central Government/State Government/ its authorized agency to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource if it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence or for investigation of any offence. They can also secure assistance from computer personnel in decrypting data (see mandatory decryption), under penalty of imprisonment.[7]

Section 66A is widely criticized.[8] It has led to numerous abuses reported by the press.[9] Section 66A has also been criticised and challenged in Lucknow and Madras High Courts for its constitutional validity.[10][11] Based on Section 66A, Bombay High Court has held that creating a website and storing false information on it can entail cyber crime.[12]

 THE CASE: The State of Maharashtra v. Praful B. Desai

Briefly stated the facts are as follows:

The complainant's wife was suffering from terminal cancer. It is the case of the prosecution that the complainant's wife was examined by Dr. Ernest Greenberg of Sloan Kettering Memorial Hospital, New York, USA, who opined that she was inoperable and should be treated only with medication.

Thereafter the complainant and his wife consulted the Respondent, who is a consulting surgeon practising for the last 40 years. In spite of being made aware of Dr Greenberg's opinion the Respondent suggested surgery to remove the uterus.      

 It is the case of the prosecution that the complainant and his wife agreed to the operation on the condition that it would be performed by the Respondent. It is the case of the prosecution that on 22nd December 1987 one Dr. A. K. Mukherjee operated on the complainant's wife. It is the case of the prosecution that when the stomach was opened ascetic fluids oozed out of the abdomen. It is the case of the prosecution that Dr. A. K. Mukherjee contacted the Respondent who advised closing up the stomach.    

It is the case of the prosecution that Dr. A. K. Mukherjee accordingly closed the stomach and this resulted in intestinal fistula. It is the case of the prosecution that whenever the complainant's wife ate or drank the same would come out of the wound.         

It is the case of the prosecution that the complainant's wife required 20/25 dressings a day for more than 3 1/2 months in the hospital and thereafter till her death. It is the case of the prosecution that the complainant's wife suffered terrible physical torture and mental agony. It is the case of the prosecution that the Respondent did not once examine the complainant's wife after the operation. It is the case of the prosecution that the Respondent claimed that the complainant's wife was not his patient.      

 It is the case of the prosecution that the bill sent by the Bombay Hospital belied the Respondent case that the complainant's wife was not his patient. The bill sent by the Bombay Hospital showed the fees charged by the Respondent. It is the case of the prosecution that the Maharashtra Medical Council has, in an inquiry, held the Respondent guilty of negligence and strictly warned him.

On a complaint by the complainant a case under Section 338 read with Sections 109 and 114 of the Indian Penal Code was registered against the Respondent and Dr. A.       K. Mukherjee. Process was issued by the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. The Respondent challenged the issue of process and carried the challenge right up to this Court.         The Special Leave Petitions filed by the Respondent was dismissed by this Court on 8th July 1996.          This Court directed the Respondent to face trial. We are told that evidence of six witnesses, including that of the complainant and the investigating officer, has been recorded.

On 29th June 1998 the prosecution made an application to examine Dr. Greenberg through video-conferencing. The trial court allowed that application on 16th August 1999. The Respondent challenged that order in the High Court.            The High Court has by the impugned order allowed the Criminal Application filed by the Respondent. Hence these two Appeals.

At this stage it is appropriate to mention that Dr. Greenberg has expressed his willingness to give evidence, but has refused to come to India for that purpose. It is an admitted position that, in the Criminal Procedure Code there is no provision by which Dr. Greenberg can be compelled to come to India to give evidence.     Before us a passing statement was made that the Respondent did not admit that the evidence of Dr. Greenberg was relevant or essential. However, on above-mentioned facts, it prima-facie appears to us that the evidence of Dr. Greenberg would be relevant and essential to the case of the prosecution.

Ms. Jaisingh, senior counsel argued for the State of Maharashtra. The complainant, except for pointing out a few facts, adopted her arguments. On behalf of the Respondent submissions were made by Senior Counsels Mr Sundaram and Mr Ashok Desai.

 It was submitted on behalf of the Respondents, that the procedure governing a criminal trial is crucial to the basic right of the Accused under Articles 14 and 21 of the Constitution of India. It was submitted that the procedure for trial of a criminal case is expressly laid down, in India, in the Code of Criminal Procedure. It was submitted that the Code of Criminal Procedure lays down specific and express provisions governing the procedure to be followed in a criminal trial. It was submitted that the procedure laid down in the Code of Criminal Procedure was the "procedure established by law". It was submitted that the Legislature alone had the power to change the procedure by enacting a law amending it, and that when the procedure was so changed that became "the procedure established by law". It was submitted that any departure from the procedure laid down by law would be contrary to Article 21. In support of this submission reliance was placed on the cases of A. K. Gopalan versus State of Madras[13], Nazir Ahmed versus Emperor[14] and Siva Kumar Chadda versus Municipal Corporation of Delhi[15]. There can be no dispute with these propositions. However if the existing provisions of the Criminal Procedure Code permit recording of evidence by video conferencing then it could not be said that "procedure established by law" has not been followed.

This Court was taken through various sections of the Criminal Procedure Code. Emphasis was laid on Section 273, Criminal Procedure Code. It was submitted that Section 273, Criminal Procedure Code does not provide for the taking of evidence by video conferencing. Emphasis was laid on the words "Except as otherwise provided" in Section 273 and it was submitted that unless there is an express provision to the contrary, the procedure laid down in Section 273 has to be followed as it is mandatory. It was submitted that Section 273 mandates that evidence            "shall be taken in the presence of the accused". It is submitted that the only exceptions, which come within the ambit of the words "except as otherwise provided" are Sections 284 to 290 (those dealing with issue of Commissions); Section 295 (affidavit in proof of conduct of public servant) and Section 296 (evidence of formal character on affidavit). It is submitted that the term "presence" in Section 273 must be interpreted to mean physical presence in flesh and blood in open Court. It was submitted that the only instances in which evidence may be taken in the absence of the Accused, under the Criminal Procedure Code are Sections 317 (provision for inquiries and trial being held in the absence of accused in certain cases) and 299 (record of evidence in the absence of the accused). It was submitted that as Section 273 is mandatory, the Section is required to be interpreted strictly. It was submitted that Section 273 must be given its contemporary meaning (Contemporanea exposition est optima et fortissimm - The contemporaneous exposition is the best and the strongest in law). It was submitted that video conferencing was not known and did not exist when the Criminal Procedure Code was enacted/amended. It was submitted that presence on a screen and recording of evidence by video conferencing was not contemplated by the Parliament at the time of drafting/amending the Criminal Procedure Code. It was submitted that when the Legislature intended to permit video conferencing, it has expressly provided for it, as is evident from the Ordinance passed by the State of Andhra Pradesh in December 2000 permitting the use of video conferencing under Sec. 167(2) Criminal Procedure Code in remand applications. It is pointed out that a similar amendment is being considered in Maharashtra. It is submitted that Section 273 is analogous to the Confrontation Clause set out in the VIth Amendment to the US Constitution. It is submitted that Courts in USA have held that video conferencing does not satisfy the requirements of the Confrontation Clause.

This argument found favour with the High Court. The High Court has relied on judgments of various High Courts which have held that Section 273 is mandatory and that evidence must be recorded in the presence of the accused. To this extant no fault can be found with the Judgment of the High Court. The High Court has then considered what Courts in foreign countries, including Courts in USA, have done. The High Court then based its decision on the meaning of the term "presence" in various dictionaries and held that the term "presence" in Section 273 means actual physical presence in Court. We are unable to agree with this. We have to consider whether evidence can be led by way of video-conferencing on the provisions of the Criminal Procedure Code and the Indian Evidence Act. Therefore, what view has been taken by Courts in other countries is irrelevant. However, it may only be mentioned that the Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig[16], has held that recording of evidence by video-conferencing was not a violation of the Sixth Amendment (Confrontation Clause).

Considering the question on the basis of Criminal Procedure Code, we are of the view that the High Court has failed to read Section 273 properly. One does not have to consider dictionary meanings when a plain reading of the provision brings out what was intended. Section 273 reads as follows:

"Section 273: Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

Explanation : In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

Thus Section 273 provides for dispensation from personal attendance. In such cases evidence can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to be presence of the Accused. Thus Section 273 contemplates constructive presence. This shows that actual physical presence is not a must. This indicates that the term "presence", as used in this Section, is not used in the sense of actual physical presence. A plain reading of Section 273 does not support the restrictive meaning sought to be placed by the Respondent on the word "presence". One must also take note of the definition of the term 'Evidence' as defined in the Indian Evidence Act. Section 3 of the Indian Evidence Act reads as follows:

"Evidence----Evidence means and includes------

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence"

Thus evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video- conferencing.

 One needs to set out the approach which a Court must adopt in deciding such questions.  It must be remembered that the first duty of the Court is to do justice. As has been held by this Court in the case of Sri Krishna Gobe versus State of Maharashtra[17] Courts must endeavour to find the truth. It has been held that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the Accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights.

It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his commentaries titled "Statutory Interpretation", 2nd Edition page 617:

"It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials. "

At this stage the words of Justice Bhagwati in the case of National Textile Workers' Union v. P.R. Ramakrishnan[18], need to be set out. They are:

"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind."

This Court has approved the principle of updating construction, as enunciated by Francis Bennion, in a number of decisions. These principles were quoted with approval in the case of Commissioner of Income Tax, Bombay versus M/s Podar Cement Pvt. Ltd[19].

They were also cited with approval in the case of State versus S. J. Chowdhury[20]. In this case it was held that the Evidence Act was an ongoing Act and the word "handwriting" in Section 45 of that Act was construed to include "typewriting".

These principles were also applied in the case of SIL Import USA versus Exim Aides Silk Exporters[21].  In this case the words "notice in writing", in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. On the same principle Courts have interpreted, over a period of time, various terms and phrases. To take only a few examples:- "stage carriage" has been interpreted to include "electric tramcar"; "steam tricycle" to include "locomotive"; "telegraph" to include "telephone"; "bankers books" to include "microfilm"; "to take note" to include "use of tape recorder"; "documents" to include "computer database's".

These principles have also been applied by this Court whilst considering an analogous provision of the Criminal Procedure Code. In the case of Basavaraj R. Patil v. State of Karnataka[22] the question was whether an Accused needs to be physically present in Court to answer the questions put to him by Court whilst recording his statement under Section 313. To be remembered that under Section 313 the words are "for the purpose of enabling the accused personally to explain" (emphasis supplied). The term "personally" if given a strict and restrictive interpretation would mean that the Accused had to be physically present in Court. In fact the minority Judgment in this case so holds. It has however been held by the majority that   the Section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in facilities for legal aid in the country. It was held, by the majority, that it was not necessary that in all cases the Accused must answer by personally remaining present in Court.

Thus the law is well settled. The doctrine "Contemporanea exposition est optima et fortissimm" has no application when interpreting a provision of an on-going statute/act like the Criminal Procedure Code.

 At this stage we must deal with a submission made by Mr Sundaram. It was submitted that video-conferencing could not be allowed as the rights of an accused, under Article 21 of the Constitution of India, cannot be subjected to a procedure involving "virtual reality". Such an argument displays ignorance of the concept of virtual reality and also of video conferencing. Virtual reality is a state where one is made to feel, hear or imagine what does not really exists. In virtual reality one can be made to feel cold when one is sitting in a hot room, one can be made to hear the sound of ocean when one is sitting in the mountains, one can be made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa etc. Video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. The submissions of Respondents counsel are akin to an argument that a person seeing through binoculars or telescope is not actually seeing what is happening. It is akin to submitting that a person seen through binoculars or telescope is not in the "presence" of the person observing. Thus it is clear that so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".

Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court.    All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions.

Reliance was then placed on Sections 274 and 275 of the Criminal Procedure Code which require that evidence be taken down in writing by the Magistrate himself or by his dictation in open Court. It was submitted that video conferencing would have to take place in the studio of VSNL. It was submitted that that this would violate the right of the Accused to have the evidence recorded by the Magistrate or under his dictation in open Court. The advancement of science and technology is such that now it is possible to set up video conferencing equipment in the Court itself. In that case evidence would be recorded by the Magistrate or under his dictation in open Court. If that is done then the requirements of these Sections would be fully met. To this method there is however a draw back. As the witness is now in Court there may be difficulties if he commits contempt of Court or perjures himself and it is immediately noticed that he has perjured himself. Therefore as a matter of prudence evidence by video-conferencing in open Court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of Court and perjury are also punishable.

However even if the equipment cannot be set up in Court the Criminal Procedure Code contains provisions for examination of witnesses on commissions. Sections 284 to 289 deal with examination of witnesses on commissions. For our purposes Sections 284 and 285 are relevant.

SECTION.284: WHEN ATTENDANCE OF WITNESS MAY BE DISPENSED WITH AND COMMISSION ISSUED.

(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot he procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter : Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.

(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.

SECTION.285: COMMISSION TO WHOM TO BE ISSUED.

(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to, be found.

(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission shall be directed to such Court or officer as the Central Government may, by notification, specify in this behalf.

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission, as the Central Government may, by notification, prescribe in this behalf. "

Thus in cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. As indicated earlier Dr. Greenberg has refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance.            Even otherwise to procure attendance of a witness from a far of country like USA would generally involve delay, expense and/or inconvenience. In such cases commissions could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However advancement in science and technology has now made it possible to record such evidence by way of video conferencing in the town/city where the Court is. Thus in cases where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience the Court could consider issuing a commission to record the evidence by way of video conferencing.

It was however submitted that India has no arrangement with the Government of United States of America and therefore commission cannot be issued for recording evidence of a witness who is in USA. Reliance was placed on the case of Ratilal Bhanji Mithani v. State of Maharashtra[23]. In this case a commission was issued for examination of witnesses in Germany. The time for recording evidence on commission had expired. An application for extension of time was made. It was then noticed that India did not have any arrangement with Germany for recording evidence on commission.

 At page 798 this Court observed as follows:

The provisions contained in Sections 504 and 508-A of the Code of Criminal Procedure contain complimentary provisions for reciprocal arrangements between the Government of our country and the Government of a foreign country for

Commission from Courts in India to specified courts in the foreign country for examination of witnesses in the foreign country and similarly for Commissions from specified courts in the foreign country for examination of witnesses residing in our country. Notifications Nos. SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all, dated November 18, 1953, published in the Gazette of India Part II, Section 3 on November 28, 1953, illustrate the reciprocal arrangements between the Government of India and the Government of the United Kingdom and the Government of Canada for examination of witnesses in the United Kingdom, Canada and the examination of witnesses residing in India.

 In the present case, no notification under Section 508-A of the Code of Criminal Procedure has been published specifying the courts in the Federal Republic of West Germany by whom commissions for examination of witnesses residing in India may be issued. The notification, dated September 9, 1969, in the present case under Section 504 of the Code of Criminal Procedure is not based upon any existing complete arrangement between the Government of India and the Government of the Federal Republic of West Germany for examination of witnesses residing in West Germany. The notification, dated September 9, 1969, is ineffective for two reasons. First, there is no reciprocal arrangement between the Government of India and the Government of the Federal Republic of West Germany as contemplated in Sections 504 and 508-A of the Code of Criminal Procedure. Secondly, the notification under Section 504 is nullified and repelled by the affidavit evidence adduced on behalf of the State that no agreement between the two countries has yet been made.

 In the present case, extension of time was granted in the past to enable the State for examination of witnesses in West Germany and return of the commission to this country. The State could not obtain the return of the commission. Now, a question has arisen as to whether any extension of time should be made when it appears that reciprocal arrangements within the contemplation of Sections 504 and 508-A of the Code of Criminal Procedure are not made. The courts do not make orders in vain. When this Court finds that there are no arrangements in existence within the meaning of Sections 504 and 508-A of the Code of Criminal Procedure this Court is not inclined to make any order.

This authority, which is of a Constitution Bench of this Court, does suggest that no commission can be issued if there is no arrangement between the Government of India and the country where the commission is proposed to be issued. This authority would have been binding on this Court if the facts were identical. Ms. Jaising had submitted that notwithstanding this authority a difference would have to be drawn in cases where a witness was not willing to give evidence and in cases where the witness was willing to give evidence. She submitted that in the second class of cases commissions could be issued for recording evidence even in a country where there is no arrangement between the Government of India and that country.

 In this case we are not required to consider this aspect and therefore express no opinion thereon. The question whether commission can be issued for recording evidence in a country where there is no arrangement, is academic so far as this case is concerned. In this case we are considering whether evidence can be recorded by video-conferencing.  Normally when a Commission is issued, the recording would have to be at the place where the witness is. Thus Section 285 provides to whom the Commission is to be directed. If the witness is outside India, arrangements are required between India and that country because the services of an official of the country (mostly a Judicial Officer) would be required to record the evidence and to ensure/compel attendance. However new advancement of science and technology permit officials of the Court, in the city where video conferencing is to take place, to record the evidence. Thus where a witness is willing to give evidence an official of the Court can be deported to record evidence on commission by way of video-conferencing. The evidence will be recorded in the studio/hall where the video-conferencing takes place. The Court in Mumbai would be issuing commission to record evidence by video conferencing in Mumbai. Therefore the commission would be addressed to the Chief Metropolitan Magistrate, Mumbai who would depute a responsible officer (preferably a Judicial Officer) to proceed to the office of VSNL and record the evidence of Dr. Greenberg in the presence of the Respondent. The officer shall ensure that the Respondent and his counsel are present when the evidence is recorded and that they are able to observe the demeanour and hear the deposition of Dr. Greenberg.   The officers shall also ensure that the Respondent has full opportunity to cross-examine Dr. Greenberg. It must be clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence.

 It was then submitted that there would be practical difficulties in recording evidence by video conferencing. It was submitted that there is a time difference between India and USA. It was submitted that a question would arise as to how and who would administer the oath to Dr. Greenberg. It was submitted that there could be a video image/audio interruptions/distortions which might make the transmission inaudible/indecipherable. It was submitted that there would be no way of ensuring that the witnesses is not being coached/tutored/prompted whilst evidence was being recorded. It is submitted that the witness sitting in USA would not be subject to any control of the Court in India. It is submitted that the witness may commit perjury with impunity and also insult the Court without fear of punishment since he is not amenable to the jurisdiction of the Court. It is submitted that the witness may not remain present and may also refuse to answer questions. It is submitted that commercial studios place restrictions on the number of people who can remain present and may restrict the volume of papers that may be brought into the studio. It was submitted that it would be difficult to place textbooks and other materials to the witness for the purpose of cross-examining him. Lastly, it was submitted that the cost of video conferencing, if at all permitted, must be borne by the State.

 To be remembered that what is being considered is recording evidence on commission. Fixing of time for recording evidence on commission is always the duty of the officer who has been deputed to so record evidence. Thus the officer recording the evidence would have the discretion to fix up the time in consultation with VSNL, who are experts in the field and who , will know which is the most convenient time for video conferencing with a person in USA.   The Respondent and his counsel will have to make it convenient to attend at the time fixed by the concerned officer. If they do not remain present the Magistrate will take action, as provided in law, to compel attendance. We do not have the slightest doubt that the officer who will be deputed would be one who has authority to administer oaths. That officer will administer the oath. By now science and technology has progressed enough to not worry about a video image/audio interruptions/distortions. Even if there are interruptions they would be of temporary duration. Undoubtedly an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/prompted. It would be advisable, though not necessary, that the witness be asked to give evidence in a room in the Consulate/Embassy. As the evidence is being recorded on commission that evidence will subsequently be read into Court. Thus no question arises of the witness insulting the Court. If on reading the evidence the Court finds that the witness has perjured himself, just like in any other evidence on commission, the Court will ignore or disbelieve the evidence. It must be remembered that there have been cases where evidence is recorded on commission and by the time it is read in Court the witness has left the country. There also have been cases where foreign witness has given evidence in a Court in India and that then gone away abroad. In all such cases Court would not have been able to take any action in perjury as by the time the evidence was considered, and it was ascertained that there was perjury, the witness was out of the jurisdiction of the Court. Even in those cases the Court could only ignore or disbelieve the evidence. The officer deputed will ensure that the Respondent, his counsel and one assistant are allowed in the studio when the evidence is being recorded. The officer will also ensure that the Respondent is not prevented from bringing into the studio the papers/documents which may be required by him or his counsel. We see no substance in this submission that it would be difficult to put documents or written material to the witness in cross-examination. It is now possible, to show to a party, with whom video conferencing is taking place, any amount of written material. The concerned officer will ensure that once video conferencing commences, as far as possible, it is proceeded with without any adjournments. Further if it is found that Dr Greenberg is not attending at the time/s fixed, without any sufficient cause, then it would be open for the Magistrate to disallow recording of evidence by video conferencing. If the officer finds that Dr. Greenberg is not answering questions, the officer will make a memo of the same. Finally when the evidence is read in Court, this is an aspect which will be taken into consideration for testing the veracity of the evidence. Undoubtedly the costs of video conferencing would have to be borne by the State.

 Accordingly the impugned judgment is set aside. The Magistrate will now proceed to have the evidence of Dr. Greenberg recorded by way of video conferencing. As the trial has been pending for a long time the trial court is requested to dispose off the case as early as possible and in any case within one year from today. With these directions the Appeals stand disposed of. The Respondent shall pay to the State and the complainant the costs of these Appeals.

WHAT IS ELECTRONIC EVIDENCE?

 Evidence Act fundamentally describes two type of evidence i.e.

 1) Oral evidence and

2) Documentary evidence.

 As per amended provision Sec 3(2) of evidence Act electronic evidence is documentary evidence.

 “(2) All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.”

 Further if we refer another provision it is contained in Section 2(t) of Information Technology Act 2000 electronic record means;

 “(t) ‘electronic record’ means, “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

 So, if we refer above mentioned definitions in the light of the provisions incorporated u/s65-A & 65-B of evidence Act; Electronic Evidence is one another type of documentary evidence which is if duly proved in the manner provided in sec 65-B, can be considered as strong evidence.

 Before elaborate discussion of Electronic evidence it is required to be get a flash back up on the structure of evidence Act and also the principles of law for adducing, relying and considering evidence.

 We have a three part in evidence Act Part-I is for “RELEVANCY OF FACT”, Part-II is of “ON PROOF” and Part-III is regarding “PRODUCTION AND EFFECT OF EVIDENCE”. All evidence passes through above three stages. To consider any matter or thing relevant it must be en suite in the frame of PART-I i.e. section 5 to 55. To appreciate evidence which is considered relevant there are provisions of part-II. To make electronic evidence relevant and to establish the mode of its proof there are certain provision at different stages in the evidence Act.  

There are detailed provisions included in evidence act in which definition and the procedure of introducing electronic evidence has been mentioned by legislation.  Those provisions are hereunder.

AMENDMENTS IN EVIDENCE ACT TO INTRODUCE ELECTONIC EVIDENCE:

 To consider RELEVANCY OF FACT of electronic evidence there is Section 22A, which is included in Act. That is similar to sec. 22 in which is embargo on producing oral evidence so as to consider the contents of document, similarly Sec.22A declares that “oral evidence as to the contents of electronic records are not relevant, unless the genuineness of electronic record produced as in the question.

 Entries in books of account, including those maintained in electronic form, An entry in any public or other official book, register or by a public servant in the discharge of official duty in the performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept are the relevant facts as per Sec 34 and 35 of evidence Act.

PROVISIONS FOR THE PROOF OF ELECTRONIC EVIDENCE:

 In the PART-2  “ON PROOF” of the evidence Actt following provisions has been included to cover electronic evidence.

 65A. Special provisions as to evidence relating to electronic record

65B. Admissibility of electronic records

67A. Proof as to digital signature

73A. Proof as to verification of digital signature

81A. Presumption as to Gazettes in electronic forms

85A. Presumption as to electronic agreements

85B. Presumption as to electronic records and digital signatures 85C. Presumption as to Digital Signature Certificates

85C. Presumption as to Digital Signature Certificates

88A. Presumption as to electronic messages

90A. Presumption as to electronic records five years old

131. Production of documents or electronic records which another person, having possession, could refuse to produce

CLASSIFICATION OF ELECTRONIC EVIDENCE:

As we observe above amendments  and basic structure of evidence Act, any substance on which matter has been expressed or described can be considered a document, provided that the purpose of such expression or description is to record the matter.  Electronic records have been defined in the Information Technology Act, 2000 as any data, record or data generated, any image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. An electronic record can be safely included under such a definition because matter is recorded on the computer as bits and bytes, which are the digital equivalent of figures or marks.

 Computer records were widely considered to be hearsay statements since any information retrieved from a computer would consist of input provided by a human being. Thus, be it a word document containing statements written by one party, or an image of a missing person generated by the computer based on the inputs given to it, all such records will be hearsay.

 An electronic document would either involve documents stored in a digital form, or a print out of the same. What is recorded digitally is a document, but cannot be perceived by a person not using the computer system into which that information was initially fed. Electronic documents were admitted as real evidence, that is, material evidence, but such evidence requires certification with respect to the reliability of the machine for admission.

 Being both hearsay as well as secondary evidence, there was much hesitation regarding the admissibility of electronic records as evidence.

 In India, the change in attitude came with the amendment to the Indian Evidence Act in 2000. Sections 65A and 65B were introduced in to the chapter relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. Section 65B provides that shall be considered documents, thereby making it primary evidence, if the computer which produced the record had been regularly in use, the information fed into the computer was part of the regular use of the computer and the computer had been operating properly.  It further provides that all computer output shall be considered as being produced by the computer itself, whether it was produced directly or indirectly, whether with human intervention or without.  This provision does away with the concept of computer evidence being hearsay.

 Thus, with the amendments introduced into the statute, electronic evidence in India is no longer either secondary or hearsay evidence, but falls within the best evidence rule.

ELECTRONIC EVIDENCE IS PRIMARY AND BEST EVIDENCE IN INDIA:

 We have well established rule of evidence Act in which hearsay evidence is not considered in evidence. Even documentary evidence also been classified in primary and secondary evidence. Moreover U/s 65 of evidence Act legislation has laid down guideline for admission of secondary evidence. But after implementation of amendments regarding electronic evidence drastic change occurred in the application of evidence.

A.  Blurring the Difference between Primary and Secondary Evidence

 By bringing all forms of computer evidence into the fold of primary evidence, the statute has effectually blurred the difference between primary and secondary forms of evidence. While the difference is still expected to apply with respect to other forms of documents, an exception has been created with respect to computers. This, however, is essential, given the complicated nature of computer evidence in terms of not being easily producible in tangible form. Thus, while it may make for a good argument to say that if the word document is the original then a print out of the same should be treated as secondary evidence, it should be considered that producing a word document in court without the aid of print outs or CDs is not just difficult, but quite impossible.

B.  Making Criminal Prosecution Easier

 In light of the recent spate of terrorism in the world, involving terrorists using highly sophisticated technology to carry out attacks, it is of great help to the prosecution to be able to produce electronic evidence as direct and primary evidence in court, as they prove the guilt of he accused much better than having to look for traditional forms of evidence to substitute the electronic records, which may not even exist. As we saw in the Ajmal Kasab case, terrorists these days plan all their activities either face-to-face, or through software. Being able to produce transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused.

 Similarly, in the case of State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers.

C. Risk of Manipulation

 While allowing all forms of computer output to be admissible as primary evidence, the statute has overlooked the risk of manipulation. Tampering with electronic evidence is not very difficult and miscreants may find it easy to change records which are to be submitted in court. However, technology itself has solutions for such problems. Computer forensic has developed enough to find ways of cross checking whether an electronic record has been tampered with, when and in what manner.

D. Opening Potential Floodgates

Computers are the most widely used gadget today. A lot of other gadgets involve computer chips in their functioning. Thus, the scope of Section 65A and 65B is indeed very large. Going strictly by the word of the law, any device involving a computer chip should be adducible in court as evidence. However, practical considerations as well as ethics have to be borne in mind before letting the ambit of these Sections flow that far. For instance, the Supreme Court has declared test results of narco-analysis to be inadmissible evidence since they violate Article 20(3) of the Constitution. It is submitted that every new form of computer technology that is sought to be used in the process of production of evidence should be subjected to such tests of Constitutionality and legality before permitting their usage.

CONCLUSION:

 It has thus been seen that with the increasing impact of technology in everyday life, the production of electronic evidence has become a necessity in most cases to establish the guilt of the accused or the liability of the defendant. The shift in the judicial mindset has occurred mostly in the past twenty years and most legal systems across the world have amended their laws to accommodate such change.

 Further, when society is largely utilized computers and even investigation seeks help of gadgets which product of modern electronic technology prosecution is need to be armed with latest technological knowledge and basics of admissibility of electronic evidence as well.

 In India, all electronic records are now considered to be documents, thus making them primary evidence. At the same time, a blanket rule against hearsay has been created in respect of computer output. These two changes in the stance of the law have created paradigm shifts in the admissibility and relevancy of electronic evidence, albeit certain precautions still being necessary. However, technology has itself provided answers to problems raised by it, and computer forensics ensure that manipulations in electronic evidence show up clearly in the record. Human beings now only need to ensure that electronic evidence being admitted is relevant to the fact in issue and is in accordance with the Constitution and other laws of the land.

---

[1] Nandan Kamath, Law Relating to Computers Internet & E-Commerce, Chapter 3, page 50, para4, Ed. 4th

[2]  (2005) 11 SCC 600

[3] 2003 (3) JCC 1669

[4]  Kerala Medico-Legal Society Indian Evidence Act. The Amendment by Act 10 of 2009 is also included

[5] https://sites.google.com/site/keralamedicolegalsociety/home-1/important-laws-and-rules/short-title-extent-and-commencement

[6] http://www.mit.gov.in/sites/upload_files/dit/files/RNUS_CyberLaw_15411.pdf

[7] http://www.sacw.net/article606.html

[8] http://cis-india.org/internet-governance/resources/section-66A-information-technology-act

[9] http://www.outlookindia.com/article.aspx?282245

[10] http://articles.timesofindia.indiatimes.com/2012-11-21/social-media/35257411_1_writ-petition-facebook-post-life-and-liberty

[11] http://www.thehindu.com/news/states/tamil-nadu/validity-of-section-66a-of-it-act-challenged/article4116598.ece

[12] http://articles.timesofindia.indiatimes.com/2013-08-19/mumbai/41424525_1_website-section-66-a-section-66a

[13] AIR 1950 S. C. 27

[14] AIR 1936 Privy Council 253

[15] AIR 1975 S.C. 915

[16] [497 US 836]

[17] [(1973) 4 SCC 23] 

[18]  (1983) 1 SCC 228, at page 256

[19] [(1997) 5 SCC 482]

[20] [(1996) 2 SCC 428]

[21] [(1999) 4 SCC 567]

[22] [(2000) 8 SCC 740]

[23] [(1972) 3 SCC 793].