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].