What is and How to use Electronic Evidence
You can use under section 65(B)as a secondary evidence and in this you have no need to prove its original or not. After section 65, section 65A and 65B have been added laying down the provisions about Admissibility of electronic records.
Moreover, the concept of electronic evidence fails to identify the kinds of documentary evidence namely the primary and the secondary evidence as every electronic record is an original as well as in duplicate.
However, the provisions of section 65A and 65B help to overcome this complex situation.
The AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872 introduced this new section which states:- Admissibility of electronic records.
65B. (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information
and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: —
(a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents;
and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) ofsub-section (2) was regularly performed by computers, whether—
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, —
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom bycalculation, comparison or any other process.
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The phenomenon of tendering tape recorded conversation before law courts as evidence, particularly in cases arising under the Prevention of Corruption Act, where such conversation is recorded by sending the complainant with a recording device to the person demanding or offering bribe has almost become a common practice now. In civil cases also parties may rely upon tape records of relevant conversation to support their version. In such cases the court has to face various questions regarding admissibility,
nature and evidentiary value of such a tape- recorded conversation. The Indian Evidence Act, prior to its being amended by the Information Technology Act, 2000, mainly dealt with evidence, which was in oral or documentary form. Nothing was there to point out about the admissibility, nature and evidentiary value of a conversation or statement recorded in an electro-magnetic device. Being confronted with the question of this nature and called upon to decide the same, the law courts in India as well as in England devised and developed principles so that such evidence, mat be received in law courts and acted upon.
The relationship between law and technology has not always been an easy one. However, the law has always yielded in favour
of technology whenever it was found necessary. The concern of the law courts regarding utility and admissibility of tape recorded conversation, from time to time found its manifestation in various pronouncement. In Hopes v. H.M. Advocate, 1960 Scots Law Times 264, the court while dealing with the question of admissibility of tape recorded conversation observed as under:
New techniques and new devises are the order of the day. I can’t conceive, for example, of the evidence of a ship’s captain as to what he observed being turned down as inadmissible because he had used a telescope, any more than the evidence of what an ordinary person sees with his eyes becomes incompetent because he was wearing spectacles. Of course, comments and criticism can be made, and no doubt will be made, on the audibility or the intelligibility, or perhaps the interpretation, of the results of the use of a scientific method; but that is another matter and that is a matter and that is a matter of value, not of competency.
An authoritative and categorical exposition this point is found in Rex v. Maqsud, 1965(2) All ER,461 wherein the Court of Criminal Appeal observed that the time has come when this court should state its views of the law matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues in involved in the case and that the print as seen represents situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the
naked eye have been admitted, and now there are devices for picking up, transmitting and recording conversations. In principle no difference can be made between a tape recording and a photograph. The court was of the view that it would wrong to deny to the law of evidence advantages to be gained by new techniques and devises.
In India, the earliest case in which issue of admissibility of tape-recorded conversation came for consideration is Rupchand v. Mahabir Prasad, AIR 1956 Punjab 173.
The court in this case though declined to treat tape-recorded conversation as writing within the meaning of section 3 (65) of the General Clauses Act but allowed the same to be used under section 155(3) of the Evidence Act as previous statement to shake the credit of witness. The Court held there is no rule of evidence, which prevents a party, who is endeavoring to shake the credit of a witness by use of former inconsistent statement, from deposing that while he was engaged in conversation with the witness, a tape recorder was in operation, or from producing the said tape recorder in support of the assertion that a certain statement was made in his presence.
In S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 a five judges bench of Apex Court considered the issue and clearly propounded that tape recorded that tape recorded talks are admissible in evidence and simple fact that such type of evidence can be easily tampered which certainly could not be a ground to reject such evidence as inadmissible or refuse to consider it, because there are few documents and possibly no piece of evidence, which could not be tempered with. In this case the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation has taken place.
The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC147 considered various aspects of the issue relating to admissibility of tape recoded conversation. This was a case relating to an offence under section 165-A of Indian Penal Code and at the instance of the Investigating Agency, the conversation between accused, who wanted to bribe, and complainant was tape
recorded. The prosecution wanted to use this tape recorded conversation as evidence against accused and it was argued that the same is hit by section 162 CrPC as well as article 20(3) of the constitution. In this landmark decision, the court emphatically laid down in unequivocal terms that the process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape recorded, formed part of res-gestae and is relevant and admissible under section 8 of the Indian Evidence Act.
b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 7 of the Indian Evidence Act.
c) Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under section 162 of the Criminal Procedure Code.
d) Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the article 20(3) was not available.
e) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.
Conditions Of Admissibility:
The tape recorded conversation can be erased with ease by subsequent recording and insertion could be superimposed. However, this factor would have a bearing on the weight to be attached to the evidence and not on its admissibility. Ultimately, if in a particular case, there is a well grounded suspicion not even say proof, that the tape recording has been tampered with that would be a good ground for the court to discount wholly its evidentiary value as in Pratap Singh v. State of Punjab, AIR 1964 SC 72. in the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3, following conditions were pointed out by the Apex Court for admissibility of tape recorded conversation:
a) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
Identification Of Voice:
As regards the identification of the taped voice, proper identification of such voice is a sine qua non for the use of such tape recording, therefore, the time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. [(See: Yusufalli Esmail Nagree) (Supra)]
Transcript:
The importance of having a transcript of the tape-recorded conversation cannot be under estimated because the same ensures that the recording was not tampered subsequently. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788, the Apex Court considered the value and use of such transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcripts can be used by a witness to refresh his memory under section 159 of the Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by section 160 of Evidence Act.
Nature:
Tape-recorded conversation is nothing but information stored on a magnetic media. In the case of Roopchand (Supra), though, Punjab High Court declined to treat tape recorded conversation as a writing within the meaning of section 3 (65) of the General Clauses Act but this view could not be survive for a long and the Apex Court in Ziyauddin Burhanuddin Bukhari (Supra) clearly laid down that the tape recorded speeches were "documents as defined by section 3 of the Evidence Act", which stood on no different footing than photographs.
After coming into force of the Information Technology Act, 2000, (w.e.f. 17.10.2000) the traditional concept of evidence stands totally reformed. Section 2(r) of this Act is relevant in this respect which defines information in electronic form as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. Under section 2 (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. Section 92 of this Act read with Schedule (2) amends the definition of ‘evidence’ as contained in section 3 of the Indian Evidence Act. The amended definition runs as under:
“Evidence:- ‘Evidence’ means and includes-
(1) all statements which the court permits or requires to be made before it by witness, in relation to matters of fact under inquiry; such statement is called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.
From the aforesaid provisions it becomes amply clear that the law, as it prevails today, takes care of information stored on magnetic or electronic device and treats it as documentary evidence within the meaning of section 3 of the Indian Evidence Act.
Utility/ Evidentiary Value:
The next question regarding evidence of the tape-recorded information, is about utility and evidentiary value. In this respect following points require consideration:
a) Whether such evidence is primary or secondary?
b) Whether such evidence is direct or hearsay?
c) Whether such evidence is corroborative or substantive?
The point whether such evidence is primary and direct was dealt with by the Apex Court in N. Sri Rama Reddy v. V.V. Giri, AIR 1971 SC 1162. the court held that like any document the tape record itself was primary and direct evidence admissible of what has been said and picked up by the receiver. This view was reiterated by the Apex Court in R.K. Malkani v. State of Maharashtra, AIR 1973 SC 157. in this case the court ordained that when a court permits a tape recording to be played over it is acting on real evidence if it treats the
intonation of the words to be relevant and genuine. Referring to the proposition of law as laid down in Rama Reddy’s case (Supra), a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehta, AIR 1975 SC 1788 propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, it could subject to the provisions of the Evidence Act, be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established.
From the aforesaid it can well be gathered as a settled legal proposition that evidence of tape recorded conversation being primary and direct one it can well be used to establish what was said by a person at a particular occasion.
Corroboration/Contradiction:
Under section 157 of the Indian Evidence Act, a witness may be corroborated by his/her previous statement. Section 145 of the Act permits use of a previous statement for contradiction of a witness during cross-examination. Again clause (1) of section 146 provides that during cross examination, question may be put to a witness to test his veracity. Section 153 generally deals with exclusion of evidence to contradict answers to questions testing veracity. However, exception (2) of it permits a witness being contradicted if he has denied any fact which was put to him to impeach his impartiality. Section 155 (3) deals with impeaching the credit of a witness liable to be contradicted.
http://www.legalservicesindia.com/articles/trc1.htm
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The Apex Court in N. Sri Rama Reddy (Supra) after considering the matter laid down that the evidence of the tape recorded conversation/statement apart from being used for corroboration is admissible for the purposes stated in Section 146 (1), Exception (2) to section 153 and section 155 (3) of the Evidence Act.
Also see this judgement also
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20/11/2007
CORAM : THE HONOURABLE MR. JUSTICE A. KULASEKARAN
C.R.P. (PD) No. 2657 of 2007 and
M.P. No.1 of 2007
G. Shyamala Ranjini .. Petitioner
Versus
M.S. Tamizhnathan .. Respondent
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Audio, Video, & Photos are all electronic records and evidence covered under Evidence Act. No need for digital signature certificate in Family Courts as long as you can prove that the evidence material is genuine along with the original storage chip or microchip or data chip. If chips not available then witnesses in the audio or video can be used. Read the IT Act of 2000 and amended in 2008. Even e-mails can be used as proof of some event. The e-mail address sent or received should be known to the person and he/she should admit use of the e-mail address.You can also use electronic form of evidence to get your Anticipatory Bail w.r.t Matrimonial Offences by quoting the IT Act and showing the recording of apprehension of a false case.After the passage of the Information Technology Act-2000 (ITA2000), Electronic Documents have come to be recognized as equivalent to written documents for the purpose of law. Similarly, Digital Signatures affixed as per the provisions of the ITA-2000 will be considered equivalent to written signatures. The Indian Evidence Act has also been suitably amended by the ITA-2000 to provide for presentation of evidences of Electronic Documents either in the electronic form itself or as certified print outs. It is therefore envisaged that Electronic Documents such as E-Mails and Web Pages will be potential evidences to prove contracts by any party to a business contract.Not sure if this works or is legit but pasting the stuff here for legally admissible mail servings or summons in 498a cases incase your wife is missing in action:
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More teeth and byte to IT law
Changes to the IT Act will enable it to crack down on cyber offences strongly but the law is ‘soft’ in parts, say experts..
When it comes to spamming, the grouse is that the relevant Section (Section 66 A) would only apply if the identity of the spammer is established.
Moumita Bakshi Chatterjee
Nearly three years after it was introduced in the Lok Sabha and almost a year after it received a green signal from both Houses of Parliament, the IT (Amendment) Act, 2008 has come into force. The amendment allows the Government to go after new-age cyber criminals and crimes — identity theft, cyber-stalking, cyber harassment, child pornography and spamming — and also gives it more ammunition to tackle cyber terrorism.
But legal eagles say the changes have turned out to be a bitter-sweet pill. While the cyber law zeroes in on new forms of crime, it has toned down punishment in the case of certain offences. Critics further caution that the new legislation arms the State with sweeping powers to block Web sites and snoop, but has not built in adequate safeguards to check possible misuse of such powers.
Crowning glory
First, the good news. Clearly, one of the most important changes that have been brought about pertains to cyber terrorism, with Section 66 F of the amended legislation prescribing life imprisonment for such offences. This assumes significance as the recent terror attacks have demonstrated just how tech-savvy militants can be.
Be it the Parliament attack or the more recent Mumbai terror strike, the use of technology — from satellite phones, e-mails, Internet to the more sophisticated GPS equipment — has been rampant. Experts opine that the amendments that have come into force now have penned down the widest possible definition of cyber terrorism even by global standards. “In that sense, India has taken thought leadership in clamping down on cyber terrorism,” says an industry watcher.
To quote the section verbatim, “whoever, knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of security of the State or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, or to advantage of any foreign nation, group of individuals or otherwise commits the offence of cyber terrorism.”
Cyber law experts have dubbed the new Section as the crowning glory of the legislation. “The original IT Act did not have relevant teeth to deal with cyber terrorism. It now provides an additional remedy for booking cyber terrorism, where perpetrators leverage electronic formats and technology to execute terror attacks,” they say.
At the same time, the amendments have expanded the scope of the Act beyond the ambit of computer and computer network to specifically include “communication device” — mobile phones, PDAs or any other device used to communicate, send or transmit any text, video, audio or images. In one swift move, this has brought mobile users under the scanner. Earlier too, mobiles were considered to be under the wide definition of “computer” but now, inserting a clause on “communication devices”, has left no doubt about the scope of the Act.
Breather for intermediaries
Another contentious clause that has been tweaked pertains to the liability of intermediaries. Remember the controversial arrest of Baazee.com CEO in December 2004 in a case involving the sale of a sexually explicit MMS clip, on the auction site? Well, the IT (Amendment) Act now provides a breather of sorts to such intermediaries.
Under the original Act, the intermediary was required to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of an offence.
“The amendment shifts the onus of proving the guilt on the law-enforcement agencies instead. It has decimated the liability of intermediaries so long as they observe due diligence and fulfil other parameters of Section 79. On the other hand, it has made the definition of intermediaries more comprehensive to includes auction sites, telecom and network service providers, ISPs, web hosting companies, search engines and online payment sites, among others,” says Pavan Duggal, a noted lawyer and an expert on issues pertaining to cyber regulation.
Casting the net wide
The new legislation casts its net, wide. It now talks in specific terms — sending offensive messages through communication services (spamming), violation of privacy (video voyeurism), Wi-Fi hacking, phishing, identity theft, et al.
“While a few of these offences find mention in the Indian Penal Code (IPC), the IT Act, by providing specific provisions pertaining to those offences such as cheating by impersonation, or criminal intimidation through spamming or sending insulting messages, provides better clarity,” points out Karnika Seth, managing partner of Seth Associates Law firm and author of Cyberlaws in the Information Technology Age.So far silent on heinous crimes such as child pornography, the amended law clamps down on such offences.
Publishing and transmitting of material depicting children in sexually explicit acts, etc, in electronic form will attract up to five-year imprisonment and a fine of up to Rs 10 lakh on first conviction; and up to seven-year imprisonment and fine of up to Rs 10 lakh on second and subsequent conviction.
‘Soft’ in some portions
However, a section of the legal fraternity feels that notwithstanding its expanded ambit, the law has gone “soft” on cyber crimes.
Barring cyber terrorism and a few other offences, all offences where punishment is up to three years are now bailable. Moreover, in the case of Section 67 dealing with publishing or transmitting obscene material in electronic form, while the original Act stipulated up to five-year imprisonment and Rs 1 lakh fine for the first conviction, it now talks about up to three-year imprisonment and up to Rs 5 lakh fine. Similarly, the term for the second and subsequent conviction stands reduced. “At a time when the world is increasing the quantum of punishment for cyber crimes, India perhaps has the dubious distinction of reducing the punishment,” quips Duggal.
Critics have also spoken out against enhanced powers of the State when it comes to issuing direction for interception or monitoring or decryption of any information through any computer resource; or directions to block public’s access to information generated, transmitted or even hosted in a computer resource.
“The provisions pertaining to blocking of Web sites is an area of concern. Instead of State agencies, the legal system should give the necessary directions. There should be a set process of giving notices and hearing before such blocking takes place,” says e-security expert Vijay Mukhi.
Some analysts are also of the opinion that while Section 43 (A) talks about compensation for failure to protect data — it assigns responsibilities on body corporate, possessing, dealing or handling any sensitive personal data — India should have taken the cue from nations such as the UK that have a distinct and comprehensive legislation dealing with the subject. Their view: a single provision is not adequate to cover the critical issue.
Similarly, when it comes to spamming, the general grouse is that the relevant Section (Section 66 A) would only apply if the identity of the spammer is established — a tall order in itself.
“The US has anti-spam law in the form of Can Spam Act, anti-spam legislations are also in place in Australia and New Zealand. But the Indian IT Act has not addressed this effectively,” says Duggal, adding that these offences should have been covered more exhaustively under the amended legislation.
Still, the law appears to be far more potent now in dealing with new-age cyber crimes than ever before.
But for a country where the conviction for cyber crime has been abysmally low thus far and under-reporting has been the order of the day, just how effective the law turns out remains to be seen.
moumita@thehindu.co.in
http://www.thehindubusinessline.com/ew/2009/11/09/stories/2009110950010100.htm
