ADMISSIBILITY OF COMPUTER RECORDS IN EVIDENCE
By Mr Raunak Singh,
IVth BSL LLB, ILS Law College, Pune.
In the last few years the term computer has occupied a very significant position in almost all the spheres of our life. In this electronic era, computers play a very important role not only in the life of individuals but even various companies and other body corporate. But on one hand where these computers have come up with end number of contributions toward their achievements and developments, on the other hand they have also provided a new face to the criminal and anti social activities. Keeping this very fact in view, the body of law in order to keep its momentum in accordance with the time has brought about few changes in its statute.
The second schedule of The Information Technology Act 2000 is India’s only act dealing with computer crime, with an intension to introduce the concept of electronic evidence has added to the provisions of Indian Evidence Act, 1872 which had been drafted earlier keeping in mind only the physical world. These amendments can be summed up as following:
1. In section 3,—
(a) In the definition of "Evidence", for the words "all documents produced for the inspection of the Court", the words "all documents including electronic records produced for the inspection of the Court" have been substituted;
(b) after the definition of "India", the following have been inserted, namely:— 'the expressions "Certifying Authority", "digital signature", "Digital Signature Certificate", "electronic form", "electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" with the meanings respectively assigned to them in the Information Technology Act, 2000. '
2. In section 17, for the words "oral or documentary,", the words "oral or documentary or contained in electronic form" have been substituted.
3. After section 22, section 22A has been inserted which says that “Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.".
4. In section 34, for the words "Entries in the books of account", the words "Entries in the books of account, including those maintained in an electronic form" have been substituted.
5. In section 35, for the word "record", in both the places where it occurs, the words "record or an electronic record" have been substituted.
6. For section 39, the following section has been substituted, namely: —
What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.
"39. When any statement of which evidence is
given forms part of a longer statement, or
of a conversation or pan of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.".
7. After section 47, section 47A has been inserted, which talks about, Opinion as to digital signature where relevant.
8. In section 59, for the words "contents of documents" the words "contents of documents or electronic records" have been substituted.
9. After section 65, section 65A and 65B have been added laying down the provisions about Admissibility of electronic records.
10. After section 67, section 67A has been inserted, which talks about Proof as to digital signature.
11. After section 73, section 73A has been added which talks about Proof as to verification of digital signature.
12. After section 81, section 81A has been added which talks about Presumption as to Gazettes in electronic forms.
13. After section 85, the following sections have been inserted, namely: —
i) 85A which talks about Presumption as to electronic agreements
ii) 85B which talks about Presumption as to electronic records and digital signatures.
iii) 85C which talks about Presumption as to Digital Signature Certificates.
14. After section 88, section 88A has been inserted which talks about Presumption as to electronic messages.
15. After section 90, section 90A has been added which talks about Presumption as to electronic records five years old.
16. For section 131, the
following section has been substituted, namely: —
Production of documents or electronic records which another person, having possession, could refuse to produce.
"131. No one shall be compelled to produce
documents in his possession or electronic
records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.".
The second schedule of The Information Technology Act, 2000, has broadened the scope and meaning of the term ‘Evidence’. The system of judiciary prior to enforcement of this schedule did not witness any evidence involving computer records. Now, the question which arises is that whether the judicial wing of our country has accepted the new shape provided to it or not or whether the judiciary has accepted electronic evidence and digital signatures the same way as it did with paper based documentary evidence and manual signature. The courts of India have very well encountered such electronic evidence in accordance with the newly introduced laws, at times even with the help of cyber forensic expert and the cyber lawyer. The next question which strikes our mind is that whether such computer records are as good evidence as paper based documentary evidence. The nature of such electronic evidence is a complex one as it demands extra caution and care during collection of evidence. 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 admissibility of computer records in evidence can said to be a result of the revolutionary development of the mankind promoted by the computers and internet around. Today, any system or organization can not think of moving ahead without the assistance of computers and simultaneously there are certain laws to govern such systems and organizations. These laws need to be amended with the changing structure of these systems and organizations. The admissibility of computer records in evidence is just one of the examples of such an amendment demanded by the structural change of the systems and organizations around.