– By Susmita Tripathy, 3rd year BA LLB,(DSNLU Visakhapatnam)
Today, cell phones have become a necessity than a luxury. All kinds of activities today can be done on a smartphone. It can store a treasure trove on information, or carry out calculation, communication, conduct GPS tracking, set reminders, and what not. Even the police relies heavily on cell phones today. In a 2009 Utah case , the FBI used a cell site emulator later which came to be known as a “stingray” operation.
The UNCITRAL (United Nations Commission on International Trade Law) Model Law on Electronic Commerce allows for admissibility of digital evidence in the court of law. Following this, UN member states amended their domestic laws accordingly. India also amended its Information Technology Act (hereinafter IT Act) in consonance with UNCITRAL rules. Digital evidence or electronic evidence is any probative information stored or transmitted in a digital formthat a party at a case may use at trial.
In the case of E.C. vs R.H. , Judge Jones examined proper use of cell phone evidence. He tried to distinguish the limit till which the information on a cell phone became an unwanted from wanted, from mild annoyance to harassment. This case involving one party, a lady getting harassed by text messages, on voicemails and in other social media. She wanted a restriction order against the defendant which was granted by the court. Here, the evidence was adduced directly from the ladies’ phone.
The disadvantages of using phone as an evidence:-
1) No hard copy printout of the electronic evidence can be given.
2) The small screen of the cell phone causes reading challenge.
3) The evidence cannot be viewed by both parties simultaneously and also by other affected parties and related people.
4) Even if someone recites the evidence directly from the phone, there is no guarantee that the person is telling the truth, also long messages reading it can be time consuming and a cumbersome task.
5) In voicemails, exact words said in the voicemail are difficult to decipher.
6) Evidence cannot be preserved for deliberation stage, by making a copy of it.
Under the wide definition of the words “document” and “evidence” in the amended section 3, of Indian Evidence Act, read with section 2(o) and (t) of Information Technology Act (hereinafter IT Act), electronic record is also a document. Thus, photograph, being electronically recorded will amount to a valid document.
Illustration (a) of section 63 of the Indian Evidence Act (hereinafter, IEA) talks about photograph of an original is secondary evidence of its contents, though the two need not have been specifically compared, if it can be sufficiently proved that the document from which the photograph was taken was an original document.
Section 2(t) of the IT Act explains electronic record meaning any data, record, or data generated, image or sound stored, received or sent in an electronic form. Section 2(r) of IT Act talks about “electronic form” – meaning any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated micro fiche or similar device.
Section 79A of the IT Act of 2008, states electronic form evidence can mean any information of value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.
In the landmark judgment of Anvar PV v. PK Bashir , the rule of law was clearly stated by the court that- section 65A IEA should be read with section 59 IEA and section 65B IEA for electronic records, these are the special provisions that was amended by the IT Act. Section 59 IEA and 65A IEA deal with admissibility of electronic evidence.
Relevant provision for application:
For adducing primary evidence for electronic records, recourse can be taken to section 62 of Indian Evidence Act. And for adducing secondary evidence for electronic records, it is to be wholly governed by section 65A IEA and 65B IEA; section 63 IEA and 65 IEA have no application here. When the electronic record is to be admitted, section 65B IEA mandates a certification giving authority and genuinity to that document while being presented before the court.
Latest legal position by case laws:
In the case of State v. Surender Chauhan , accused had damaged a public property by putting some hoardings and posters on the wall of Tis Hazari Court complex. Prosecution had produced only the photographs of flex board and not the flex board itself, so the court gave benefit of doubt to the accused. In a similar case , where the accused had defaced a public property by putting a wall poster in one college of Delhi, and PW1 had taken a photograph of the poster from his mobile phone that he deposed before the court. In the present case, the original document, the poster was not sealed, questioning truthfulness of prosecution case, thus, the electronic evidence was not taken into accord.
As rules of evidence trying to match with February days changing technology, judges do not want that victims are left out from receiving justice, simply because they could not produce relevant and compelling evidence since the evidence was stored in a un-usable form thus, victims could not produce it to support their statements. Hence, a photograph, being digital evidence is admissible in India if it satisfies Section 65 B of IEA conditions. Thus, the law relating to admissibility of photograph in court of law as digital evidence is very well crystallised.