Introduction:
The basic principle of law in India is “everyone is innocent in the eyes of the law unless proven guilty.” To prove a person guilty, one party needs to establish a legal act or omission on behalf of the other party. And for proving this, he/she needs to support his complaint with proofs. These proofs are known as evidence in the court of law.
The evidence is used by one party to bolster a point put forth by him in the proceedings. They can be in the form of testimony, documents or any tangible evidence. For evidence to be admissible in the court of law, it must be relevant, reliable & must not be excluded by rules of evidence. It is upon the trial court judge to determine whether the evidence may be tendered or not. Irrelevant pieces of evidence only add to the cost & burden in the dispute resolution mechanism.
The rules of evidence govern the admissibility criteria of evidence in legal proceedings. The law of evidence/ rules of evidence are also concerned with the quantum (amount), quality, and type of proof required to prevail in litigation. The rules vary from court to court, i.e. there will be separate rules for evidence in civil or criminal court. The rules also vary by jurisdiction (place to place).
Digital Evidence & their admissibility:
Digital or electronic evidence is the digital data or information that is used as evidence or proof in a trial by a party to support his arguments & for proving the point. The authenticity of the digital data needs to be checked before it is to be used as evidence. It is very important to understand the importance of digital evidence in this digital era because of the increasing use of technology & means of e-communication in the present era. To keep the pace with the rapidly changing technologies, the court has allowed the use of e-mails, digital photographs, internet browser histories, audio & video files, word processing documents as evidence in the court of law.
Section 2(1) (t) of the IT Act defines an electronic record as “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 65 (B) of the Indian Evidence Act deals with the admissibility of the electronic records. It defines documents as 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. This definition of documents also includes phones, too, under its purview. As the documents are admissible as evidence under the court of law. Hence, SMS/ WhatsApp messages would be admissible under Section 65 of Indian Evidence Act, 1872.
Nevertheless, these documents to be permissible has to fulfil certain requirements:
i) the computer that produced the document must have been used regularly at the time of production of such electronic documents;
ii) the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device;
iii) the computer, at the time of creation of the electronic record, should be in proper condition and must work properly; and,
iv) the duplicate copy must be a reproduction of the original electronic record & must be the replica of the electronic record.
The position of Indian Courts
It is now well-established by the court that SMS, MMS and e-mails are admissible. The case of State v. Mohd. Afzal & Others gave a very important judgement in this digital era. The court held that Computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Further in Shafhi Mohammad vs The State Of Himachal Pradesh, the hon’ble Supreme Court held that, “The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory. Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
(This article was submitted by Kalpana Mittal, a 2nd year student of law at Dr. Ram Manohar Lohiya National Law University, as a part of B&B Associates LLP’s winter-internship program.)
