Basics of Electronic Evidence 

First, a few words about how the law embraced the IT revolution. The IT Act, 2000 has given sanctity to electronic records and the definition of ‘evidence’ in the Evidence Act, has been expanded to include electronic records. Data in electronic form has to be stored and preserved. An electronic record, simply put, is information/data recorded in an electronic form. Therefore, data recorded on a hard drive, pen drive, CD, DVD, or even the Internet qualifies as ‘electronic record’.  An image file on your pen drive, or a photo clicked on your phone or a WhatsApp message on your phone memory or service provider’s server are all ‘electronic records’.

The original device in such a case which produced the electronic record is ‘primary evidence’. For eg : The sound recorder/CCTV Camera and attached hard disk used to record a clip are primary evidence of its contents. Another example may be huge servers where data is created and stored. Such servers are what qualifies as ‘primary evidence’. The general rule of law of evidence is that when primary evidence is available, secondary evidence is not admissible. However, the same principle cannot be strictly applied in cases of electronic records. Large Servers/Original devices cannot be expected to be brought before the court in each case. Therefore, secondary evidence in the form of a output such as Printout or soft copy in the form of CD/DVD etc is admissible in a court of law, provided certain conditions are met.

These conditions are laid down with a view to ensure that the secondary evidence is true and accurate representation of the original electronic record and has not been tampered or alternated in any manner.

1. What is Section 65B of the Evidence Act ?

Section 65-B of Indian Evidence Act, simply put, lays down the conditions and procedure of proof of an electronic record in a court of law. Section 65B is important insofar as it recognises that the original primary evidence of electronic record cannot be expected to be brought before the court and even if it is, the same being in binary form (Binary is the language the machine understands – where everything is stored in a string of zeros and ones!) the same cannot be understood by the court.  The net effect of Section 65B is that the output in the form of a printout or data copied on CD/DVD etc is rendered admissible in the court, provided certain conditions are met. This is the import of Section 65B(1). 

Section 65B(2)  lays down certain conditions relating to integrity of the data. These conditions are there to ensure that :

1. there has been no unauthorised access to the data in question;
2. the computer was functioning properly and therefore the reproduction of data is accurate and genuine.

The compliance of these conditions are ensured by insisting on a certificate u/s 65B(4) of the Evidence Act.

*In the next post – We shall talk about the certificate u/s 65B(4), its contents and who is supposed to issue the same.