Electronic Evidence in India

The Evidence Act has been amended by virtue of Section 92 of Information Technology Act, 2000. Section 3 of the Act was amended and the phrase All documents produced for the inspection of the Court were substituted by All documents including electronic records produced for the inspection of the Court.

The Concept of E-Evidence in India

Due to enormous growth in e-governance throughout the Public & Private Sector and e-commerce activities Electronic Evidence have involved into a fundamental pillar of communication, processing and documentation. The government agencies are opening up to introduce various governance policies electronically and periodical filings to regulate and control the industries are done through electronic means. These various forms of Electronic Evidence/ Digital Evidence are increasingly being used in the judicial proceedings. At the stage of trial, Judges are often asked to rule on the admissibility of electronic evidence and it substantially impacts the outcome of civil law suit or conviction/acquittal of the accused. The Court continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be fabricated or falsified, creates hurdle to admissibility not faced with the other evidences. The various categories of electronic evidence such as CD, DVD, hard disk/ memory card data, website data, social network communication, e-mail, instant chat messages, SMS/MMS and computer generated documents poses unique problem and challenges for proper authentication and subject to a different set of views.

Under the provisions of Section 61 to 65 of the Indian Evidence Act, the word “Document or content of documents” have not been replaced by the word “Electronic documents or content of electronic documents”. Thus, the intention of the legislature is explicitly clear i.e. not to extend the applicability of section 61 to 65 to the electronic record. It is the cardinal principle of interpretation that if the legislature has omitted to use any word, the presumption is that the omission is intentional. It is well settled that the Legislature does not use any word unnecessarily. In this regard, the Apex Court in Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa held that “…Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily.”

The intention of the legislature is to introduce the specific provisions which has its origin to the technical nature of the evidence particularly as the evidence in the electronic form cannot be produced in the court of law owing to the size of computer/server, residing in the machine language and thus, requiring the interpreter to read the same. The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media admissible.

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