Introduction[1] :-
‘Modus Probandi’[2] & ‘Quid Probandum’[3] are underlying Rules with regard to Judicial Evidence. The law governing the principles of Evidence is the Indian Evidence Act, 1872 (IEA). It includes all judicial proceedings, includes Courts-Martial not including court martial convened under Naval Act, Army Act or Air Force Act. Evidence is an instrument of proof regarding a fact in issue.[4] This is an instrument adopted for the purpose of witness and documents.[5] There are various classifications of evidence. But, Primary and Secondary Evidence place a very vital role.
For instance, A sold her house for Rs. 10,000 to B, and this was executed via sale deed. In case, if dispute arises between them. Then the sale deed is considered as primary evidence before the court of law.[6]
But the secondary evidence may be given only when the primary evidence is absent. Section 65 of IEA, deals with the admissibility of secondary evidence.
AMENDMENTS – BY INFORMATION TECHNOLOGY ACT, 2000:
By the growth of electronic commerce, the use of paper signature was shifted to electronic means and electronic signatures. UNCTRAL adopted Model law on Electronic Commerce in 1996. Via, the above- electronic records and digital signatures was accepted and through IT Act, varies laws were amended, the iconic amendment was made in IEA, with regard to Electronic commerce and certain provisions regarding it was added too.
Bruno and Anr. v. State of Uttar Pradesh, wherein a Three-Judge Bench observed that advancement of information technology and scientific temper must pervade the method of investigation. Electronic evidence was relevant to establish facts. Scientific and electronic evidence can be a great help to an investigating agency.[7]
ROLE OF IEA, 1872 IN ELECTRONIC RECORD AND ITS ADMISSIBILITY:
Section 65 A and 65B deals with electronic record and its admissibility. Section 65 deals with cases in which secondary evidence relating to documents may be given. Section 136 empowers a judge to decide on the admissibility of the evidence.[8]
65B. Admissibility of electronic records.—
(Clause 1)Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication.[9]
The Supreme Court of India, in a path breaking dynamic judgment, has rationalized the law relating to the admissibility of the electronic evidence particularly in view of the provision of Sec. 65B of the Indian Evidence Act. Section 54-A of the Cr.P.C[10]. provide for video graph of the identification process and proviso to Section 164(1) Cr.P.C. provide for audio video recording of confession or statement under the said provision.[11]
The speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. When hearing the matter, the Supreme Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action. The Supreme Court found no infirmity in the speaker’s reliance on the digital evidence and the conclusions reached by him. The comments in this case indicate a trend emerging in Indian courts: judges are beginning to recognize and appreciate the importance of digital evidence in legal proceedings.[12]
Secondary evidence in the form of printed copy of call details of a cell phone is inadmissible in evidence in the absence of production of certificate u/s. 65 B (4).[13]
In Dharambir vs. Central Bureau of Investigation, The court arrived at the conclusion that when Section 65-B talks of an electronic record produced by a computer referred to as the computer output, it would also include a hard disc in which information was stored or was earlier stored or continues to be stored.[14]
Hence to conclude, even the evidence of witness can be recorded in the court through video conferencing. But, when the electronic evidence is produced by the party to the Court of law, who is not in the possession of the device, makes him incapable of leading secondary evidence. Thus, electronic evidence has helped the judiciary to dispose the cases quickly.
References :-
[1] B.C.A, LL.B (HONS), STUDENT, SCHOOL OF EXCELLENCE IN LAW, TNDALU, CHENNAI.
[2] Mode of proving.
[3] Things to be proved.
[4] Section. 3 of the Indian Evidence Act.
[5] Govarayya v. Emperor, AIR 1930 Nag. 242.
[6] Section. 62 of IEA, deals primary evidence.
[7] (2015) 7 SCC 178
[8] Indian Evidence Act.
[9] WB/0828/2014.
[10] Criminal procedure code, 1973.
[11] Shafhi Mohammad Vs. The State Of Himachal Pradesh SLP (Crl.)No.2302 of 2017.
[12] Jagjit Singh v. State Of Haryana (2006) 11 SCC 1).
[13] Harpal singh v. State of U.P.
[14] 148 (2008) DLT 289
