How to Give Electronic Evidence under Indian Evidence Act

Electronic Evidence is only acceptable when Sec 65B certificate is given. 65B refers to process of creating the ‘Computer Output’ and not the process of “Creating the Electronic Document which is the subject matter of the computer output.

Sec 65B brings the binary electronic document to an “Admissible” form by creating a “Computer Output” as envisaged in the section.

Open to court to call section 79A recognized “Digital Evidence Examiner” to assist it in resolving the disputed electronic document.

Sec 65 deals exclusively with Electronic Evidence. Any information printed on paper shall deem to be document only if it satisfies sec 65(2), without further proof or production of original. It has to fulfill Specified conditions:

1Information is produced regularly from the device where the person has a lawful control over the computer.
2 Information fed was inserted in the ordinary course of activity.
3 During the material part of period, computer was working properly or not properly but it has not affected the record or the accuracy of its contents.
4 Information in record should be a reproduction or derivation from the information fed into the computer in the ordinary course of said activity.

Sec 65B (3- What constitutes as single computer
Sec 65B (4) - what should a certificate include.
For giving Certificate, secondary evidence to be dealt with Sec 65 A and 65B alone.
Sec 67A – Proof as to a Digital Signature.
Sec 73A – that person, controller or certifying authority to produce the digital signature.

Two latest Judgments that clarifies the legal position are:
 1 Anvar P.V vs. PK Basheer and others
2 Harpal Singh @Chhota  vs. State of Punjab

Mode of Proof:
a.       Integrity of the data
b.      Integrity of the hardware/Software
c.       Security of the system

Electronic messages- Sec 88 A, presumptions as to such messages. Sec 88, 88A, 114(f) of IEA with sec 26 of the General Clause Act are relevant sections for sending and receipt of email and its proof.

Email- read with 65B r/w Sec 88 A of IEA. Testimony to download and print the same is sufficient to prove.

Call Records-    Call an expert who is familiar with the operation of the computer concerned.

Proof of contents of C.D.-   Compliance of sec 65B and not the proof of CD.

Proof of a Photograph taken from Digital Camera-    Electronic record and can be proved as per section 65B of evidence Act.

Proof of obscene SMS sent through Mobile phone -   Sec 67 of IT act is Cognizable and non-bailable Offence under Sec 72 of the said act is non-cognizable and can be said to be bailable offence.

ATM-   
Video Conferencing – 65A and 65B of IEA and that definition includes video conferencing.
State of Maharashtra vs. Praful B Desai (AIR 2003) -why video conferencing should not be a essential part of the electronic evidence.
Identification Affidavit when the person is filing from remote location. Person who examines also has to file the affidavit. Oath has to be administered through media if the person giving not present. Plaint copy should be sent to the petitioner as specified in Civil Procedure Code.

Proof of digital signature of a person

Presumptions of Electronic Records – Sec 81 A of IEA, 85A of IEA, 

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