Calcutta High Court: A Division Bench comprising of Manojit Mandal and Joymalya Bagchi, JJ., in the wake of rising cyber crimes in the present times, issued directions to ensure that the investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.
Allegations, as mentioned in the FIR, pertain to a matrimonial dispute between the petitioner and his wife. Further, it has been alleged that the petitioner with the object of defaming and denigrating the wife had posted objectionable pictures of wife on a social network platform and circulated such materials widely. Offences under Sections 66 E & 67A of IT Act were not added in the FIR, an investigation by Assistant Sub-Inspector of Police in violation of Section 78 of the IT Act was conducted.
Keeping in view the facts and circumstances of the present case and due to lack of materials on record that objectionable pictures were circulated without consent and knowledge of de-facto complainant, the Court was of the opinion that custodial interrogation of accused/petitioner may not be necessary and he may be granted anticipatory bail subject to the conditions as laid down under Section 438(2) of CrPC, 1973.
Further, the High Court felt that there is a crying need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis, and production of electronic evidence. The bench also stated that:
“It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot be relied in judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, reliability of electronic evidence depends on proper collection, preservation and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times.”
For the said purpose, certain directions were issued to ensure that investigation of crimes involving electronic evidence is conducted in a fair, impartial and effective manner.
Following are the directives:
- Proper training of members of police force in reception, preservation and analysis of electronic evidence.
- Only the officers who have been trained in accordance to the manner as stated above shall be involved in the investigation of crimes involving offences under IT Act and the offences in which electronic evidence plays a pre-dominant part.
- Every district shall have a cyber cell comprising of officers with specialised knowledge in the matter of dealing with electronic evidence in order to render assistance to local police.
- A standard operating procedure regarding preservation, collection, analysis and producing electronic evidence to be submitted by Director General of Police, West Bengal on the next date of hearing.
- Specialised forensic units to be set up in the State in order to facilitate examination and/or analysis of electronic evidence.
The matter has been posted for further hearing on 11-03-2019. [Subhendu Nath v. State of W.B., 2019 SCC OnLine Cal 242, Order dated 18-02-2019]