electronic evidence

Case BriefsHigh Courts

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]

Case BriefsSupreme Court

Supreme Court: In the case where the reliability of the Call Detail Records (CDRs) produced as proof was questioned for not complying with the requirements under Section 65B of the Evidence Act, 1872, the bench of S. A. Bobde and L. Nageswara Rao, JJ said that the mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. It was held that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later.

The bench said that though the admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue, if the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.

The Court was hearing an appeal against conviction in a case of abduction and murder where the Police had collected the CDRs of all the mobile phones that were recovered from the accused and the mobile phones of the deceased. The appellants had objected to the credibility of these CDRs. Rejecting the contention of the appellants, the Court said that the crucial test is whether the defect could have been cured at the stage of marking the document and applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency but not now. [Sonu v. State of Haryana,  2017 SCC OnLine SC 765, decided on 18.07.2017]

 

Supreme Court

Supreme Court: Deciding the admissibility of the secondary evidence pertaining to electronic evidence, the 3-judge bench of R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ overruled the ruling of the Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600  (Navjot Sandhu Case) to that extent. The bench noted that the Court in the aforementioned case omitted to take note of Sections 59 and 65A of the Evidence Act, 1872 and hence erred in holding that that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65 of the Evidence Act, of an electronic record.

Overruling the legal position as to electronic evidence as laid down in Navjot Sandhu Case, the Court, applying the principle of generalia specialibus non derogant (special law will always prevail over the general law), held that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same.

In the present case where appellant and respondent were represented by Vivek Chib and Kapil Sibal, respectively, the appellant sought the set aside the election of the elected candidate on account of corrupt practice and produced CDs which were made after recording the speeches, songs and announcements using other instruments and by feeding them into a computer. It was held that since the CDs produced were not certified, the same were not admissible as secondary evidence. Anvar P.V. v. P.K. Basheer, Civil Appeal No. 4226 of 2012, decided on 18.09.2014

To read the full judgment, refer SCCOnLine