Societal communication happens through the transfer of thoughts from the physical world to the electronic world. The virtual world revolves around the use of information and communication technology devices such as computers, mobile phones, printers, digital cameras, etc. Unlike the real world, the virtual world causes many opportunities for the commission of offences, such as phishing, identity theft, child pornography, hacking, etc. Electronic information is often relevant in proving or disproving a fact or fact at issue, the information that constitutes evidence before the court.
According to Black’s Law Dictionary, evidence is something that tends to prove or disprove the existence of an alleged fact. Electronic evidence can be said to be a piece of evidence generated by some mechanical or electronic processes. It includes, but not restricted to, e-mails, text documents, spreadsheets, images, graphics, database files, deleted files, and data back-ups located on floppy disks, zip disks, hard drives, tape drives, CD-ROMs, cellular phones, microfilms, pen drives, faxes, etc. Till recently, the Indian Evidence Act of 1872 did not have specific provisions recognizing the admissibility and appreciation of digital evidence. Substantially, it was not at par with modern technological development. Hence, to recognize transactions that are carried out through electronic data interchange and other means of electronic communication, the law was required to be amended.
Accordingly, the Information Technology Act, 2000 came to be enacted. The IT Act is based on the UNCITRAL Model Law on Electronic Commerce. Apart from providing amendments to the Indian Evidence Act of 1872 (Evidence Act), the Indian Penal Code of 1860, and the Banker‘s Book Evidence Act of 1891, the IT Act mainly recognizes the transactions that are carried out by means of Electronic Data Interchange (means, communication between computer and computer) and other means of communication. Section 65B of the Indian Evidence Act of 1872 establishes a different framework for the admissibility of electronic evidence. Several cases have been filed challenging the scope and application of Section 65B, with the courts taking opposing positions.
What Is Electronic Evidence And Its Relevance?
According to the IT Act’s Explanation to Section 79A, “electronic form of evidence” refers to “any information of probative value that is either stored or transmitted in electronic form” which includes computer evidence, digital audio, digital video, cell phones, and digital fax machines. Courts might thus allow the use of digital evidence during civil or criminal proceedings, such as e-mails, digital pictures, word processing documents, instant message histories, spreadsheets, internet browser histories, databases, contents of computer memory, computer backup, secured electronic records and secured electronic signatures, Global Positioning System tracks, logs from a hotel’s electronic door, digital video or audio, and so on.
The twenty-first century has seen a significant shift in the field of information technology, resulting in increased activity in cyberspace, where the internet allows equitable access to all types of information. This growing reliance on electronic communications has resulted in the misuse of the information in cyberspace, whether through cybercrime or other typical computer crimes. Almost every crime now has an electronic component, which has increased the value of electronic evidence dramatically. Maintaining the integrity of electronic evidence throughout the investigation and trial process is more challenging than handling traditional, physical, or documentary evidence.
Electronic evidence, unlike other forms of physical evidence, has particular characteristics that present unique obstacles in the admission of such evidence in a court of law. To begin with, electronic or digital evidence is not visible to the naked eye, thus special techniques and technology must be used to use it in court. Second, because such evidence is flimsy in nature, it is easily tampered with. As a result, it fails to meet the basic conditions of admissibility in terms of the rules of evidence. Third, collecting, preserving, and analysing such evidence necessitates the use of certain instruments and technologies. To put it another way, expert testimony is used to allow electronic evidence to be admitted in a court of law. 10 Electronic evidence does not have to be restricted to what may be found on computers; it can also include
Evidence from digital devices like telecommunications or electronic multimedia devices. E-mails, digital photographs, ATM transaction logs, documents, instant message histories, internet browser histories databases, compact discs, DVDs, Global Positioning System tracks, digital cameras, memory sticks and memory/SIM cards, PDAs, cell phones, and other electronic devices may all contain them. They are typically larger, more difficult to destroy, more easily edited, replicated, potentially more expressive, and more widely distributed.
The growing reliance on evidence collected from computer systems to secure convictions has given rise to a new branch of science known as computer forensics. Forensic science helps to deliver justice in society by allowing physical science ideas to be applied to legal matters. Computer forensics is a new field of forensic science that focuses on evidence found in computers and other electronic storage devices. It is the merging of computer technology and law in order to conduct effective criminal investigations. Forensic experts are in charge of producing photographs or clones of the original electronic material, preserving, analysing, and presenting it to a court of law for the judiciary to make a decision. Computer forensics, often known as “digital forensics”, has been for as long as computers have been used to store data.
It is a field of research that deals with identifying, extracting, and analysing digital data. Computer forensics has grown in importance as an emerging field of the article in the extraction of electronic evidence that would otherwise be impossible to recover, such as e- mail communications, text messages, and access to files holding documents.
In order to secure admissibility before the court, the investigating agencies must follow the legal procedure for collecting, preserving, and evaluating evidence from computer systems. Regrettably, previous to the advent of computer forensics, the rules were insufficient to analyse the tactics utilised in computer systems. The lack of an adequate method to evaluate computer-based evidence has resulted in poor admissibility of such evidence in court on numerous occasions. Those who advocate for privacy have fiercely opposed the use of computer forensic tools to access data, claiming that it could violate an individual’s right to privacy, which is a fundamental component of their human rights. Furthermore, with the advent of encryption and anonymity methods, there is a high risk of criminals misusing technology in cyberspace. In the end, legal constraints may prove to be a barrier to using computer forensic procedures in criminal investigations.
With the rise in the sophistication of crime in recent years, the judiciary has repeatedly alluded to the use of scientific tools in the investigation of such crimes, stating that relying just on traditional physical evidence may not be adequate to prove facts beyond a reasonable doubt.
In Tomaso Bruno and Anr. v. State of Uttar Pradesh, the court held that advances in information technology and a scientific attitude must infect the investigation process. In order to establish facts, electronic evidence was used. Scientific and electronic evidence can be extremely useful to an investigative agency.
While highlighting critical issues relating to police reforms in the case of Darshan T S v. State of Karnataka, the High Court of Karnataka held that investigating a criminal case is not an easy or ordinary job; it requires thorough professionalism, which can only be achieved through effective training. It noted that many offences have become hi-tech, in the sense that mobile phones and electronic devices are used to hatch conspiracy and messages are sent through SMS and e-mail. Digital evidence plays a vital role in many cases. Seizure of hard discs, collection of call details and such other digital materials requires thorough knowledge of Digital Forensic Science. Proof of such digital evidence requires stricter evidence as per Sections 65-A and B of the Indian Evidence Act, 1872. The protocols in proving digital evidence are made stricter.
On the one hand, due to the technical nature of crimes, the use of scientific techniques in criminal investigation is required for credible results; on the other hand, it must be remembered that such techniques to extract evidence in electronic form must adhere to the basic rules of evidence in order to be proven in court.
The court in Vikram Singh and Anr. v. State of Punjab and Anr. followed the law in Anvar P.V., plainly saying that where primary material in electronic form has been produced, no certificate under Section 65B is required. However, the court in Shafhi Mohammad vs. The State Of Himachal Pradesh found that the requirement of a certificate under Section 65B (4) is not always mandatory. Because the verdicts in Anwar PV’s case and Shafhi Mohammad’s case are contradictory, a two-judge bench of the Supreme Court referred the case to another three-judge bench in 2019 for clarity.
In Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal on 14 July, 2020., a three-judge bench of the Hon’ble Supreme Court maintained the law handed out in Anwar PV’s case. This ruling has resolved the problems that had arisen as a result of the numerous conflicting judgments and have thus established a guideline for the methods used in Trial Courts when it comes to the admission of electronic evidence. The court’s legal interpretation of Sections 22A, 45A, 59, 65A, and 65B of the Evidence Act has confirmed that recorded data on CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of the Evidence Act and that in the absence of such a certificate, oral evidence to prove the existence of such electronic evidence and expert opinion under section 45A of the Evidence Act cannot be used to prove authenticity thereof.
The Court, in State of Karnataka v. M.R. Hiremath, stressed that failure to produce a certificate under Section 65-B on a previous occasion is a correctable deficiency. The High Court also erred in concluding that the prosecution’s failure to obtain a certificate under Section 65-B(4) of the Evidence Act at the time the charge sheet was filed was fatal. When the electronic record is sought to be produced in evidence at the trial, the necessity for such a certificate will arise. The requirement for the certificate’s production would arise at that point.”
The Hon’ble the Apex Court found Section 66A of the IT Act unlawful in Shreya Singhal Vs. Union Of India [(2015) 0 AIR (SC) 1553]. It has also been decided that the broader scope of internet circulation cannot be used to limit the content of the right under Article 19 (1) (a), nor can it be used to justify its rejection. Suvarana Musale vs Rahul Musale [2015 (2) Mh.L.J. 801], found that electronic methods and procedures for recording evidence are acknowledged and recognised in courtroom practices. In that case, the Petitioner-wife was employed in the United States and has a 6-year-old kid; flying to India to be physically present was costly, and she could have problems obtaining leave and acquiring a VISA. As a result, an application for video conferencing to record evidence was approved.
Fundamental Principles Of Electronic Evidence
Handling of electronic or digital evidence at the crime scene is one of the most crucial aspects of a criminal investigation involving computer-related crimes. The process usually includes the recognition, identification, seizure, and securing of all electronic evidence at the scene, proper documentation of the scene of the crime, collection and preservation of evidence, and finally, packaging and transportation of the same for further forensic examination. The foundation of any case involving electronic or digital evidence lies in the principles mentioned below:
One of the most important components of a criminal investigation involving computer-related offences is the handling of electronic or digital evidence at the crime scene. The procedure usually entails recognising, identifying, seizing, and securing all electronic evidence at the crime scene, as well as proper documentation of the crime scene, evidence collection and preservation, and finally, packaging and transportation of the evidence for further forensic examination. The following principles form the basis of any case involving electronic or digital evidence:
- Principle 1 – Law enforcement organisations must use extreme caution when gathering evidence from any electronic device, ensuring that the material contained therein remains unaltered so that the court can rely on it.
- Principle 2 – If original data on a computer or other storage media is urgently needed, the individual accessing it must be qualified to do so and explain the relevant evidence and its implications.
- Principle 3 – The audit trail or other processes linked to computer-based evidence must be created and preserved. Those methods should be able to be examined by an independent third party and come to the same conclusion.
- Principle 4 – It is the overall responsibility of the investigating officer to ensure that the rules of evidence and these principles are followed. The same rules and laws apply to computer-based electronic evidence as they do to documented evidence. When presenting such evidence, it is critical to show how the evidence was obtained, including each stage of the process. Evidence should be kept to the point where a third party can repeat the process and get to the same conclusion as the one submitted to the court.
Handling Of Electronic Evidence And Law Enforcement Agencies
The investigation of a crime scene entails the use of forensic intelligence and expertise. It entails more than just gathering and storing physical evidence. It is the most important phase in any forensic inquiry into a probable criminal act. The capacity of the crime scene investigator to determine the potential and relevance of physical evidence present at the crime scene is the foundation of a forensic investigation. The reconstruction of the crime scene is aided by a thorough investigation.
In the case of computer-related crimes, various electronic devices such as computers, mobile phones, and other similar devices are considered an extension of the crime scene, even if they are not directly connected to the crime, because they may provide lead information about the use of digital devices in the said act of crime. As a result, both physical and digital crime scenes must be treated in a systematic manner in order to protect the integrity of potential evidence – both physical and electronic. The proper handling of computers and networks as evidence in a criminal investigation establishes the groundwork for a digital investigation, which includes the phases of preparation, collection, and preservation. Due to a lack of integrity in the initial crime handling procedure, a digital investigation might be severely hampered by omitting vital facts or failing to properly preserve digital evidence, rendering it worthless for court proceedings.
A well-established technique for managing evidence, on the other hand, may not be able to handle all of the obstacles and scenarios that arise during the process. As a result, law enforcement agencies in charge of evidence must have sufficient knowledge and expertise to follow protocols and deal with situations that are not foreseen by any processes. Furthermore, it is critical to remember that the legal principles governing such investigations differ among jurisdictions, which must be considered when designing rules and procedures for dealing with computer-related crime scenes. It’s important noting that there are worldwide standards that have grown over time to bring uniformity to computer-related crime investigations. A standard is a written document that outlines established specifications and methods for ensuring that a material, product, method, or service is suitable for its intended use and functions properly. It’s a pact that addresses issues like safety, dependability, and efficiency (ISO 2009a), among other things.
The development of international standards is an important step toward achieving consistency in findings and mutual compliance across geographic and jurisdictional boundaries. These standards, which take the shape of protocols and guidelines, are used during the collection of evidence to reduce the risk of errors that could jeopardize the admissibility of the evidence obtained. However, no international standards relevant to digital forensics could be discovered on the websites of the British Standards Institution (BSI), the American National Standards Institute (ANSI), or the National Institute of Standards and Technology (NIST). The International Organization for Standardization (ISO) has released the only contemporary work on digital forensics so far.
It is critical to understand the procedures used by law enforcement agencies and the obstacles they face when dealing with electronic evidence. Many times, police officers are unsure how to perform a proper search in a computerised setting, especially in a networked ecosystem. As a result, they miss out on crucial information and clues. As a result, offenders are acquitted, undercutting the fundamental aim of the criminal justice system. Taking into account the various problems that arise during the evidence collection process, developing an International Standard is a lengthy process that necessitates the use of numerous resources. In many cases, the necessity for specialised issue standardisation emerges only after new technology has been made available to the public.
Aside from the late start to the standardisation process, the average time to produce an international standard is three years. As a result, it is recommended that members of specialised sectors proactively identify areas of concern and communicate this information to the appropriate member bodies at an early stage. This can expedite the process and ensure that the International Standard is in place when the technology reaches its pinnacle and requires international standardisation. Every crime scene involving computer-based evidence provides its own set of obstacles, and digital investigators must be able to apply forensic science principles in novel ways.
Simultaneously, investigating agencies have developed standard operating procedures (SOPs) for dealing with various types of criminal investigations. To ensure that evidence is collected, stored, and analysed consistently, such procedures must adhere to the fundamental principles of forensic science. Such consistency is required to avoid inadmissibility due to faults in the evidence collection and preservation procedure. This is also to ensure that the best available collecting and preservation methods are used, increasing the likelihood that two forensic examiners would come to the same conclusions when examining the evidence.
This article is written and submitted by Neha Haldhar during her course of internship at B&B Associates LLP. Neha is a B.S.W LL.B (Hons.) student from Gujarat National Law University.