Admissibility & Enforcement of Electronic Evidence

A new generation of criminals has emerged in the past decade with cyber criminals taking the place of white collar criminals. These criminals are using  state of the art modern technologies to commit what we call "cyber crime",s which are far beyond the understanding of a layman or your common lawyer or judge. Therefore to rise up to this new breed of criminals, the Information Technology Act has brought about additions to the scope of the evidence, so as to include digital evidence or electronic evidence or cyber evidence. In this kind of crime not only computers but any type of electronic devices is either used a tool or a target. (Image taken from here.)

Many a times it is difficult to test the authenticity of such electronic evidences, even with the assistance expert. In simple terms electronic evidence may defined as collection, preservation, analysis and court presentation of computer related evidences.

How to manage electronic evidence

It is very important to understand the nature of electronic evidences. Unlike any other
form of evidences, it is quite easy to tamper with electronic evidence, especially for experts. Therefore, electronic evidence should be stored in safe and secure locations. Saving data on the cloud is something that should be discouraged. It is safer top instead make several copies of the disk and save it on  different hard drives. As a back-up it is always wise to take a screen-shot of the visual evidence, using reliable software which can also maintain the date of the screen shot.

Methods of digital unlocking must be tried and tested. Anyone who is not an expert should be kept away from the data. Even the slightest corruption or deletion can render hours of work useless. Special precautions should be taken when copies of the data are not available in abundance. Managing digital evidence can sometimes be as difficult as understanding the evidence. (Image taken from here.)

Additions to Provisions of Evidence Act, 1872

The second schedule of The Information Technology Act 2000 is deals with electronic evidence in computer crime, has added to the provisions of Indian Evidence Act, 1872 which had been drafted earlier keeping in mind only the physical types of evidences. Some of the important amendments include:

3. (a) In the definition of "Evidence", for the words "all documents produced for the inspection of the Court", the words "all documents including electronic records produced for the inspection of the Court" have been substituted;

(b) after the definition of "India", the following have been inserted, namely:— 'the expressions "Certifying Authority", "digital signature", "Digital Signature Certificate", "electronic form", "electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" with the meanings respectively assigned to them in the Information Technology Act, 2000. '

13. After section 85, the following sections have been inserted, namely: —

i) 85A which talks about Presumption as to electronic agreements

ii) 85B which talks about Presumption as to electronic records and digital signatures.

iii) 85C which talks about Presumption as to Digital Signature Certificates.

In section 17, for the words "oral or documentary,", the words "oral or documentary or contained in electronic form" have been substituted.

In section 22, section 22A has been inserted which says that “Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.".

In section 34, for the words "Entries in the books of account", the words "Entries in the books of account, including those maintained in an electronic form" have been substituted.

For section 39, the following section has been substituted, namely: —

What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.

Digital / Electronic Evidence

Section 39 now reads as follows: "When any statement of which evidence is given forms part of a longer statement, or of a conversation or pan of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.".

Section 131 now reads as follows "No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production."

Issues in enforcement

Before the enforcement of this schedule, the Indian Judiciary did not witness any evidence that involved computer records. Most people would look at this as a step forward. But one must ask also take into consideration the amount of risk involved in placing reliance on such an intangible type of evidence. (Image taken from here.)


In State of Punjab v. Amritsar Beverages Ltd., the Supreme Court stated that there are a lot of difficulties  in enforcing electronic evidence since most investigating officers due to lack of scientific expertise and knowledge of digital evidences techniques.


Even Judges themselves are not well versed with these techniques. Presentation of digital evidence is becoming too common and even if both parties bring their own experts, a decision cannot be reached. When the Court is forced to call an expert on its own accord, even if that expert's qualifications be undoubted, in reality it is hard  come to a conclusion without consulting a group of experts. Digital evidence can be easily modified and it is up to these experts to conclude the level of reliability of any cyber evidence. For this, along with technical knowledge, a fair kknowledge of law is also required. However, for the purpose of guidance, Section 65B The Evidence Act, 1872 lays down four important guidelines or conditions that need to be satisfied in order for digital evidence to be admissible. The Section 65B of the Evidence Act, 1872 can be found below:

I leave it up to the reader to put suggest their own amendments tot he the provision .