Digital Evidence: Law beyond screenshots

1 What is Digital Evidence?

Any information stored or transmitted in digital form that a party to a court case may use at trial ex: Emails,Whatsapp,instagram chats,call recordings,CCTV Footage, Photos,Videos,Website data, GPS Location, Pen drives.

Under new Law it clearly Defined: Under Bhartiya Sakshya Adhiniyam,2023{BSA} [Old Indian Evidence Act]: section 2(1)(d) & Section 61- Electronic Records are now considered as primary evidence. It says electronic records include information stored in semiconductor memory or any communication device.

2 The MostImportant Law:Section 63 of BSA [Old Section 65B of Indian Evidence Act] This is The Heart of digital evidence Law in India. Without this,your digital evidence is just a piece of paper.

The Rule:If you want to submit any electronic Record (like a printout of an email,a CD of CCTV),You must submit a certificate under section 63(4) Of BSA.

What should be in the certifcate?

A It describe the electronic record and identified it.

B It explains the manner in which the record was produced-From which device/computer.

C It certifies that the device was working properly during that time.

D It must be signed by a person who is in charge of that device.

Landmark Judgement

1 Anvar P.V. vs. P.K. Basheer (2014): Supreme Cort said -Section 65B Certificate is mandatory. without it, electronic evidence is inadmissible.

2 Arjun panditrao khotkar vs. Kailash kushanrao gorantyal(2020): Supreme court clarified Anvar case, said certificate is required even if you have a original device. If you don't have the certificate first, you can submit it later with permission of court.

3 State by karnataka LokaYukta vs. M.R. Hiremath (2019): If orignal device itself is produced in court (eg. phone itself),then 65B Certificate is not needed.

3 Other Important Laws Related To Digital Evidence

A Information Technology Act,2000: section 65B,66-Hacking & Data Theft, Section 67- Publishing obscene material, Section 79A-Government notifies examiner of electronic evidence. Their report is expert opinion.

B Bhartiya Nagarik Suraksha Sanhita, 2023(BNSS): Section 105 & 185- Search and seizure of digital devices must be videographed. Police must make a harsh value to ensure data is not tampered.

4 How to Make Digital Evidence Strong in Court?

1 Originality is king: Always preserve the original device. Don't just keep screenshot, keep the phone/laptop. Create a clone copy with Hash Value (MD5/SHA)

2 Chain of Custody: Prove that from the moment you got the evidence till court, it was not tampered. who touched it, when, why - maintain a record.

3 No tampering/editing: Never crop, filter, or edit a WhatsApp chat screenshot. Courts reject edited evidence. If you have a long chat, submit the whole chat export.

4 Certificate is a must: Get the 65B/63 BSA certificate signed from your office's IT in-charge or yourself if you own the device.

5 Common Mistakes Lawyers & Interns Make

a Submitting only screenshot printout without certificate. b Submitting a forwarded WhatsApp messenger as proof -its authenticity is doubtful. c Not proving the identity of the sender-you must prove that the number/email actually belongs to that person (via telecom certificate or affidavit)

Digital Evidence is powerful but fragile. The Law says: Electronic records are admissible like paper record but only if you prove their integrity.

Advocate Ayesha Khan

MP Highcourt Indore Bench