7 Jun 2023 8:39 AM GMT
While discussing the scope of Section 65A and Section 65B of the Indian Evidence Act in the present scenario, the Madras High Court lamented that it was rather unfortunate that the provision which was found obsolete by the United Kingdom in the year 1995 was accepted by the Indian Legislature in the year 1999.Section 65A and Section 65B of the Evidence Act deal with procedure to be followed...
While discussing the scope of Section 65A and Section 65B of the Indian Evidence Act in the present scenario, the Madras High Court lamented that it was rather unfortunate that the provision which was found obsolete by the United Kingdom in the year 1995 was accepted by the Indian Legislature in the year 1999.
Section 65A and Section 65B of the Evidence Act deal with procedure to be followed in case of electronic evidence. It was inserted into the Evidence Act by way of Indian Evidence (Amendment) Act 2000.
The division bench of Justice MS Ramesh and Justice Anand Venkatesh noted that the law is traceable to the Civil Evidence Act,1968 and Police and Criminal Evidence Act,1984 of the United Kingdom. The provisions relating to electronic evidence were repealed in 1995 (Civil Evidence Act) and 1999 (Criminal Evidence Act). it noted.
"United Kingdom realized that its law has become outdated and it was decided that the authenticity of the electronic evidence could be addressed by concentrating upon the weight to be attached to such evidence rather than formulating complex and inflexible conditions as to its admissibility… Thus, the present position in the United Kingdom is that the common law presumption that in the absence of the evidence to the contrary, the Courts will presume that mechanical instruments were in order at the material time, operates with full force," the court noted.
The court added that adoption of these laws by the Indian legislature has meant that certificate requirement conceived by UK in 1960 is made applicable to modern computers in 2000.
"It is rather unfortunate that the provisions found to be obsolete by the United Kingdom in 1995 were found to be readily acceptable by the Indian Legislature in the year 1999. By virtue of the same, certification requirements that were conceived by the United Kingdom in the year 1960, is now made applicable to modern computers, in the year 2000 by India. There could be no better instance of fitting a square peg into a round hole."
The court suggested that keeping in mind the growing importance of electronic evidence, steps should be taken bring in a separate chapter to deal with the same rather than dealing with electronic evidence on par with documentary evidence.
"It is high time that the Legislature has a complete re-look and comes up with an appropriate legislation with respect to electronic evidence abreast with the prevailing scenario and make the procedure simpler for letting in electronic evidence during trial," the court noted.
The court also said that for a healthy dialogue between the legislature and the judiciary, it was necessary for the legislature to take swift actions and resolve the impasse with respect to unworkable legislations rather than expecting the judiciary to make the unworkable legislation workable.
The observations were made by the bench while confirming the conviction of ten accused for the murder of a Dalit youth, Gokulraj. The court observed that there was no scope for tampering of the CCTV footage as claimed by the appellants and that the prosecution had proved the chain of events.
The court also said that a Standard Operating Procedure has to be followed while presenting electronic evidence, especially CCTV footages, before the court to ensure that the evidence is not tampered with.
For this, the court directed the Hash value to be recorded at four stages- when CCTV footage gets stored into the hard disk and is received by the analyst from the Court on requisition made by the prosecution, when the analyst creates a copy/mirror image of what is contained in the hard disk, when forensic examination starts and when it is concluded and report is submitted. The court noted that noting down the hash value at all these four stages (hash value being the same) would ensure its authenticity.
The court added that after the examination is completed by the forensic analyst, the footage can be downloaded to a DVD/CD which is to be accompanied by a certificate under Section 65B of the Evidence Act. The court also noted that the copies given to the accused persons under Section 207 of CrPC may also be accompanied by the Section 65B certificate.
Case Title: Yuvaraj v State (and batch cases)
Citation: 2023 LiveLaw (Mad) 159