Screenshots as evidence or not
By Anubhuti Agrawal JLU, School of law, Bhopal
What is the evidence?
At the time when we need to go to a court relating to a case we produce information to the judge called evidence and the judge will decide our case. In case we are not hiring an attorney we should gather the right and relevant information that is shreds of evidence to the court in the right way. The judge’s reach to the decisions depends upon the information that we provide. The information must not be a gossip or guesswork. Here we are discussing if we can submit the text messages, screenshots, or audio messages as proof or evidence in the court. As per our knowledge, we can submit the screenshots as evidence in court, because it is part of the electronic evidence. By submitting the screenshot as evidence we should submit the details of our phone and the date in which it is taken.
When we are submitting the electronic evidence the validity of it totally depends upon the clarity or quality of the evidence. the framework of the nature of the electronic device. 1. The information produced on the court as the e-document it should be derived from the source that is information fed into the computer in a regular way.
Section 3 in The Indian Evidence Act, 1872
3. Interpretation clause. —In this Act, the following words and expressions are used in the following senses unless a contrary intention appears from the context:— “Court”. —“Court” includes all Judges1 and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. “Fact”. —“Fact” means and includes—
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious. Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact. “Relevant”. One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. “Facts in issue”.
The expression “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation. — Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, 3 any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue. Illustrations A is accused of the murder of B. At his trial, the following facts may be in issue:— That A caused B’s death; That An intended to cause B’s death; That A had received grave and sudden provocation from B; That A at the time of doing the act which caused B’s death, was, by reason of unsoundness of mind, incapable of knowing its nature. “Document”.
“Document” 4 means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations A writing 5 is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.
“ Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all legal documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. “Proved”. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “Not proved”.A fact is said not to be proved when it is neither proved nor disproved. “India” means the territory of India excluding the State of Jammu and Kashmir. the expressions “Certifying Authority”, electronic signature, Electronic Signature Certificate, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).
The computer must operate properly during that time when gathering information from the computer. It is not treated as evidence when the situation is different in that the computer is not worked properly. In that period the information should be regularly fed into the system. The person needs a lawful control over the system at the time when gathering the information. The E- evidence can be e-mails, images, sound records, ATM transaction logs, word processing, message histories, etc.
Screenshots as evidence or not?
According to section 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.
The Information Technology Amendment Act, 2008 has recognized various forms of communication devices and defines a “communication device” under section 2 (ha)of the Act “communication device” means cell phones, personal digital assistants or combination of both or any other device used to communicate, send or transmit any text, video, audio or image.
The Act amends the definition of ‘Evidence’ in S 3, the interpretation clause of the Indian Evidence Act 1872, to state:
‘Evidence’ means and includes All documents including electronic records produced for the inspection of the Court
S 4 of the IT Act 2000 provides Legal Recognition of electronic records. Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
- rendered made available in an electronic form
- accessible so as to be usable for a subsequent reference.
The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to section 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence.
The evidentiary value of electronic records is widely discussed under section 65A and 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions referred to above are:
(1) The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
(2) During such a period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
(3) Throughout the material part of such a period, the computer must have been operating properly. In case the computer was not properly operating during such a period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
(4) The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities
It is further provided that wherein any proceedings, evidence of an electronic record is to be given, a certificate containing the particulars prescribed by 65B of the Act, and signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities would be sufficient evidence of the matters stated in the certificate.
According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of s 65-B, which is a provision dealing with the admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Indian Evidence Act 1872, namely, ss 63 and 65.
IT Amendment Act 2008, S 79A empowers the Central Government to appoint any department, body or agency as an examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. ‘Electronic form of evidence’ herein means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cellphones, digital fax machines.
Section 85 B of the Indian Evidence Act, there is a presumption as to the authenticity of electronic records in case of secure electronic records ( i.e records digitally signed as per Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and presumption will not operate in case of documents which do not fall under the definition of secure electronic records.
In State of Delhi v. Mohd. Afzal & Others, it was held that electronic records are admissible as evidence. If someone challenges the accuracy of computer evidence or electronic record on the grounds of misuse of the system or operating failure or interpolation, then the person challenging it must prove the same beyond a reasonable doubt. The court observed that mere theoretical and general apprehensions cannot make clear evidence defective and inadmissible.
Anvar v. Basheer and the New (Old) Law of Electronic Evidence
On 18 September 2014, the Supreme Court of India delivered its judgment in the case of Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) to declare a new law in respect of the evidentiary admissibility of the contents of electronic records. In doing so, Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600, popularly known as the Parliament Attacks case, and re-interpreted the application of sections 63, 65, and 65B of the Indian Evidence Act, 1872 (“Evidence Act”).