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Whether A Screenshot Is Admissible As Evidence?

Not only primary piece of evidence (under Chapter V of the Evidence Act, 1872) is of great importance, but also court gives an equal importance to Documentary evidence during the course of trial. Section 62 and Section 63 of The Indian Evidence Act, 1872 deals with the admissibility of primary and secondary evidence respectively. In the course of proceedings before a court, there prevail a ceaseless plight as to the mode and aspect of admissibility of electronic evidence or records during the course of trial.

The Supreme Court has repeatedly, over means of various judicial pronouncements, staunched to resolve this procedural duality. However, recent augmentations have shown the paradoxical intention of the Apex Court.

In case of Anvar P.V. v. P.K. Basheer and others[1].Supreme Court contradicted its decision of NCT of Delhi v. Navjot Sandhu alias Afsan Guru [2] (overruled it) which stood as an authority for more than nine years on the admissibility of secondary evidence pertaining to electronic record.

Amelioration in technology and its operation across assorted dimensions has culminated in constitution and storage of information in electronic form constraining a hefty change in the law regarding electronic evidence. In order to arch the widening rift between law and technology, the Parliament enacted the Information Technology Act, 2000 (IT Act). Amidst other things, the IT Act defined terminologies such as that of data, electronic record, computer, computer output etc. Aloof from harbingering new concepts, the said legislation also brought an amendment to the Evidence Act, 1872 providing special provisions for illustrating electronic evidence in Courts.

The forenamed amendments to the Evidence Act, 1872 fetched about following changes:

  1. Section 59 was refitted in order to debar proving of contents of documents (including electronic records) by oral evidence. By embedding Sec 22A, it was catered that oral evidence with respect to contents of electronic records is relevant only when genuineness of the record is in question.

  2. Section 45A was refitted in the Evidence Act, which caters that opinion of Examiner of Electronic Evidence will be relevant fact when the Court has to compose an opinion on any matter revealing to information in electronic form. Who can be the Electronic Evidence Examiner for the purpose of this Section is cited in Sec 79A of the Information Technology Act.

The focal point of the amendment was embedment of Section 65A & 65B which deals with admissibility of electronic record. Section 65A, in a way analogous to section 61, caters for introduction and applicability of the special provisions (section 65B) for evidence relating to electronic record.

Section 65B of the Evidence Act necessitates special procedure for illustrating electronic records as evidence in a Court of law. Section 65B caters for technical and non-technical positions and the manner for illustrating electronic evidence.

Indeed having a special procedure for illustrating electronic evidence, Indian Courts have delineated hesitation against getting in terms with this amelioration and have endured to apply the general provisions set in Sections 63 and 65 of the Evidence Act for illustrating electronic evidence. The same came to be focused, when the Division bench of the Supreme Court in Navjot Sandhu's case raised distressing questions about the probity of prosecution evidence. It was espied by the Supreme Court that the interception of telephone calls for collecting the said evidence disrupted privacy laws in distinct ways.

The question of non assent to Section 65 B of the Evidence Act also came up. In spite of the said frailties in the evidence put ahead, which should have invalidated the evidence, the Supreme Court conceded admission of the Evidence under Section 63 and 65 by clasping that:
irrespective of the concurrence of the essential of Section 65B which is a provision pacting with admissibility of electronic records, there is no bar to illustrating secondary evidence under the other provisions of the Evidence Act, specifically Sections 63 and 65. It may be that the certificate accommodating the details in sub-Section (4) of Section 65B is not filed in the immediate case, but that does not mean that secondary evidence cannot be given even if the law charted such evidence to be given in the circumstances mentioned in the germane provisions, namely Sections 63 and 65

Akin set of principles also came to be enforced in the case of Ratan Tata v. Union of India[3], where the Apex Court did not take in cogitation the provisions imparting to electronic records in Evidence Act. The above decisions of the Supreme Court conceived a lot of abashment in the lower Courts of the country, dominant to counter claims.

The case of Amar Singh v. Union of India[4], wherein all the parties, counting the state and the telephone company, wrangled the legitimacy of the printed transcripts of the CDRs, as well as the authorization itself, clearly interprets the escalated out notion in the Country.

It is worth perceiving that discovering all these components only coerced to the introduction of the special provisions into the Evidence Act. For instance, as to authorization, exaction of an impartial certificate under sub-section (4) which in-turn deferred with the technical exaction of sub-section (2) was brought in establish the legitimacy.

On account of the extensive antagonistic views, as can be seen from the above, the decision in Anvar's case becomes all the more paramount as it formulates about the agenda for illustrating evidence in conformity of the standing law.

The facts of this case befit to the general election to the Kerala Legislative Assembly held on 13.04.2011, wherein the first respondent was stated elected and the appellant erected second in terms of votes. The Appellant sought to set afar the election under Section 100(1)(b) read with Section 123(2)(ii) and (4) of The Representation of the People Act, 1951 (hereinafter referred to as the RP Act), which caters for the grounds for stating the election as void.

The High Court held that the election cannot be set afar under Section 100(1) (b) of the RP Act as the corrupt tradition pleaded in the petition are not proved. Finally the Appellant conveyed to the Supreme Court.

Assimilating from the alive set of antithetical precedents, the Supreme Court in Para 14 of the judgment observed the subsequent in respect of the amendments lead to the Evidence:

In fact, there is turmoil in the way the evidence is originated before the court. Suitably guided, it accomplishes the systems function nimble and more effective. The supervision relevant to the issue before us is echoed in the statutory provisions.

The Apex Court after seeing the evidence in the immediate case allocated the same into three forms:

  1. Electronic records,
  2. Documentary evidence other than electronic records, and
  3. Oral evidence.

The Supreme Court after exhaustive scrutiny of illustrating electronic record as evidence observed that:

Any documentary evidence by way of an electronic record under the Evidence Act, in glimpse of Sections 59 and 65 A, can be proved only in congruence with the agenda prescribed under Section 65B.

Thereby, overruling the paradoxical glimpse made in earlier Judgment by the Supreme Court which despised the real provisions of the Evidence Act. The Supreme Court after considering the electronic record put alee by the Appellant affected them as inadmissible as the Appellant had aborted to produce the certificate required in terms of Section 65B in respect of the CDs catered as electronic records.

The Court inspecting the admissibility of electronic record in light of the judgment articulated in Navjot Sandhu's case observed that:

It emerged, the court expunged to take note of Sections 59 and 65A, while dealing with the admissibility of electronic record in that case. Sections 63 and 65 have no operation in the case of secondary evidence by way of electronic record; the same is wholly inclined by Sections 65A and 65B.

To that scope, the statement of law on admissibility of secondary evidence relevant to electronic record, as declared by this court in Navjot Sandhu case, does not settle down the correct legal position. It craves being overruled which was did by the court in Anvar�s Case.

The Supreme Court reckoned on the maxim Generalia specialibus nonderogant i.e., special law will always domineer over the general law. Highlighting the said maxim, the court through Anvar's case has approved to give certitude to the alive laws with respect to admissibility of the electronic evidence, which for more than a decade have had very bit or no certitude.

According to Section 85 B of Indian Evidence Act, 1872 It is Presumed by the court that secure electronic has not been altered since the specific point of time to which the secures status relates.

But Screenshots may be corroborated with a series of evidences because as per the opinion of courts, these types of evidences can easily be created through several photos editing software. Also it is a better option to have the cell phone with you as evidence in the court and also if possible, original message should not be deleted from the cell phone and original backup of the messages in the PC�s or laptops should be kept. The judges reach to the decisions rely upon the information that is administered to them. But it is the necessity that the information must not be a blab or guesswork, and then only the text messages, screenshots, or audio messages as are admissible evidence in the court.

In State of Delhi v. Mohd. Afzal & Others[5], it was held by the Delhi High Court that electronic records are admissible as evidence. But if someone demur the veracity of computer evidence or electronic record on the grounds of misuse of the system or operating failure or influx, then the person demurring it must prove the same beyond a modest doubt. The court observed that trivial theoretical and general apprehensions cannot make clear evidence defective and inadmissible.

Under Evidence Act, the Screenshots as the evidence in court are Admissible, because it is chunk of the electronic evidence. By acknowledging the screenshot as evidence, the details of phone and the date in which it was taken is also given in Court

  1. Anvar P.V. v. P.K. Basheer and others 2014 10 SCC 473
  2. NCT of Delhi v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600
  3. Ratan Tata v. Union of India (2014) 1 SCC 93
  4. Amar Singh v. Union of India(2011) 7 SCC 69
  5. State v. Mohd. Afzal 107 (2003) DLT 285
Written By:
  1. Utkarsh Anand and
  2. Prinshu Yadav

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