The Court of the Sub-divisional Judicial magistrate Puri, in its judgement dated 4th August 2017 has come up with some interesting observations on Section 65B of Indian Evidence Act and Section 79A of ITA 2000/8 that needs to be taken note of.
The case refers to State Vs Jayant Kumar Das (G.R. Case No 1739/2012: T.R.No.21/2013) in which the C.F.S.L., Kolkata had submitted it’s opinion on certain Electronic Documents which came up for discussions both from the point of view of Section 65B certification and also the status of C.F.S.L as an “Expert”.
For the record, the accused was charged under Sections 292/465/469 and 500 of IPC and Sections 66C/67 and 67A of ITA 2000/8 and the Court sentenced him under different sections.
For the purpose of our immediate discussion we shall restrict ourselves to the observations in the judgement about Section 79A of ITA 2000/8 and Section 65B of Indian Evidence Act.
One of the issues raised by the defence counsel challenging the evidence was that CFSL Kolkata was not notified as a “Digital Evidence Examiner” under section 79A of ITA 2000/8. Hence it cannot be considered as an “Expert” for the purpose of Section 45A of Indian Evidence Act.
The Judgement rejected the argument of the defence counsel and held that
“Even if, the notification U/s. 79(A) of I.T. Act is not available yet it is admissible and the opinion of the expert complied with Section 45 of the Indian Evidence Act 1872 and Section 293 of Cr.P.C. is a relevant fact.“
We may add that Section 79A states that the Government “may” notify (not “Shall”) agencies for the purpose of providing expert opinion on Electronic evidence before any Court. Hence we may consider that it is not mandatory that the Government has to notify agencies under Section 79A and if no such notification is made, the evidence is not to be considered as “Expert Opinion”. In our earlier article we have explained the role of “Digital Evidence Examiners in great detail.”
The defence counsel also raised the issue regarding the signing of the Section 65B certificate on which the Judge made some detailed comment worth taking note of.
In this connection, Para 29 of the judgement is worth reproducing completely as it explains some critical aspects of Sec 65B:
“The certificate U/s. 65(B) of the Indian Evidence Act is mandatory for the purpose to show that the evidence is genuine.
Whoever claims that the computer generated evidence was produced from his computer shall merely have to certify on the document that the relevant record in question is genuine and has been produced from his electronic device. After that he has to sign it. This statement shall be titled as certificate U/s. 65(B) of the Evidence Act.
The hard disc which may contain a electronic document also cannot be considered “ Primary document”. Since it is only a “container” and real electronic document is an expression in binary language which cannot be read by a human being and needs to be interpreted with the assistance of binary reading device( computer operating system + application).
Considering the interpretation U/s. 65(B) of Indian Evidence Act the certificate under this section as a matter of fact to the effect that what on the saw what on the reproduced as a computer output failthfully.
This can be done by any person who is observing an electronic document in his computer and once it to be produced as an evidence. It is not necessary that a document from yahoo website has to be certified only by a yahoo server administrator. The certificate can be given by any person who can lawfully access the document in electronic form who understand the contains and is considered as an expert in such domain.”
The above view is in complete agreement with our view expressed on this site several times earlier.
As we have stated earlier, the jurisprudence on Section 65B certification is still in the phase of development and in this process this judgement is a notable step.
To Summarize our view on the two aspects, we can state,
Section 65B certificate is for the “output” created from an electronic document that a person experiences and can be provided by any person who experiences the electronic document. (The word “Experience” is more relevant than “read”, since we may have some electronic documents which are not “Text” documents that can be read but could be audio or video documents that can be heard or seen.)
Once an electronic document is presented with a proper Sec 65B certificate it would be a sufficient requirement for admission by the Court at the trial stage. However the defence can challenge it. At that time it is open to the Court to call for an “Expert Opinion” on the Sec 65B Certified document which is in its hands already.
This examination of a “Disputed but Admitted Electronic Evidence” may be done by a “Digital Evidence Examiner” if available or by other “Experts” at the discretion of the Court. No document would be considered invalid soley for the reason that the “Expert” is not a “Digital Evidence Examiner” or that no such “Digital Evidence Examiner” has certified the document either before or after admission.
It is also necessary to note that some times, the electronic evidence presented by forensic organizations like CFSL is a “Hybrid” document which is both a “Matter of Fact” presentation of an electronic document which requires Section 65B certificate and an “Expert Opinion” where the person signing the certificate expresses his “expert views” on the matter of fact information available in the certified report.
I have also held in the past that it is desirable for the Forensic experts to realize this hybrid nature of their report and properly present their certified report so that Court may accept the “Matter of Fact part of the report” independent of the “Expert Opinion” part and the defence may accept the “Matter of fact part of the report” but challenge the “Expert Opinion”.
Some of these aspects will come up for discussion again in future and get clarified in due course.
P.S:: One aspect on which we are unhappy in the disposition of this case is that the accessory to the crime namely desihunt.com has gone unpunished. The site is still in existence and running “Dating” and “Wife Swapping” groups etc., which can be used by others to commit the same offence for which the accused in the above case was convicted.
The domain name desihunt.com has been registered by a registrar by name Wild West Domains LLC and the identity of the owners is being sheltered by the registrars under the false pretension of “Privacy”.
Though this was not a subject matter of the case, the Court could have made an order for the Police to pursue a case against the website in the interest of the public in general.
Now I urge the “Adjudicator of Orissa” who is the “IT Secretary of Orissa” to take immediate action to get this website closed and owners brought to trial separately both for civil and criminal penalties.
People who are familiar with the old “Dr Prakash Case” in Chennai will remember that one of the websites that his brother was maintaining to which the offending photos were allegedly being uploaded by Dr Prakash carried a disclaimer as we see in this website now stating
“This Site is a dating and social networking portal for like minded adults above 18 years of age. Please leave this Site immediately if you are under 18 years of age ( 21 in some countries/states, please check your local regulations ), or if it is illegal to view adult dating/networking portal in your country/state. By clicking on enter link you agree with the terms”.
The value of such disclaimers without any technical barrier to prevent entry of minors is a matter of a separate debate”.