Wisdom form Puri..on Section 65B and Section 79A

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.

(Copy of the Judgement available here)

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”.

Naavi

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Kindly avoid mis-interpreting Sonu@Anvar judgement on Section 65B

This is to ensure that we donot mis-interpret the judgement in the Sonu@Anvar Vs State of Haryana going only by the discussions on legal issues that the Judge has added in the Judgement before arriving at the final judgement.

My first reactions on the Sonu@Anvar case was based on the article titled : Evidence Law; Sonu @ Amar Vs. State of Haryana [Supreme Court of India, 18-07-2017], Published by Legal India on July 18, 2017.

It went on to present an abstract stating: Evidence Act, 1872 – S. 65B (4) – Interpretation of – Certificate for Proving Electronic Records – Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken by the accused at the appellate stage.

The report prominently highlighted the quotes from the judgement “…There is no doubt that the judgment of this Court in Anvar’s case has to be retrospective in operation unless the judicial tool of ‘prospective “overruling’ is applied.

The Social Media immediately picked up this lead and spread the words that old judgements delivered by the Courts between 04.08.2005 and 18.09.2014 (Between the Afsan Guru Judgement and basheer Judgement) need to be revisited because of the Sonu@Anvar judgement.

We consider that this view is misplaced.

We need to observe that the Sonu@Anvar judgement has also stated  “retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases

Hence it went on to dismiss the appeal.

It appears that many have read this judgement ignoring that the Court rejected the appeal and did not agree for whatever was the reason that there is a need to revisit cases where Section 65B certificate was not submitted and evidence was accepted by the Courts.

Many WhatsApp sharing messages highlighted the view that all old cases should be “re-visited” according to the Court. This is not the correct inference that we should derive.

Secondly, the Sonu@Anvar Judgement gives an impression that law on Section 65B was created by the Afsan Guru judgement and changed by the Basheer Judgement. This is not entirely correct.

Law was created with ITA 2000 and Supreme Court interpreted in one manner in the Afsan Guru case and corrected it in the Basheer case….It is only the Cyber Jurisprudence that is developing…

Judgements can change law where the the judgement adds or delets to the law as written… When it is only a realization and interpretation of law as it is, we need not treat as if law came into existence only because of the judgements….

Afsan Guru judgement did not create the Section 65B certification hence it is not only the cases between the two judgements that the Sonu@Anvar judgement should debate revisiting, but all bad judgements since 17th October 2000 where Courts have ignored presentation of Sec 65B certification. This view would have created more problems than it could solve. 

Now Sonu@Anvar judgement follows the Basheer judgement but only says that it would be impractical and hence un necessary to give it a retrospective effect and revise the earlier judgement of the High Court on which the appeal was made.

We agree that it would have created a chaos if a decision had been taken to re-visit earlier cases on this ground though we regret that the Courts were not interpreting the law properly at that time. This is one of those exceptional cases where the Courts erred and the error cannot be easily corrected by a general order to annul the earlier judgement.

Though the Court under a similar argument where the legislators were not clear in wording Section 66A, slapped the legislators and scrapped the section,  we cannot slap the Courts for their ignorant interpretation of Section 65B in the past and argue for scrapping all the old judgements. We have to let it pass.

I am however sure that in deserving cases where the evidence has been tampered with and Courts went on to base their judgements on “tampered uncertified electronic evidence“, it should be possible to challenge the judgement.

The cause of action for seeking such review may not be primarily for the technical reason that the evidence was not certified, but for the reason that the genuiniity of the evidence is questioned.

Naavi

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Case of “Alias Anvar” stirs up a debate on Section 65B certification for past cases.

It was way back on 17th October 2000 that ITA 2000 was notified and long with it the Indian Evidence Act 1872 got amended with several new sections being added to address the issue of Electronic Evidence. One such issue was the “Admissibility of Electronic Evidence” for which certain procedure was introduced under Section 65B, a new section that was introduced into the Act along with Section 65A,

Since then there has been lot of confusion in the traditional legal circles as well as the Judiciary on how the section should be applied in actual practice.

The First Case where Section 65B certificate was used

The undersigned was the first person in India to have submitted a Section 65B evidence in a Court which was admitted and used to convict the accused to a sentence of 5 years. It was the case of The Government of Tamil nadu Vs Suhas Katti in the AMM Court, Egmore, Chennai which was decided in 2004. (Refer www.ceac.in for more information and copy of the judgement).

The essence of the case was that an offence had been committed by the accused in the form of publishing of an electronic document on groups.yahoo.com. A message appeared there which was posted by the accused and involved some content which could be considered as “obscene” under Section 67 of ITA 2000. However there was no way we could have sent a police party to  USA, and seize the electronic evidence in the form of the hard disk in the possession of  Yahoo. But it was not necessary since Section 65B was available for us and a Print out of what was seen by me sitting in Chennai could be considered “also as a document” without the need for production of the “Original”. The Judge therefore continued the trial with a print out certified by me and pronounced the judgement. The defense raised the issue that I was not a Government appointed expert but the Court felt that that was not necessary.  These were all very important judicial principles that the Judge of this Court actually enunciated though he was an unsung hero and no body praised him for his vision. (I hope some body traces this Judge and honours him even now).

Many judges even today call that hard disk in the yahoo server as the “Original Evidence” and anything else including a print out as “Secondary” evidence. This is the first myth that we need to break. In electronic documents there is no “original” electronic document that can be brought into the Court and handed over to the Judge. Only a “Container” can be handed over.

Secondly, many legal experts including some judges consider that if a Section 65B certificate is required to be submitted for an electronic document that is lying in the yahoo server, it has to be signed by the administrator of Yahoo. This is the second myth we need to break. Section 65B certificate is a certificate provide by an observer of an electronic document that he “experienced” the effect f the electronic document and affirms it through the certificate and the attached set of documents in print or electronic copies.

I have explained this a number of times but still it is necessary to repeat it if required.

Now even after the law came into being in 2000 and the Suhas katti judgemment came in 2004, being a judgement of a small Court lawyers failed to recognize the meaning of the judgement and the explanations that we have been giving ever since including the books that I have authored.

Section 65B under Supreme Court Radar

When the Supreme Court first addressed the issue in the Afzan Guru case, (Navjot Sandhu @Afzan Guru judgement dated 4/8/2005) some people took note since it was the decision of the Supreme Court. In this case the debate was that when the person who could have provided the Section 65B certificate himself is present in the Court and deposes on the electronic document, then there is no need for Section 65B certificate. Hence some of the CDs produced in that case which were also affirmed by the witnesses were accepted as evidence and the decision was taken.

Then came the celebrated three member judgement in the case of Anvar P.V. Vs P.K. Basheer (discussed in detail at Naavi.org) declared that the Afzan Guru judgement was wrong and it is mandatory that Section 65B certificate has to be produced for admissibility of all Electronic Evidences.

Subsequently a notification was issued by the Government under Section 79A regarding possible notification of agencies as “Digital Evidence Examiners” which created further confusion in the legal circles. Again Naavi.org explained its views in several articles to explain the role of Digital Evidence Examiners and how this is different from the Section 65B certificates provided at the time of admissibility. (see articles :The Role of “Notified Digital Evidence Examiners” and Clarification on Section 65B… Who should sign the Certificate? ,  More Clarification on Section 65B Certification… For Forensic Labs)

In all these discussions including after the Basheer case judgement, the classification of evidence as  “Primary”and “Secondary” continued to prevail and cloud the decisions of the legal fraternity.

We have repeatedly held that in the case of Electronic Documents, the discussion of Primary and Secondary is superfluous and will lead to contradictions. Unlike the views of many in the legal circles and Judicial circles, a “Hard Disk” seized from a computer is not a “Primary” document and it is only a “Container” of an electronic documents. Similarly, even the CD is not a “Primary Electronic Document” but only a “Container of Electronic Document”.

A Container of electronic document contains many electronic documents and just as Police may seize a box from an accused house that contains say some tools of crime along with other things, a CD or a hard disk is a “Bx of electronic documents” and one or more of them is what we recognize as “Evidence” that is required for judicial examination.

Now in the case of Suhas Katti such an electronic document was one of the messages appearing on groups.yahoo.com amidst lakhs of other messages. This message appeared to a viewer as “Text” and the meaning assigned to the “Text” leads us to the conclusion that it is “Obscene” or “Defamatory” etc. That is, the viewer “Experiences” a text document which is rendered before him in a browser application running on windows operating system.

If the document was an image we would have seen an image. if it was an audio, we would have heard it.

The computer monitor is the device which makes the human being read a text document, a speaker gives out the sound that a human being hears and the combination of the monitor and speaker gives an experience of the video.

Though the experiences are different, behind the experience, the electronic document is a “String of binary characters” and nothing else. Hence all electronic documents are “Binary Documents”.

On the hard disk they may appear as magnetic orientations of individual cells. In the CD they may appear as depressions and flat surfaces (Pits and lands).

The electronic document is always an “Experience” of an observer when he renders the binary expression using one or more devices which we call computers, operating systems, applications, monitors, speakers etc.

It is this experience which the Judge wants the Section 65B certifier to bring to the attention of the Court with his confirmation that the experience is “reliable” and a judicial verdict can be based on it. Without such a certificate the judge cannot see the electronic document and if he views it on a computer then it will be his experience that becomes an evidence and the Judge himself becomes a witness. .

It is for this reason that Section 65B expects that some human being who can be relied upon should say that “When I opened this document using a certain process, this is what I saw or heard”… . Such a certifier is the person who experiences the certificate and it is not always necessary for the admin of the hosting company to provide the certificate.

Such a certification is mandatory and has been mandatory since 17th October 2000 and not just because the Supreme Court pronounced its judgement in the Basheer case.

Sonu@Anvar Case

If we look at Sonu@Anvar appeal in the Supreme Court, the argument was that the electronic document relied upon were not certified under Section 65B and hence were invalid technically. The appellant therefore sought that his conviction for abduction and murder should be set aside.

There is no doubt that the Supreme Court went into a detailed debate on  what happens when an evidence is technically imperfect and a decision has already been arrived at etc.

But what we need to take note is that this judgement has graciously acknowledged that some times the superior Court cannot go back in time and correct things and has to take a view on the issue within the limitations that are presented. For example if an innocent has been sentenced and later he is to be released, we can regret the effect of wrongful confinement but the Court cannot return the lost time.

The Court therefore finally decided that the appeal has to be rejected and in turn implied that at the appeal stage it is not necessary to re-open past cases where there has been no Section 65B certificate.

This does not mean that in future Court would show a similar concession if the Certificate is not obtained.

Hence the legal community should not now jump to either conclude that they can file uncertified documents and seek pardon later or start filing appeals for reversing earlier convictions where electronic evidence has not been properly certified under Section 65B.

The Court  may however be  under liberty to question the genuinity of any document in the interest of proper justice to be done if evidences have been manipulated and such manipulated evidence has been used to arrive at wrong judgements in the lower Court.

The Basheer judgement therefore was not recommended to be applied retrospectively  though the first press reports as it normally happens were focussed more on the lines of thoughts discussed by the Judges in the judgement and gave an impression as if all the previous cases involving uncertified electronic documents would be annulled.

Fortunately, no such thing is happening though in future Courts will not take it kindly if the Certificate is omitted.

This,  is the lesson we need to draw from this Sonu@Anvar judgement. It does not condone non submission of certificate nor reverses the earlier Anvar Vs Basheer judgement nor calls for a review of all earlier cases. It upholds the earlier judgement unequivocally and for practical reasons applies it only in futuristic sense.

It is also to be noted that in the case of Section 65B, it is not a law created by the judgement of either Afsan Guru case or the Basheer case or this new Sonu@Anvar case. The law was created with the notification of ITA 2000 and all the Courts are only trying to understand and give their views when there is a need to apply it in any specific judgement.

If people think that law is only when it is expressed by the Supreme Court, they can wait for every aspect of opinion expressed above to be brought out in some judgement in future. I am sure it will happen but it will happen in bits and pieces and will take a long time. In the meantime we may come to wrong inferences which we should avoid if possible.

I am sure that the debate may still continue… I invite comments on the above and would be glad to clarify.

Naavi

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Sonu@Amar Vs State of Haryana.. revisits Section 65B in Supreme Court

In what can be considered as a serious concern to criminal cases where decisions have already been taken based on electronic evidence without Sec 65B certificate, Supreme Court has debated the issue of challenge of Electronic Evidence at the appeal stage if Section 65B certificate is not adduced.

The following judgement of 18th July 2017 may be referred.

Sonu@Amar Vs State of Haryana (Supreme Court of India, 18/7/2017)

We will discuss this in detail shortly in a separate article.

However this could affect a very large number of decisions already taken and appeals may be made on the ground that the electronic evidence was not certified earlier.

In our opinion such appeals will not be sustainable.

We will elaborate the effect of this Judgement in our humble opinion in subsequent articles.

Naavi

Download Copy of Judgement

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Don’t fall into the trap of falsification of evidence while producing Section 65B certificate

Section 65B of Indian Evidence Act requires a certificate to be produced with any Electronic Document submitted as evidence in a Court of law, at the admission stage.

The mandatory requirement of Section 65B certificate came into effect on 17th October 2000 when ITA 2000 (Information Technology Act 2000) was notified. However it was the undersigned who produced first such certificate in a Court. It was  in 2004 in the State of Tamil Nadu Vs Suhaskatti case for criminal prosecution under Section 67, in the Egmore AMM Court, Chennai. Based on the certified evidence the Court went on to proceed with the trial and convict the accused. The conviction sustained even in the appeal at the Session Court upholding the validity of the evidence. Since then the Section 65B certificates produced by the undersigned have been produced in other courts from time to time.

However it was not until the Supreme Court judgement in the P A Anvar Vs P.K Basheer that the litigation market players realized that electronic evidence without Section 65B certificate would not be admissible in the Courts. Even the Police have started adding in their CrPc notices calling for information which may be in electronic form to be provided with Section 65B certificate.

Naturally, there is a scramble now on understanding how the certificate has to be given. Though Naavi.org and ceac.in have put out clear information on how Section 65B certificate is to be produced, there are a few legal practitioners who may hold some different viewpoints on some of the finer points of certification. Such differences will persist for some time and will be resolved over a period of time as long as we try to understand the purpose of the section and its use case scenarios.

What is however necessary for Companies in particular from the ITA 2008 compliance angle and ordinary citizens relying on such evidences to fight cases in the Courts is to understand that if the evidence is not properly produced, they may be rejected by the Court at the admission stage itself.

On the other hand, we also need to warn companies and individuals that some times there is a tendency to produce evidence which is deliberately falsified with the hope that no body would find out.

I recently came across such an incident where a large Telecom company had filed an apparently falsified electronic evidence to support its case against one of their employees. The electronic documents were supported by Section 65B certificate and also an affidavit in the Court.

It is possible that the defense may submit suitable arguments to throw this evidence out but what we need to remember is that production of falsified evidence is clearly an offence under Section 193 of IPC which is a cognizable offence carrying 7 years of imprisonment.

The person who produced a falsified Section 65B certificate and an affidavit in respect of the certificate would be liable for punishment under Section 193.

Such an Act will also be an offence under Section 43/66 of ITA 2000/8. Some of these incidents would also be offences under Section 65 and Section 67C of the Act as well.

When such person is an employee of a company and the interest of the Company is involved, the Company would also be guilty of the offence and it would extend to the “Officers in charge of Business” and “Directors” under acts such as the Companies Act  and ITA 2000/8.

While the offence under Section 193 of IPC carries 7 years imprisonment the ITA 2000/8 offences carry 3 years imprisonment.

I therefore advise those who donot know how to produce Section 65B evidence should not take the risk of producing falsified evidence as it may boomerang on them during the course of the trial when it is proved to have been falsified.

In Civil cases when such falsification comes to the knowledge of the Court it would be possible for the Judge to order that criminal action should be initiated by the prosecution separately either under IPC or ITA 2000/8. Perhaps it may be possible for the Court to initiate Contempt of Court proceedings for misleading the Court through falsified evidence.

Even in cases where an electronic evidence was present at one point of time but the litigant has failed to get Section 65B certificate for an evidence and subsequently it is no longer available, instead of trying to falsify the evidence with a compromised Section 65B certificate, it is better to forego the presentation of the documentary evidence in the form of electronic documents and try to proceed with other evidence on hand including oral evidence and witnesses.

Naavi

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Forum Owners when you get a request to remove content… Comply with Section 65

Recently, I had raised an objection about a comment posted by MCX of India limited on the Discussion forum of MyGov.in regarding Bitcoin regulation. The Government had asked for public opinion on the forum which was expected to be used by the Committee formed for the purpose to arrive at a decision.

Obviously there were different stake holders with different vested interests. Some wanted Bitcoins to be legalized and some did not. The undersigned was one who held that Bitcoins is detrimental to the interests of the country and needs to be banned.

(Details are available in a series of articles at present ending with this article on naavi.org: Fight Against Corruption now has a new Slogan: Say No to Bitcoins).

Multi Commodity Exchange of India (MCX) is a licensed Commodity Exchange that allows trading of derivatives related to different commodities including Gold and Silver as well as Foreign Exchange under the regulations formed by SEBI and RBI. It is like BSE and NSE and is a quasi regulator of commodity derivatives.

In the event Bitcoin or any other Crypto Currency is recognized by India as a commodity, it would be naturally a “Commodity or a Derivative” which would come under the trading list of MCX. Hence MCX is a direct stake holder of the Government decision to legalize Bitcoins or otherwise.

Just as RBI or SEBI itself was not expected to participate in the forum discussions and give its views since they were the decision makers themselves, MCX was also considered as part of the regulator and not part of the public.

However, some  executive who did not understand the nuances of propriety posted an opinion using the official logo of MCX stating that MCX recommends legalization of Bitcoins. This was posted on the forum a few hours before the end of May 31 when the collection of opinion was to end.

The undersigned raised an objection and called it as an attempt of an “Insider” in “Fixing” the decision of the committee and demanded action. Since MCX is a Board managed company and the opinion expressed was a policy decision, it should have been taken only under the directions of the Board. Also since MCX is a listed company itself, major Policy decisions that are considered “Price Sensitive” need to be notified to the BSE/NSE before being released to the public.

What MCX did was therefore a failure of Corporate Governance and fit for penal action from SEBI.

When the objection was raised by the undersigned, the Board naturally moved in and perhaps wanted to take its own corrective action. The first thought that came to their mind was “Removing the Comment” which was perhaps not authorized. Perhaps most managers would come to the same conclusion. They would have therefore contacted My Gov forum administrator and requested for removal of the content. MyGOv.in admin obliged by removing the content.

However this raises one issue of “Electronic Evidence” being tampered with. MyGov.in in this context is an “Intermediary” and when a notice of objectionable content is given to them by a suitable authority, under Section 79 of ITA 2000/8 they could remove the content. But this was a forum where the persons posting the comments were not authorized to remove the content once posted and hence it was expected that content once posted was an “Evidence” that could be acted upon by others who could view the content and be influenced by it.

According to Section 79 rules, it is necessary that content removed needs to be preserved for evidentiary purpose for atleast 90 days ass “Provisional Evidence” . If however he becomes aware that actually there is a dispute related to the content and it is “Actual Evidence” then he needs to preserve it for a reasonable longer time.

In the current incident, anticipating the removal of content, CEAC had already captured the evidence as it existed on May 31 2017 and also captured the forum content on June 1, 2017 showing clearly the absence of the original content or more appropriately, the “Tampered Page” .

Now the My Gov.in administrator can be accused of allowing of tampering of the electronic evidence when it was required to be maintained under law. (Section 65 of ITA 2000/8).

The correct procedure for removal of content was one of the following two methods.

  1. A rejoinder could have been posted along with the original content indicating prominently that the content has been reportedly been posted without the authority of MCX (which is an offence under say Trade Mark Act, Impersonation under Section 66C/66D of ITA 2000/8 etc) and the management has disclaimed the opinion made there in and should be ignored. Then the viewers would see both the original content and the correction. (This method was suggested by Naavi way back in December 2000 in the context of dalistan.org website in our article How To control Rogue Sites)
  2. The administrator of MyGov.in could have masked the earlier message with his note that the content has been masked because it had been reportedly been posted without authority of the organization in whose name it was posted.

If therefore BSE or NSE now wants to take action as mandated by the SEBI regulations on MCX for violating the listing guidelines, they will have to contend with a situation that the offending evidence is no longer available on the web and has been tampered with by none other than MyGov.in administrator. He can plead ignorance and escape criminal prosecution but the evidence is lost at his end.

However, CEAC is maintaining the evidence and has also posted it on www.naavi.org The article posted in naavi.org itself can be used as an evidence with Section 65B certification of the naavi.org webpage.

This article is being published to explain the Compliance requirements under Section 65 of ITA 2000/8 by public discussion forum owners.

It also explains the context in which Section 65 B certificates can be of use in public interest litigations as well as specific litigation involving tamperable electronic documents. (Provided one is alert to capture the before and after instances of the electronic documents through a trusted third party like CEAC).

Other aspects of Section 65B certification on who has to give such certification and how are discussed elsewhere.

Naavi

 

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A Case of Misreporting creates confusion…in Section 65B

Today livelaw.in flashed a report stating that the  Madurai Bench of the High Court of Madras has reportedly observed that “Primary Evidence of electronic record under Section 62 of Indian Evidence Act would be admissible without compliance of Section 65”.

This was directly in contradiction with the Supreme Court judgement in the case of P.V.Anvar Vs P.K.Basheer and raised an eyebrow as to how the High Court could have blatantly ignored.

A copy of the report is available here:  report in Livelaw.in,

However when the order was perused in detail it was found that it was the report which was blatantly wrong and misleading and the order had not said what the report stated.

The Court had before it a petition from the accused of a Dowry harassment case in which the complainant had adduced a CD as evidence while the argument was in progress in the trial Court. The CD was said to contain some conversations but it appears that there was no certification under Section 65B. It also appears that the IO nor the prosecutor had not signed the revision petition. The magistrate had ignored the irregularity and proceeded to admit the evidence.

Naturally the accused objected and brought this petition to challenge the trial court order to accept the evidence.

It appears that this is a case of incorrect reporting by the blog which is regrettable.

Copy of the Judgement is here.

The Court has actually allowed the petition and set aside the trial court’s order to accept the CD as evidence. It has asked the trial court to proceed with the trial based on the existing documents and closed the miscellaneous petition under which the complainant sought to bring in new evidence.

It is interesting to note that the honourable judge in this case was Justice A.M. Basheer Ahamed and it would have been a Basheer overriding the Basheer Judgement if the report had been true!. It would have made an interesting headline for the media but fortunately the report was untrue.

Naavi

 

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What to do if your computer is locked by a ransomware

Leaving the technicalities aside, I have posted a detailed Advisory on what a Common man has to do if his computer is affected by WannaCry or other similar ransomware. This advisory is available at Naavi.org 

I am not repeating it here.

I am only highlighting some steps to be taken by professionals who may find themselves in a situation where they cannot recover their computer.

I recently came across a situation where one of the customers lost the data hosted on a foreign server due to the foreign server getting affected and there was no back up. Such situations may also arise for other professionals.

In such cases the data loss may be later on interpreted as a “Deliberate Data Erasure” by the tax authorities or other regulatory authorities and the computer owner has to provide a proper confirmation about  the fact that his computer was in deed infected and the data was lost due to reasons beyond his control. Remember that deliberate data erasure may invite penalties under Section 65 and 67C of ITA 2000/8.

Such persons should therefore first keep a record of the fact that they were victims of this ransomware attack. This is suggested to be done by taking a CEAC certified copy of the locked screen showing the attack.

For more details you may contact Naavi.

Next, (After certification), I suggest that the hard disk with encrypted files may be removed from the system and preserved for some time. In case a decryption key is reverse engineered in due course, it may be possible to extract the data. It would also be an evidence to the law enforcement authorities that your claim of being a victim is not an alibi but a real fact.

If you want to prove that you were a victim despite using a licensed OS and reasonably updated along with a reasonably updated anti virus system, there is need to preserve the evidence. If you simply reformat the hard disk and continue your work, you may later have to answer that you did not take enough efforts to restore the data.

Naavi

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Evidence Obtained Illegally is also admissible if relevant…

Recently, a question was posed to the undersigned about the acceptability of evidence when there is a challenge that the evidence was obtained through illegal means. Following is my reaction to the query.

There have been many occasions in which an Indian Court had to debate whether an evidence can be admitted when it is brought to its notice that the evidence was obtained illegally. Most of these cases in the past have arisen on account of the Government tapping the telephone conversations and it has been challenged either as “Improper” or “Illegal”.

Illegality arises when the person has obtained an evidence by deceit, stealing or in the case of Cyber Evidence, by “hacking”. Impropriety may arise when there was a legal means and a procedure for collection of evidence which was not followed.

Obviously, it is easy to assume that “Procedural Irregularities” can be condoned but human rights activists often raise objection when evidence has been obtained through illegal means.

The opposition to the Courts accepting an illegally obtained evidence stems from the fact that it may violate the “Constitution of India”, the “Right to Privacy” and such other principles which are dear to some activists and even some Judges.

In many cases of matrimonial disputes, the spouses often plant spyware in the other spouse’s phone or computer and gather incriminating evidence. We had recently reported a West Bengal Adjudication verdict  in which a husband was fined for violating the privacy of his wife when he extracted evidence supportive of his matrimonial dispute case by means which were held violative of the privacy of his wife.

There are also instances when some resort to hacking of face book or gmail accounts to extract evidence.

In all such cases the counter party has a case against the party which has obtained evidence that it was obtained illegally and hence should not be admitted.

However, a series of Indian judicial decisions have held that an evidence is admitted if it is “relevant” though it was obtained improperly or illegally.

Hopefully the matter is considered a settled view since according to this Business Standard Report, the Bench headed by Justice B.S. Chauhan has stated,

“It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained,”

It must however be noted that once a person adduces some evidence, it is an admitted evidence  against him and  can be used against him if required.

Hence when an evidence is presented which has been obtained illegally, it is open to the Court to accept it and proceed with the trial in the subject case where it was presented as evidence. At the same time  a separate action may lie against the person who obtained the evidence in violation of some law.

Hence parties should weigh the pros and cons of presenting an evidence obtained illegally before a Court. Police may however use the evidence during the preliminary investigation and for interrogation so that they may be able to unearth further evidence through legal means which can be used in the Court.

Considering the inconsistency that prevails in the Judicial system and the views of different judges, it cannot however be ruled out that Judges may selectively accept or reject evidence based on whether it was obtained improperly or illegally and the degree of illegality involved.

In some of the matrimonial cases as was referrred to earlier (West Bengal Adjudication) the illegality was only restricted to using of a shared password between husband and wife or “access to a system exceeding the authority provided by the owner” (Section 43). Such contraventions may be considered as “Technical Overreach” by one party and is unlikely to be strong enough a reason for rejecting the evidence (if it is relevant).

However, an operation like a “Sting Operation” where inducements are thrown out to tempt a party to transgress law (eg: corruption cases) which are similar to operating “Honey Pots” or policemen trapping sex predators on the chat rooms, could be falling in the grey area of whether the evidence should be accepted or not since these could be “evidence that is created by the person when it did not exist in the first place”.

Again, when an evidence which is present some where (say a Computer or Mobile or Private page of a Facebook, Encrypted Message etc) is extracted for presentation in a Court  as defense in a case brought on the person who is presenting the evidence, it should be considered as a legitimate reason where the evidence should be admitted even if the manner in which it was obtained was not entirely above board.

In the case of offensive action based on such evidence, Court may exercise its discretion whether the evidence was collected as it was present and not created out of an inducement and therefore there was a duty to bring out truth before the Court of an offence already committed by the accused for which the evidence was collected.

Comments welcome

Naavi

Also Read :

A Research report  on 2013 Law Commission report 

1983 Law Commission report

Reference Article-1

Reference Article-2

Reference Article-3

Delhi High Court Judgement-2012 (Digambar Khattar Vs Union of India)

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More Clarification on Section 65B Certification… For Forensic Labs

Section 65B Certification of electronic evidence produced in a Court proceeding in India has been a matter of intense discussion in the circle of Forensic experts, Law Enforcement and of course the Legal fraternity.

Historically, the undersigned was the first person to produce a report under Section 65B of Indian Evidence Act in a Court in India. (Suhas Katti Case in 2004). Subsequently, it has been followed by many other Certificates issued under the banner of Cyber Evidence Archival Center (CEAC)  in the last 12 or more years.

During this time, the undersigned has handled many interesting CEAC certifications including  Web site pages, E Mails, Mobile data, Corporate Computer data, Personal Computer data, YouTube Videos, CCTV Videos, Extracts from Forensic software, Remote Desktop views etc. Some certifications are straight forward web pages as they appear, some are extracted with the use of some forensic software etc. Some electronic documents are text documents that can be easily printed out and some are audio and video files which have to be rendered only in soft copy format.

Every one of these different types of documents,  have been a challenge in terms of meeting the Section 65B requirements. Some times it has been necessary to structure solutions  to extract the electronic documents as per the best understanding of the requirements of Section 65B as perceived by the undersigned .

As a result of such long experience over the past 12 plus years, the undersigned has developed  specific procedures  to present the “Computer Output” as required under Section 65B of Indian Evidence Act.

I am aware that there are legal luminaries who have special expertise in Indian Evidence Act and some of them may hold views different from mine on some aspects of how the section 65B  has to be interpreted.  It is possible that for various reasons, many of them had not focussed on the issue of Section 65B until recently when Supreme Court drew its attention to the mandatory need for Section 65B certification for all electronic evidences presented to the Court. (Refer Basheer Case).

I was however drawn into it right from 2002 when CEAC was formed as a service and has therefore the procedures developed must be considered as an evolution of the system over a long period.  (It is not out of place to mention that I had proposed CEAC to be public private partnership with the the Ministry of IT at that time through the then CCA though it could not be implemented while it continued as a private service.)

At this point of time, Naavi’s approach to Section 65B certification used by CEAC should perhaps be considered as one of the approaches that needs to be accepted as a major school of thought  even if other experts have a different view point. However, we can  say that Jurisprudence on this aspect is still under development and different experts arguing differently and different Courts interpreting differently could be common. Some time in the future, I suppose the honourable Supreme Court will look into many of my articles including this one and give its own interpretation which itself may undergo many iterations over time.

With this humble submission, I would like to present below my view on one hypothetical case based on a reference received by me regarding submission of forensic reports by Forensic Labs and Government owned establishments such as CFSL or other equivalent organizations.

In the reference, there were the following aspects.

  1. The evidence consists of a Call Data Record (CDR) extracted from a Mobile Service Provider (MSP). (Perhaps this includes  Tower data record along with the billing and usage records)
  2. Mobiles seized from the accused sent to the lab for analysis
  3. Hard disks seized from the accused sent to the lab for analysis.

For the sake of discussion, I consider the following hypothetical requirement of the law enforcement.

The accused has used the mobile phone/s to make calls to say other co-accused or to the victim to further commit an offence which may be a Cyber Crime or a Physical Crime. . The CDR was collected from the MSP and handed over to the lab for further analysis. Mobiles and Hard disks were seized from the accused by the Police and sent to the lab. The CDR evidence is to be used along with the forensic analysis of the mobile where there may be contact details, some SMS/WhatsApp messages. It is possible that some of this data might have been deleted and has to be recovered using appropriate recovery software. Some of the recovered data may be fragments needing further interpretation. The Computer hard disk will also have many items related to the mobile and CDR either in active files or deleted and recovered. There could also be a back up of phone data in the computer of the accused whose hard disks have been seized.

The question that was posed in a reference was

a) Who will provide Sec 65B certificate for the CDR

b) Will the Lab provide Section 65B certificate for its report?

I will try to provide my views on these queries to the best of my knowledge and experience.

Though the final report is provided by the Lab, the CDR is handed over to them as an input along with other seized hard disks.

The CDR is an extract from the systems of the MSP and has to be therefore certified under Section 65B by the MSP’s person in charge.

If the MSP admin allows the files to be viewed by an independent expert, then the independent expert may take on record what he has seen, the circumstances under which he saw the documents, record it and add it under his Section 65B certification.

The CDR as presented by the MSP may be in say an excel form which the lab may use as an input and analyze through a CDR analysis software. This may display many results that appear in the screen of the analyst’s computer which he may record and use in his report.

Similarly, the mobile data or hard disk data may be analysed by the analyst using forensic software of different descriptions. The software may discover deleted files and show on the analyst’s screen. Some of these electronic documents as it appears on the analysts’ screen may be captured and used as a part of the analyst’s report.

At the end of this exercise, the analyst will come to some conclusion in his report and answer the queries raised by the investigating officer.

In such a scenario, the question of how Section 65B certification has to be used by the Lab expert is a matter of discussion.

Now in the above case, the report could be considered as a combination of

a) Matter of fact observation when some content is displayed on the screen of the analyst under certain standard conditions.

b) Certain content displayed which may require an “Expert Knowledge” to draw a meaning.

Section 65B is mainly concerned with the presentation of an electronic document lying inside a computer as a “Computer Output” that can be experienced (Read, heard, seen) by the observer, for the purpose of admissibility by a Court.

“Interpretation” and drawing conclusions which are not obvious from the visible computer outputs (presented either as a print out or soft copy) is a subject matter of an expert in the domain. The matter of fact part of the report also requires certain expertise but the level of expertise required for interpreting the data may be higher or it may be completely an expertise outside the computer domain.

For better clarity, let us take an illustration where a lab analyst extracts an image of a wounded person from the computer and renders it as a computer output in his Section 65B Certified report. Another expert say a doctor views the photograph and opines that this wound appears to have been caused by such and such a weapon etc…

Here there are clearly,  two experts … First, the computer expert who discovered the image from a pile of deleted images and the second expert who had nothing to do with Sec 65B Certified report but is an expert in another domain.

Some times, the division of roles of the “Observer” who extracts the information and the “expert” who interprets the document may not be so clear. It may be the same person who uses a forensic tool to extract fragments of a file containing log records and uses his computer expertise to interpret that the log record extracts mean certain things.

The Forensic lab analyst  has such dual role and hence his report has this dual characteristic of being a report both as an observer of a “matter of fact” and as an expert “Who interprets the fact”.

Another illustration that explains this situation is as follows.

Let us say there is a photographer who takes photographs. If it is a digital photograph, he can give a “matter of fact section 65B certification” stating this is a faithful reproduction of a photograph which I took using such and such camera on such and such date and time at such and such place. This  is the typical certificate  where the certifier does not express any opinion on who is there in the photograph, what is happening, Is it a marriage? or Is it a quarrel? etc.

Let us now say that the photograph is a video in which two persons are speaking in French. Let’s say the photographer fortunately knows French language and can interpret what the two are talking. He therefore produces a report in which the video is enclosed and states that the two persons were planning a terrorist attack. His certificate is now more than a Matter of fact certificate and includes his own expert view based on his language expertise.

The report that normally a Forensic lab person gives has this dual element of expertise, where in the first place, there is a simple expertise of using some tool and making some electronic documents appear on the screen which is then printed with a CTRL+P command and in the second place, involving  a “Forensic Expertise” where he adds his “Opinion” into the report.

A Good lab report has to be structured in such a manner that these two aspects are clearly brought out in the report itself so that the Court can use the “Matter of Fact” report and discard the expert report if it deems fit. Alternatively Court may accept the matter of fact part of the report but approach another expert for interpretation to substitute the expert opinion part of the report.  This means that the report may be taken as evidence in part and rejected in part. It may also be possible that the defense may accept the report of the “matter of fact part” but challenge only the “Expert opinion” part.

It is a moot point at this point of time if the reports provided by CFSL or other organizations which normally provide such forensic certificates have a system of structuring their reports as described above. It is possible that they simply enclose the evidentiary objects examined and directly go to give its point by point reply to the investigating officers, queries on the evidence.

Once we understand this nature of the Lab report, we can address the issue of whether Section 65B certificate is required for the lab report or not.

If the Analyst has reproduced any extracts of electronic documents as part of his report and relied on such extracts, then Section 65B certificate is required.

If the Analyst does not use any electronic document as part of his report and only gives out his views in isolation, then he need not provide Section 65B certificate.

In such a case he can be cross examined as a witness and further information can be sought.

In the case of a self evident/self sufficient “Matter of Fact Certificate”, the parties/Court may decide not to put the analyst as a witness and examine him, since there is no dispute on the matter of fact part of the report.

In most of the practical cases, a forensic lab will have electronic documents discovered by them based on which they provide their opinion. Hence their reports will have elements of both a “Matter of Fact Certification” and a “Forensic Expert Opinion”.  Hence Section 65B certification as well as presentation as a witness may be required.

Where there is a case when there is a web page which has been certified by an independent observer like CEAC as it appears to the public on the web with only simple tools such as a standard computer, running on  a standard operating system and a standard browser application, the Section 65B certificate may be accepted without the need for cross examination of the certifier (unless the defense wants to challenge the witness and probably allege fabrication of evidence).

In such cases, the parties may accept the computer output for admissibility and argue on the content as they require. Eg: One may say that the words used are defamatory and obscene and the other may say it is not. The judge has to take the call.

In the Suhas Katti case, I had produced an extract from a web page which the advocates argued whether it was obscene or not. I had no role in deciding whether it was obscene content. Similarly, I had recorded the IP address visible in the header information of the message and given my limited expert view with the use of a “Whois query tool” to say this IP address appears to belong to BSNL, Mumbai. This was a low level forensic expertise. I was however examined in this case as an “Expert” and cross examined but there was no disagreement on the evidence produced. The only objection raised by the defense was that I was not a Government employee and the Court felt that expert can be a private person.

I have presented the detailed view point above to indicate that the Section 65B certificate is meant for replacing the need for the Judge to interpret the “Original Binary Content of an electronic document” and enable him/her take a view on the electronic document on the basis of a print out or soft copy of what the binary content means when rendered on the screen of a computer  as a “Computer Output”. This is with the limited objective that the electronic evidence can be admitted and trial can proceed. (Readers may kindly read my earlier articles on the subject also links to which is provided below)

The Forensic labs therefore learn to structure their reports appropriately to indicate that part of the report is simply to render the “electronic document” as a computer output as is visible to a low level expert while in some cases, the report continues with an expert view where the “Opinion” of the observer is added as an “Expert”.

What I have presented here as a requirement for Forensic labs should also apply to a “Digital Evidence Examiner” accredited under Section 79A of the ITA 2008 and summoned by the Court for its assistance.

Comments are welcome.

Naavi

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