Mr D Arul Raj, was a Magistrate with a vision…recalling the decision of 2004

 

International Commission of Jurists, Bangalore had organized a lecture on Digital Evidence and Section 65B of Indian Evidence Act at the Karnataka High Court on 8th December 2017.

Speaking on the occasion, Naavi highlighted the evolution of Section 65B as a law since 17th October 2000 when the ITA 2000 was notified till date. He also explained the nuances of Section 65B and why it is a very innovative legal provision that has added great strength to Indian Cyber Law.

In the process, Naavi recalled that the first Section “65B certified evidence” was produced in a Court of law in the historic case of State of Tamil Nadu Vs  Suhas Katti in AMM, Egmore, Chennai in 2004. This case has been recognized as the first case of conviction in India under ITA 2000. However Naavi pointed out that this case was also historic from the point of view of Section 65B since the evidence presented in the case was a Section 65B certificate submitted by Naavi  dated  18th February 2004 in which content which was present as an electronic document on Yahoo Groups server was brought to the evidence and admitted. This was the critical evidence which evidenced the commission of the crime on which the accused was convicted under Section 67 of ITA 2000 besides Sections 469 and 509 of IPC.

Subsequently, it was only on 18th September 2014 that in the P.V.Anvar Vs P.K.Basheer case in the Supreme Court that the eminent judges led by Justice Kurien Joseph stated that Electronic Documents can be admitted as evidence only if they are accompanied by Section 65B Certificate. In the process, Supreme Court over ruled the earlier judgement in the Afsan Guru case which on 4th august 2005 had held that in certain circumstances electronic documents can be accepted without Section 65B certificate.

While it took 14 years for the larger community of Judges to highlight the importance of Section 65B, it should be recognized that Justice Arul Raj had created history by appreciating such an evidence and accepting it for the trial. At that time it required courage of conviction to accept a piece of paper submitted by a private person in Chennai as convincing evidence that a defamatory electronic document existed in the server of Yahoo in US.

The acceptance of Section 65B evidence was not the only point made out in this case. The defense raised a query if a private person like Vijayashankar could submit the Section 65B certificate and whether it was not necessary for a Government appointed person to submit it. Mr Arul Raj again came to the right conclusion that the section 65B does not restrict the submission of Section 65B certificate only to a Government authority.

The decision of Arul Raj in the Suhas Katti case was not just a flash in the pan or a decision prompted by the circumstances. Some time later in the same year, Mr Arul Raj took another decision related to Section 65B which again was a point that was touched upon by the Basheer case and requires to be highlighted now.

In this case, a case of defamation had been filed by actor Trisha on a Tamil publication which had published some photographs extracted from a video which was in circulation in the internet at that time. A series of screen shots had been printed in the magazine. Police had raided the office of the publication, seized a CD containing the video and filed the charge sheet stating that the content of the CD was printed in the magazine and hence the CD was a prime evidence for the case.

Justice Arul Raj at that time invited the undersigned to the Court and asked me to view the contents of the CD on the computer in the chamber and provide a Section 65B certified print out so that he could proceed with the trial on the basis of Section 65B certified copy.

The logic behind this decision to invite an external consultant to convert the contents of CD which was already on hand with the Court and which many could say was the “Primary” evidence, into a Section 65B certified print out, which many would say is the “Secondary” evidence was a master stroke of understanding of the principle of Section 65B.

I personally feel that Mr Arul Raj should be honoured specially for displaying a vision that though the “Primary” evidence is with the court, it cannot be appreciated by the Court without the assistance of a “Section 65B certified document”.

In the Basheer case a reference has been made that if the original CD in which the recording which formed the evidence for the case had been seized by the Police and presented, it could have perhaps constituted a  “Primary” evidence and non availability of Section 65B could have been condoned.

In many other cases also, we some times see that Courts ask the “Mobiles” containing the evidence to be presented as “Primary Evidence”. Hard disks are often presented as “Primary Evidence” for documents in a Computer.

Even assuming that the original binary impressions which first generated the electronic document which is the evidence in question is in the possession of the Court embedded within the container called the hard disk or a mobile, the Court cannot simply view the content itself and admit the evidence in to the proceedings. If any Judge proceeds to admit the evidence because he himself saw or heard the electronic document, then he is himself taking the responsibility to confirm that the electronic document which he saw or heard based on the computer, the operating system,the application and its configurations etc which all combined to render the binary data of the electronic document into a human intelligible experience was working properly etc., as envisaged in Section 65B.

It is therefore essential for the Court to involve an external person to produce a Section 65B Certificate before accepting the evidence into the proceedings.

Mr Arul Raj had realized this way back in 2004 and that is what I call as a visionary understanding of the challenges involved in appreciating digital evidence presented to a Court in its “Primary” form.

During the last several years, the undersigned has assumed credit for having been the person who first presented a Section 65B certificate in a Court. The Police officer who was involved in the case as an IO, namely Mr Balu Swaminathan (who was the ACP in charge of the Cyber Crime cell in Chennai at that time) has also been commended and recognized for being the first IO to get a conviction under ITA 2000.

But I feel that the magistrate Justice D Arul Raj has not perhaps been properly recognized for displaying his vision beyond the normal call of duty which brought in the conviction as well as the appreciation of electronic evidence in proper form.

Today, we are not aware where is Justice Arul Raj. But Naavi as a person and Naavi.org/ceac.in considers it our duty to record the contribution of D Arul Raj in the development of Cyber Jurisprudence in India and honour him with this article.

We wish that appropriate persons in Tamil Nadu, locate Mr Arul Raj and provide him the due honour that he deserves.

We urge my friends in Cyber Society of India and Prime Point Foundation in Chennai to take the lead in this regard.

Naavi

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Contemporaneous Certification required under Section 65B

In the High Court of Madhya Pradesh at Jabalpur, in an order dated 17th January 2017, regarding E.P. no 01/2014, (S.Tiwari Vs Arjun Ajay Singh) an important confirmation of a process has been added to the Cyber Jurisprudence of Section 65B of Indian Evidence Act.

In this case, there was a video shot by sub contractors of Election commission during an election campaign which was handed over to the election commission. After the election, one of the parties has raised an election petition in which he has produced a copy of the CD obtained from the Election Commission as a “Certified Copy” and produced it in the Court. Initially, it was not having Section 65B certificate and the petitioner again approached the Election Commission, obtained another set and presented it to the Court.

However, the Court observed that the original document in this case was contained in the memory card (Ed: or the tape) of the Camera and this was first transferred to a CD when it was handed over to the Election commission and then this was again transferred by the Election Commission onto another CD and handed over to the petitioner.

The Court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”. In this case the video grapher should have given the first certificate to EC and EC should have given the second certificate to the petitioner. Since this was not properly done, the Court refused to entertain the evidence.

The contention of the Court is on the right lines even though it may surprise many. The undersigned has been advocating it to some where necessary.

It is good that Courts have been deliberating on the issue of Section 65B certification in great detail and this will be discussed again and again in the days to come.

Naavi

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Evidence Drop Box and Shapoorji Pallonji E Tender Case

We continue our academic debate on the recent case of Shapoorji Pallonji Vs MHADA  in which the company challenged the e-tender bidding process followed for the award of a major Rs 11000 contract  for reconstruction of BDD Chawls and successfully obtained a ruling that they should be allowed to participate in the bid, though there was a dispute as to whether the bid process was properly concluded or not.

We have already discussed the details in the earlier articles and from the available information it is reported that NIC had created the e-tender system which involved a process of uploading tender documents encrypted with the public key of the tender authority into the server and then clicking a button “Freeze Bid”. The petitioner in this case contended that they were able to successfully upload the document and they got “Successfully Uploaded” message on the screen. However, there after they logged out and the requirement of clicking the “Freeze Bid” button was not displayed. NIC confirmed that the freezing of the bid was not logged in the server and hence the process was not complete.

The reason that the button was not displayed could be due to any number of technical reasons either at the server end or at the user end or at the intermediary network services level. This was considered as a “Technical Glitch” and the Court agreed with the contention that technical glitches should not be allowed to prevent an otherwise valid bid to be taken into consideration.

At this time, I am not going into further debate on this issue and as I have mentioned several times, I donot have any specific vested interest in Ms Shapoorji Pallonji getting an entry into the bid or finally winning it etc. Hence the legal team of Shapoorji Pallonji which consists of some of my friends, need not get upset about what I am objecting to. I am only debating the possibility that if we admit that any unsuccessful e-commerce contracting party can raise non fulfillment of an online process due to claimed technical glitches as a defence to void the contractual requirements, it would create a bad precedent and makes life difficult for all e-commerce entities. I therefore feel if there was any other “Public Good” reasons which required the petition to have been allowed, it should have been allowed under those grounds rather than under the “Technical Glitches” reason.

However, I need to answer one of the points raised by a friend stating

” If you insist the onus of having clicked the freeze button should be on the end point  you are effectively saying all individuals must now have cameras behind them recording their actions. That is just not going to work. “

This is the Shapoorji Pallonji dilemma which is not unique to this case but to any transaction in which electronic documents are relied upon and transaction is considered evidentially important.

We must appreciate that at present, according to Indian law, “Click Wrap Contract” is not considered as a valid “Signed Contract”. Unless a contract is digitally signed by both the offeror and the acceptor, a valid digital contract like a written and signed contract cannot be completed.

The Income Tax department and MCA authorities have therefore adopted a process where at the stage of submitting a return, the entire document is captured in toto and a Digital Signature or e-Sign is applied on the web form and then sent to the receiver.

However, what most E Commerce parties are doing is to adopt the US practice of providing a button at the bottom of a contractual document saying “I Accept” or some other similar words. Some people add an affirmative action such as ticking the check box or having a captcha. Others ignore even this precaution.

In such cases, we consider the contract as a “Deemed Contract” where the contract is implied by circumstances evidenced by the meta data of the transactions but detailed terms of contract is considered as open to dispute as per the usual considerations of an “Unconscionable Contract” and “Standard Form Contract” for which several Supreme Court judgement have set the standards. All practicing advocates should know these cases and there is no need for me to repeat a reference here. I have used the references successfully in the adjudication case of S.Umashankar Vs ICICI Bank which is too old for many to remember, except for its historical importance.

It appears that the NIC tender process has also adopted this “Deemed Contract” principle at least to the process of submission of the tender documents….such as Log in with your registered log in ID and password, upload the documents, click the “Freeze Bid” button etc.

There is a dispute that NIC did not give proper instructions in this regard which is outside the  scope of my knowledge and I leave it to the NIC to confirm or deny beyond what they have already done in the affidavit before the Court which has been rejected.

Whether the process of tendering was completed or not is a “Sub Contract” to the tender process and it has to be analyzed in the “Deemed Contract Status”.

In a deemed contract, either party can dispute on the details and that is what has happened in this case. I suppose the Court has considered all angles and come to a proper decision and if not,  it is for the parties concerned to challenge it in a higher Court.

However, can this process of “Uncertain Deemed Contracts” driving e-commerce transactions and the high value e-tendering systems be allowed to prevail? or should we have a solution? is a matter of concern for “Non Practicing Blog Writers” who are more concerned about the “System” rather than an individual litigant. Practicing advocates argue for one party today and another party the other day while “Non Practicing Blog Writers” have to be accountable for their views to the public and justify change of opinion with reasoning if required.

The Undersigned has anticipated this type of problems several years ago when he launched the services of ceac.in (Those who are unaware, can go through it once again).

Under CEAC service “Certification of a Web Page” now also upgraded as “CEAC-Evidence Drop Box”, it has been suggested that whenever people take critical decisions based on a web document, it is prudent to record the document and get it certified under Section 65B of IEA.

I have submitted many such documents in the case of web based copyright infringements, defamation, matrimonial cases etc. Very recently, there was a demand from a customer who had lost all his accounting records stored on a server in USA which was attacked by a ransomware to show case the evidence that his records were destroyed by the ransomware and the same was provided by CEAC.

Unfortunately many may not  know the existence of such services and I donot have the habit of advertising the same as often as I should perhaps do. Hence people may not know either that such trusted third party services have been available since 2002 nor that the requirements can be fulfilled if not with CEAC, with others.

The CEAC-EDB service is specially designed for requirements which Shapoorji Pallonji persons encountered when they were preparing to submit their documents for a huge contract in the last minutes where there was no time left for alternate submission if the technology had failed.

The idea here is that since there is no time to invite an expert Section 65B certifier to record the process in his presence, and also that it has to be done from the premises of the user and in his computer, the user foregoes the need to involve a trusted third party for recording the observation but does the next best thing of “Archiving” the process with a trusted third party at a time no dispute has arisen so that it can be produced as evidence that the process was completed in a certain manner and there was a technical glitch which appeared as a “Error Statement on the screen” or simply by “Nothing appearing on the screen”.

I am sure that some of the informed readers will suddenly jump to other debate of Section 65B certification but we can keep that discussion for a different time.

I recently submitted one Section 65B certified statement of “Certified E Mail Delivery” to a respondent at the instance of a petitioner so that the Court could proceed with the hearing ex-parte since the respondent was not cooperating in the litigation. Similarly, the “Archival of a user end electronic activity” would be certified as to the “Archival”. It is open to the defendant to raise any argument that the archived document itself was fabricated and the archival cannot save the defense. But the onus of proof will be on the defendant that the document is in fact fabricated. The “Archival” will prove the good faith of the user in recording a process before he was aware that it could land in a dispute and Courts may consider it as better than trying to approach the m without any documentary evidence.

In the Shapoorji Pallonji case, a screen shot was reportedly produced but I am not sure if it was Section 65B certified. Also the point of dispute is more on what happenned after the screen showed “Successfully Uploaded”. Did it go blank? Or was the system shut off immediately without waiting for the next screen to appear? etc. This was not clearly established except through the statement of the petitioner. Had they properly recorded the entire process including a few seconds after the uploading of the documents, a better evidence would have been available. The dispute arose only after the bid was rejected by the committee and had the documents been archived earlier with  a trusted third party, the evidence would have been stronger.

I agree that in this case,  Court was not that strict but if objection had been raised by other bidders, or MHADA had not agreed to accommodate the estranged bidder, Court would have been perhaps stricter. It is better for parties engaged in high value bidding not to take the risk that Court will be always considerate to them to accept the “Technical Glitch” excuse and condone any failure of the tendering process.

Hope this clarifies what I think about “Should we always carry a Camera..”?

Naavi

Also See: 

The e-tendering issues in Maharashtra.. “Uploading” is not the same as “submitting” the tender  

The Pandora’s box of Technical Glitches opened……2: MHDA and NIC need to take not

 The Pandora’s box of Technical Glitches opened….The e-tender judgement in Maharashtra…1






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Why there cannot be a standard format for Section 65B Certificate

The system of Section 65B (IEA)  Certification was born along with Information Technology Act 2000 and has been in place  with effect from 17th October 2000. However, it was only in 2015, after the P.K.Basheer judgement of the Supreme Court stating that Section 65B certificate is mandatory for all electronic documents, that there was a realization by the legal community. Now in many of the lower Courts, judges are asking for electronic documents to be certified under Section 65B.

As a result, there is now a scramble for finding out  the format in which the certificate is required to be provided. Many are trying to find out a “Standard” format that can be used in all certificates.

One such standard format which is being floated around is an “Affidavit” format since “Affidavit” is the most familiar document in our legal system.

Every body in the legal fraternity has respect for the document when it is called “Affidavit” and wants to file an affidavit as a ritual for any statement to be made to the Court. Courts also look at it as a procedural requirement rather than a committed declaration.

There are not many instances where a person giving a false affidavit is punished for perjury though every body knows that when the petitioner and the respondent both present affidavits swearing some thing exactly opposite, only one is swearing on a truthful statement and the other is making a false statement under oath.

Technically there could be a case where both the petitioner and the respondent may believe that their statement is true and are therefore not making the statements in bad faith. But such cases are few where some interpretation or inference is involved and not facts. Most are cases where on a matter of fact two diametrically opposing affidavits will be filed in a Court as if it is a matter of right to lie before the Court in self interest. Courts are also lenient in such cases and are not punishing people who deliberately file false affidavits to mislead the Court.

We must first agree that just because a statement is made under the title of an “Affidavit” and on a stamped paper, it does not acquire sanctity. What is stated there in and whether the person has the knowledge that the statement is true is important.

In the case of the Section 65B affidavits, the statement may only say that the document filed as a print out “identical to the electronic document” which is available in the computer or mobile. But this is not sufficient for the document to be accepted under Section 65B.

In our previous article “An Affidavit will not be a proper format for Section 65B Certificate”, we had indicated why the Affidavit format used by some is not the correct format. Many have since asked me to clarify why I think so, particularly when some courts have accepted the affidavits.

Without meaning any disrespect to any Court, I would like to say that from 17th October 2000 till date many Courts have been accepting electronic documents without any certificate, let alone in the correct format in which Section 65B certificate is required. This does not make such submissions as acceptable under law.

During all these years, CEAC has been producing certificates in the “CEAC Format” which according to our humble opinion was what is envisaged under Section 65B and Courts have accepted this without any problem.

However, if some body asks me to publish a “Standard” format which others can also use, it is not possible. I am not saying this because the format is a “Trade Secret” but because each certificate is unique and distinct to the type of document and the manner in which it was observed and recorded.

In this respect I consider that a Section 65B Certificate is like the “Digital Signature”.

A Digital Signature is a combination of a representation of the person signing an electronic document and the content of the electronic document. Hence if the person is different or the document is different, the digital signature file is different.

Similarly, a Section 65B Certificate is uniquely tied to the content of the electronic document which is the subject of certification and the process in which they were experienced by the person who is providing the certificate. Hence there is no single format fit for all cases.

In the first ever case (State of Tamil Nadu Vs Suhas Katti, AMM Court Egmore, Chennai) in which CEAC filed a certificate signed by Naavi, the subject document was in a server of Yahoo Inc and was accessible within a “Group”. The document was certified in support of the Prosecution and I was also examined as an “Expert Witness” and cross examined. What the Court thought of the process was also briefly reflected in the judgement (Copy available on www.ceac.in).

Immediately there after, the same Court invited me to observe a “CD seized from a crime scene” and certify the contents there in. I did it for the Court.

Subsequently, I have certified a variety of documents such as “Web Pages”, “Documents in a Corporate Network computer”, “Mails received or sent by a person visible in his/her email server”, SMS or WhatsApp messages on a mobile, Blackberry encrypted files saved on a computer, CCTV footage, Audio visual files etc.

As one can guess, each of these instances are unique and my observations run in some cases to hundreds of pages and the Certified copies submitted have even run to around 1700+ pages in one case.

Most of the times the electronic documents are on an “As is where is” basis. In some cases, the report may view further documents with a forensic tool which also is certified under Section 65B.

I suppose people will now appreciate why a Section 65B Certificate cannot be put on a standard format atleast when CEAC is involved with its own reputation to maintain.

I also make it clear that CEAC Certification like any Section 65B Certificate is for admissibility of the electronic document and subsequently Court may invite a Section 79A registered “Digital Evidence Examiner” (Government Agency registered for the purpose…none has been registered so far) and subject the electronic document to any further forensic examination.

In some cases, I am being asked if the Section 65B Certificate can be given by the plaintiff or the respondent himself or his lawyers. I have maintained that this will be considered “Self Serving” and reduce the value. Further the advocate giving a certificate may not be advisable since he becomes a witness to his own case.

A “Trusted Third party” is always preferred.

CEAC may be one such choice but need not be the only choice. If the trusted third party is credible, it would make the work of the Judge easier and he may avoid the need for every electronic document to be submitted to a Section 79A certified Government agency for verification.

If the certification agency is credible as per the Judge, there may also be no need to examine the Certifier as a witness also. Further, the Certificate given by the Certifier to the person at whose instance it is provided, may be submitted by him to the Court under his affidavit stating that this is the document submitted by the Certifier and this should be sufficient for the Court to admit the electronic document.

There could be some minor disagreements as to the procedure involved in submission which each Court may try to decide on its own but this would get standardized over a period of time.

While on the subject, I will also have to mention another issue that confronts CEAC from time to time which arises from the lack of understanding the Section 65B certification process and format.

Many times the users are unable to understand the effort required in extracting the electronic documents and provide the certificate and often are disappointed that even me known for free service most of the time quote a minimum of Rs 5000/- for the service. On the average the actual cost could be even higher and those who are accustomed to paying Rs 1000 for a lawyer to send a notice find it difficult to appreciate the value. Similarly, some ask for certification of a print out taken by them which I refuse. I have however done many “Remote Observation and Certification” where the user is not right in front of me but sitting say in USA.

In one recent case, a software professional engaged in a matrimonial dispute used the services for CEAC certified E Mail Delivery to the respondent which was critical to the case. But even he was unable to appreciate the value of the service. Many times, when we approach a company for a software and they quote a few lakhs of rupees, we wonder why a software should cost so much. Similarly those who donot understand the service  are unable to also understand the value of the service and the cost involved.

It is only when the see that the CEAC certification under Section 65B is not a simple affidavit will they realize that the costs are not only reasonable but down right a steal.

I have elaborated this process for the reason that some of the persons asked me specifically to explain why the affidavit format is not favoured by me and I could sense that some of them may be having doubts as to whether I am rejecting a simple and cost effective requirement with some thing more complicated and expensive for personal vested interests.

I hope I have made things clear at least now.

Naavi





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Affidavit is not the correct format of Section 65B Certificate

As we all know though the first Sec 65B certificate was produced to a Court way back in 2004, it was only after the P.K.Basheer case that the world of law enforcement has taken note of the law as was framed with effect from 17th October 2000. Subsequently, there is a rush to find out the correct form in which the certificate may be given.

I am aware that just as electronic documents were admitted and trials completed before Basheer judgement without Sec 65B certificate, now after the judgement, certificates not in the correct format are being accepted by Courts and trials are going on.

When I tried to quickly look around to see what is the format being used, I find that most advocates simply want to file an “Affidavit” stating that the “hard copies of documents presented are identical to the electronic document” etc.

Two samples of such affidavits one by the party in litigation and the other by the advocate are given below for reference.

 

Without meaning any disrespect to anybody who may be using such affidavits, I would like to state that this is not the correct form of producing the certificate.

I am sure I have explained in detail the Section 65B certification in many of the earlier articles all of which have been also collated in the articles link at www.ceac.in.

It is necessary for me to make just one additional point here on what I think will be the impact of the advocate submitting the certificate. As in the case of the certificate submitted by the litigant, this will also be a self serving evidence which will start on the back foot from the credibility point of view.

Apart from this, if an advocate stands in the shoes of the certifier, I think  he would be a deemed witness in his own case.

The reason is that the object of the Sec 65B certification is to assist the Court in viewing the binary document readable by a computer device in a more human readable format and to freeze the document as was present at a point of time. Though at the admission stage, the certifier need not necessarily be also a witness on stand, if the certificate is challenged, he may have to stand as a witness and subject himself to a cross examination. At least in the case of the litigant he takes the stand as a plaintiff or a defendant and his views become part of the submission to  the Court. But in the case of the advocate it would be an anomoly.

It is preferable therefore that a trusted third party submits the certificate and his credibility becomes part of the weightage given to the evidence.

Further by design, the above formats of affidavits can be used on an existing print out. But stamping an existing print out  as “Section 65B certified” is not what is envisaged in the section.

I hope these teething troubles will be sorted out in time. However, in all sensitive cases where the evidence is critical, I strongly suggest that litigants and advocates donot take the risk of producing such “Affidavitized Section 65B Certificates” which may be challenged by the opposing parties either immediately during the trial or if necessary again on appeal.

Naavi

P.S: Response to some queries on suggested format, I would like to state as follows:

One standard format fitting all requirements is not possible for Section 65B IEA. It depends on the type of electronic document to be certified.
The first document I certified was in 2004 in the case of Suhas Katti which was a Yahoo e-group message. There could be web pages, face book postings, e-mails, server logs, computer documents, WhatsApp Messages, encrypted blackberry messages, and even audio and video recordings, including CCTV footages. Each requires a different process to be converted into “Computer Output” under section 65B. Just like a Digital Signature, which includes both the person signign and the content he is signing, a Sec 65B certificate includes both the process and the assurances given by the certifier and hence it will be different on a case to case basis except perhaps one paragraph.
Hence kindly donot look for a standard format that can be used in all cases… naavi 

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Wisdom from 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@Amar judgement on Section 65B

This is to ensure that we donot mis-interpret the judgement in the Sonu@Amar 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@Amar 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@Amar judgement.

We consider that this view is misplaced.

We need to observe that the Sonu@Amar 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@Amar 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@Amar 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 Amar” 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@Amar Case

If we look at Sonu@Amvar 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@Amvar 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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