About the Author
Meera S Gopan is a BTech Civil Engineering graduate from Kerala University. Presently she’s a 5th Semester Unitary LLB student of Government Law College Trivandrum.
Question
If in any proceedings, the Court has to form an opinion on any matter relating to information transmitted or stored in any computer resource or any other electronic or digital form, whose opinion can be sought? Explain.
Answer
With the advent of information technology the use of digital records for storing information and transactions has increased. On this scenario the admissibility of these digital or electronic records in judicial proceedings and its evidentiary value came into forefront. The enactment of Information Technology Act 2000 and subsequent amendment of the Evidence Act 1872 led to the admissibility of electronic records in judicial proceedings in India.
The Indian Evidence Act, 1872 in Section 3 defines evidence as to oral or documentary. Oral evidence can be said the statements which are made by witnesses before the Hon’ble Court and documentary evidence is one which is produced before the court for its inspection which includes electronic records. There are primary evidences and secondary evidences. Primary evidence means production of the original electronic record means the production of the document itself while secondary evidence means the production of computer-output of the contents of the electronic record. Secondary evidence is a certified copy or counterparts of documents which the party is unable to produce in the court and statement of an expert or person who has himself seen that document.
Section 62 of the Indian Evidence Act, 1872, provides the definition of primary evidence. It states that primary evidence is the original document in its original form. Section 64 of the Act mandates the presentation of primary evidence for proving the contents of the document. The meaning of secondary evidence is defined in Section 63 of the Indian Evidence Act of 1872, which lists five different types of evidence that can be accepted as secondary evidence. Under Section 65 of the Indian Evidence Act, there are seven specific situations where secondary evidence can be presented in court. These include proving the existence, condition or content of a particular document. However, the rule of best evidence still applies and primary evidence is preferred over secondary evidence whenever it is available.
The Indian Evidence Act Section 65 specifies the admissibility of secondary evidence in particular cases. Section 65B specifies the procedure of proving the contents of electronic records which have been laid down under Section 65B. Admissibility of electronic records mentioned as per Section 65B of Indian Evidence Act specifies that the printed any information of electronic records on a paper, or created a copy of that record on any optical or magnetic media shall also be deemed to be secondary evidence document if it satisfies the conditions mentioned under section 65B and original source of that information i.e. electronic device shall also be admissible without any further proof in any proceeding of the court of law.
Essentially elements of the electronic evidence as per the Indian Evidence Act are as follows:
- Such produced information of electronic records should be produced by the person having legally authorized to have control over that electronic device.
- That storage of information must take place during the day to day general course of the act of that person.
- That stored information has been stored on that electronic device during the day to day general course of action of that person.
- While storing or copying of that material information, the said electronic device must be in a functioning state, to avoid any possible negative impact on its operation or distort the accuracy & authenticity of its material contents.
- Any kind of storage or copying or making counterpart of the information required for the production in the court of law as electronic evidence should be free from any kind of distortion or manual edit or manipulation, it must be the authentic and trustworthy information, which may get admitted as evidence in the court of law.
Thus electronic evidences form a part of admissible evidences in the Court. Similarly the Evidence Act 1872 provides for expert opinion in the case of electronic evidences. Section 45 A of the Evidence Act provides about examiner of electronic records. When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79-A of the Information Technology Act 2000 is a relevant fact. The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence. Thus expert opinion can be sought by the Court while considering electronic records and its admissibility in the proceedings before the Court.
Evidentiary value of the examiner as an expert in electronic records
- Though the expert acts as an advisory character for the court, still the court is not bound by his opinion or the opinion does not act as a concrete wall for the case. The qualities of the opinion still remain to be on the verge of choice, whether to be adopted or not. There is no conclusive rule as to when an opinion is delivered, it must be adopted. The work of the opinion is to serve as an understanding for the court on the matters which need specialised knowledge. If any data is submitted to the court and such data contradicts the oral evidence given later on, by any witness; it still does not make the oral evidence obsolete or of no use. The opinion of the expert is always subjective which will be related to the facts and does not provide personal obedience to any party.
- The judgment of a case should not only be based upon the opinion of the experts as their opinion is based on a sense of technicality only, and a case needs to be judged from all grounds whether crucial or not. Hence, no conclusion can be solely drawn by the opinion of experts for a case. No expert can ever claim that his contention or opinion shall be accepted for deciding the case as the opinion is based on a technicality and is not fact-based.
- The court cannot declare the accused to be guilty merely because the expert felt so; until and unless the accused is not proven guilty totally by considering all the facts and evidence of the case.
The Court in the case of Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors AIR 2010 SC 806 the court emphasized the important requirement for expert evidence to be admissible. It must be necessary to hear such evidence because the matter is outside the knowledge and experience of the layman. This test ensures that expert opinions are sought only when essential for understanding complex or technical issues. The court further elaborated on who can be considered an expert. An expert is someone who possesses specialized knowledge, skills, or experience in a particular field that goes beyond what an ordinary person would have. This expertise is typically gained through years of practice, study, or observation in the relevant field.
There is a proper and translucent system for the appointment of such an expert. Section 79A makes it mandatory for the Central Government to notify all the departments for appointing the expert. Once the expert is appointed, he examines the evidence and gives opinion accordingly. The Court is not bound to accept the opinion and use it for the final judgment or to prove the accused guilty just by the opinion of the expert. The opinion plays an advisory role and it is a subjective view for the technical portion of the case which overlooks the fact-testimony. Though the opinion of the expert plays an important role but still not so crucial that the whole judgment will depend on their opinion only. The opinion of an expert is a subjective point of view that will be helpful for the Court as it is not jacked with favoritism for any particular party but relies upon all the technicality of the subject matter. Thus if the electronic evidence is not admissible in the court it will not resort to the examiner for the opinion.
(Question from Munsiff Magistrate Main exam 2022 paper)
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