Summary
In this January 2018 interlocutory order, the Supreme Court expressed the view that the Section 65B certificate requirement could be relaxed where a party producing electronic evidence lacked possession or control of the originating device and could not secure the certificate. Authenticity and relevance still required judicial satisfaction. The order arose during consideration of crime-scene videography and left the proposed roadmap and standard operating procedure for further hearing. It reports the clarification made at that time, rather than a statement about subsequent law.
Issues
- What certificate requirements applied, in this order’s analysis, to electronic evidence produced by a party lacking control of the originating device.
- What further consideration remained concerning crime-scene videography.
Provisions considered
- Section 2, definitions of electronic record and data, Information Technology Act, 2000The quoted definitions informed the Court’s discussion of electronic documents and methods of proof. (¶¶ SLP 9431/2011 paragraphs 8, SLP 9431/2011 paragraphs 9, SLP 9431/2011 paragraphs 10)
Held
- The Court considered electronic evidence useful for investigation while requiring careful assessment of authenticity, accuracy, identification and possible tampering. Admissibility and reliability were discussed against the facts and available safeguards. (¶¶ SLP 9431/2011 paragraphs 3, SLP 9431/2011 paragraphs 4, SLP 9431/2011 paragraphs 5, SLP 9431/2011 paragraphs 7)
- In the clarification given in this 2018 order, the Court regarded Sections 65A and 65B as procedural and not exhaustive. It stated that a party without possession of the device and unable to obtain the certificate could invoke Sections 63 and 65, with relaxation of the certificate requirement where justice justified. This describes the historical ruling in the supplied order. (¶¶ SLP 9431/2011 paragraphs 6, SLP 9431/2011 paragraphs 7, SLP 9431/2011 paragraphs 8, SLP 9431/2011 paragraphs 11, SLP 9431/2011 paragraphs 12)
- No final crime-scene videography roadmap or SOP was adopted in this order. Remaining aspects were adjourned to 13 February 2018, following discussion of an expert committee and practical issues of funding, secure storage and evidentiary use. (¶¶ SLP 2302/2017 paragraphs 1, SLP 2302/2017 paragraphs 2, SLP 2302/2017 paragraphs 3, SLP 9431/2011 paragraphs 13)
Result
Historical clarification on electronic-evidence proof recorded; remaining videography-roadmap and SOP issues adjourned to 13 February 2018. Proceedings were not finally disposed of.