The Evidence (Amendment) Act 2022
The Government has recently amended The Evidence Act 1872 and bring some major changes in the act to make the Digital Evidence admissible in the Court. The Evidence (Amendment) Act, 2022 has passed on 31st August 2022.
In this article we have discussed the changes which are brought by the Evidence (Amendment) Act, 2022.
Before the enactment of the said amendment Digital Records or Electronic records were not admissible as evidence.
In Section 3 the definition of Document: Digital Record or Electronic Records are inserted as Document.
The definition of Digital Record and Electronic Record are also given in the said Act as follows:
“Digital record” or “electronic record” means any record, data or information generated, prepared, sent, received or stored in magnetic or electro-magnetic, optical, computer memory, micro film, computer generated micro fiche including audio, video, Digital Versatile Disc or Digital Video Disc (DVD), records of Closed Circuit Television (CCTV), drone data, records from cell phone, hardware, software or any other digital device as defined in Digital Security Act, 2018 .
In Section 3 in the definition of Evidence: Physical or Forensic Evidence are inserted as Evidence.
All materials or objects relating to blood, semen, hair, all body material, organ or part of organ, Deoxyribo Nucleic Acid (DNA), finger impression, palm impression, iris impression and foot print or any other similar material or object which may-
(i) establish that an offence has been committed or establish a link or relation between an offence and its victim or an offence and its offender; and
(ii) prove or disprove a fact:
such materials or objects are called physical or forensic evidence.
In Section 3 the Definition of Digital Signature, Digital Signature Certificate, Certifying Authority has also been inserted.
In Section 17 in the definition of Admission: Digital Record has been inserted as Admission.
Section 22A (Added Section) has inserted by the said act as follows:
When oral admissions as to contents of digital records are relevant.-Oral admissions as to the contents of digital records are not relevant, unless the genuineness of the digital record produced is in question.
In Section 34, 35, 36, 39 the words “Digital Words” has been inserted.
Section 45 the Definition of Expert Opinion has been replaced as follows:
Opinion of Experts – When the Court has to form an opinion upon a point of foreign law, or of science, physical or forensic evidence or digital record, or art, or as to identity of hand writing or finger impression or footprint or palm impression or iris impression or typewriting or usage of trade or technical terms or identity of person or animal, the opinion upon that point of person specially skilled in such foreign law, science, physical or forensic evidence or digital record or art, or in questions as to identity of handwriting or finger impression, footprint, palm impression, typewriting, usage of trade, technical term or identity of person or animal, as the case may be, are relevant facts.
Such persons are called experts.
Section 45A (Added Section) inserted by the said Act as follows:
Opinion of experts on physical or forensic evidence – ( 1) Except by leave of the Court a witness shall not testify as an expert on physical or forensic unless a copy of his report has, pursuant to sub-section (2), been given to all the parties.
(2) An expert’s report shall be addressed to the Court and not to the party on whose behalf he is examined and he shall owe a duty to help the Court.’’
Section 47A (Added Section) inserted by the said Act as follows:
pinion as to digital signature where relevant.- When the Court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.
Section 65A (Added Section) inserted by the said Act as follows:
Special provisions as to evidence relating to digital record.- The contents of digital records may be proved in accordance with the provisions of section 65B.
Section 65B (Added Section) inserted by the said Act as follows:
Admissibility of Digital Records.- (1) Notwithstanding anything contained in this Act, any information contained in a digital record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes or any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the digital record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the digital record or the accuracy of its contents; and
(d) the information contained in digital record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section(2) was regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of that section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate containing any of the following things, that is to say,-
(a) identifying the digital record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in production of that digital record as may be appropriate for the purpose of showing that the digital record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to the computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Section 67A (Added Section) inserted by the said Act as follows:
Proof as to digital signature – Except in the case of a secure digital signature, if the digital signature of any subscriber is alleged to have been affixed to a digital record the fact that such digital signature is the digital signature of the subscriber must be proved.
Section 73A (Added Section) inserted by the said Act as follows:
Proof as to verification of digital signature.- In order to ascertain whether a digital signature is that of the person by whom it purports to have been affixed, the Court may direct-
(a) that person or the Controller or the Certifying Authority to produce the Digital Signature Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate and verify the digital signature purported to have been affixed by that person.
Section 73B (Added Section) inserted by the said Act as follows:
Comparison of physical or forensic evidence with others, admitted or proved.- (1) In order to ascertain whether a sample of blood, semen, hair, DNA sample, any other biological substance, limbs or any part of limb, finger impression, palm impression or iris impression or foot impression belongs to or is created by that person from whom it purports to have been collected, the Court may order that it be compared with any sample which is admitted or proved to the satisfaction of the Court to have come from or been made by the person, although that sample of blood, semen, hair, DNA sample, biological substance, limbs or any part of limb, finger impression, palm impression, iris impression, foot impression or any other substance has not been produced or proved for any other purpose.
(2) If there is any claim that the sample of blood, semen, hair, DNA sample, any other biological substance, limbs or any part of limb, finger impression, palm impression, iris impression, foot impression belongs to or is created by any person, the Court may direct that person to be present in Court for the purpose of enabling the Court to make that comparison.
(3) In relation to proving the authenticity of physical or forensic evidence, nothing in sections 60 and 165 of this Act, should prevent the Court from seeking its production in Court as an exhibit, along with any other necessary evidence concerning its identification.
Section 81A(Added Section) inserted by the said Act as follows:
Presumption as to Gazettes in digital forms.- The Court shall presume the genuineness of every digital record purporting to be the Official Gazette, or purporting to be digital record directed by any law to be kept by any person, if such digital record is kept substantially in the form required by law and is produced from proper custody.
Section 85A(Added Section) inserted by the said Act as follows:
Presumption as to agreements in digital forms.-The Court shall presume that every digital record purporting to be an agreement containing the digital signatures of the parties was so concluded by affixing the digital signature of the parties.
Section 85B(Added Section) inserted by the said Act as follows:
Presumption as to digital record and digital signatures.- (1) In any proceedings involving a secure digital record, the Court shall presume unless contrary is proved, that the secure digital record has not been altered since the point of time to which the secure status relates.
(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that-
(a) the secure digital signature is affixed by subscriber with the intention of signing or approving the digital record;
(b) except in the case of a secure digital record or a secure digital signature, nothing in this section shall create any presumption relating to authenticity and integrity of the digital record or any digital signature.
Section 85C(Added Section) inserted by the said Act as follows:
Presumption as to Digital Signature Certificates.- The Court shall presume, unless contrary is proved, that the information listed in a Digital Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
Section 88A(Added Section) inserted by the said Act as follows:
Presumption as to digital communication.- The Court may presume that a digital communication forwarded by the originator through a digital communication or message server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer or fed into other forms of digital device for transmission; but the Court shall not make any presumption as to the persons by whom such message was sent.
Section 89A(Added Section) inserted by the said Act as follows:
Presumption as to physical or forensic evidence.- The Court may presume unless contrary is proved that the physical or forensic evidence belongs to or is created by that person from whom it purports to have been collected.
Section 90A(Added Section) inserted by the said Act as follows:
Presumption as to digital records five years old.- Where any digital record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorized by him in this behalf.
In Section 146 the following conditions are inserted as follows:
Provided that in a prosecution for an offence of rape or attempt to rape, no question under clause (3) can be asked in the cross-examination as to general immoral character or previous sexual behaviour of the victim:
Provided further that such question can only be asked with the permission of the Court, if it appears to the Court necessary for the ends of justice.