I differ to views (social nimbu pani) of member repliers here. Once this author is hit by Dowry and other gender biased Laws then no replier will suggest him how to woo his wife back but may start commenting with some other views. The some other views at that time will be pure LEGAL devour of all these social suggestions by non legal repliers here.
The que. of the author is staright forqward as asked by him:-
(1) "Can these SMS be used as evidence in court?" and
(2) "If yes how can I make these SMS messages as legal document to store for future reference? Because mobile can be damage at any time."?
(I) Following takes are for the benefit of author of this thread;
Que.: (1) "Can these SMS be used as evidence in court?"
Takes on abv. que.:
1. The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition to electronic records and evidence submitted in the form of electronic records. Electronic records; simple e-mail or short message or multimedia message or other electronic forms.
2. According to S. 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche. The Act recognizes electronic record in a wide sense thereby including electronic data in any form such as videos or voice messages.
3. The Information technology has made it easy to communicate and transmit data in various forms from a simple personal computer or a mobile phone or other kinds of devices. The Information Technology Amendment Act, 2008 has recognized various forms of communication devices and defines a “communication device” under S. 2 (ha)of the Act “communication device” means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image. The Indian IT Act 2000 lays down a blanket permission for records not to be denied legal effect if they are in electronic form as long as they are accessible for future reference.
4. The Act amends the definition of ‘Evidence’ in S. 3, the interpretation clause of the Indian Evidence Act 1872, to state:
‘Evidence’ means and includes
1)
……
2)
All documents including electronic records produced for the inspection of the Court"
Further, in S. 4, the IT Act 2000 provides:
"S. 4
Legal Recognition of electronic records.—Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
a) rendered made available in an electronic form; and
b) accessible so as to be usable for a subsequent reference.
5. The evidentiary value of an electronic record totally depends upon its quality. The Indian Evidence Act, 1872 has widely dealt with the evidentiary value of the electronic records. According to S. 3 of the Act, “evidence” means and includes all documents including electronic records produced for the inspection of the court and such documents are called documentary evidence. Thus the section clarifies that documentary evidence can be in the form of electronic record and stands at par with conventional form of documents.
6. The evidentiary value of electronic records is widely discussed under S. 65A and S. 65B of the Evidence Act, 1872. The sections provide that if the four conditions listed are satisfied any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical or magnetic media, produced by a computer is deemed to be a document and becomes admissible in proceedings without further proof or production of the original, as evidence of any contacts of the original or any facts stated therein, which direct evidence would be admissible.
The four conditions that are referred to above are:
Condition (1): The computer output containing such information should have been produced by the computer during the period when the computer was used regularly to store or process information for the purpose of any activities regularly carried on during that period by the person having lawful control over the use of the computer.
Condition (2): During such period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of such activities.
Condition (3): Throughout the material part of such period, the computer must have been operating properly. In case the computer was not properly operating during such period, it must be shown that this did not affect the electronic record or the accuracy of the contents.
Condition (4): The information contained in the electronic record should be such as reproduces or is derived from such information fed into the computer in the ordinary course of such activities
7. It is further provided that where in any proceedings, evidence of an electronic record is to be given , a certificate containing the particulars prescribed by S. 65B of the Evidence Act, and 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 would be sufficient evidence of the matters stated in the certificate.
Re. to Case laws: The Hon'ble Apex court in State Vs. Navjot Sandhu while examining the provisions of newly added S. 65B, held that in a given case, it may be that the certificate containing the details in sub- S. 4 of S. 65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by the court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, S. 63 and S. 65 of the Indian Evidence Act 1872. Paragraph 150 of the judgment which is apposite, reads as under:
"150. According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.
Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of s 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Indian Evidence Act 1872, namely, ss 63 and 65.
Current development in asked que.: It is pertinent to note herein a recent development, that as per the IT Amendment Bill 2008 (passed by both houses of Indian Parliament and yet to be enforced), S. 79A empowers the Central Government to appoint any department, body or agency as examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. ‘Electronic form of evidence’ herein means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cellphones, digital fax machines.
Further as per S. 85 B of the Indian Evidence Act, there is a presumption as to authenticity of electronic records in case of secure electronic records (i.e. records digitally signed as per Section 14 of the IT Act,2000. Other electronic records can be proved by adducing evidence and presumption will not operate in case of documents which do not fall under the definition of secure electronic records. It is pertinent to point out herein that with the passage of the Information Technology Amendment Act 2008,
The position of electronic documents in the form of SMS, MMS and E-mail in
Re.: (2005) 11 SCC 600 and 2003 (3) JCC 1669.
(II) Que. 2: "If yes how can I make these SMS messages as legal document to store for future reference?
Takes on abv. que.:
First try to understand the important aspects for which
a) To find out the numbers to which calls have been made from a given mobile with date and time
b) To find out the numbers from which the calls have been received in a given mobile with date and time
c) To know the contacts through the Phone book.
d) To know the details of recent SMS messages received
e) To know the details of SMS templates
f) To know the Ring tones and Games stored in the instrument
g) To know the Pictures and video clips stored in the mobile either on the SIM card or a flassh memory card.
Of these, a) and b) are also available at the service provider's level. Also while the number of entries available on the instrument may be limited by the memory, the service provider has a more detailed and reliable data with timing for the purpose of billing.
You should also understand that what the service provider's data may provide is however the information as recorded at their system based on the SIM card recognized by the system.
If the data at the service provider's systems match the data of recently called and received numbers as found on the instrument, it could mean that the SIM card presently on the instrument has data matching with what is available at the service provider's level.
If the two data does not match it means that the SIM card data has been manipulated.
Manipulating SIM card data on the instrument is a very easy process and hence the data on the SIM card can only be taken as only an indicating evidence and has to be properly certified to be of any use in a court of law.
If the data on the SIM card is extracted from the
On the other hand the data at the service provider's level cannot be manipulated except with the connivance of the service provider or hacking into their system. Again here the data as found visible on the computers of the service provider can be taken as prima-facie evidence but if it has to be relied upon, there has to be a corroborative certification that the data is apparently not altered.
(III) How to store the SMS ?
Take on this most crucial que has two parts;
Part 1: Now - a - days most of the service provider at extra cost to subscriber have started offering storing of incoming / outgoing SMS onto their server. You may subscribe to this value addition a service from your service provider.
Part 1a: There are Symbian Software loaded cheap mobile handset available which can be bought and software loaded on both handset as well as PC and using Bluetooth the SMS can be stored in HD format which is a valid evidence. In Court what one needs to corroborate is that the sender of the SMS is authenticated by Witness Statement (here the service provider) and receiver of that SMS is also authenticated by Witness Statement (here the service provider) and for understanding this part you need to understand how it is done legally (refer to step 1 onwards).
Part 2: Be careful that the above value addition service if you want to use as evidence then the service provider as per TRAI regulations (post Amar Singh case) are not even bound to produce the SMS details for more than 13 months. Here is the catch and to circumvent the lacuna the solution does exists for which you have to see at which stage your marriage life has reached; if the treat to your life and limbs (dowry and false cases) are just threats then donot jump on to the following suggestion however if you yourself really feel that the threats are going to be converted into a nightmare reality onto you and your family then here is a safeguard mechanism for which simple legal recourse needs to be done in exactly below steps way;
Step 1: File a Police report (DD entry) of criminal intimidation to you and your family by your wife and quote both the mobile nos. Ask police to investigate the matter and file charges against the wife to put your life at risk of life and limb (include your family member into the threat list). As usual police will sleep on this DD Entry Report.
Step 2: After 15 - 20 days approach ACMM / JFMM /
Step 3: Now, once this report of IO is before the Ld. Court the Court will apply its mind over to your Application U/s 156 (3) CrPC and is bound to convert it into S. 200 CrPC and this is where you get all evidences as much as you want by calling various witnesses and all witnesses statement will be recorded with documents that you ask them to bring. The sections which needs to be put in your S. 156 (3) CrPC complaint application are Sections 294, 383, 387, 389 and 506 of the Indian Penal Code. These Sections are quite enough to stop your wife's any future threats to you and or to your family and even if she files dowry case your side can easily get AB / Regular Bail just by producing certified copy of S. 156 (3) Complaint Case application. Bingo.....
Step 4: In above step you need to call the service provider of both mobile companies and asks them to submit details of SMS stored in their servers. This is where the Evidence are established of “source” and “sender” Vs. “receiver” of SMS. Another important thing that you need to remember here is that once you submit application for Witness List allowing you need to specifically pray Court to direct mobile service provider to freeze mobile records from X till Z period (months) This is how you by pass the 6 months period of mobile operators on storing they give as sh*t before Ld Court !
I have omitted technical steps and legal details knowing well you to be layman and once your que. on threat perception is answered by yourself wherein you say it is real threat or imaginary threat then a good criminal Lawyer may help you in above steps.
Keeping a threatening wife at home is suicidal just because of one universal fact in India that for a drop of a hat a Indian wife does not hesitate to approach Police Station or file a Private Complain before Criminal Court and seeks all of you to go behind bar without any trial and then the trial starts so why should a Indian Husband today should go all the way out and help such threatening wives with medical aids as suggested by all repliers except one?
For further questions relating to mobile forensic you may ask at your convenience and I may try to solve such enquiries provided you are sure this is what you want out of your married life! Because all these are highly technical and time consuming non – invasive approach for 100% evidence admissibility in ld. Court of Law. There are Hon’ble Sc precedents where Marriage was dissolved of couple based on SMS texts full texts even mentioned in Judgments by Apex Courts!
