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Advocate Vasundhara (Advocate)     12 July 2011

Digital evidence- section 45A -How to utilise this section?

INDIAN EVIDENCE ACT 1872 - Section 45A -

Opinion of Examiner of Electronic Evidence:



45A. Opinion of Examiner of Electronic Evidence.-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 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.



Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.



---------------------------------

In a false criminal case in which my client is innocent, the prosecution has presented a audio conversation in a CD as primary evidence. The CD was collected by IO in 2004 and presented in court in 2005. The trial is in Evidence stage. In the chargesheet no experts had given any opinion on the CD contents. Even in chief examination no prosecution expert witness was produced.



Sir, Can I use this section 45A now? How to utilise it properly?



 10 Replies

Advocate Rajkumarlaxman (Advocacy)     12 July 2011

Mam,

Move an application challenging the validity on genuineness of the cd placed as evidence. This can be done under the IT Act as well. GIve breif facts we can draft for you.

 

Thnx

Ravi Trivedi (Law Student)     12 July 2011

Hi,

Generally, onus is on both the sides to consult any expert to opine on the veracity of the evidence. As you said that plaintiff has not taken any opinion of an expert to present the veracity of the evidence, you can definitely go ahead and consult an expert to present your side on the veracity of the tape. When both the sides don't consult any expert on the matter, the court has to step in and do the needful.

So, you can definitely go ahead, consult an expert and present those facts in your next defence.

 

Refer this case and other cases listed in the same

https://www.indiankanoon.org/doc/14125/

 

best of luck,

 

Regards,

Ravi Trivedi

Ravi Trivedi (Law Student)     12 July 2011

@Advocate Rajkumarlaxman

 

Just a Question, why do you need to move a seperate application to challenge the genuineness of the tape when the case is already in the evidence stage? She can definitely consult an expert and present his expert opinion in her next defence.

 

Regards,

Ravi Trivedi

Sajeev Menon (Legal Consultant Dubai 00971 508836442)     12 July 2011

Hi Vasundhara,

You can very well object to mark that CD in evidence as it it not proved by the expert. If it is objected by you, it will be their responsibility to get the expert opinion by appointing an expert with the direction of the court.

Advocate Vasundhara (Advocate)     12 July 2011

Sirs,

CD is already marked as exhibit in chief examination of IO. Now the case stage is set for cross examination of IO. Should I file the petition now? under what section?

Advocate Vasundhara (Advocate)     12 July 2011

It was my mistake that I did not object to the CD being marked as exhibit in chief examination. Now the case stage is set for cross examination of IO.

So can I file objection now?

 

Sajeev Menon (Legal Consultant Dubai 00971 508836442)     12 July 2011

Yes you can make objection in this stage by quoting the evidence act and Information technology act. You can state that the contents to be proved by expert examination only otherwise the fabricated evidence will adversly affect the merit of the case and it will amounts to denial of justice. If court dismiss the petition you can approach the higher court on that order. Since this is the trum card of your case/

Advocate Vasundhara (Advocate)     13 July 2011

Sanjeev sir,

Can you please give me some citations for section 45A.


(Guest)

Dear Vasundhara,

You still have resort to Sec 65 B of Evidence Act which basically deals with electronic evidence where any piece of evidence in the form of paper or cd is generated any material which is stored in computer or electronic devide is produced as and in the form of evidence, then in such event, certificate is necessary to be produced specifying the authecation of the materail and the computer or devide from which it was produced stating the same has not been tampered. You can cross-examine the I O and question him if any such certificate in regard to the same was handed over to him at the time of investigation when he seized the goods/articles.

1 Like

kartikeya (lawyer/cyber law consultant/cyber crime investigator)     13 July 2012

For the purpose of this section an examiner of electronic evidence shall be an expert. The examiner of electronic evidence would be an agency appointed by the central or state govt.

 

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. 

refer this case

state (NCT of Delhi) vs Navjot Sandhu, SAR Gilani & ors air 2005 supreme court 3820


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