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A Mishra (Director)     21 September 2009

Proof of E-Mail &/or its Contents

Can anybody please explain the reqirements and the methodology of proving that an e-mail was sent by  the originator of the e-mail?How can the contents of the e-mail be proved?What is the Certificate required under 65B of Evidence Act,the contents of such certifivate & who will issue such Certificate? In other words, How can one prove an e-mail under the provisions of Section 65B of Evidence Act read with provisions Of I. T.Act 2000(2008 Act not yet Notified) ???



Learning

 8 Replies

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     21 September 2009

PRINT OUT OF EMAIL IN COLOR ITSELF CAN TAKE AS DOCUMENTARY EVIDENCE AS PER THE AMNDED IT ACT 2000, THE EV ACT 65B CLEARLY CINFIRMS  IT AS ADMISSABLE..

A Mishra (Director)     21 September 2009

Coloured copy not enough,kindly see 65B(2) r.w.(4).You need more than one certificate to prove your case beyond reasonable doubt.

A Mishra (Director)     21 September 2009

And I am not disputing its admissibility, just seeking the mode of proof of email.

PJANARDHANA REDDY (ADVOCATE & DIRECTOR)     21 September 2009

enough with self attestation urs

A Mishra (Director)     23 September 2009

I beg to differ Sir.Kindly go through the following article carefully then reply.

Post passing of the Information Technology Act, 2000, changes made to the Evidence which are as follows:

 

(1)        Definition of Evidence: The definition of Documentary evidence was expanded to include electronic records.

(2)       Definition of Admission: was expanded to include admissions in form of electronic documents.

(3)       Addition of S.22-A: It was added to limit the relevance of oral admissions as to the contents of electronic records to when the genuineness of the electronic record is questioned.

(4)       Addition of S.65-A and S.65-B:  Section 65-A refers to the provisions of S.65-B for the proving of electronic records.

 

Section 65-B talks about the admissibility of electronic records. The conditions for admissibility of information are as follows:

(1)        The computer was regularly used by a person having lawful control over the use of the computer.

(2)        The information required or derived was regularly fed into the computer in the ordinary course of the said activities.

(3)        The Computer was operating properly, or if not, the defect did not affect the electronic record or the accuracy of the contents.

 

The information contained in the electronic record reproduces or is derived from such information on a computer in the ordinary course of nature.

 

The section also goes on to assume that transactions in multiple computers can be considered to be from one computer for the purpose of investigation. Further, the computer output once taken out must be certified by a person occupying a responsible official position in relation to the managing of such electronic evidence. 

(1)        Section 85-B (a): This sub-section lays down the presumption that a court shall presume that a secure electronic record is secure since the time when it was first secured.

 (2)      Section 88-A: This is the only section that directly deals with emails as such. It states that the presumption that exists in the court is that an email first sent by the originator is presumed to be the same as the one that is received. However, the courts will not make any presumptions as to who sent the message.

 Problems

1.     The amended provisions disproportionate emphasis on the computer itself and not the data that is retrieved from it. There is only one substantive provision that deals directly with email or other media such as chat which are not stored on the computer of entry of data but on the server.

2.     Nowadays, the data only exists in the internet, not on any specific computer. This shows how technology is moving ahead and law is falling behind.

 

3.     The other problem  is treating email like an ordinary mail. 

To demonstrate this point, consider the following scenarios that are eminently possible in the email world, but beyond comprehension in the world of conventional mail 

(a)        Mail is not stolen, diverted or lost but simply spontaneously deletes itself due to viruses;

(b)        Between one letter and the next, the sorting off ice relocates itself to another country (and therefore jurisdiction);

(c)        A mail is altered, its envelope changed, the postmark tampered with and no physical evidence is produced, as the IP Address may vary from place to place;

(d)        A single letter is simultaneously delivered to multiple recipients; and

(e)        The same mail appears visually different to two different viewers.

 

These are merely a few of the reasons why email should not be treated evidentially in the same manner as real mail. The lack of reference to email except in Section 88-A causes a number of problems. With respect to admissibility, it leaves room for a defence counsel to argue that the material is not admissible simply because the section dealing with the admissibility of electronic records  For instance, Sections 65-B (2) (a)  says that a condition for admissibility is that the data was entered regularly. This may be true in the case of a plan being made on the computer on software, but sending the plan itself, which will constitute conclusive proof of conspiracy, does not require regular use or even use in the ordinary course of the said activities (as in 65-B (2) (b) or (d)).

 

Further, Section 65-B (2) (c) talks about the computer not working properly, and that making the electronic evidence inadmissible in case the information is affected. The lack of such a section in case of email is problematic. Not making the evidence inadmissible when the email server is inaccessible can create problems in court. The problem of hacking or viruses destroying the emails has not been dealt with in India. 

Focus entirely on the computer and not on other media such as emails and chat which are not stored in the computer but on a server, which is not the computer in which the data is entered. The definition of computer may be extended to include server, as it is not necessarily the computer in which the entry is being made. But this has not been done. The term computer itself is not defined in Section 3 of the Evidence Act. This is a major loophole. 

 

Further, nowadays, it is not only computers but also phones and Personal Digital Assistants (PDAs) which can send emails and perform functions as computers. Whether they can be considered to be computers is difficult to imagine, especially with the lack of any amendments whatsoever. The Parliament Attack case - State vs Navjot Sandhu @ Afsan Guru and Shaukat Hussain Guru vs State- had Justices Reddy and Naolekar recognizing cell phone messages as admissible evidence.See Pramod Mahajan case as well. That itself is laudable, as Sections 65-A and B were bought in to consider the electronic evidence, but whether this extends to emails sent from phones remains to be seen. Another approach that was taken by the court was to take the aid of the Information Technology Act 2000. SMSs were considered in the Shivani Bhatnagar case for the first time to be electronic records as per Section 2 (t) of the IT Act. However, this again is problematic for email, as electronic records do not necessarily have to mean electronic records that exist in a machine.  Further, even Section 44 of the POTA Act has  made electronic evidence admissible

 

One approach that the court could take in this case is to not consider Section 65-B and other associated Sections is to consider email produced as real evidence. It involves not seeing what the computer produces but simply what is attained out of it to see whether or not there is evidence. This approach was seen in the case of R. vs Wood, in which the court said that the computer being used as a calculator could make it admissible. Similarly, a cellphone or PDA being used as a forwarding device as opposed to a creator of the email could be grounds for including it as evidence.

 

Another such case was Castle vs Cross , in which the prosecution sought to rely on a print-out of an automatic breath-testing device, which was considered to be a computer. 

 

However, just because a particular email is admissible does’nt make it the best possible evidence. Gopal Subhramaniam stated in his submissions in the Parliament Attack case that admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. So, even if it is admitted doesnt automatically mean that it is considered as valid evidence. Material admitted must be relevant and must not be hearsay evidence as it is inadmissible in most cases in India. However, it may be repelled on grounds of the mail being more prejudicial to the cause of the defendant than probative in nature, in which case the value of the email as evidence will be severely dented. It may also be called prejudicial if it releases too much personal information about the defendant without enough substantive evidence being seen. There has been no litigation in India laying down the line between prejudicial and probative. In the UK however, that case of People vs Miller  laid down that email messages between a wife and a husband are not prejudicial merely because they are s*xually explicit.

 

INSPIRATION FROM FOREIGN CASES

 

The law in India needs to be more regimented in a number of ways. For instance, in the United States, the standard for admissibility was well set for computer technology in civil litigation on the following grounds :

(1)        Whether the evidence is relevant, material and competent;

(2)        Whether the evidence is best evidence;

(3)        Whether the evidence is hearsay/not hearsay; and

(4)        Whether or not the evidence is authentic.

 

There has been a lot of litigation in deciding the authenticity of emails. In India, for the checking of the computer and authenticating of any electronic evidence, the computer is usually sent to the National Informatics Center in Nagpur- a process which stalls litigation at the expense of distance, time, lack of expertise and overall cost. As a result of this, documents, let alone emails are not properly authenticated.  In the Forbes Patvolk  case, a Chennai Tax Tribunal rejected an email saying it was not signed by authority. In the Ridhi Sidhi Furniture case , an email was rejected on the grounds that the name of the sender of the email was blocked in copies supplied to the importer and the address of the person sending the quotation was not known as well.

 

Grounds of challenge of relevance have also been clearly defined in the United States in the case of Strauss vs Microsoft Corporation as follows:

(a)        Integrity of the data

(b)        Integrity of the hardware/software

(c)        Security of the system

 

Though the court did not mention this, computer emails can be challenged on grounds of it being hearsay evidence as well . But such use in India has not yet been identified.

Deletion of emails is another problem which the Indian Courts have’nt dealt with yet which has been seen abroad. There is a possibility that the deletion of mails has not yet been noticed as well.  It has been held that the remnants of a deleted email remain on the hard disk and the email account itself. Sophisticated technologies do exist that could make recovery possible even when a computers hard disk has been formatted completely. Hidden and deleted files were in fact recovered and admitted to the court in the Canadian case of Commonwealth vs Copenhefer. However, that is not a hard and fast rule. Until such time as the majority  of  international software developers agree new protocols that enforce different rules, investigators and legal practitioners must accept that sometimes logs and audit trails are  not  kept,  and  that  almost  nothing  in  the  email world  can  be  taken  for  granted. There is no recognition in India of such problems. The British Standards Institution, in their 1999 Code of Practice for Legal Admissibility and Evidential Weight of Information Stored Electronically, have this to say with respect to audit trail data :

When preparing information for use as evidence, it is often necessary to provide further supporting information. This information may include details such as date of storage of the information, details of the movement of information from medium to medium and evidence of the controlled operation of the system.  These details are known as audit trail information.  The  audit  trail  as  defined  for  the Code  consists  of  the  aggregate  of  the information  necessary to provide a historical record of all significant events associated with stored information and the information management system.

 

Intent and knowledge is also specifically recognized abroad in case of emails. In the case of State vs Branbury , emails were recovered which stated that drug dealers did not want the police to find out about their drug trade. This was held as adequate evidence. A similar parallel has been seen in the yet undecided case of Binayak Sen.

No provision or recognition yet exists either in the Evidence Act or by the court about emails forming proof of evidence of character, as in S.140, as it only talks about a Witness to Character, and not Proof of Character. However, in the United States, there are express provisions talking about discovery of the character of a person through email. This is bound to face challenge in India on grounds of probative and prejudicial evidence. There are three categories laid down abroad, which are as follows:

(1)        Character of Accused

(2)        Character of alleged victim

(3)        Character of witness.

CONCLUSION

 

It is evident that email as evidence in India has not reached or been used to its full potential just yet. The government and the courts have chosen to ignore the obvious possibilities that email offers as evidence and have elected to stick to the straight and narrow. Further, the amended sections of the Evidence Act are poorly worded and difficult to understand without muddling up their true intent and as a result, are difficult to interpret as well. The gulf between the legal and technical worlds needs to the bridged, as was done very well in the case of R. vs Rowe. The evidence in India may be considered not adequate as the courts might find it too difficult to understand due to the lack of competence of judges.

It is obvious that the sections of the Evidence Act need to be amended to properly include within their ambit all the possibilities that email offers as evidence such as its immortality as well as its potential as smoking gun evidence, which is something that is increasingly common for all computer based evidence . As has been stressed by this paper, there is a huge problem in India regarding the very approach to electronic evidence, as the law relies more on the device producing the data than the data itself, which is hugely problematic with chat and email as they neednt exist in a computer but in the internet itself.

Even though computers are now an integral part of our lives, it appears that there is still a gulf between the legal and technical worlds that must be narrowed. All parties on the prosecution side from the police through to the judiciary need to become more aware of the implications of electronic evidence especially email. Any forensic computer evidence offered by either side must take full account of the implications of email validity, its true source, destination and the myriad pathways between the two. More importantly, it must take into account the ease with which email can be use by both sides, and make the best use of the email itself to meet the ends of justice.

 


 

Bhaskaradeepak (SOFT. ENGG.)     24 September 2009

Sir,

If email spoofing is in benficitiary of the spoofer? is it punishable?

Having incest contents is punishable in india?

 

 

Prodyut Banerjee (Advocate (Corporate Lawyer))     12 November 2009

Very nice information Mr. Mishra. I had many doubt regarding admissibility of email as evidence. Now I have atleast some concept. Thank you very much.

sweta singh (n/a)     22 January 2010

If u want to proof that the e-mail originated 4m the e-mail senders computer or email id.....then if u r using yahoomail .... open tat email and below that email there is caption"FULL HEADER" click on that...u will get the IP address of the sender as well as other electronic computer address related information......


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