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(2) The sub section (1) shall apply if- (a) the function of intermediary is limited to provide access to communication system over which information made available by 3 party is transmitted or temporarily stored or hosted: or (b) the intermediary does not (0 initiate the transmission, (i) select the receiver of the transmission and eee (ii) select or modify the information contained in the transmisSTon (6) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Govt may prescribe in this behalf, (3) The provisions of sub section(1) shall not apply if- (2) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in commission of the unlawful act. (6) ‘upon ‘receiving actual knowledge, or on being notified by appropriate Govt or its agency that any information, data, or communication tink fesiding in or connected to a computer resource controlled by the 4 intermediary is being used to commit the untawful act, the intermediary falls to s expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Explanation: For the purpose of this section, the information” means any information dealt by an inter an intermediary. expression “third party rmediary in his capacity as EXEMPTION TO INTERMEDIARY FROM CIVIL LIABILITY: TT) (Ay Mes ba eeriecigsa i apie ete ieee (1) He is criminally liable u/s.67C of I.T. Act (2) Exempted from Civil liability u/s. 79 IT Act (3)_ The Parliament provides that liability of intermediary may not be fixed under any other law for liability of intermediary for any- (i) third party information or (ii) data made available by him or (iil) communication link made available or hosted by him. (iv) Availability of protection under sub section (1) to intermediary in commission of lawful Act. (v) the intermediary has to observe such other guidelines as Central Govt may prescribe. (a) I.T.(Procedure and Safeguard for monitoring and collecting Traffic data or information) Rules 2009. Scanned with CamScanner98 (b) I.T. ( Procedure and safeguards for Blocking for access of Information by public) Rules 2009 (©) |.7.( Procedure and Safeguards for Interception, Monitoring and Decryption of Information by public) Rules 2009. (d) The L.T. (Intermediary Guidelines) Rules 2011 (e) |-T. (Guidelines and Cyber café ) Rules 2011. (4) Sub section (3) — Non-availability of Protection under sul to intermediary in commission of unlawful Act. (5) SOME OF THE INTRMEDIARIES ARE: (i) Telecom Service Provider (ii) Network service provider But these are exempted if they are no Network(LAN),Wide Area Network(WAN),Value Added (ii) Internet Service Provider: {a) Intemet services () Domain names on internet (©) Under sea cable can impact Net services in India (iv) Web Hosting Service Providers: (a) World Wide Web (W.W.W.) (v) Search Engines (a) Google search engine. ib section(1) t having Local Area Network (VAN). (vi) Online payment sites. (vii) Online auction sites, (vii) Online market places, (ix) Cyber café. CHAPTER XII A EXAMINER OF ELECTRONIC EVIDENCE Se SECTION 79 A : CENTRAL GOVT TO NOTIFY EXAMINER OF ELECTRONIC EVIDENCE. The Central Govt may, for the purposes of providing “expert opinion” on “electronic form evidenc” before any court or other authority specify, by notification in official gazette, any Department, body or agency of Central Govt or State Govt as an Examiner of Electronic Evidence. EXPERT OPINION BEFORE ANY COURT: SECTION 45A OF INDIAN EVIDENCE ACT provides that when in a. proceeding, the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer source or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79A of I.T. Act 2000 is relevant fact. Purpose of this act that he is an “expert” for Court's purpose. Scanned with CamScannerATE OFFENCE Sectin 78+ PowER To INVESTIA 7 CHAPTER Xill “offence CALE Art: caveskinte, Mt iscELLANEOUS) SECTION 80, POWER OF POLICE OFFICER AND OTHER OFFICERS TO ENTER, SEARCH ETC.- (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, any police officer not below the rank of Dy.S.P., ar any other officer of Central Govt or a State Govt authorized'by the Central Govt in this Fegard may enter any publi ptace, and seaysh and arfest without warrant any person found therein who is reasonably suspected of having committed or committing or of being about to commit any offence under this Act. (2) Where any person is arrested under sub section (1) by an officer other than a Police officer shall without unnecessary delay, take him or send the person arrested before a Magistrate having jurisdiction in the case or before the officer-in-charge of a Police Station. (3) The provisions of Cr.P.C. 1973 shall subject to provisions of this section, apply, so far as may be, in relation to any entry, seasch or ayest, made under this Section. CAFE USED TO SEND THREAT MAILS TO MRS. SONIA GANDHI. ( Published in Hindustan Times April 19,2002, P.9) Delhi Police officials had investigated death threats to Congress President Sonia Gandhi. They raided Cyber café in West Bengal, (Asansol) and seized 7 computers used to send the messages (emails). They also raided Jalandhar and Varanasi. All emails were posted from a site called “www.Khalsa.com”. Investigations have revealed that website has strong links with the Khalisthani Separatist elements. One Kulwant Singh 26, has been arrested from Jaladhar. He had come in contact with Khalistani terrorists during his stay in London between 1994 and 2000. SECTION 81 : ACT OF OVERRIDING EFFECT: The provisions of this Act shall have effect not withstanding anything inconsistent herewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the “Copy Right Act 1957" or “Patents Act 1970" Meharban Khan Vrs Union of India [(1989) 2 SLR 453 (CAT) Delhi] The Court held that on basis of reliance on this section, it cannot b contended that the provisions of this Act will prevail over the provisions of the \MITATION ACT and the Tribunal cannot dismiss an appeal as barred by limitation. SECTION 81A: Application of the Act to Electronic Cheque and truncated cheque. (1) The provision of this Act, for the time being in force shall apply to or in relation to electronic cheques and the truncated cheques subject to such Scanned with CamScanner 1 Mob ustns hung ties Onbuin ed 0 Cre > 2. polite ofsor wot lelwd Hee veutle of Ingpector 27 1010?modifications and Be : ee amendments as may be necessary for carrying the purposes of the Negotiable Instruments Act 1881 by the Central Govt in consultation with the RBI by notification in official gazette. (2) Every Notification to be ratified by the Parliament. Explanation: The expression “electronic cheque” and “truncated cheque” shall have the same meaning as assigned in the section 6 of Negotiable Instruments Act 1881. SECTION 82: CHAIRPERSON, MEMBERS, OFFICERS AND EMPLOYEES TO BE PUBLIC SERVANTS. The Chairperson, members and other officers and employees of CYBER APPELLATE TRIBUNAL, THE CONTROLLER, DEPUTY CONTROLLER AND ASSISTANT CONTROLLERS shall be deemed to be public servants within meaning of Section 21 of IPC. 1. "DEEMED Public Servant" only for this Act not for the purpose of LPC, 2. CERTIFYING OFFICER, SUBSCRIBER, ADJUDICATING OFFICERS are not public servants. State of Maharashtra Vrs Laljit Rajshi Saha AIR 2000 SC 937 This case was a case of Cooperative Society and this enactment had created some officials under enactment as “deemed public servant’. The Court held that this is a “Legal Fiction". When a person is “deemed to be” something the only meaning possible is that where as he is not in reality that something, the act of legistature requires him to be treated as if obviously for purpose of the said act and not otherwise. Hence, in .T. Act 2000 as well the “deemed public servant” is for the Act only and not for the purpose of I.P.C. SECTION 83: POWER TO GIVE DIRECTIONS. The Central Govt may give directions to the State Govt as to the carrying into execution in the state of any of the provisions of this Act or any rule, regulation or order made there under. ‘Article 256 of the Constitution the Central Govt is entitled to give directions the state govt regarding the duty which is imposed upon it by that article. ‘Article 257(1) provides that “Executive Power of every state shall be so exercised as not to impede or prejudice the exercise of executive power of the Union, and the executive power of the union shall extend to the giving of such directions to a state as may appear to the Govt. of India to be necessary for that purpose.” “Communication” is a State subject. But Article 257(2) lays down that “the executive power of the Union shall also extend to the giving of directions Scanned with CamScanner101 to a state as to the construction and maintenance of + means of communication declared in the direction to be of national or military importance.” SECTION 84: PROTECTION OF ACTION TAKEN INGOOD FAITH No suit, prosecution or other legal proceedings shall lie against Central Govt., the State Govt, the Controller or any person acting on behalf of him, the Chairperson and Members, adjudicating officers, and staff of the Cyber Appellate Tribunal for anything which is in good faith done or intended to be done in pursuance of this Act or any fule, regulation, or order made there under. “Good faith” defined in Section 3(22) of General Clauses Act 1897, Section 52 of IPC and Section 2(h) of the Limitation Act. SECTION 84A : MODES OR METHODS FOR ENCRYPTION: The Central Govt may, for secure use of the electronic medium and for promotion of e-governance and e-commerce, prescribe the modes or methods of encryption. “Encryption” is the process of transforming plain text data into an unintelligible form (cyber text) so that original data either cannot be recovered (one-way encryption) or cannot be recovered without using an inverse decryption process (two-way encryption). For this purpose I.T. (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 were framed. SECTION 848 : PUNISHMENT FOR ABETMENT OF OFFENCES: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Act for the punishment of such abet ment, be punished with the punishment for the offence under this Act Explanation: An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of conspiracy, or with the aid which constitutes abetment. Section 107 L.P.C. defines “Abetment”. SECTION 84C : PUNISHMENT FOR ATTEMPT TO COMMIT OFFENCES: Whoever attempts to commit an offence punishable by this Act, or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the longest term of imprisonment provided for that offence or with such fine as provided for the offence or with both. The language of this section is similar to |.P.C. 511. SECTION 85: OFFENCES BY COMPANIES: (1) Where a person committing a contravention of any provisions of this ‘Act or any rule, direction or order madethere under is a company, every person who, at the time of the contravention committed was in charge of, and Scanned with CamScanner: 102 was responsible to, the company for the conduct of business of the company, as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub section shall render any @ Such person liable to be punished if he proves that contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub section(1), where a contravention of any of the provision’ of this Act or of any rule, direction or order made there under has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary, Or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. Aneeta Hada Vrs. Godfather Travels and Tours (P) Ltd. (2012) 5 SCC 661 A 3 Judge Bench of Supreme Court held that Director could not have been held liable for the offence under Section 85 of 1.7. Act 2000 without IMPLEADING THE COMPANY. Section 141 Negotiable Instrument Act is in pari materia with Section 85 of I.T. Act 2000. (1)Franc Music Corpn Vrs. Compu Serve Inc 4995 DCSNY, No93 Civ.8253 TFK (USA) (2) Play Boy Enterprise Vrs Frena 1993, 835 Supp 1552 (USA) (3) CBS Songs Lid Vrs. Amstrad Consumer Electronics P/c. 1998 AC 1013 (HOUSE OF LORD'S ) (4) YOUSAFALLI ESMAIL NEGREE Vrs State of Maharashtra AIR 1968 SC 147. The Supreme Court held that “tape recording” is an admissible evidence, but it must be proved beyond reasonable doubt that the record was not tampered with. Supreme Court held the contemporaneous dialogue between them formed part of “res gestae” and is relevant under section 8 of Indian Evidence ‘Act. The dialogue is proved by Shaik (notice Clerk). The tape record of dialogue corroborates his statement. The process of tape recording offers an accurate method of storing and later reproducing sounds. The imprint as magnetic tape is the direct effect of tape sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is relevant fact and is admissible u/s. 7 of Indian Evidence Act. SECTION 86 : REMOVAL OF DIFFICULTIES: (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Govt. may, by order publish in official gazette, make provisions not Scanned with CamScanner103 inconsistent with the provisions of this Act as appear to it to be Necessary or expedient for removing the difficulty. Provided that no order shall be made under this section after the expiry of period of 2 years from the commencement of the Act. (2) Every order made under this section shall be laid, as soon as may be afer it is made, before each House of Parliament. M.U. Sinai Vrs Union of India AIR 1975 SC 797 The Central Government cannot change, disfigure, or do violation to the basic structure and primary feature of this Act. This section will not be effective after 2 years. REMOVAL OF DIFFICULTIES ORDER 2002: (1) Department of Information Technology in Ministry of Communication and Information Technology of Central Govt issued Order No.S.0. 1015(E) Dt.19.9.2002 entitled “the Information Technology (Removal of Difficulties) Order 2002” and amended Sections 25,40,42,63 and 89 of the Act which came into immediate effect. It was notified in Govt gazette on same day. This Act came into force on 17.10.2000. Hence the order was passed before 2 years. (2) Section 25(1)(c) is substituted as below: *(c) failed to maintain the procedures and standards specified in Section 30.” (3)In Section 40- (a) the word “then” shall be omitted. (b) for the words “the key” the word “that key” shall be substituted. (4) In Section 42(1) the word “to a person not authorized to affix the digital signature of the subscriber” shall be omitted. (8) In section 63(1) the word “Chapter'the word “Act” shall be substituted (6) In Section 89(2) for the brackets and letter “(M)" the brackets and letter ‘(n)’ shall be constituted. SECTION 87 : POWER OF CENTRAL GOVT TO MAKE RULES. (4) Power of Central Govt to make and notify rules (2) List of matters not exhaustive (3) (i) Notification and rules to be laid before each House of Parliament (ii) Court shall have power to question the validity of the notification and rules. SECTION 88 : CONSTITUTION OF ADVISORY COMMITTEE: (1) The Central Govt shall, as soon as may be after commencement of this Act, constitute a committee called the Cyber Regulations Advisory Committee. Scanned with CamScanner104 Regulations shall consist of a Chairperson and non-official members affected or having ters as the Central (2) The Cyber Advisory Committee such number of other official and representing the interests principally special knowledge of the subject mat Govt deem fit. The Cyber Regul (a) the Central Govt either generally or for any other purpose connecte (b) the Controller in framing the regul Act. (4) There shall be paid to non-official committee such traveling and other al Central Govt may fix. lations Advisory Committee shall advise- as regards any rules d with this Act, lations under this (3) members of such llowances as the Advisory Committee formed on 16.11.2012. Official Members: 1. Minister, Communication & I.T.- Chairman 2. Minister of State, Communication & I.T. 3. Secretary - Communication & |.T., Dept of Electro 4, Secretary — Telecommunication. 5. Secretary- Legislative Deptt. 6. Secretary- Legal Affairs. 7. Secretary- Commerce 8. Secretary- Home Affairs 9. Secretary- Defence 40. Deputy Governor- RBI 11. 1.T. Secretary from State on rotation 12. D.G. of Police on rotation from State. ’ 13. Director, IIT from IITs on rotation 14.D.G., CBI 45. Controller of Certifying Authority. 46. Group Coordinator : Deptt. of Electronics and 1.7. Non-official Members: 1. President, NASSCOM 2 President, Intemet Service Providers Association of India 3. Representative of Cll 4. Representative of FICCI 5. Representative of ASSOCHAM 6. Presidet, Computer Society of Idia. nics & I.T. SECTION 89 : POWER OF CONTROLLER TO MAKE REGULATIONS. (1) The Controller may, after consultation with Cyber Advisory Committee and with previous approval of Central Govt, by notification in official gazette make regulations consistent with this Act and rules, made there under to carry out the purposes of this Act. Scanned with CamScanner105 (2) In particular, and without prejudice to the generality of foregoing power, such regulations may provide for all or any of the following matter. (a) Maintenance of Data base containing disclosure record of every Certifying Authority under Section 18(n). (b) Conditions and restrictions to which the controller may recognize any Foreign Certifying Authority under Section 19(1). () Terms and conditions of licence may be granted under section 21(3)(c). . (d) other standards to be observed by a Certifying Authority under section 30(d) (e) Manner in which Certifying Authority shall disclose the matter specified in Section 34(1). (f the particulars of statement which shall accompany an application under section 35(3). (g) Manner by which subscriber shall communicate the compromise of private key to certifying authority under Section 42(2). (3) Every Notification to be laid before both the Houses of Parliament for approval etc. SECTION 90: POWER OF STATE GOVT TO MAKE RULES. (1) The State Govt may by notification in official gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of foregoing power, such rules may provide for all or any of the following matters namely: {a) the electronic form in which filing, grant, receipt or * payment shall be effected under section 6(i). (b) matters specified in section 6(2). : (3) Every rule made by the State Govt under this section shall "be laid before each House of the State Legislature. Scanned with CamScannerspealed by IT Amendment Act,2008. * the following shall be inserted namely :- the ns (b) After definition of “India’ expressions “Certifying Authority’, “Electronic Signature”, “Electronic Signature Certificate’, “Electronic record”, * electronic records”, “Information”, “Secure electronic record”, “Secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in IT Act,2000. AMENDMENTS TO EVIDENCE ACT, 1872 EVIDENCE [N CYBER WORLD- AMENDMENTS TO EVIDENCE ACT, 1872 Under Section 52 of IT Act (Amendment) 2008 |. Section-3 : “EVIDENCE” means and includes (1) All statements which court permits or requires to be made before it by witness, in relation to matter of fact under inquiry; : { electronicrends,, Such documents are called “documentary evidence” include Section 17 : Admission defined- ‘An admission is a statement, oral or documentary or CONTAINED IN ELECTRONIC FORM, which suggests any inference as to any fact in issue or relevant fact and which is, made by any of the persons, and under the circumstances, hereinafter mentioned |. Section 22: “Section 22A when oral admission as to contents of electronic records are relevant- oral admissions as to the contents of electronic record are not relevant, unless the genuineness of the electronic record produced is in question’. |. Section 34: Entries in books of account when relevant: Entries in the books of account including THOSE MAINTAINED IN AN ELECTRONIC FORM in the course of business, are relevant, whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to chalige any person with liability. . Section 35 : Relevancy of Entry in Public Record, made in performance of duty- ‘An entry in any public or other official book, register or record or an ELECTRONIC RECORD stating a fact in issue or relevant fact and made by a public servant in discharge of his official duty or by any other person in performance of a duty specially enjoined by law of the country on which such book, register or record or AN ELECTRONIC RECORD is kept, is itself relevant fact. Scanned with CamScanner14 6. Section 39: Whatever evidence to be given when statement forms part of a conversation, document, ELECTRONIC RECORD, BOOK OR \ SERIES OF LETTERS OR PAPERS: When any statement of which evidence is given forms part ofa longer statement or of a conversation or part of an isolated Gocxment. of is contained in document which forms part of @ book. orig contained in part of ELECTRONIC RECORD ot of Pook sted series of letters or papers, evidence shall be given of se much and no more of the statement, conversation, document, ELECTRONIC RECORD, book or series of letters or papers ae the. cout considers necessary in the particular case to the full Uncierstanding of the nature and effect of the statement, and of the circumstances under which it was made”. 6A. Section45: : 45A opinion of Examiner of ELECTRONIC EVIDENCE when a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any COMPUTER SOURCE or any ELECTRONIC OR DIGITAL form the opinion of Examiner of Electronic Evidence referred to in Section 79A of IT Act 2000 is relevant fact. Explanation: [For the purposes of this section an Examiner of Electronic Evidence shall be an Expert]. ‘The term “electronic form evidence” means any information of “probative value” that is either stored or transmitted in electronic form and includes computer evidence, digital, audio, digital video, cell phones, digital fax machines. 7. Section 47 after following section shalll be inserted- “47A opinion as to digital signature when relevant- when a court has to form an opinion as to the electronic signature of any person, the opinion of the certifying Authority which has issued the Electronic Signature Certificate is relevant fact”. 8. Section 59: For the word “Contents of documents” the words contents of documents or ELECTRONIC RECORD‘ ” shall be substituted. 1s shall be inserted, namely- 9. Section 65 the following section nce relating to electronic ‘Section 65A special provision as to evide record- The contents of electronic records may be proved in accordance with provisions of section 65B. Section 65B- Admissibility of electronic records (1) not withstanding anything contained in this Act, any information contained in an electronic record which isvprinted on a paper, Xtored,Wecorded or copied in 6ptical or ‘magnetic media produced by a computer (here in after referred to as 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 ofginal or any fact stated therein of which direct evidence would be admissible. (2) conditions referred to in sub section (1) in respect of a computer output shall be the following namely, Scanned with CamScanner15 (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 of any activities regularly carried on over that period by the person having lawful control over the use of the computer. OO (b) during the said period, information of the kind contained in electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in ordinary course of the said activi eee (6) throughout the materials 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 electronic record or the accuracy of its contents and (d) the information contained in the electronic record reproduces or is derived from such information Séd into the computer in ee course of the said activities. (3) where over any period, the function of storing or proodssing information for the purposes of any activities regularly carried on over the period as mentioned in clause (a) of sub section (2) was regularly performed by the computer, whether (a) by a combination of computers operating over that period (b) by different computers operating in succession over that period; or (c) by different combination of computers operating in succession over that period, (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 computers used for that purpose during that period shall be treated for the purpose of this 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 doing any of the following things, that is to say, (a) identifying the electronic record containing the statement and desgyibing the manner in which it is produced (b) giving such particulars of any,device involved in the production of that electronic record as may be appropriate for the purpose of showing that. ‘the electronic 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 pefson occupying a responsible offic osition in relation 2. the ration of relevant device or the management of S (whichever is appropriate) shall be evidence of the matter sted in the certificate; and for the purposes of this 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 course Scanned with CamScanner16 i uter, shi of those activites, that information, it duly supplied 19 Poe teeter taken to be supplied to it in course of those activi A Ve been produced by a (©) @ computer output shall be taken to have been provliSt by a computer whether it was produced ane (wi int i f any appropriat . i EXPLANATION, Fas the purposes ofthis section any oe fae ee being derived from other information shall be a reference to there from by calculation, comparison or any other process: 10. Section 67 — After section 67 following section shall be insefted espe DOTA. Proof es fo digital signature- Except in the case of a secure [electronic signature if the electronic signature of any subscriber is aleg have been affixed to an electronic record the fact that such electronic signature is the electronic signature of the subscriber must be proved. 11. Segfion 73- the following section shall be inserted, namely, 5 ‘3A.- 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 affixed, the court may direct- an (a) That person or Controller or Certifying Authority to produce digital signature certificate, ee (b) Any other person to apply the public key listed in the Digital signature certificate and verify the digital signature purported to have been fixed by that person Explanation: For the purposes of this section, “Controller” means the Controller appointed under 17(1) of IT Act, 2000. 12. Section 81- after following section shall be inserted, namely, “81A.- Presumption as Gazettes in electronic form:~ The court shall presume the genuineness of every electronic record purporting to be the official gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially n form required by law and is produced from proper custody.” 85, “ 85A presumption as to electronic agreement - The court shall Presume that every electronic record purporting to be an agreement Containing electronic signature of the parties was so concluded by affixing the electronic signatures of the parties.” “85B- Presumptions as to electronic records and digital signatures. (1) In any proceedings involving a secure electronic record, the court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. (2) In any proceedings involving a secure electronic signature, the court shall presume unless the contrary is proved that- (a)The secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record; (b)Except in the case of a secure electronic record or a secure electronic signature nothing in this section shall create any presumption relating to authenticity and integrity of electronic record or any electronic signature. Scanned with CamScanner4. State (NCT of Dethi) v, Navjot Sandhu’? AIR 2005 SE. 3820 « on following the attack on Parliament on December There was an appeal against cony 13 2001. This case dealt with the proof and admissibility of mobile telephone call records, While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65-B(4) of the Evidence Act. The Supreme Court concluded that a cross-examination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records. 5. Jagjit Singh v. State of Haryana’ (2006) 44 S.C-C-4- ‘The speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. When hearing the matter, the Supreme Court considered the digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action, ‘The Supreme Court found no infirmity in the speaker's reliance on the digital evidence and the conclusions reached by him. The comments in this case indicate a trend emerging in Indian courts: judges are beginning to recognize and appreciate the importance of digital evidence in legal proceedings, 6, Bodala Murali Krishna v, Smt, Bodala Prathima® 200% (2) ALD 72. « ‘The court held that, “..the amendments carried to the Evidence Act by introduction of Sections 65-A and 65-B are in relation to the electronic record, Sections 67-A and 73-A were introduced as regards proof and verification of digital signatures. As regards Presumption to be drawn about such records, Sections 85-A, 85-B, 85-C, 88-A and S0-A, Were added, These provisions are referred only to demonstrate that the emphasis, at Present, Scanned with CamScanneris to recognize the electronic records and di evidence.” 7. Dharambir v. Central Bureau of Investigation'® 14@ (2.006) DLT 284 The court arrived at the conclusion that when Section 65-B talks of an electronic record 1 signatures, as admissible pieces of produced by a computer referred to as the computer output) it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. It distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file o a videp ile etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive ete. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cJpfied had or a mirrgrimage. evil Apped 4.226 %-20 12- “The recent judgment of The Hon'ble Supreme Court delivered in Anvar P.V. v P-K. Basher and Others", decided that Computer Output is not admissible without Compliance of 65B, this overrules the judgment laid down in the State (NCT of Delhi) v. Navjot Sandhu alias Afzal Guru” by the two judge Bench of the Supreme Court. The court specifically observed that the Judgment of Navjot Sandhu'?, to the extent, the statement of the law on admissibility of electronic evidence pertaining to electronic record of this court, does not lay down correct position and is required to be overruled. This judgment has put to rest the controversies arising from the various conflicting judgments and thereby provided a guideline regarding the practices being followed in the various High Courts and the Trial Court as to the admissibility of the Electronic Evidences. The legal interpretation by the court of the following Sections 22A, 45A, 59, 65A & 65B of the Evidence Act has confirmed that the stored data in CD/DVD/Pen Drive is not admissible without a certificate w/s 65B(4) of Evidence Act and further clarified that in absence of such a certificate, the oral evidence to prove existence of such electronic evidence and SA Evid the expert view under sect ‘Act cannot be availed to prove authenticity thereof. Scanned with CamScannerAnon-obstone Clauoe % added tt an ee onto pbaldy enprenalasl, over anthar pa Corknory teak ‘The apex court in its judgement had laid down that since Section6SB is a “non obstante clause” it would have an overriding effect on the law relating to secondary evidence as mentioned in Section 63 and 65. Secondary evidence would be entirely administered by section 65 and 65B of the evidence act, and that Sec. 63 & 65 cannot be applied on the same. The main and only option to present the electronic record is by creating the first electronic media as Primary Evidence to the court or its duplicate through secondary evidence under sections 65A/65B of Evidence Act, In this way, on account of CD, VCD, chip, and so on., the same should be submitted with a certificate as far as Section 65B is concerned, not complying with the same would lead the evidence to be inadmissible. The court in this case further observed: “The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regal 1g the corrupt practice using songs, announcements and speeches fall to the ground.” This judgement will have extreme ramifications in every situation where the prosecution depends vigorously on the electronic information exceptionally those situations where the atdio and video recordings are delivered as CD/DVD to the court. The anti-corruption cases are for the ‘most part in light of a great deal of electronic/advanced proof and the CD/DVD sent to the courts not accompanied by a certificate should therefore not be permissible as evidence under section 65B of the Evidence Act, which makes it compulsory to submit a certificate as per section 65 B(4). The inability to submi a certificate under 65 B(4) advance impedes the legal procedure as the opinion of the expert in that matter can't be profited of till the former condition is satisfied, It has been determined in the the decision of the apex court that Genuineness or reliability of the evidence only after the evi lence satisfies the questions in regard of the admissibility of the evidence. The prerequisite to guarantee the source and credibility, relating to electronic records is on the grounds that it can easily be altered, transposed, exposed or adjusted and therefore if the trial is based on the particular electronic evidence which has a very high percentage of being tampered with can prompt to a joke of equity Scanned with CamScannerThe original recording in Digital Voice Recorders/mobile phones need to be preserved as they may get destroyed, in such a case the issuance of certificate under section 6SB(4) of the Evidence Act cannot be given. Therefore, such CD/DVD is inadmissible and cannot be exhibited as evidence, the oral testimony or expert opinion is also barred and the recording/data in the CD/DVD’s do not serve any purpose for the conviction. Scanned with CamScannerV7 R. Vrs. Sinha (1995) Cr.LR 68 ___ The defendant, a doctor, was convicted of perverting the course of justice. A Patient had consulted him, complaining of palpitations and defendant had prescribed a course of beta blockers without ascertaining from _ —her medical records that she was an asthmatic. The following day, the patient too’one of the beta blockers and later died as a result of an acute asthma atfack. The coroner requested the senior partner at the defendant's practice . ‘9 supply him with patient's records. The senior partner could not find the y~” written records, so he sent the computerised version found traces of earlier version of patient's records which has been deleted. This lead to enquiries and finally the defendant admitted that on 3 occasions, following the patient's death, he had altered her computerised therapy records which had previously contained 4 separate reference to her asthmatic conditions. It was accepted at the trial that it is dangerous to prescribe beta blockers to asthmatics. He was sentenced to 6 months imprisonment. In a civil action based on the facts of the Sinha case the defendant doctor would have strong motive to tamper with evidence prior to discovery. To re-edit a Patient's records and remove all traces of original on computer system would be relatively easy to do using standard utility software. 85C. Presumption as to Digital Signature Certificate- The court shall presume unless contrary is proved, that the information listed in a electronic signature certificate is correct except for information specified subscriber information which has not been verified, if the certificate was accepted by the subscriber’. 14. Section 88- Following section will be inserted, namely- “88A- Presumption as to electronic messages- The court may presume that an electronic message forwarded by the originator through an electronic mail server to addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission, but the court shall not make any presumption as to the person by whom such message was sent. Explanation: For the purpose of this section, the expression “addressee” and ‘originator’ shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub section (1) of Section 2 of IT Act,2000. 15. Section 90- the following section shall be inserted, namely- “Q0A- Presumption as to electronic records five year old- where any electronic 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 electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf. Explanation- Electronic records are said to be in proper custody if they are in place in which and under the care of the person with whom, they naturally be, but no custody is improper if it is proved to have had a legitimate origin,or the circumstances of the particular case are such as to render such an origin probable. This explanation is applicable to 81A. 16. 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