1. Cyber Laws & Electronic Evidence
Presentation by Adv Dr Santosh A Shah

2. Electronic Filing of Documents with E-
CYBER LAWS [
1. Legal
recognition for
transactions carried out by means of Electronic Data Interchange and other means of Electronic Communication - E-Commerce.
Use of Alternatives to paper based methods of communication and storage of communication, to facilitate
Electronic Filing of Documents with E-
the Government Agency - Governance.

3. The Information Technology
Act, is law on electronic the
based on commerce Covenant
the model adopted by
United Nations
on International Trade Law
(UNICITRAL).
Information and Knowledge is power.

4.  As internet reach accelerates vulnerability to cyber threats rise
 Technical , Legal, Security and Political Issues created
 Boundary between public and private blurred
 Cyber War – sabotage – operations of government and industries ,espionage of commertial data knowledge and subversions using social media
 All by some one sitting in front of blue screen

5.  : pivotal year – man sent on moon and Arpanet was born – a professor in one American University sent a message from his computer massage ushering information revolution through internet
 Internet – cheaper faster and no boundaries
 Tim Lee invented World Wide Web
 Today almost 3rd of humanity is online

6. I.T. governs all aspects of our daily life
positive effects as well as negative sides

7. protection of personal data and information ,
 The I.T.
Amendment Act 2008 Aims at
protection of personal data and information ,
and implementation of security practices
 The
Amendment deals
with
new forms of
crime like publishing sexually explicit materials in electronic form ,video voyeurism and breach of confidentiality and leakage of data by intermediary ,e commerce frauds like personation known as phishing ,identity theft and offensive messages through communication services

8. It should be kept in mind that the provisions of the Cyber Law should not be made so stringent that it may retard the growth of the industry and prove to be counter productive.

9. LAW, SCIENCE AND TECHNOLOGY
INTERACTION

10. No writing, signature, registration yet acceptance of electronic documents.
Recognition to the electronic record - Potential of reduction of corruption in Govt. and public sector.

11. ADVANTAGES OF CYBER LAWS
Legal frame work for E-Commerce and E-Governance.
Validity to s.
Validity to Digital Signatures
Opportunity to Companies to be Certifying Authorities for issuing Digital Signatures.
Government can issue Notifications, Acts, Rules etc. on web.
Addresses important issues of Security.

12. CYBER CRIME -
Motive behind the crime. Greed
Publicity Revenge Adventure
Desire to access forbidden
information -
Destructive Mind Set Wants to sale n/w security
services

13. DISTINCT FEATURES OF CYBER CRIMES
One against Millions.
Global Crime
Sans Mobility
Richest Crime
Computer as a Instrument of Crime.
Technology Driven
Counter Product of information and communication technologies
Transcends Geographical boundries
Singapore allows Electronic Divorce.

14. PREVENTION OF CYBER CRIME
To prevent cyber staking avoid disclosing any information pertaining to oneself. This is as good as disclosing your identity to strangers in public place.
Always avoid sending any photograph online particularly to strangers an chat friends as there have been incidents of misuse of the photographs.
Always use latest and up date anti virus software to guard against virus attacks.
Always keep back up volumes so that one may not suffer data loss in case of virus contamination.

15. 5. Never send your credit card number to any site that is not secured, to guard against frauds.6.
Always keep a watch on the sites that your
children are accessing to prevent any kind of harassment or depravation in children.
It is better to use a security programme that gives control over the cookies and send information back to the site as leaving the cookies unguarded might prove fatal.
Web site owners should watch traffic and check any irregularity on the side. Putting host- based intrusion detection devices on servers may do this.
Use of firewalls may be beneficial.
Web servers running public sites must be physically separate protected from internal corporate network.

16. Section 65: Tampering with computer source document:
Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another or conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend upto two lakh rupees, or with both.
Explanation: For the purpose of this section, "computer source code" means the listing of programmes, computer commands,

17. Sec.67
Publishing of Information which is obscene
in electronic form :
Whoever publisher or transmits or cause to be
published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to 1 lakh rupees and in event of second or subsequent conviction with imprisonment of either description for a term which may extend to 10 years and with fine which may extend to 2/- lakh rupees.

18. Definition of Evidence u/s 3 of the Indian Evidence Act 1872
 ‘Evidence’ means and includes –
All documents including electronic records p roduced for the inspection of the Court

19. section 2(1)(t) of the Information Technology Act, 2000
Electronic Record
section 2(1)(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.

20.  [Entries in books of account including those maintained in an electronic form] when relevant.—1[Entries in books of accounts including those maintained in an electronic form], regularly kept 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 charge any person with liability.

21. which has issued the [Electronic
 Section 47A in The Indian Evidence Act, 1872
 38 [ 47A Opinion as to [electronic signature] when relevant .—When the Court has to form an opinion as to the 39 [electronic signature] of any person, the opinion of the Certifying Authority
which has issued the [Electronic 40
Signature Certificate] is a relevant fact.]

22. to electronic of electronic record.—The contents
Section 65A in The Indian Evidence Act, 1872
1[65A. Special evidence
provisions as to
relating
to electronic of electronic
record.—The contents
records may be proved in accordance with the provisions of section 65B.]

23. SECTION 65B IN THE INDIAN EVIDENCE ACT, 1872
1[65B. ADMISSIBILITY OF ELECTRONIC RECORDS.—
 The section starts with Non-obstante Clause
 Any information contained in an electronic record which is printed on paper stored recorded or copied in optical or magnetic media produced by computer shall be deemed to be a document
 Conditions for admissibility
 1 no necessity of production of original
 2 regular use of computer by the person having lawful control over same
 3 Regular feeding into the computer in ordinary course of activity
 4 Computer was operating properly

24. or derived from information fad into the
 5 information reproduced computer
or derived from information fad into the
 Combination of computer is also recognized as a single computer
 Issuance of certificate is mandatory containing
 (a) identifying electronic record containing statement and describing manner in which it was produced
 (b) giving particulars of any device involved in the production of electronic record
 (c) conditions mentioned in subsection above
 Signed by a person occupying responsible position in relation to device or management of relevant activity to the best of knowledge and belief of that person.

25. Admissibility of Electronic Records
Section 65-B (Admissibility of Electronic Records)
used regularly
regularly fed
operating properly
in the ordinary
course of the said activities.

26. FORMAT OF CERTIFICATE U/S 65 B
 Certificate under Sec. 65B of Indian Evidence Act, 1872
 I, , do hereby certify that, we have produced on record [ Electronic Evidence] which is produced from the personal computer [ or any other description] by use of software. The said computer output was produced by the said computer which was used regularly to store and process information and that I had lawful control over the use of the said computer. I further state that [ the information] contentained in the Electronic record/ computer output was regularly fed into the computer in the ordinary course of the said activities. I further state that, throughout the said period of information the computer was operating properly and that the Electronic record is accurate of its content. I am giving this Certificate to the best of my knowledge and belief.

27. —Except in the case [electronic signature], if
 SECTION 67A IN THE INDIAN EVIDENCE ACT, 1872
 59 [ 67A Proof as to [electronic signature].
—Except in the case [electronic signature], if
of a secure the [electronic
signature] of any subscriber is alleged to have been affixed to an electronic record the fact that such [electronic signature] is the [electronic signature] of the subscriber must be proved.]

28.  Section 73A in The Indian Evidence Act, 1872
 1[73A. 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— 2[73A. 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. Explanation.—For the purposes of this section, “Controller” means the Controller appointed under sub-section (1) of section 17 of the Information Technology Act, 2000

29. Section 81A in The Indian Evidence Act, 1872
 1[81A. Presumption as to Gazettes in electronic forms.—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 in the form required by law and is produced from proper custody.]3[81A. Presumption as to Gazettes in electronic forms.—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 in the form required by law and is produced from proper custody.]"

30.  Section 85A in The Indian Evidence Act, 1872
 83 [ 85A Presumption as to electronic agreements.— The Court shall presume that every electronic record purporting to be an agreement containing the [electronic signature] of the parties was so concluded by affixing the [electronic signature] of the parties.]
 Section 85B in The Indian Evidence Act, 1872
 84 [ 85B Presumption as to electronic records and 6 [electronic 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 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 cerate any presumption, relating to authenticity and integrity of the electronic record or any [electronic signature.]]

31. Presumption as to 86 [Electronic Certificates]. —The Court shall the
Section 85C in The Indian Evidence Act, 1872
85 [ 85C
Signature presume,
Presumption as to 86 [Electronic
Certificates]. —The Court
shall the
unless contrary is proved, that
information listed in a 86 [Electronic Signature Certificate] is correct, except for information specified as subscriber information which has not been verfied, if the certificate was accepted by the subscriber.]

32. 88A. Presumption as to electronic messages.—
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the 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.3[88A. Presumption as to electronic messages.—The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the 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 purposes of this section, the expressions “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 the Information Technology Act, 2000.]

33. Section 90A in The Indian Evidence Act, 1872
 [ 90A Presumption as to electronic records five years 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 the 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 applies also to section 81A.]

34. Section 131 in The Indian Evidence Act, 1872
 Production of documents or electronic records which another person, having possession, could refuse to produce.—No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last- mentioned person consents to their production.]2[131. Production of
documents or
electronic
records
which
another person,
having
possession, could refuse to produce.—No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.]"

35.  On 18 September 2014, the Supreme Court of India delivered its judgment in the case of Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012) to declare new law in respect of the evidentiary admissibility of the contents of electronic records. In doing so, Justice Kurian Joseph, speaking for a bench that included Chief Justice Rajendra M. Lodha and Justice Rohinton F. Nariman, overruled an earlier Supreme Court judgment in the 1995 case of State (NCT of Delhi)v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600, popularly known as the Parliament Attacks case, and re-interpreted the application of sections 63, 65, and 65B of the Indian Evidence Act, (“Evidence Act”). To appreciate the implications of this judgment, a little background may be required.

36. State (NCT of Delhi)v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600, popularly known as the Parliament Attacks case
 So far as it recognizes applicability of sec
63 (secondary evidence) to electronic evidence
 Making certificate u/s 65b not mandatory overruled by Anvar

37. Anvar v. P. K. Basheer (Civil Appeal 4226 of 2012)
certificate u/s 65( B) made mandatory sec 65 (A) (B) recognized as code for acceptance of electronic evidence as special law
How ever primary evidence may be produced if possible in which case certificate u/s 65 (B) not necessary

38. QUESTIONS/ ANSWERS  Question No. 1:
 7/12 extract uploaded on government website and i ts print out is taken and filed on record. Does it require certification ?

39. document. Therefore, whenever certified copy of can be
 Answer: 7/12
extract is public
document. Therefore, whenever certified
copy of
can be
such document is
point
filed on record, it in issue is about the
has presumptive value, which
7/12 extract downloaded from website. When
rebutted. The
we are talking about electronic record, it is necessary to see whether 7/12extract uploaded on website i s electronic record. There may be two methods of uploading 7/12 extract on website. First is uploading the scanned copy of manually prepared 7/12 extract.Second may be feeding the data in prescribed for
m prepared on website
of uploade in
is saved printout
government, where entries of 7/12 extract can be entered.
Once a scanned it is
document is
stored or
form. in the computer of such
d electronic
data fed
Whenever a file or
into,
is downloaded
from
such
website, it
hard disk
temporary memory in
electronic
form. If of a electronic
a document is
taken, form Act. it
and accessible
would be a print out
document,
which
under section
is in electronic
for future
if such
reference as
contemplated
4 of IT
Therefore,
document
is filed on
record, it
must be certified under section 65B of IEA, to make it admissible.
Most important aspect is about discla
imer.
that, document
If website
uploaded on website cannot be
itself declares
used for any purpose, then
even though it is certified to make it admissible, it has no value. I have downloaded 7/12 extract from website At the bottom, it is mentioned that, “ Therefore, such document as certified under section 65B of Indi an Evidence Act it can at the most made admissible in evidence. In view of disclaimer such document cannot be used before court of law as evidence.

40.  Question No 2: Copy of sale deed uploaded on website ?
 Answer:
In this case also same analogy. Sale deed is manually If ther e is disclaimer, then we can not use such docume nt for evidence purpose.

41. I] “A” purchased some goods from shopkeeper, “B”. “B” issued system
 Question No. 3: Case-
I] “A” purchased some goods from shopkeeper, “B”. “B” issued system
generated bill. “A” received such system generated bill on paper. “A”
instituted suit against, “B” and placed reliance upon bill received by him. “B” has taken the defence that, bill submitted by “A” is not the bill issued by him but it is different bill. “B” has also filed on record the print out of the bill stored in the system of “B”'s computer. Which one is electronic recor d and who has to certify under section 65B of Indian Evidence Act ? Case-
II] “A” purchased some goods from shopkeeper, “B”. “B” sent system generated bill via to “A” . “A” received such system generated bill on his account. “A” instituted suit against, “B” and placed reliance upon bill received by him on his . “A” taken its printout and filed it on record.
Whether, it requires certification under section 65B of Indian Evidence Act?

42. Answer:
In order to answer the question it is necessary to see
, whether a
document is electronic record as defined in Informati on Technology Act

43. and would not bill filed by “A”
 . CaseI] not in require
“A” has received printout on a paper. It means, information received by “A” is
electronic form. Therefore its a normal document any certification. It means in order to make a
and would not bill filed by “A”
admissible, it is not necessary to certify it under section 65B of Evidence Act.
“B” has filed the printout obtained of the information stored in the computer of “B”. It means information was saved in the computer system in electronic form and “B” wants to place reliance upon that bill. “B” has two options.
Either to produce the original electronic record before the court
Indian
OR to
reproduce it in the form of printout on paper or prepare CD etc. The copy is prepared from electronic record, hence “B” will require to file the certificate to make it admissible before the court of law. Case-
II] In this example “A” has received the bill on his . It means the same Bill is
sent and received in electronic form. In order to make the print out of bill, obtained by “ A”, admissible “A” will be required to certify under section 65B of Indian Evidence Act.

44. 65B of EA is needed, to make it admissible.
 Question No. 4
It is settled principal of law that, if electronic record is filed in its originalform, to make it admissible before court, no certific ate under section 65B of the Indian Evidence Act is required.
If it is printed on a paper, stored, recorded or copied in optical or magneticmedia produced by a computer, it is document and certificate under section
65B of EA is needed, to make it admissible.
Day in and day out, we feed some data in court and it is printed on paper.Evidence is recorded in computer and it's printed copy is attached with file.Now many judicial officers are recording st atement of witnesses under section164 of Crpc on computer an d it's printout is filed on record. It means data
contained in electronic record is printed on paper

45.  Question : Whether such print of recorded evidence in Court requires certification u/s B of the Evidence Act.
 Answer : No
Evidence adduced before the Court in the same proceeding cannot be treated as document. It is evidence

46. IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE
JURISDICTION SPECIAL LEAVE PETITION (CRL.) No.2302 of 2017 SHAFHI MOHAMMAD VERSUS THE STATE OF HIMACHAL PRADESH
 (11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure.

47. Thus, requirement of certificate under Section 65B(h) is not always mandatory. (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.