DIGITAL EVIDENCE AND CYBERCRIME:  ADMISSIBILITY AND CHALLENGES UNDER INDIAN  LAW 

ABSRACT 

This paper explores cybercrime in India and the legal frameworks governing the admissibility  of digital evidence. It also analyses landmark cases to underscore judicial reactions to cyber  misconduct and evidence standards used. It further understands provisions under the Indian  Evidence Act, Information Technology Act, and Bharatiya Sakshya Adhiniyam of both  cybercrime and digital evidence. 

INTRODUCTION 

In this era, Digital devices and technologies are significant part. With  digitalization, new forms of criminal activity have also raised, like hacking,  identity theft, cyberstalking, phishing, cybertrespass, cyberbullying etc…these  are as whole called as cybercrime. So, the legal system adapted itself to the digital  era, and recognised digital evidence which helps us to prove or disprove crimes  especially a cybercrime. and as reliability of Digital evidence is always seen as  question mark. 

UNDERSTANDING CYBERCRIME AND SCENARIO OF INDIA. 

Cybercrime refers to unlawful activity that involves computer or a networked device.  The word Cyber is derived from Greek word ‘kubernētikós’ which means governing, piloting  or skilled in steering. According to the Anderson and Gardener Cybercrime is “Criminal acts  implemented through the use of a computer or other form of electronic communications”  (2015). The Indian legislature had not mentioned a precise definition of cybercrime, even The  Information Technology Act (2000) addressing cyberoffences, does not explicitly define the  term ‘cybercrime’. 

The International Organisation for Standardisation (ISO) defines cybercrime as ‘the  commission of criminal acts in cyberspace’. According to Ministry of electronics and  Information Technology, cybercrimes have increased by 572% from 2018 to 2021. 

Cybercrime is an uncontrolled evil that has no boundaries and operates cross  jurisdictions easily. 

Current Indian Scenario 

• Increasing cybercrime incidents: Over the past few years, India has witnessed notable  increase in cybercrime incidents. The increase in internet penetration and digital  transactions has provided the cybercriminals more opportunities to take advantage of  weakness. Common types of cybercrime in India include hacking, phishing, financial  fraud and identity theft. Recently, Ministry of Home Affairs (MHA) answered the  Rajya Sabha that the number of reported cybercrimes surpassed 2.2 lakh in 2024 in  contrast 4.5 lakh in 2021, a jump over 40 percent.  
• Cyber terrorism: According to Pollitt “the premeditated, politically motivated attack  against information, computer systems, and data which results in violence against non combatant targets by sub-national groups or clandestine agents.” Cyber terrorism rising  concern for India. Social media and internet are being used more and more by terrorist  groups for attack, recruitment, propaganda and planning attacks. The IT Act was  amended to add provisions for cyberterrorism after the 2008 Mumbai attacks brought  attention to the role that technology plays in enabling terrorism. 
• Financial Frauds and Scams: Cybercriminals employ a range of tactics, Cybercriminals  employ a range of tactics to mislead individuals and to extract financial information’s.  Rise of UPI, mobile wallets, and instant loan apps has highly further contributed to  cyber fraud. The Ministry of Home Affairs (MHA) revealed a data to Rajya Sabha that digital financial frauds amounted to ₹4,245 crore in the first ten months (April–January)  of the fiscal year 2024-25, involving 2.4 million  

CYBERCRIME – LANDMARK CASES

State of Tamil Nadu v. Suhas Katti – 2004 

• Facts: 

The Suhas Katti case involved cyber harassment of a woman named Ms.  Roselind. After she rejected his marriage proposal, Katti, a former friend of her family,  created a fake Yahoo account in her name and posted obscene and defamatory content  along with her phone number. This led to her receiving abusive calls from strangers. In  February 2004, she filed a complaint, and Katti was arrested under Section 67 of the IT  Act, and Sections 469 and 509 of the IPC. It became one of the first Indian cases  resulting in a conviction for cybercrime. 

• Issues: 

1. i) Whether the accused had posted obscene and defamatory messages online with the  intention to harass the victim. 
2. ii) Whether these actions fall under the scope of the Information Technology Act, 2000,  along with relevant sections of the Indian Penal Code (IPC). 

• Held: 

The accused has been found guilty of the offences committed against the  complainant and is therefore sentenced accordingly. For the offence under Section 469  of the Indian Penal Code, he is awarded rigorous imprisonment for a period of two  years along with a fine of ₹500. For the offence under Section 509 of the Indian Penal  Code, he is sentenced to one year of imprisonment. Additionally, for the offence under  Section 67 of the Information Technology Act, 2000, the accused is sentenced to  undergo rigorous imprisonment for two years and is liable to pay a fine of ₹4,000. The  accused is directed to pay the fines and serve the term of imprisonment in the Central  Prison at Chennai.

Shreya Singhal v. Union of India (2015): 

• Facts:

In 2012, Mumbai police arrested Two girls named Shaheen Dhada and Rinu  Shrinivasan were arrested for posting and liking a Facebook comment criticizing a  bandh after Bal Thackeray’s death (Shiv Sena leader). The arrest was made under  Section 66A of the IT Act, which criminalized sending “offensive” messages online. As  a result, the Indian Supreme Court received about ten writ petitions from citizens all  throughout the nation contesting the legality of section 66 A of the Information  Technology Act, 2000 under Article 32 of the Indian Constitution. The Supreme Court  of India combined the submitted petitions into a single Public Interest Litigation. As a  result, the case was called Union of India v. Shreya Singhal. 

• Issues: 

1. i) Is Section 66A of the IT Act unconstitutional for violating the right to freedom of  speech under Article 19(1)(a)? 
2. ii) Is the section vague and prone to misuse? 

iii) Should Sections 69A and 79 of the IT Act also be reconsidered? 

• Held: 

The Supreme Court struck down Section 66A as unconstitutional for being  vague, overbroad, and violating free speech. Section 69A (blocking websites) was  upheld with safeguards and Section 79 (intermediary liability) was read down to limit  its scope. 

DIGITAL EVIDENCE AND ITS LEGAL FRAMEWORKS

“Digital evidence” or “Electronic Evidence” is any probative information stored or  transmitted in digital form that may be used before the courts/ Income- tax authorities. Section  79A of the IT (Amendment) Act 2008 defines electric form evidences as “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”. 

Bharatiya Sakshya Adhiniyam, 2023, 

• Section 2(1)(e) talks about electronic or digital records as documentary evidence. • Section 32 states that statements about the law found in law books or digital/legal texts  are relevant and can be used as evidence. 
• Section 61 deals with recognition of Electronic and digital record as evidence on the  ground that it is an electronic or digital record and such record shall, subject to section  63. 
• Sections 65A and 65B of the Indian Evidence Act deal with the admissibility of  electronic records in court. Section 65A states that electronic records must be proved  according to Section 65B, which lays down the procedure for admitting such records  as evidence. Section 65B allows electronic records (like emails, videos, or computer  files) to be used in court if they were produced by a regularly used computer and are  accompanied by a certificate under Section 65B(4). 

The digital devices that can potentially include like desktop computer, Pen drives, hard  drives, Mobile Phones, iPad, Personnel Digital Assistance, Electronic Organiser, Smartcards,  Dongles, Biometric Scanners, Digital Cameras, Modems, Routers, Hubs and Switches etc… 

ADMISSIBILITY OF DIGITAL EVIDENCE

• Relevance: The Digital evidence must be directly related to the issues of the case. • Authenticity: The Digital evidence must be genuine and not altered or made up. • Reliability: The process by which the data obtained must be trustworthy and well documented. 
• Hearsay: Digital records containing out-of-court statements may be excluded unless  they meet exceptions. 
• Expert Testimony: In some cases, digital evidence is complex or technical in certain  aspects, experts may be required to explain about its authenticity,reliability and  interpretation of the evidence. 

DIGITAL EVIDENCE – LANDMARK CASES: 

State (NCT of Delhi) v. Navjot Sandhu (2005) 

• Facts: 

On 13 December 2001, five armed terrorists launched a deadly attack on the Indian  Parliament complex in New Delhi, resulting in the deaths of nine individuals including  security personnel and a gardener. All five attackers were killed on site. The  investigation led to the arrest of four accused—Mohd. Afzal Guru, Shaukat Hussain  Guru, S.A.R. Geelani, and Navjot Sandhu (Afsan Guru)—who were charged under  various provisions of the IPC, POTA, and the Explosive Substances Act. The  prosecution relied heavily on digital evidence such as call records, laptop data, and  confessional statements to establish a conspiracy behind the attack. 

• Issues: 

Whether digital records like call logs, SIM card data, and laptop files could be  admitted without strict compliance under Section 65B of the Indian Evidence Act. • Held: 

This case established the criteria for the admissibility of electronic records under  the Indian Evidence Act, 1872. The court ruled that electronic evidence must be  relevant, authentic, and accurately identified. (This was later over-ruled)

Anvar P.V. v. P.K. Basheer (2014) 

• Facts: 

Anvar P.V. was involved in a dispute over the ownership of a car. The lower  courts relied on electronic evidence (CDs and video recordings) to decide the case. The  issue arose whether the electronic evidence was admissible without proper certification  under the Indian Evidence Act. 

• Issues: 

Whether electronic records (like CDs, videos) can be admitted in evidence  without proper certification under Section 65B of the Indian Evidence Act? • Held: 

A landmark judgment that overruled Navjot Sandhu. In this case, the Supreme  Court of India underscored the necessity the rules of evidence when admitting  electronic records, including secondary evidence of such records. The court asserted  that the individual relying on electronic records must establish their authenticity just  like with any other document. 

Shafhi Mohammad v. State of Himachal Pradesh (2018)

• Facts:

The appellant, Shafhi Mohammad, sought to withdraw his criminal complaint  and settle the dispute amicably. The trial court allowed the withdrawal, but the High  Court set aside that order and directed the trial to continue. 

• Held: 

Created an exception for situations where a party does not have access to the  device or is not in a position to produce the 65B certificate. 

CONCLUSION 

Digital evidence plays a crucial role in modern trials, but its admissibility subject to  rigorous legal criteria. Indian law and jurisprudence has evolved over time as it started  accepting cyber offence as crime and electronic records as digital evidence and framed laws  and statutes for it. Today, Indian courts require proper certification and adherence to procedural  safeguards. Forensic equipment and legal consciousness need to be improved to ensure  equitable verdicts in cybercrime trials.

REFERENCES 

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