Digital Evidence and Cybercrime: Admissibility and challenges under Indian law

ABSRACT:

In recent years, with rapid spread of digital technology, criminal activities have increasingly shifted into cybercrime turning cybercrime into a pressing challenge into a society. Investigations into such crimes heavily depend upon digital traces found on electronic devices. However, establishing the admissibility of this evidence in Indian courts can be challenging. Experts in digital forensics face ongoing challenges and concerns around privacy and data security and navigating complex legal standards. Despite these hurdles, digital evidence plays a pivotal role in both criminal and civil proceedings, offering critical insights for law enforcement and judicial systems. As technology continues to advance, digital forensics must evolve to counter emerging threats and complexities. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) updates the law of evidence by expanding how digital records are defined and accepted in legal proceedings. Meanwhile, the Bharatiya Nagarik Suraksha Adhiniyam, 2023 (BNSS) brings in new procedural reforms, including electronic filing, digital documentation, clearer jurisdictional guidelines, and compulsory forensic examinations. The Supreme Court has laid down specific guidelines to ensure its admissibility in legal proceedings. Indian courts are increasingly recognizing the significance of digital evidence in resolving cybercrime cases.

Keywords: cybercrime, digital forensic, admissibility, investigation, technology.

INTRODUCTION:

To establish a crime, gathering relevant evidence is essential and in cybercrimes cases digital data must be carefully traced, stored, collected, and preserved to ensure the offenders are held accountable. Key digital traces such as mails, call logs, online transactions, and social media activity serve as a vital source of information.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the admissibility of digital evidence in Indian Courts. This updated the legislation to expand the definitions of document and evidence to clearly include the electronic and digital records. Section 57 of the BSA now recognizes properly obtained digital records as primary evidence, simplifying their use in legal proceedings. Investigators scrunize digital traces such as metadata, network activity logs, deleted content and communication records to reconstruct the sequences of events behind cybercrimes. However, managing digital evidence poses many challenges. Due to delicate nature and susceptibility to tampering and the complex legal challenges of retrieving data across international boundaries, digital evidence requires highly skilled and cautious management.

WHAT IS DIGITAL EVIDENCE

Digital evidence  can be described as any form of information or data connected to an investigation that is created, exchanged and preserved through electronic devices. This type of evidence is used when such devices are confiscated and examined.

Digital evidence can disappear quickly it is easy to delete or erase. But even if someone tries to delete or erase there are some traces that often stay behind the device. The experts can use special tools to find these hidden deleted files, etc. one of the important clues is metadata which helps the investigators that when the file was shared or deleted.[1]

As computers and the internet become a part of our daily lives and cybercrime has become a serious problem. Technology has made the people rely on everything such as shopping, education, working, socializing etc., everything can be done right at home. Cybercrime is different from all of crime because the cybercrime does not follow borders and criminals often stay hidden. Some examples of cybercrime may include phishing, credit card fraud, online scams, hacking, cyber terrorism, illegal downloads, etc.

LAWS GOVERNING DIGITAL EVIDENCE

The admissibility of digital evidence in Indian courts depend upon well-defined legal standards. The Information Technology Act, 2000 along with recent amendments establishes the legal framework for handling and regulating electronic records in India. These provisions are integrated into the Bharatiya Adhiniyam, 2023 (BSA) which through sections 65A & 65B formally recognizes the electronic records as valid evidence. Under section 65B, the digital evidence can only be admitted if it is accompanied by certificate verifying its authenticity and confirming that the content has remained unaltered. This ensures that such evidence satisfies legal benchmarks like relevance, reliability, and integrity.[2] Courts have also established the admissibility of digital evidence.[3]

Section 63(3) provides that if electronic records comply with section 63(2) then electronic records are presumed to be genuine. This legal presumption shifts the burden of disproving authenticity to opposing party making it easier for litigants to present their evidence without undergoing the preliminary process.[4]

Section 79A of IT Act, 2000, provides the phrase “electronic form of evidence” it means any information that is stored and transmitted and includes materials such as computer generated records, digital audio, video files and mobile phone data and transmissions from digital fax machines. In both civil and criminal proceedings court can admit digital evidence.

The admissibility of digital evidence is to be accepted by Indian courts, it must be real, important to the case and follow some legal rules.

ADMISSIBILITY OF DIGITAL EVIDENCE UNDER INDIAN LAW

Once the evidence is collected and examined, the next stage is to determine the admissibility of digital evidence in courts.

To ensure digital evidence is valid in courts it is essential to understand both legal and technical aspects of digital forensics. Adhering to proper legal procedures, safeguarding privacy rights, maintaining clear chain of custody, using trusted forensic tools, and involving skilled professionals are all critical factors that determine whether digital evidence can be accepted in courts. Digital evidence can be in many forms and differ from case to case such as email and chat logs, social media posts, text messages, computer files, metadata, video footages, cellphone records, GPS data can be used as evidence in courts. The admissibility of digital evidence in courts depend on its relevance to the case, verification of its authenticity and reliability. To ensure to be accepted in courts it must follow the legal procedures for collecting, analyzing, and presenting before the Courts. [5] To be admissible in court there are some characteristics.[6]

1. Admissible: Courts only accept evidence when it is collected and recorded with proper procedures and ensuring accuracy at every stage. Adhering to the standard operating procedures during its collection and management. Any deviation from any of the requirements such as mishandling, poor documentation or inaccurate reporting can compromise the integrity of the evidence and render it inadmissible.
2. Authenticity: digital evidence must clearly originate from clear source and not an altered information or data and also preventing from the tampering of such evidence. Ensuring the integrity of the is crucial and this is achieved through a well-maintained chain of custody.
3. Completeness: The evidence must encompass all aspects of incident providing that all comprehensive view of support or refute of an alleged action.
4. Reliability: To ensure reliability, the investigators must ensure two aspects
5. Whether the electronic device from which the evidence is collected and obtained was operating correctly at the time of acquisition.
6. Whether the digital evidence is not altered and it is free from damage, tampering and contamination.
7. Believable: The evidence which was collected must be clear and comprehensive to the justice. Since the digital evidence is highly technical, it should be translated into simple and accessible language.

In the case of Jagjit Singh vs State of Haryana,[7] the supreme court the Court considered digital evidence, notably interview transcripts and video recordings from major television networks including Zee News, Aaj Tak, and Punjab Today’s Haryana News. The Court upheld the reliance upon the evidence given by the speaker and concluded that voice recorded on the CD matched with the person initiating action. The Supreme Court did not find any problem in the Speaker’s reliance on the digital evidence and conclusion given by the speaker. Hence, with this case, it can be noted that the Indian judiciary has started to recognize the importance of digital evidence in legal proceedings.

Tomaso Bruno v. State of Uttar Pradesh,[8] in this case, the court highlighted the importance of digital evidence, particularly in cases where there is no direct witness testimony. The court emphasized that digital evidence, such as CCTV footage, can play a crucial role in criminal investigations and should be handled with care to ensure its admissibility and accuracy.

There are some legal requirements[9] to meet digital evidence in courts:

1. Chain of custody: It means there must be a detailed record of every person who assessed and transferred it.
2. Expertise: only qualified forensic experts will handle digital evidence.
3. Documentation: record of every step from acquisition to presentation in a clear manner.
4. Certificate: There must be certificate by a qualified person that the digital evidence is real and not altered.

CHALLENGES IN DIGITAL EVIDENCE

Challenges in digital evidence include:

1. Technical complexity: It is most common challenge faced by the digital forensics experts where they have explain the technical aspects to a simple and understandable language to a person who are from non-technical background.
2. Admissibility of evidence: To be admissible in court, it must follow the legal procedures such as relevance, authenticity, and reliability. Experts must show that evidence was collected and handled within the legal protocols.
3. Anti forensic techniques: Cyber criminals uses the tactics to erase, manipulate or deletes the data from the device and conceal their traces. This makes the experts complicate the forensic process.
4. Privacy protection: Courts relying on digital records often brings up privacy concerns particularly when sensitive data is involved. In landmark judgment in justice in S. Puttaswamy v. UOI,[10] the Supreme court affirmed privacy as fundamental right. The experts while presenting the digital evidence may also contain sensitive data which cannot be exposed to the public without proper permission, and they must protect the privacy of the individuals.
5. Technological complexity: The technological innovations are growing faster than the development of legal frameworks. The nature of digital evidence is rapidly evolving, increasing, and including data which is stored in cloud severs, blockchain technology and rise in artificial intelligence. Existing laws fall short of these new technological developments and leading to uncertainties around the admissibility of such evidence in courts.

CONCLUSION:

In recent years, the digital technology has embedded in everyday life, including in criminal activity. With rapid technological advancements cybercrime has emerged and it is threat to the society. Recognizing digital evidence as valid evidence and admissible in Indian Courts makes positive move towards growing challenge. To effectively deal with cybercrime, India must continue to strengthen legal framework, enhance technological infrastructure, and build specialized expertise. 

REFERENCES

[1] Prithwish Ganguli, Admissibility of Digital Evidence under Bharatiya Sakshya Sanhita: A Comparative Study with the Indian Evidence Act, Understanding Digital Evidence in the Modern Legal Landscape, 01,02(2024).

[2] Apurva Neel, Digital Evidence: Collection, Preservation and Forensic Analysis, LEGAL FRAMEWORK GOVERNING DIGITAL EVIDENCE( Sep 06, 2025, 9:10 PM), https://www.legalbites.in/forensic-law/digital-evidence-collection-preservation-and-forensic-analysis-1074008.

[3] Anvar P.V. v. P.K. Basheer AIR 2015 Supreme Court180 & Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal AIR 2020 Supreme Court 4908.

[4] Rahul Kailas Bharati& and Sandeep Nagarale, Digital Forensic Science and Evidentiary Standards in the Bharatiya Sakshya Adhiniyam (BSA) 2023: A Legal Examination of Admissibility, Vol.15 IJONS,88853,88857 (2025).

[5] Mr. Rahul K. Bharati et al, Forensic Bytes: Admissibility and Challenges of Digital Evidence in Legal Proceedings, Vol 11, IJSRST, 24, 29(2024).

[6] Aman Vedwal, Admissibility Of Digital Evidence For Cyber Crime Investigation, SSRN, 01, 05-06(2023).

[7] Jagjit Singh Vs. State of Haryana (2006) 11 SCC 1.

[8] Tomaso Bruno v. State of Uttar Pradesh 2015 (7) SCC 178.

[9] Mr. Rahul K. Bharati et al, Forensic Bytes: Admissibility and Challenges of Digital Evidence in Legal Proceedings, Vol 11, IJSRST, 24, 27(2024).

[10] K.S. Puttaswamy v. UOI AIR 2017 Supreme court 4161,