March 13, 2018 at 11:18 am #4165
I had a call recording app installed on my phone. This application has a setting to automatically take backup of call recordings in cloud storage services like Box, OneDrive etc.
For a period of three months several call recordings are uploaded and stored in my cloud.
These files have uploaded time stored. These times are not changeable and are 1yr older to the FIR date.
For example if FIR filed in Sept-2017 then these call recordings are uploaded automatically on Aug-2016.
They also have the filename format which shows whether the call was incoming or outgoing and to whom the call was made.
It is logical that one can not foresee a FIR 1year ahead of time and upload these calls in a timely manner changing the filenames.
Below are my questions sir:
1. Are these files acceptable? They are not on the device which is used to record them. But I have the device with me (phone) using which I recorded these. The phone and the app can be used to record a new call to check the resultant call record matches the size length and quality of the call records in cloud though.
Maybe this way it can be verified if the call recordings are done on this particular device or not ?
2. Should I certify these calls as uploaded at so and so time and are non-tampered— from some private firm and then submit to court ? Will I have to produce the transcripts also ?
3. Can I request the honorable judge to ask the accuser woman to provide her sample voice to match with the call records that I produced ?
4. Can she deny to provide her voice samples ?
Thanks in advance
March 14, 2018 at 6:41 pm #4185
Dr. Ashok DhamijaAdvocate
The device on which the call recordings were originally recorded, becomes the primary evidence, which can be directly produced (in original) in court and it become admissible evidence.
But, you have said that call recordings were stored directly (and, perhaps, only) on the server in the cloud. In such a situation, that server in the cloud would become the primary evidence. Now, can you produce this original server in court? Obviously not. So, you have to give secondary evidence of the call recordings in court, by following the procedure / requirements of Section 65-B of the Evidence Act. If you follow these requirements, then such evidence may be admissible in court. But, admissibility of evidence is one thing, whether such evidence is genuine (and trustworthy) is entirely a different issue on which the court will decide taking into account various aspects.
Please read Section 65-B of the Evidence Act. There are various requirements under that provision which have to be satisfied. Certain information in respect of the server in the cloud where the information was stored, may also be needed. Certificate of the person mentioned in Section 65-B(4) is required to be given. Consult some local expert or lawyer if you cannot understand the requirements of Section 65-B yourself.
Secondary evidence can be in the form of copies on an electronic / magnetic / optical media as mentioned in the above legal provision. Transcript is only for the purpose of comparison and may have to be given if required by the court, though the above section does not require it.
You can request the judge to ask the complainant to provide her voice sample. But, as far as I understand, she may have the right to refuse.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.
March 14, 2018 at 11:04 pm #4187
Thank you for replying me.
In order to keep things simple I omitted one detail.
The app stores the call record on phone and uploads to Cloud server at the same time.
I configured the app to store in external Memory card.
The memory card is inside a new phone that I purchased and this phone is taken away by police along with 3 other phones.
So I have the phone on which the call is recorded , but the memory card is not in my reach. Hence I am considering the Cloud stored call record as my evidence.
1. Sir can the phone alone without the memory card be of any use in this scenario ?
2. Sir, can a government employee, I.e a police constable refuse to give his voice sample ?
3. The phone has call logs, which shows repeated calls from the Complainant , Her Lawyer and Police constable. These calls are done immediately after the NCR for 2 days. These are all missed calls as I didn’t receive them. I switched off phone after that. In the FIR she mentioned that, even after the NCR complaint I continued to contact her, torture her and rape her hence she filed FIR ! In light of this allegation, how Imp is my call history stored on phone ? Can it be considered as evidence ?
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