Smartphone recordings admissibility in a criminal case trial!

[Akhtari Khatoon]

Please let me know what steps should I take so that electronic voice recordings on a smartphone and copies of the same on a Micro SD card remain admissible to the court during a criminal case trial?

(1) Precisely what should I do with those electronic files and their copies on Micro SD card to render them as admissible evidence / confession of guilt in the court and or Police Department? Also, what to do if the trial opens, say 8 or 9 years , down the road ?

(2) Should I send copies of those recordings to any Forensic Science Laboratory – if yes, which laboratories are recognized by Indian trial and high courts? And what should I ask those laboratory to certify specifically about copies of those electronic voice recordings?

(3) In case of secondary evidence, that is, copies of voice recordings on smartphone, from where do I get “….certificate in terms of Section 65B…” ( LINK: http: //www.livelaw. in/thoughts-admissibility- electronic-records-light-anvar-p-v-vs-p-k-basheer/
)
And what is the requirement and a sample of certificate for Section 65B ?

Thank you very much !!!

[Dr. Ashok Dhamija]

If you are submitting the original device on which voice has been recorded, it is admissible in evidence as the primary evidence without any further certificate. Of course, it may have to be shown that it is the original device on which it was recorded first.

If you want to give a copy of the voice recorded in some CD or Micro SD card, etc., then you have to follow the procedure laid down in Section 65-B of the Evidence Act and also have to give a certificate required under that section. This section is reproduced at the end of this reply.

Such certificate is required to be given by the person as is mentioned in the said section. If it is your smartphone then you may have to give such certificate.

Above requirements are for making such electronic record admissible. Examination by forensic science laboratory is to prove the genuineness or authenticity of the same. Depending on the requirements of the case, such examination may be necessary. If it is a police case, then the police would be sending the same for forensic examination. If it is a private complaint case filed directly by you in court, then you may have to get them examined by forensic expert, depending on requirements of the case. You may search on the Internet about the list of such forensic experts. It is not possible for me to comment on the facts of an individual case as to on what points it needs to be done. You may consult some local lawyer about the detailed facts of your case.

There is no standard or sample certificate prescribed under law. It should fulfil the conditions mentioned in Section 65-B of the Evidence Act in plain simple language, and that should suffice.

There are several other articles / replies on this website on electronic evidence and Section 65-B of the Evidence Act. You can search these expressions on this website. For example, see the search results at this link: http://tilakmarg.com/forum/search_gcse/?q=65-B

Section 65-B of the Evidence Act is as under:

“65-B. Admissibility of electronic records.—(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the 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 original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely—

(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;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material 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 fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(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 the computers used for that purpose during that period shall be treated for the purposes 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 describing the manner in which it was 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 person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-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 the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

 

     

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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. List of his YouTube Videos.

[Akhtari Khatoon]

Respected Dr. Ashok Jee,

I am immensely thankful to you for your kindness ! You are doing a service to all humanity by guiding them with your precious knowledge ! Thank you once again for that !

Please see the following points:

(1)I have recordings ( voice recording ) on one of my smartphone, which was crushed / broken by the criminals – its display has been completely broken. However, I am quite sure that voice recordings may be retrieved by a competent and authorized Forensic science Laboratory. Could you please answer the following :

(a) From your post, it appears that I have to certify that I owned that smartphone, correct ? If yes, exactly in what wording I certify that ?
(b) Since it is physically damaged , will it be acceptable as primary evidence ?

(2) I have further recordings on my other smart phone that is functional and is ok – so it will be admissible as primary evidence by itself ? Any time barring on its admissibility, if the case opens several years down the road and I keep those smartphones in my possession – I don’t trust police ?

(3) Please list any 3 Forensic Science Labs whose findings are acceptable by the Hon’bl Supreme Court of India ?
Also, please list out the requests that I need to ask FSL regarding voice recordings on smartphone itself and or copies of voice recordings sent in a microSD card ?

Thank you !

[Dr. Ashok Dhamija]

I have already replied to you that: “There is no standard or sample certificate prescribed under law. It should fulfil the conditions mentioned in Section 65-B of the Evidence Act in plain simple language, and that should suffice.” I have also quoted the section in my reply for your help in this regard. You may also search the Internet for such sample formats.

If the memory storage of the device is intact (as you claim) and only display is damaged, it should still be acceptable as primary evidence, since in that case the relevant file can still be accessed from such memory storage.

If other smartphone devices have copied files of the recording, then they will not be primary evidence.

If it is a private complaint case, then of course you can keep the device in your own safe custody. But, if it is a police case, then they will seize it and keep in their or in court custody and you have no option but to trust them.

I have already replied to you that you may search from the Internet about such forensic laboratories. Or, else, engage some expert to do so. It is not possible for us to do such research on facts of the case on your behalf.

As already stated, it is not possible for us to reply on detailed facts of the case on this pro bono forum. Take help of some local expert in your place about the type of questions to be asked from the forensic laboratory since that would depend on the detailed facts of the case.

     

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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. List of his YouTube Videos.

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