New Criminal Procedure Code Needs Provision To Secure Safe Custody Of Digital Evidence : Parliamentary Panel

The Bharatiya Sakshya Bill and the Bharatiya Nagarik Suraksha Sanhita  - which are introduced by the Union Government to replace the Indian Evidence Act and the Code of Criminal Procedure - has no provision to safeguard the authenticity and integrity of digital evidence, observed the Department-related Parliamentary Standing Committee on Home Affairs.

The Bharatiya Sakshya Bill (BSB) has provision for treating electronic and digital records produced from proper custody as primary evidence (Explanation 5 to Clause 57). 

It observed that the Bill has no mention about ensuring the maintenance of a proper chain of custody of digital and electronic records acquired during investigations. In this regard, the Committee noted that provision of maintaining proper chain of custody has already been incorporated within the ambit of criminal laws in developed countries such as United States of America (USA) and United Kingdom (UK). Therefore, the Committee suggested that an appropriate provision in this regard be incorporated in the Bharatiya Nagarik Suraksha Sanhita (BNSS).

In the report regarding the Bharatiya Sakshya Bill, the Committee recommended :

"The Committee is of the opinion that safeguarding the authenticity and integrity of electronic and digital records acquired during the course of investigation is crucial due to the fact that such evidences are prone to tampering. The Committee takes into account the suggestion submitted before the Committee and recommends that a provision may be inserted to mandate that all electronic and digital records acquired as evidence during the course of investigation are securely handled and processed through proper chain of custody. Appropriate provision in this regard may be made in the Bharatiya Nagarik Suraksha Sanhita, 2023."

These recommendations assume relevance in the backdrop of growing concerns over the seizure of personal electronic devices by investigating agencies. In the backdrop of NewsClick raids , a group of media organizations wrote to the Chief Justice of India seeking proper guidelines on digital seizure. Recently, while considering a writ petition filed by the Foundation of Media Professionals, the Supreme Court  observed that the seizure of digital devices was a matter of serious concern and told the Centre that better guidelines are needed for the investigating agencies to balance journalistic interests and investigative needs. In another similar petition filed by a group of academicians (Ram Ramaswamy v. Union of India), the petitioners submitted a set of draft guidelines, which suggest, inter-alia, the need for a judicial warrant to seize academic, journalistic or privileged information in digital devices.

Provisions in BNSS on digital evidence

Let us look at the provisions facilitating the digitalization of procedures in criminal law and particularly digital evidence under the Bharatiya Nagarik Suraksha Sanhita Bill 2023(BNSS)-

• Section 532 allows for holding of trials and inquiries in electronic mode by use of electronic communication or audio-video means.
• Section 94 within the Sanhita explicitly includes the summoning of "digital evidence" and encompasses various forms of electronic communication, including messages, call recordings, and emails.
• Section 210 of the BNSS allows Magistrates to take cognizance of offenses based on police reports recorded in any mode, including digital formats.
• Moreover, Section 37, BNSS mandates comprehensive information regarding individuals arrested, and the nature of charges would be prominently displayed in any manner, including digital mode at the police stations.
• The BNSS introduces the use of technology in various legal proceedings, such as serving summons, notices, and warrants electronically, enhancing efficiency and reducing paperwork. Section 70 strengthens the validity of electronically served summons.
• Summons served through electronic communication channels as per Sections 64 to 71 are recognized as duly served, and a copy of such electronic summons is to be attested and retained as evidence of service.
• Moreover, Section 105 allows the recording of search and seizure activities through audio-video electronic means. The utilization of audio-video electronic means for examining witnesses, as specified in Section 80 enhances convenience and accuracy.

Opposition raises concerns

TMC MP Derek O’Brien posted his dissent, particularly on section 94 of BNSS which allows the summoning of digital evidence. He stated “A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today's age contain all information pertinent to an individual's general existence. So, there’s a question about the invasion of the Right to Privacy because of the scope of information that’s in these devices. Secondly, the collection of such devices might also go against the Right against self-incrimination.”

On the admissibility of electronic evidence, the Leader of Congress party MP Adhir Ranjan Choudhary pointed out that section 63 conflicts with sections 61 and 62 of BSB. As per section 61, all electronic records are to be treated at par with paper records when proved in accordance with section 59. However, Section 63 lists the conditions required for the admissibility of electronic evidence.

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Report on Bharatiya Sakshya Bill here

Report on Bharatiya Nagarik Suraksha Sanhita here

Report on Bharatiya Nyaya Sanhita here.