From British colonial period to the present age of digitalization, Bangladesh has come a long way. Gradually, its legal system adopted necessary measures conforming to the changing necessity of laws and lifestyle of people. Nevertheless, there are quite a few provisions that still need to equip themselves properly in order to be applicable in appropriate cases. One of the notable instances is Section 3 of the Evidence Act, 1872 (Act No. I of 1872). Despite being a parent law regarding the substantive and procedural regulation of evidence in our country, this Act has still not recognized digital records as evidences. That is why the scope and applicability of its provisions are often limited and cannot be used as an efficient tool for ensuring justice. After intense scrutiny, we have found some scopes using which digital evidence in Bangladesh can be produced under the Evidence Act, 1872.
Digital Evidence in Bangladesh under the Evidence Act 1872:
According to Black’s Law dictionary, the term ‘digital’ refers to data represented in binary code[1]. ‘Evidence’ generally means any information, data or document which can be produced before the Court in a trial to prove or disprove a particular contention.
Digital records are not recognized as evidence under the Evidence Act. The Evidence Act was enacted in 1872 was imported into our land through the laws Continuance Enforcement Order, 1971. Since then, it has been operating as the principal law regulating evidence in different cases. According to the provision of the Act[2], “Evidence” means and includes-
(a) All statements which the Court permits or requires to be made before it by witnesses or oral evidence;
(b) All documents produced for the inspection of the Court or documentary evidence.
Evidence is either oral evidence or documentary evidence. But the term does not explicitly include any electronic/digital data or record as evidence.
There have been allegations that the main reason as to why digital evidence has not been included under the Act is this kind of evidence are easily alterable. They are often not authentic and it is extremely hard for a developing country like Bangladesh to prove their authenticity beyond reasonable doubt. Another contention is our Police force is not qualified and well-equipped to collect, record, produce and corroborate these evidences properly. So, their admissibility is not encouraged under this Act.
However, these are nothing but mere excuses and fallacies. Under several legislation of the same country, digital records are admissible as evidences and are being produced in trials at a large scale. The same Police are collecting, preserving and producing the evidence based on which suits are being disposed of. So, these excuses do not stand a chance on ill-equipment ground. Moreover, the Evidence Act has made expert opinion admissible under Section 45. So, corroborating and proving the merit of a digital evidence beyond reasonable ground is not a challenge under this Act.
The main reason of this exclusion is the lack of intention of our legislatives. When the Act was drafted and came into force, there was no concept of digital documents in our sub-continent or other parts of the world. So naturally the definition of documents would not include digital records at that time. But at this modern age, admissibility of digital evidence is a crying need for insurance of justice and inclusion of such is a must. While we can include and produce digital evidence under other laws, there can be no satisfactory ground existing to support the continuity of such exclusion.
Scope of Producing Digital Evidence under the Evidence Act, 1872:
As digital/electronic evidence has not been explicitly included within the meaning of ‘document’ and hence, producing of digital evidence under the Evidence Act, 1872 seems to be quite a challenge for us. Nevertheless, there are still a few scopes using which we can produce such before the Court.
- Through broad interpretation of Document:
Firstly, the term ‘Document’ has been defined in section 3 of the Act-
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one, intended to be used or which may be used, for the purpose of recording the matter.”
So, the undefined term ‘substance’ can include electronic device and in this section digital evidence can be introduced subject to judicial interpretation of the Court.
In the General Clauses Act 1897, “Document” has been defined with the same words.[3] Besides, in the Penal Code, 1860, document has been defined which is similar to what the Evidence Act says.[4] Nevertheless, there are illustrations added to the said definition in the Penal Code. Explanation 1 says that it is immaterial by what means or upon what substance the matter, letters, figures or marks are formed or the evidence is intended for or may be used in a Court or not.
- Produced as material thing other than document:
Secondly, according to the provision of the Evidence Act, evidence signifies the only instrument by means of which relevant facts are brought before the Court. But the Act only recognizes two categories (oral and document). Under section 60 of the Act, the Court may require another one for its inspection. In chapter IV of the Act, the last paragraph of Section 60 reads-
“Provided also that, if oral evidence refers to existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.”
So, such material is not evidence. However, the definition of evidence in the Act in section 3 is inclusive, that is, not rigid. The definition of evidence must be read with that of ‘proved’. The combined result of these two definitions is that ‘evidence’ as defined by the Act is not the only medium of proof and that in addition to it there are a number of other ‘matters’ which the Court has to take into consideration.[5] Thus, the definition of ‘evidence’ is narrow and there is a scope that it can be interpreted to include digital evidence, since the word ‘matter’ is a term of widest amplitude. For example-data is stored in the remote server and it is physically inaccessible.
It can be articulated that digital evidence is an amplification of matter expressed or described upon digital substances by means of letters, figures or marks and inclusive of material and secondary evidence.[6] It verbalizes that the other forms of digitalization have the same legal entity. If any question as to the authentication and tampering of digital evidence arises, the law prescribes gateway to remove any sort of doubt. Expert opinion rule under section 45 of the Evidence Act provides the scope to seek expert opinion of science etc. as the experts are free to take help from the technology and the forensic experts often relies on the digital equipment to make their decision regarding any matter. In addition, the search and examination rule of section 165 and 161 of the Code of Criminal Procedure empower the investigating officer to attach anything and examine its maker.[7] This procedure may be followed to cross-examine the makers of the documentary evidence. Given these circumstances, there are scopes of digital evidence to be included.
- Through precedential development:
Thirdly, we would like to draw our attention to the development of the precedent. In the case of Khaleda Akhter vs State, the point for consideration was whether a video cassette is a ‘document’ within the meaning of the Evidence Act. The author judge of the very case, namely A.T.M. Afzal J stated –
“A video cassette is a document within the meaning of the Evidence Act and is accordingly admissible in course of a trial or proceeding”[8]
He further explained –
“The word ‘matter’ occurring in the definition of ‘document’ is a term of widest amplitude. The ordinary meaning of the word matter Is anything that which has mass and occupies space, that is to say, physical substance in general, as opposed to spirit, mind etc. if for the purpose of showing it on television on application of technology a video cassette or tape is made, we don’t see any reason why the same should not or could not come within the definition of ‘document.”[9]
Before the judgment of Khaleda Akhter case, digital evidence (i.e., Video cassettes) were not recognized as evidence. But after this landmark judgment, a new principle in terms of digital evidence has been introduced. Being the judgment of the apex Court of the country, it will have binding force and the upcoming cases have to follow the principle of ‘stare decisis’.
In several cases, the Court has taken digital evidence into account. For example, in Rajon Murder Case,[10] Biswajit Murder case,[11] Nusrat Murder case,[12] the Court has acknowledged the relevancy and admissibility of digital evidence. There are many cases right now to be decided where digital evidence can play a key role to ensure justice. For example, Abrar Murder case, Rifat Murder Case etc.
- Including digital evidence through amendment:
Lastly, the most convenient way to make digital evidence admissible is by making an amendment. In India, they had the same Evidence Act as we do. But they have amended the law from time to time considering the ever-changing necessity of the society. Section 3(2)(e)(2) of the Act includes electronic evidence within the meaning of documentary evidence stating –
“All documents including electronic records produced for the inspection of the Court such documents are called documentary evidence.”
Section 65B of the Act makes the electronic evidences admissible before the Court. In several cases,[13] digital evidences were admitted by the Court and eventually played a significant role in shaping the verdict. If we amend the provision of our Act and include digital records within the purview of document, it would create a substantial scope for producing such evidence.
Concluding Remarks:
After considering all the available scopes, we finally submit that digital records must be included under the Evidence Act, 1872 as evidence and be allowed to be admissible before the Court. Considering the geo-political similarities of us with India, we have relied on their laws, policies and judgment so many times due to their great persuasive value. Following that trend, we should amend the provision of section 3 including digital records within the purview of documents. This will help to eradicate all the hesitations of our judiciary to utilize and rely on digital evidences and will eventually work as a more convenient tool for ends of justice. This is the legislators who holds the authority to do so and are recommended to take the effective measures as soon as possible. When the national and public life circulates around digitalized system, contending that digital records do not qualify as evidence is nothing but an excuse. Now it is high time we made it admissible under the Evidence Act and give it a broader scope to be applied.
[1] Computer Forensics: Digital Evidence <https://resources.infosecinstitute.com/category/computerforensics/introduction/areas-of-study/legal-and-ethicalprinciples/digital-evidence/#gref>
[2] The Evidence Act 1872, s 3.
[3] The General Clauses Act 1897, s 3(16)
[4] The Penal Code 1860, s 29
[5] M. Monir, Law of Evidence. page 48
[6] Rajib Kumar Deb, ‘Admissibility of digital evidence’ The Daily Star (Law Letter, 27th August 2019) <https://www.thedailystar.net/law-our-rights/news/admissibility-digital-evidence-1790917.>
[7] Ibid
[8] Mrs. Khaleda Akhter vs The State 37 DLR (1985) (HCD) 275
[9] Ibid
[10]Rajon Murder Case, The Daily Star (November 26 2019) www.thedailystar.net/tags/rajon-murder-case
[11] High Court Verdict on Biswajit Murder Case, The Daily Star (July 17 2017) www.thedailystar.net/politics/bangladesh-high-court-verdict-biswajit-murder-case6-1434460%3famp
[12] Nusrat Murder: Ex-madrasa principal, 15 others get death The Daily Star (October 24, 2019)
[13] Babu Kha vs The State of Madhya Pradesh (2019) CRR No.1152/2019; Dorling Kindersley (India) Pvt. vs Sanguine Technical Publishers (2013) O.M.P. 856/2012 & I.A No. No.4567/2013; Criminal Appeal (SJ) No.181 of 2015; Mohammad Akbar vs Ashok Sahu and Ors (2016) EP No. 4 of 2014.
Khandker Saadat Tanbir
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- Admissibility of Digital Evidence in Bangladesh - October 30, 2021
Vai,Tanvir vai, Excellent Write up. It is much more helpful to understand the digital evidence and also its admissibility