Intercepted Mobile Evidence on CD: Infringement of Constitutional Right of Defence

Intercepted Mobile Evidence on CD: Infringement of Constitutional Right of Defence

Intercepted communications is one of the crucial evidence collected by the investigation agencies in large number of cases relating to Corruption, Fraud and various other offences of heinous nature. Recently CBI registered the case against the former CBI Director, AP Singh, Moin Qureshi & Ors. under sections related to criminal conspiracy and Prevention of Corruption Act on the basis of 18 Black Berry Messages intercepted by Income Tax Authorities during an investigation. Electronic Interception of Telephonic Communication, also known as “Wiretapping” always clouded with various controversies  as to illegality or breach of privacy however, an important concern as to what standard of evidence, the prosecution needs to establish the Admissibility, Authenticity, Veracity and Reliability of such recordings in the court.

The interception is done by the investigation agencies through an executive order directing the Mobile/Telephone Service Provider which provides a parallel line to the investigation agencies. The investigations agencies have installed Voice Loggers which automatically record the intercepted calls.. However, one of the biggest drawback is lack of adherence to the standards for  admissibility, authenticity, veracity and reliability  of the these data  in terms of provision of Indian Evidence Act, 1872 or other procedural laws such as Cr.P.C. or C.P.C. The investigation agencies also do not go into legal compliance of these softwares/hardwares and the opinion of the prosecution branch is hardly sought to check these software/hardware for adherence to legal requirement.

The prosecution agencies in order to meet these gaps are presenting the evidence in such a manner which violates the right of defence of the accused under Article 21 of the Constitution. In such circumstances, the accused, even by preponderance of probabilities, may not be able to rebut such evidence even though it may be forged. As such, the prosecution agencies, being aware about these challenges, intentionally creating the mechanism to circumvent the scrutiny & e-discovery beyond the reach of the court and foreclosing the right of accused to detect any manipulation in the evidence and thus, circumventing the constitutional protection under Article 21which provides that "No person shall be deprived of his life or personal liberty except according to procedure established by law".

The Hon’ble High Court of Delhi in the matter of Dharmbir V’s CBI [148(2008)DLT289] has held that the hard-disk of the computer in which the original voice recordings have been preserved, is a document within the meaning of Section 3 of the Evidence Act. The judgment also recognized the right of the accused to get the mirror image of the data comprising of active & subcutaneous memory and court also accepted the importance of valuable information/metadata relevant to the case which can be recovered from the subcutaneous memory or unallocated areas. The proposition does not change even though the investigation agency may say that it is not relying upon the original hard-disk and right of the accused to get the mirror image continue to subsist at the stage of 207 Cr.P.C. as well as during trial. The power to decide the right of the accused to such mirror image is now with the court and not with the prosecution as conferred subsequent to the amendment in the new Code of Criminal Procedure, 1973.

Further, Section 65B only permits the non production of original at the stage of admissibility but it does not deal with the proving of genuineness, authenticity of the data which may require the production of the original. In the case of Dharmbir Supra,  the  right of the accused to have  mirror image of the hard-disk containing voice calls was recognized, however, one of the main reason of denial was owing to the fact that hard-disk contains the voice call of other intercepted communication which may be compromised if the prosecution provides the mirror image. However, the plea of prosecution being weapon of defense against grant of mirror image has now being made as weapon of offence in every case for countenance to the claim of the accused to get the mirror image of the original hard-disk..

Surprisingly the investigating agencies like CBI, NIA or ED which are known for their expertise into investigation are resorting to such irrational procedures which are contrary to the principle of natural justice and in breach of basic concept of equality before law enshrined in the Constitution. The ED has even gone a step ahead to skew the procedure in their favour and curtailing the right of accused and integrity of procedures by conducting the in-house forensic through the executive within the same organisation. In case of any manipulation, the accused will find impossible to prove its innocence but even it would be difficult for the court to arrive at a logical conclusion to ruled out that the record have not been tampered and are as originally existed, one of the primary requirement for authenticity of electronic evidence as observed by Delhi High Court in the matter of Kundan Singh vs State [MANU/DE/3674/2015].

Thus, in order for the accused to properly defend, the accused deserve to have mirror image of the original hard-disk so that the accused would have equal opportunity to get it forensically examined and rebut the case of prosecution for any manipulation or fabrication. The prosecution also to prove the authenticity or any challenge to the veracity of the content, must submit the original hard-disk to the court to satisfy the Integrity Test laid down by Delhi High Court in the judgement of Kishan Tripathi [MANU/DE/0434/2016].

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Neeraj Aarora

CISSP, CISA, CFCE, FCMA, CFE