By Anika Mardiah Chowdhury
Digital evidence can be defined as corroborative information which stored or transmitted in digital forms like data, photographs, DVD, e-mail and others. When any sequence of a crime is recorded or stored into digitalization from then the question arises whether they can be used in judicial proceedings.
In Bangladesh, there have no specific or direct regulations for the admission of digital evidence in a judicial proceeding in each case. However, special laws like the Information and Communication Technology Act of 2006 and the Digital Security Act of 2018 have been enacted but they cover only specific areas.
Now if we analyze some laws such as Evidence Act,1872 and the Penal Code, 1860 though they do not have explicit provisions for recognizing or approving of digital evidence and its admissibility into judicial proceedings but they contain the scope of judicial interpretation which may allow for the admissibility.
Firstly, if we analyze the Evidence Act, 1872 states “any matter expressed or described upon any substance by means of letters, figures or marks” under the definition of “Documentary Evidence” under section 3. Also, in the illustration of section 3 states that words printed, lithographed or photographed are documents, here the glimpse of digital evidence can be found.
Section 63 and 65 of the Evidence Act states about the admissibility of secondary evidence which is a reproduction of the original and Illustration (a) to sec 63 refers to photograph if proved original ranks to secondary evidence. Again, as per section 72 digital & electronic evidence has no bar to be proved as if it was unattested.
Then explanation 1 and 2 of section 29 of the Penal Code states that it is immaterial by what means or upon what substance and whatever is expressed by means of the letters, figures or marks are formed shall be deemed to be formed, expressed by such letters, figures or marks within the meaning of this section. Here section 29 of Penal Code, 1860 bear a remarkably meaningful glimpse that can be interpreted to include digital evidence, since the word “matter” is a term of the widest amplitude.
Therefore, by the above discussion, it is clear that though the Evidence Act has no express provision regarding the acceptance of digital evidence but there has no bar to accept that also. Also, the Supreme Court of Bangladesh has adjudicated as to the admissibility of digital evidence under the Evidence Act, 1872 on several occasions. Despite the absence of an express provision of admissibility of digital, there has also no bar in law to admitting digital evidence under the Evidence Act, 1872. The court on several occasions accepted digital evidence in a trial, the cases are discussed below-
In Mrs. Khaleda Akter VS State 37 DLR (1985) 275, the court took the view that if for the purpose of recording certain matter on magnetic tapes and showing it on television by application of technology a video cassette or tape is made that should come within the definition of the document and held that audio cassette and video shall be admissible in evidence.
Then In the Biswajit murder case recorded in 70 DLR (2018) HCD 26, the court took the view that video footage, still photographs and paper clippings are admissible as evidence even without corroboration by the authors.
In the Case of Major Bazlul Huda & Others Vs. The State 18 BLT (AD) (2010) 7 says regarding the admission of digital or electronic evidence, as it appears the party seeking to admit any statement or admission of any person recorded in compact disk or video cassette or any interview conducted by any television channel relating to a relevant fact or facts in issue, must also produce the original compact disk or video cassette or the programmer published in the television channel with the certificate of the producer of the program certifying the date and place of the record of the program and further the signature of the producer in the certificate has also to be proved. However, if the accused denies the statement or admission, the question of its admissibility has to be looked into under the prevailing law of evidence.
However, in this case, those following requirements have not been met.
In the case of The State Vs. Yeasin Khan Palash 29 BLD (HCD) (2007) 469 a question arises as to the admissibility of digital or electronic evidence. Addressing the question the Court held inter alia, that, “A reading of Section 16 of the Druto Bichar Tribunal Ain, 2002, it is clear that video cassette or audio cassettes or still pictures about the occurrence is admissible in evidence. On that, the learned Judge of the Druto Bichar Tribunal No.1, Dhaka committed no illegality in admitting tape-recorded conversation in audio cassette about the occurrence as evidence since Section 16 of the Druto Bichar Tribunal Ain, 2002 itself speaks the evidentiary value of the audio cassette and therefore, in the light of the above Section appreciate the matter from a correct angle.
In the case of The State Vs. Qamrul Islam & Others 2017 (2) LNJ (HCD) 303 where relevant facts were found and the defence counsels opposed the admission of video recording as evidence on the ground that there is no law wherein video record or video footage is admissible as evidence in the eye of law in our country. The Court placing mentioned the judgment in the above-mentioned case of Mrs Khaleda Akhtar Vs. The State 37 DLR (1985) 275 held, inter alia, that, “In the above circumstances we do not find any logic in the argument of learned counsels for accused Kamrul, Moyan, Tazuddin and Zakir regarding the evidence of video footage”. So, the court holds that a video record footage is a document within the meaning of the Evidence Act and is accordingly admissible if otherwise relevant in course of a trial of the proceeding.
Therefore, by perusing the case laws above it is clear that digital evidence is admissible in judicial proceedings in our country, hence it should not be thought that digital evidence has no categories of evidence. But an amendment that incorporates the explicit provisions in the Evidence Act, 1872 as regards admissibility of digital evidence is urgently required.