Admissibility of Digital Evidence: Bangladesh Perspective
Mohammed Shahjahan: The Evidence Act, 872 in vogue in our country is almost 150 years old! Having been enacted by the British, this piece of colonial legislation has been one of the most important tools for ensuring justice in these parts of the world.
At the time that the Evidence Act, 1872 came into being, there were, unlike today, no digital devices being used by the people at large. But over the years, things have changed to such an extent that the world has become sort of a digital playground; life sans digital devices is beyond imagination now. And herein the question of digital evidence comes into play.
To define ‘Digital Evidence’ simply, it may suffice to say in our domestic setting that digital evidence refers to any information stored or transmitted in electronic form on devices such as audio-visual cassettes or discs that may be produced in a case or suit being tried by a court of law.
In this age of tremendous advancement of technology, crimes that are committed by way of misusing digital devices are on the rise. On the other side of the coin, there exists ample scope of collecting evidence as to such crimes by making the best use of the same or different kinds of digital devices. But how does digital evidence fare under the present scheme of law in our country?
The Evidence Act, 1872 being the prime law regulating evidence does not recognize digital evidence expressly. This lack of clarity gives, more often than not, rise to confusion in the minds of the magistrates and judges trying cases as to admissibility of and reliance on digital evidence. The same is also responsible to some degree for investigating officers to refrain from collecting and presenting digital evidence.
However, the Apex Court of Bangladesh has had to adjudicate as to admissibility of digital evidence under the Evidence Act, 1872 on occasions more than one, thereby holding that despite the absence of an express provision favouring admissibility, there is no bar in law to admitting digital evidence under the Evidence Act, 1872. At the same time, the Apex Court appears to have set some conditions to be met for digital evidence to be admissible. Digital evidence may invariably be admissible in cases wherein the accused do not deny the statements or confessions recorded on digital devices. Contrarily, in cases with the accused denying the statements or confessions, the originals of the disks certified under the signature of the makers thereof are to be produced; the makers are to appear and depose before the courts concerned in due course for the purpose of exhibiting and proving the same legally. And the investigating officers are required to collect the disks properly under seizure-lists. In order for doubts as to identification of the makers and authenticity of the disks to be allayed, these measures are a must, to say the least.
In the Case of Mrs. Khaleda Akhtar Vs. The State reported in 37 DLR (HCD) (1985)275, relevant facts in brief were that the petitioners having been accused in a criminal case were facing trial; the prosecution sought to admit a video-cassette relating to the offences alleged in the said case as evidence; the trial court passed an Order, thereby allowing an application filed by the prosecution for the purpose; the petitioners feeling aggrieved filed criminal revision against the said Order on the ground that a video-cassette not being a document as defined in the Evidence Act, 1872 could not be pressed into evidence. The High Court Division per Mr. Justice A.T.M. Afzal (as he then was) held by way of liberal construction of the term ‘matter’ contained in Section 3 of the Evidence Act, 1872, that, “The word ‘matter’ occurring in the definition of ‘document’ is a term of the widest amplitude. The ordinary dictionary meaning of the word ‘matter’ is anything 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 recording certain matter on magnetic tapes for the purpose of showing it on television by application of technology, a video-cassette or tape is made, we do not see any reason why the same should not or could not come within the definition of ‘document’. It will be seen that the Supreme Courts both in India and Pakistan approved of a tape-record being used in evidence—-the process of tape-recording records only sound whereas a video-cassette or tape records both sound and pictures. If sound recorded on a tape is admissible in evidence, we do not see any difference in principle why the record of sound and pictures should not be equally admissible in evidence. —-thus we have no hesitation in holding that a video-cassette is a document within the meaning of the Evidence Act and is accordingly admissible if otherwise relevant in course of a trial or proceeding.”
In the Case of Major Bazlul Huda & Others Vs. The State reported in 18 BLT (AD) (2010) 7, the hon’ble Appellate Division per Mr. Justice Md. Tafazzul Islam (as he then was) held, inter alia, on admissibility of digital or electronic evidence that, “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 programme published in the television channel with the certificate of the producer of the program certifying the date and place of the record of the programme and further the signature of the producer in the certificate has also to be proved. In these appeals, these requirements have not been met. However, as regards admissibility of a statement recorded in a compact disk or video cassette or in a television channel, if the accused does not deny his statement or admission, there is no difficulty in admitting such digital or electronic evidence as documentary evidence. 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.”
In the Case of The State Vs. Qamrul Islam @ Qamrul& Others reported in 2017(2) LNJ (HCD) 303, relevant facts in short were that the defense 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. But the Court placing reliance on the judgment in the above-mentioned Case of Mrs. Khaleda Akhtar Vs. The State reported in 37 DLR (1985) 275per Mr. Justice Md. Jahangir Hossain 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 we are also inclined to hold 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 proceeding.”
In addition to the cases above, adjudicated upon by the Apex Court, there are some other cases under special laws such as Druto Bichar Tribunal Ain, 2002 containing provisions requiring or recognizing admission of digital evidence, wherefrom relevant guidance may be gleaned.
In the Case of The State Vs. Yeasin Khan Palash reported in 29 BLD (HCD) (2007) 469, a question as to admissibility of digital or electronic evidence arose. Addressing the question, the Court per Mr. Justice Sheikh Abdul Awal 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 inasmuch as 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 to appreciate the matter from a correct angle, we also heard tape recorded conversation in between the condemned prisoner Kala Palash and PW-18, the investigating officer of the case in open court in presence of the learned Advocates of both the sides and the same was noted by the bench officer of the court.”
In the Case of State Vs. Rafiqul Islam reported in 70 DLR (HCD) (2018) 26, objections as to admission of video footages, still photographs and paper clippings as evidence were raised by the defense. Deliberating on the objections, the Court per Mr. Justice Md. Ruhul Quddus held, inter alia, that, “Let us examine first whether the video footages, still photographs and paper clippings are admissible in evidence. It appears that the defense raised objection thereto at the time of adducing those in evidence in course of trial, and the learned trial judge marked the photocopies of the news items published in print media comparing the original copies. It further appears from the evidence of PW 31 that the video footages were officially supplied to DB police from the respective TV channels, and it was handed over to the Investigating Officer under a seizure list. The necessity of corroboration of newspapers, video or photographs arises to ascertain the authenticity of its collection/record and publication/telecast. When the TV channels officially handed over the footages, its recording and telecast were authenticated ipso facto. We do not think it was mandatory on the part of the prosecution to examine the authors under the particular facts and circumstances of the present case. Moreover, it is known to all that all the TV channels and newspapers irrespective of their editorial policy published and telecasted the occurrence with material particulars. The video footages and photographs have also been made admissible in evidence under Section 16 of the Ain, 2002. In such a position, we are of the view that the video footage, still photographs and paper clippings are well admissible in evidence even without corroboration by the authors.”
Upon perusal of the case-laws referred to herein above, one may not argue against the admissibility of digital evidence in judicial proceedings in our country, but an amendment incorporating explicit provisions in the Evidence Act, 1872 as regards admissibility of digital evidence is indeed overdue. Will those concerned do the needful in this regard without any further delay?
Writer: Advocate, Supreme Court of Bangladesh. E-mail: shahjahanmohammed38@gmail.com
