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The High Court of Calcutta has issued directives to the police that when an investigation was done which involves electronic evidence; it should be done in a fair, impartial and effective manner.
The bench comprised of Justice Joymalya Bagchi and Justice Manojit Mandal who was considering the bail application filed by a man who allegedly posted objectionable pictures of his wife on a social network platform and had widely circulated such materials.
Earlier to this aspect, the Superintendent of Police has sought an explanation to the court regarding the failure of adding Sections 66E & 67A of the Information Technology Act to the FIR and the Investigation process was actually in violation of Section 78 of IT act, as the investigation was conducted by the assistant sub-inspector of police. The SP appeared before the Court on Monday and submitted that Inspector-in-charge of the concerned police station has been directed to rectify her mistake in omitting to add offenses under the Information Technology Act to the FIR and entrust the investigation to an officer not below the rank of Inspector.
The court while granting the bail has noted that there is a need to train and familiarise members of the police force in the matter of collection, reception, storage, analysis and production of electronic evidence.
The court added that "It is also relevant to note that electronic evidence by its very nature is susceptible to tampering and/or alteration and requires sensitive handling. A breach in the chain of custody or improper preservation of such evidence render it vitiated and such evidence cannot rely on judicial proceedings. Necessary certification under Section 65D of the Information Technology Act is also a pre-requisite for admissibility of such evidence. Even if such certification is present, the reliability of electronic evidence depends on proper collection, preservation, and production in court. Any lacuna in that regard would render such evidence vulnerable with regard to its probative value. These factors have come to our notice not only in the present case but also in a number of cases argued before us in recent times."
To ensure the investigation of crimes involving electronic evidence is done in a proper manner the court has issued the following directives:
For further consideration, the matter has been posted by the bench on 11th March.
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