Deleted Files on Hard Disks: Electronic Records

Recently I had occasion to read the judgment in the case of Dharambir v. Central Bureau of Investigation [cited as 148 (2008) DLT 289]. The case concerns prosecution of several accused on the basis of intercepted telephone conversations. These intercepted communications were stored on hard disks out of which CD’s were made subsequently. These CD’s contained relevant conversations out of the entire conversations contained on the hard disks. The prosecution sought to rely upon these CD’s as evidence against the accused. The judgment arises out of the accused petition’s seeking a mirror image of the hard disk. The judgment is quite a watershed as it is the first Indian judgment which elaborately discusses the admissibility of electronic records and the evidentiary requirements under the Indian Evidence Act.

The judgment significantly notes that, “once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record.”

The Judgment is well reasoned and correctly appreciates the underlying technology behind the statutory provisions. However, the aforementioned obiter cannot be treated to be unlimited. It should be noted that data which is once deleted though present in the hard disk and is retrievable is marked as available for overwriting by other files. Hence, the original data which has been deleted will certainly undergo corruption if new data is written on the same sector in the Hard Disk. This will cause the original data to loose its authenticity. Hence the observation made by the Hon’ble Judge needs to be cautiously applied in the future in cases of appreciation of evidence.

  • Premtosh Mishra

    Great Apar !!

    But we need more !!!!


  • “ E-discovery – Indian laws need to witness sea changes and conversions to adapt to the new age of electronic information.”

    Paper documents were considered as the best documentary evidence in Indian courts for centuries. Today, documents are rarely handwritten. Most documents are created using personal computers or E-mail programs. Professionals rely upon personal computers to maintain diaries and to create their written communications. Most computer users have become prolific writers because of the convenience that computers provide. More documentary evidence exists today than ever before and it exists in a variety of electronically stored formats. However, a majority of computer-created documents are never printed on paper. Many are exchanged over the Internet and are read on the computer screen. Thus, the legal document discovery process has drastically changed as it relates to computer created documents.

    LAWYERS AND JUDGES are seeking production of the entire computer hard disk drives, floppy diskettes, zip disks and even cell phones and palm computer devices. These new forms of documentary evidence have broadened the potentials for legal discovery. Unfortunately, our legal system has not kept pace with computer technology and the new document discovery requirements and electronic data. Electronic documents and its discovery should change the way lawyers and the courts do business in India .

    Under the current legal system an increasing quantity of information relevant to civil and criminal cases is stored electronically , rather than on traditional paper form. Despite this development, there has been no widespread study or debate as to whether the provisions of our Criminal procedure code, Civil procedure code and Evidence act adequately address the difficult issues that frequently arise when evidence is stored in electronic form.

    We cannot assume that the same rules applicable to the discovery of traditional form of evidence can be applied to electronic data. I have great concern on this wrong assumption. We need to have simple but important changes in our existing laws to adapt to the new age of electronic information.

    We need to change our current legal system which is complex and outdated. We need laws that promote technology based services. Our existing discipline of law need to witness sea changes and conversions with the help of technology. Litigation support products/technology should evolve rapidly over the next few years and become part of our legal system more vital than they are today. They should be designed to prepare lawyers, law firms and legal departments to try a case, which includes interviewing witnesses, discovery of documents, document review, and case preparation. Litigation support services should help lawyers to reduce their costs, increase efficiency, and improve the quality of their work product so that they can focus on the practice of law.

    Vinod Kuriakose- ot visit