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.

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