Legal take on Stan Swamy's evidence report

Mumbai: The report released by the US-based digital forensics firm Arsenal Consulting – claiming that digital evidence used to arrest late Jesuit priest Father Stan Swamy in the Bhima-Koregaon case was "planted" on his computer's hard drive – will have little evidentiary value before a court of law unless proved during a trial, opined lawyers.

An examination of an electronic copy of Swamy’s computer by Arsenal Consulting concluded that a hacker infiltrated his device and “planted” evidence. This follows previous reports which documented digital evidence planting on the devices of other human rights activist Rona Wilson and Lawyer Surendra Gadling, the firm said in its report.

However, whether the report can be used in court as evidence has been a matter of dispute between the investigating agency and lawyers of the arrested activists. Mihir Desai, Advocate for some of the accused, said that the report is like handwriting experts report in any other case, which is always disputed by the investigating agency. “We are just telling you that the experts have shown the manner in which the evidence was planted on devices. You (investigating agency) can have your laboratory, do it yourself and verify,” said Mr Desai. As an independent investigating agency, it (NIA) should be curious to know the facts. Do you really want to know who is about to overthrow the state or wants to arrest some activists and claims that they want to overthrow the stare, he added.

Countering the stand, NIA counsels – Additional Solicitor General Anil Singh and Advocate Sandesh Patil – said it was merely an expert opinion and can't stand as an evidentiary value. “I haven't seen the report. But it will be tested during the trial,” said Mr Singh. Mr Patil said that it will always be subject to debate. “It is not unimpeachable evidence. It will always be subject to debate. They (accused) will have to prove it during the trial,” he added.

The report, per se, can't be taken at its face value like a report from an Indian forensics laboratory under the provisions of the Criminal Procedure Code. “It will be put to strict proof. Mere production of a report cant justify the correctness of its content,” said noted senior Advocate Raja Thakare.

Voicing a similar opinion, senior Advocate Rajiv Chavan said that the report needs to be assessed and verified. “Filing a report on an affidavit before a court is one thing. But releasing a report in the public domain will not have any bearing in the court. Unless a person vouches for it and it is authenticated, it will be useless,” added Mr Chavan.

The report is like handwriting experts report in any other case, which is always disputed by the investigating agency.

Advocate Mihir Desai

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It is not unimpeachable evidence. It will always be subject to debate. They (accused) will have to prove it during the trial.

Advocate Sandesh Patil

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It will be put to strict proof. Mere production of a report cant justify the correctness of its content.

Advocate Raja Thakare

Filing a report on an affidavit before a court is one thing. But releasing a report in the public domain will not have any bearing in the court. Unless a person vouches for it and it is authenticated, it will be useless

Advocate Rajiv Chavan