Modern Forensics: Opportunity or Obstacle?

Modern Forensic Science and the tools it uses can act both as an opportunity as well as an obstacle to people accused of a crime. In some cases it may be an opportunity for the accused persons who are being wrongly prosecuted to prove their innocence, while in cases such as the National Stock Exchange (NSE) Co-Location Scam, they act as an obstacle to personal liberty at the time of hearing a bail application. Due to the rapid development of technology there exists various modern forensic technologies beyond Forensic Serology and DNA Analysis such as Microbial Forensics, Forensic Audit and Forensic Psychology. This article seeks to examine the legality and reliability of two of these tools namely Forensic Auditing and Forensic Psychology in light of the recent NSE Co-Location scam where the investigating agencies utilized such techniques in order to collect evidence against the accused persons.

In January 2010, the NSE began offering a co-location facility to members allowing them to place their servers in the Exchange's premises in return for a fee. This allowed them faster access to the buy and sell orders being disseminated by the exchange's trading engine. The term “ co-location ” means a setup wherein the broker's computer is located in the same area as the stock exchange's server. In addition, High-frequency trading (HFT) or algorithmic trading refers to the use of electronic systems, which can potentially execute thousands of orders on the stock exchange in less than a second. Also, retail investors monitoring prices are subject to a delay as compared to the tick-by-tick data broadcast a user receives in a co-location facility.

Ken Fong claiming to be a whistle blower wrote to Securities Exchange Board India (SEBI) and NSE alleging preferential access in NSE colocation services to select brokers. In June, 2016, a detailed investigation was carried out by a SEBI expert committee and they submitted a report regarding preferential access. In the month of October, 2016, NSE commissioned Deloitte to conduct a forensic audit regarding the whistle-blower’s allegations.

The Central Bureau of Investigation (CBI) registered a First Informant Report against the Management of NSE at the relevant time, namely Chitra Ramakrishnan (Managing Director) and Anand Subramaniam (Consultant). The investigating agency highlighted the alleged modus of the scam mainly compromising of 3 steps which were-

  • Market Manipulation- The manipulation happened by way of granting access to secondary servers that fed information to the NSE co-location servers’ access which gave an unfair advantage to brokers at the cost of others. Thus, OPG security was granted several IPs which are addresses in terms of computers that allowed it to access the server first thereby weeding out the competition.
  • Disclosure of Confidential Information- In recent times information is power and therefore any disclosure of confidential information can cause upheaval of the entire system. Chitra Ramakrishnan allegedly divulged various information such as future projects, dividend scenario, financial reports etc to people outside the organization helping in achieving the facets of this crime.
  • Bribery- The aspect of bribery was the central theme of this offence right from the beginning. It was alleged that Sanjay Gupta would get access to the secondary servers first by bribing the NSE officials.
Thus, in light of the alleged modus highlighted by the investigating authorities, the accused persons namely Anand Subramaniam and Chitra Ramakrishna were arraigned with various offences such as Section 420 of the Indian Penal Code,1860 which deals with cheating and dishonestly inducing the delivery of property and Sections 66 and 43 of the Information Technology Act, 2000 relating to manipulation of computer systems. Along with these offences, they were also arraigned with a slew of offences enlisted under the Prevention of Corruption Act, 1988 such as Section 7 relating to illegal gratification taken by a Public Servant and Section 13 which related to criminal misconduct by Public Servants.

While investigating the case, the CBI used some innovative tools so as to collect evidence against the accused persons which were-

  1. Forensic Audit - A Forensic Audit is an examination and evaluation of a firm’s or individual’s financial information for use as evidence in a court of law. A forensic audit can be conducted in order to prosecute a party for fraud, embezzlement or other financial claims.
  2. Forensic Psychology- The broad definition of Forensic Psychology is the application of various types of psychology such as behavioural, social and cognitive psychology in the legal arena. This science deals with the psychological assessment of persons who are in one way or another involved with the criminal justice system.
These tools recently came to fore when the Hon’ble Special Judge of CBI court, Delhi1 relied on them as factors amongst others to deny bail to the accused persons in the scam. The Hon’ble Judge in his order stated that the use of tools such as Forensic Audit highlight that there were multiple transactions involved in the scam and as such the reports of the auditors could be used to decipher them. Furthermore, the Hon’ble Court while recording the order also highlighted the use of a Senior Forensic Psychologist by the CBI who was present during the interrogation of Chitra Ramakrishnan for analysing her behaviour. Therefore, it becomes pertinent to see where does the law stand on the use of such modern forensic tools which are now being used by investigation agencies and how reliable they could prove to be during the course of the trial.

Indian Criminal Jurisprudence predominantly relies upon two kinds of evidence so as to prove a case - direct and circumstantial evidence. The latter kind of evidence is one which needs corroboration and cannot singularly be enough to convict an accused. One such circumstantial evidence that is regularly relied upon by the prosecution is called Medical Evidence or Forensic Evidence which are given by experts. These evidence are considered to be relevant as per Section 45 of the Indian Evidence Act,1872 which allows a court to listen to evidence of certain people who are considered as experts in a particular field or discipline and as such they are able to testify relating to their area of expertise.

Another provision that deals with such Scientific Experts is Section 293 of the Code of Criminal Procedure, 1973 which relates to the scientific experts of Government Labs such as Chief Analyst / Examiners or Directors of Central and State Forensic Science Laboratories reports of whom, can be considered as evidence in a criminal trial. The courts in India have often delved into the discussion of who all can be “Experts” under this provision and what all could be included within the ambit of “Science or Art”. In one of the cases a court has remarked that these words must be must be interpreted liberally and considered comprehensive in nature2 thereby allowing scope for various disciplines to be included into the scope of this section.

The reports of Forensic Psychologists had also been relied upon by the courts so as to determine the mental state and culpability of the Accused in the Nithari Killings3. Recently the Hon’ble Supreme Court ordered a Forensic Audit in the Fortis Case so as to track the sale of shares4. Thus, it can be seen that opinion’s of experts are sought in specific subject matters by courts but the pertinent question still remains as to the reliability over such opinions. The Hon’ble Supreme Court in the landmark case of Murari Lal vs State Of Madhya Pradesh5 dealt with this question and observed as follows-

“It would be hazardous to base a conviction solely on the opinion any other kind of expert-without substantial corroboration, not because experts in general, are unreliable witnesses, but because all human judgment is fallible. The more developed and the more perfect a science, the less the chance of an incorrect opinion.”

Furthermore, in the case of S. Gopal Reddy vs State of Andhra Pradesh6 the Hon’ble Supreme Court has held that:

“The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration.”

Thus, from the above analysis it becomes clear that both of the investigative tools and the opinions that follow can be submitted as per the provisions of and Section 45 of the Indian Evidence Act, 1872 in a court of law, but they cannot be used as the single circumstance that may help the prosecution secure a conviction. This being contrary to the practice in countries like USA wherein forensic evidence is majorly relied upon by the courts so as to convict or acquit the accused persons.

Hence it can be stated that expert opinions are just opinions as to a subject matter which may require special knowledge but they are merely considered as a perception and as such the reliability on these evidence is low. Thus, to conclude it can be stated that these modern forensic tools have helped the prosecution and investigating agencies in a limited role which is to make out a prima facie case against the accused persons while opposing their bail. However, the integral question that remains is how much reliability will these reports have when the case goes to trial and the rigors of law relating to burden of proof is set in motion.

By - Aadit Ved

  1. Chitra Ramakrishnan vs CBI, Bail Application No. 47 of 2022 in RC No. AC1 2018 A0011
  2. Basudeo Gir vs State, AIR 1959 Pat 534
  3. Surendra Koli vs State of U.P, (2011) 4 SCC 80
  4. Daiichi Sankyo Company Limited Vs Oscar Investments Limited & Ors.,Special Leave Petition (C) No. 20417 of 2017
  5. Murari Lal vs State of Madhya Pradesh, AIR 1980 SC 531
  6. S.Gopal Reddy vs State of Andhra Pradesh, 1996 SCC (4) 596