Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

Taken From: Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam

Jojy George Koduvath & Saji Koduvath, Advocate, Kottayam.

Section 65B, Indian Evidence ActSection 63, Bhartiya Sakshya Act
65B. Admissibility of electronic records – (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:–
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.		63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
 all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
 (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
 (5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

Abstract

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes as regards ‘Electronic Evidence’. It updates Sec. 65B .

One of the key requirements of the new Act is production of a ‘HASH’ certificate, to prove the copy or print-out (computer output). It is seen introduced with a view to avert tampering. But it appears that this requirement is harsh and unwanted.

What are the Major Changes made in Sec. 65B IEA?

  • Now, under Sec. 65B of the Indian Evidence Act, copy or print-out of an electronic record can be proved only by producing the certificate provided under Sec. 65B(4).  
  • The proposed Bhartiya Sakshya Act, 2023, allows to prove the copy or print-out of an electronic record invoking other provisions of the Evidence Act (such as Sec. 63 and 65 IEA = Sec. 58 and 60 BSA) that permits to prove a secondary evidence (copy) of a document.
  • If an electronic record is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, “the certificate specified in the Schedule” is necessary. It is to be produced “along with the electronic record”.

Other Major Changes in this regard, in the New Act

First – The existing Evidence Act contains three explanations alone while escribing ‘Primary Evidence’ in Sec. 62.

Explanation 4, 5, 6 and 7 are added in the new Sakshya Act, in the Sec. 57. It reads as under:

  • “57. Primary evidence
  • Primary evidence means the document itself produced for the inspection of the Court.
  • Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
  • Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
  • Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
  • Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
  • Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
  • Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
  • Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.”

From Explanations 4, 5, 6 and 7 it is clear that the scope of primary evidence is widened.

Second – A new provision is made – Sec. 61, which stipulates that –

  • “61. Electronic or digital record – Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Sec. 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Sec. 65B is capable of giving two (divergent) interpretations –

  • First, Sec. 65B is an enabling provision to admit ‘computer output’ (derived from original)  as ‘document’ itself, in a simpler manner, by the deeming provision (“shall be deemed to be also a document”) ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
  • Second, a computer output (copy) can be proved only under the provisions of Sec. 65 B, ‘notwithstanding anything contained in the Act’. (It is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)

The words in the new Section 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is an emphatic delineation of the legislative intent on the following two matters –

  • 1. Sec. 65B is an enabling provision to admit ‘computer output’ (copy)  as a ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’, as stated above.
  • 2. The interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65 B,  ‘notwithstanding anything contained in the Act’, is not accepted by the legislature (that is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)
    • The the words, “subject to section 63” in Section 61, only directs to undergo the requirements in Sec. 65B (that is production of Sec. 65B(4) certificate, and HASH certificate) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 65B.

Note: If this interpretation is not given Sec. 61 stands meaningless.

Methods to Prove Secondary Evidence (copy) in the BSA

A Discordant Note

The Certificate required in Sec. 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

  • “I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
  • SHA1:
  • SHA256:
  • MD5:
  • Other …….. …….. …….. (Legally acceptable standard)
  • (Hash report to be enclosed with the certificate)”

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

END NOTE – 1

What is HASH value (in simplest terms)?

  • HASH value is a string of unique characters, usually represented by letters and numbers.
  • It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
  • HASH value of every electronic record can be fixed.
  • Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

END NOTE – 2

Sections 58 to 63 of BSA read as under:

58. Secondary evidence – Secondary evidence includes—

  • (1) certified copies given under the provisions hereinafter contained;
  • (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
  • (3) copies made from or compared with the original;
  • (4) counterparts of documents as against the parties who did not execute them;
  • (5) oral accounts of the contents of a document given by some person who has himself seen it;
  • (6) oral admissions;
  • (7) written admissions;
  • (8) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

Illustration.

  • (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
  • (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
  • (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
  • (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

59. Proof of documents by primary evidence – Documents shall be proved by primary evidence except in the cases hereinafter mentioned.

60. Cases in which Secondary Evidence relating to documents may be given – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: —

  • (a) when the original is shown or appears to be in the possession or power—
    • (i) of the person against whom the document is sought to be proved; or
    • (ii) of any person out of reach of, or not subject to, the process of the Court; or
    • (iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;
  • (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
  • (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • (d) when the original is of such a nature as not to be easily movable;
  • (e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
  • (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;(h) when the genuineness of the document itself is in question.

Explanation.—For the purposes of,—

  • (i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
  • (ii) clause (b), the written admission is admissible;
  • (iii) clauses (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;
  • (iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

61. Admissibility of electronic or digital record – Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.

62. Special provisions as to evidence relating to electronic record – The contents of electronic records may be proved in accordance with the provisions of section 59.

63. Admissibility of electronic records –

(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

  • (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
  • (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
  • (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
  • (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—

  • (a) in standalone mode; or
  • (b) on a computer system; or
  • (c) on a computer network; or
  • (d) on a computer resource enabling information-creation or providing information—processing and storage; or
  • (e) through an intermediary.

Explanation.—All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—

  • (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
  • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
  •  (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device and an expert (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the form specified in the Schedule.

 (5) For the purposes of this section,—

  • (a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
  • (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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