“Nothing In This Adhiniyam Shall Apply To Deny The Admissibility” – New Provision (S. 61, BSA) to Ensure that S. 63, BSA (S. 65B, Evidence Act) is an Enabling Provision

Saji Koduvath, Advocate, Kottayam.

Abstract

  • 1. Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, affirms that a copy of an electronic record (computer output) can be produced and proved by any method permissible under the Act for proving a document.
  • 2. It is plain- the expression “nothing in this Adhiniyam shall apply” in Section 61 of the Adhiniyam of 2023 is enacted with a view to overriding the effect of the Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 (otherwise, Section 61 would stand redundant).
    • The decision, Arjun Panditrao, had established a strict interpretation that proof by a certificate under Section 65B (Section 63, BSA) is mandatory to admit a computer output (copy) in evidence. 
    • Arjun Panditrao, interpreting Section 65B, said that this section is a complete code. That is, a computer output (copy) can be proved by way of the ‘certificate’ alone.
  • 3. In other words, Section 61 must be understood as a provision intended to secure alternative routes for admitting computer outputs (i.e., copies of electronic records), that is, otherwise than through the certificate contemplated under Section 63.
    • Note: An argument may yet be possible against this construction on the basis of the words “subject to Section 63” in Section 61, by suggesting that the admissibility of a computer output continues to depend upon the production of a certificate under Section 63.
    • However, this argument can be explained. If the certificate under Section 63 were to remain as an inflexible and universal requirement, Section 61 would be rendered redundant or otiose. Such an interpretation would defeat the very purpose of introducing a new provision, which must be presumed to have been enacted with a definite legislative intent.
    • A more harmonious construction would therefore be that Section 61 seeks to mitigate the rigidity of the earlier position and to permit proof of electronic evidence through recognised alternative modes, while retaining Section 63 as one of the available methods of proof.
    • Viewed in this light, Section 61 may be seen as a legislative response to the strict and mandatory approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, and as an attempt to restore a measure of flexibility in the law relating to electronic evidence.
  • 4. Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 has been introduced with a clear and purposeful objective. The procedural requirements under Section 63—such as the furnishing of a certificate and hash value—apply only where a party chooses to prove a copy of an electronic record (i.e., a computer output) through the special mode prescribed therein, namely, without examining a witness. This approach also aligns with global trends in jurisdictions such as the United Kingdom, the United States, and Canada.

Read the Article:

Purport of S. 61, BSA, 2023

  • Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is introduced with clear and purposeful objectives:
    • To correct the doctrinal error that treated “statements” as including all forms of electronic material, such as videos and photographs (by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1).
    • To clarify that proof of a computer output (copy) can be given otherwise than through a certificate, including by leading oral evidence or examining a competent witness.
    • To confine the procedural requirements under Section 63—such as the furnishing of a certificate and hash value—to cases where a party chooses to rely on the special mode of proof prescribed therein, namely, proof by way of a certificate without examining a witness.
  • Sec. 61, BSA, says – 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 documents.
  • The first part of Section 61 — “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” — is broadly worded and makes no distinction between an original and a copy of an electronic record.
    • Therefore, this clause ensures the admissibility of electronic records — whether original or copy — solely on the ground of their digital nature.
  • The expression “subject to Section 63” in Section 61, BSA implies that the procedural requirements under Section 63 (such as the furnishing of a certificate and hash value, etc.) apply only where the party opts to prove a copy of an electronic record (computer output) under the special method prescribed by Section 63.
  • That is, the copy of an electronic record (computer output) can be proved by any other method provided under the Act (for proving a document).

Other Methods to Establish Proof are:

  • (i) oral evidence of one who can vouchsafe the same,
  • (ii) circumstantial evidence,
  • (iii) invoking ‘presumption’ and
  • (iv) express admission by the other side.

“Nothing in this Adhiniyam shall Apply to Deny the Admissibility”: Significance

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Section 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Section 63, BSA is capable of giving two (divergent) interpretations–

  • First, Section 63, BSA is an enabling provision to admit ‘computer output’ (copy – derived from the original)  as ‘document’ itself, in a simpler manner, by the deeming provision, ‘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 Section 63, BSA, ‘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”, are an emphatic delineation of the legislative intent on the following matters –

  • 1. Section 63, BSA 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’.
  • 2. The interpretation given to Section 63, BSA, that a ‘computer output (copy) can be proved only’ under the provisions of Section 63, BSA, ‘notwithstanding anything contained in the Act’, is not accepted by the legislature.
    • Or, the word “nothing” in Section 61 overrides, or nullifies, the effect of the non obstante clause in Section 63.
  • 3. Thereby, the words, ‘subject to section 63’ in Section 61, BSA, only direct to undergo the requirements in Section 63 (that is, production of Section 63 certificate, and HASH certificate) to prove the Computer output — only when one opts to prove it under the provisions of Section 63: that is, he can adopt any other method provided in the BSA.

Note: If this interpretation is not given, Section 61, the new provision in the BSA, stands meaningless.

Videos Speak for Themselves – English Decision

It is laid down by the United Kingdom Court of Appeal in R v. Downey, [1995] 1 Cr.App.R. 547 CA and R v Blenkinsop, [1995] 1 Cr.App.R. 7, CA as regards a video –

  • It “should be shown without comment, since it was for the jury to decide what they revealed.”

In R v. Downey, [1995] 1 Cr.App.R. 547, the principle accepted was that a video can “speak for itself” if properly proved. In this case, the same type of offence was committed at different places. Both were video recorded. The similarities were well identified. This led to an acceptance of the video by the court. It was found that the perpetrator of one of the crimes was likewise guilty of the other.

CCTV Footage – The Best Evidence

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that the CCTV footage is the best evidence (R. Banumathi, Kurian Joseph, Anil R. Dave, JJ.). It was a case concerning two Italian nationals. They were accused of the murder of another Italian national. The place of occurrence was a hotel room. All were on their trip to Varanasi. It was a case of circumstantial evidence. Symptoms of strangulation were absent in the medical reports. The defence was that the death occurred during their absence. They relied on the non-production of the digital evidence – CCTV footage and SIM card details. The Supreme Court set aside the conviction, pointing out –

  • “The courts below have ignored the importance of best evidence, i.e. CCTV camera in the instant case.”
  • “Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence– CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”
  • Note: Tomaso Bruno is overruled in Arjun Panditrao v. Kailash Kushanrao, on the point – whether computer output can be proved otherwise than invoking Section 65(4) of the Evidence Act; that is, under Section 65. In Tomaso Bruno it was held that secondary evidence of the contents of CCTV footage can also be led under Section 65 of the Evidence Act. Hence the CCTV footage was found admissible. In this regard Tomaso Bruno followed Navjot Sandhu. It is held in Arjun Panditrao that in the teeth of Anvar P. V., it could not have been said to be a correct statement of the law.

Photographs/Videos Speak for Themselves – Indian Decisions

In Rajendra Sail v. M P High Court Bar Association, AIR 2005 SC 2473; 2005-6 SCC 109; (Y.K. Sabharwal & Tarun Chatterjee, JJ.), it is held that the video exhibited in that case speaks for itself.

The Madras High Court in Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila,
2021-3 CTC 118; 2021-2 LW 28, while dealing with a suit for damages, filed by the legal heirs of a person who died due to the fall of an electrical pole on him, held as under:

  • “Ex. A-10 photos and CD clearly show that the pole was heavily damaged. One could also to see the iron rods exposed and rusted. The cement concrete covering peeled off. The broken electrical pole on the ground with live wire seen in the photographs speak for itself.”

In Pawan Kumar Agarwal v. State of Uttar Pradesh, 2007-6 ADJ 551, Allahabad High Court held as under:.

  • “The photographs of the constructions which were given at that point of time, show that it was semi finished construction, and the photographs appended with this Review Application, show that constructions have been completed and they speak in volumes for itself. Photographs, which have been filed as Annexure-16 to the writ petition, and the photographs, which have been annexed along with this Review Application clearly speak that the applicant had full knowledge of the pendency of the aforementioned writ petition and in spite of the same constructions were carried on and completed.”

Following decisions also say – the photographs/videos speak for itself.

  • Swami Vivekanandnagar Co-op. Housing So. Ltd. v. Ahmedabad Municipal Corporation, 2022-3 GLH 122; 2022-4 GLR 2732 (Photograph)
  • Madhavnagar Coop. Housing So. Ltd v. Joint Registrar, 2020-2 GLR 1437, J.B. Pardiwala, J. (Photograph)
  • Jetunben v. State of Gujarat, 2017-2 GLR 1640, J.B. Pardiwala, J. (Video)
  • New India Assurance Company v. Mohd. Akram Bhat, 2016-2 JKJ 12 (Photograph)
  • Shakuntala Bhadouria v. M. P. Griha Nirman Mandal, 2014-3 MPHT 62; 2014-1 MPJR 131 (DB) (Photographs)
  • Gujarat State Road Transport Corporation v. Bhagirathi Ganapathy, 2010-2 CCR 1041 (Photograph)
  • Raghuveer Singh v. Shiv Kumar Swami, 2006-3 RDD 1653; 2006-3 RLW(Raj) 2266; 2006-4 WLC 210 (Video)
  • Taran Parkash Mohan Lal v. State, 1962 CrLJ 189 (P&H) (Photograph)

Seizure Of Heroine Non-Production of CCTV Footage – Not Invite Acquittal

It is also relevant to note the following decision of the Madras High Court on seizure of the contraband, a commercial quantity of 1 kg. of Heroine, in Intelligence Officer, Narcotic Control Bureau, Chennai v. Rasool Mydeen, 2023-1 MLJ(Cri) 19, which reads as under:

  • “Though the prosecution could have also produced the CCTV footage from the Central Railway Station, the very absence by itself will not entitle the accused for acquittal. The principle that non-production of the best evidence in the case of the prosecution could not be employed, as the CCTV cannot be said to be a best evidence when the seizing officer and the witnesses have deposed and the mahazar is produced and the CCTV footage can at best be termed as a corroborative material. Therefore, the mere non-production thereof will not entitle the appellant for an acquittal.”

Also Read: ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B

End Notes

“HASH value/s of the electronic/digital record/s”

The Certificate required in Section 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)”

A Discordant Note

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 CCTV Camera, computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

It is not clear –

  • (i) What is the precise purpose of ascertaining the hash value(s) of the (original) electronic or digital record?
    • Note: It appears that the hash value(s) of the original record are required to be stated, rather than that of the copy (‘computer output’) actually produced before the court. This raises a doubt: how is the court to verify the authenticity of the copy if the original’s HASH value alone is referenced?
  • (ii) Why does the requirement of including HASH value(s) appear only in the Schedule (certificate format) and not in the main body of Section 63 itself?

The lack of explicit mention in the section text also creates uncertainty about whether HASH values are ‘mandatory’ or merely a ‘directory’ one.

Section 63(4)(c), BSA

Section 63(4)(c), BSA reads as under:

  • (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) and an expert 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.

A question may arise –

  • Because the term “hash value” is not explicitly used the main body of Section 63(4)(c) BSA, can it be argued – Hash Value Certificate is not mandatory but directory (or merely illustrative of the best practices)?

An argument is possible (“hash value” certificate is not mandatory) for two matters –

  • 1. The particulars in the Certificate stated in Section 63(4)(c) are specifically and categorically laid down in the sub-section (2) of Sec. 63. The “Part A” Certificate in the schedule contains all things in sub-section (2) of Sec. 63. So the “Part B” Hash Value Certificate is not mandatory as per the “Section”.
  • 2. The words “sufficient for a matter to be” in the sub-section (4)(c) make it clear – the ‘verbatim adherence’ to the certificate format is not mandatory;*.* no doubt, the substance or contents thereof (particularly, the phraseology – “best of the knowledge and belief”) must have been placed in some (other) form. The particulars in the Certificate being the matters enumerated in the sub-section (2) of Sec 63 (and nothing is stated as regards Hash Value), the ‘Part B’ Hash Value Certificate cannot be a mandatory one.
    • *.*Note:
    • 1. See the difference between (i) reading Sec. 63(4)(c) without the words – sufficient for a matter to be and (ii) reading with these words. Relevant portion of Sec. 63(4)(c) is given below:
      • “(c) ….. 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.”
    • 2. The beginning portion of Sec. 63(4)(c) emphasises that it pertains to the matters enumerated in sub-section(2) alone, and not to hash-value. Sec. 63(4)(c) begins as under:
      • “(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…”
    • 3. It appears that the hash value(s) of the original record are expected to be stated, rather than those of the copy (or “computer output”) actually produced before the court. This raises several questions, including: how is the court to verify the authenticity of the copy, if only the original’s HASH is referenced?

Possible Counter Arguments (This author does not subscribe)

  • First: The “form A” itself requires Hash Value Certificate.
  • Second:  Section 63(4)(c) says, “…. 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) and an expert shall be evidence of any matter stated in the certificate… “
  • Third:  Section 63(4)(c) says, “a certificate specified in the Schedule”. The phrase “specified in the Schedule” explicitly ties the main section to the Schedule and makes it mandatory.
  • Fourth:  The Schedule provides a single, Certificate, divided into two parts – “Part A and “Part B”. It is not presented as two separate certificates, one mandatory and one optional.
  • Fifth: Legislative Intent (i.e., for ensuring the digital integrity of electronic records) reflects the mandatory nature.

Conclusion

The ‘Hash Value Certificate’ in the BSA is shrouded in several potential ambiguities. To dispel these uncertainties, a legislative amendment or a definitive ruling by an authoritative court that takes into account all pertinent arguments in this matter is imperative.

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Unknown's avatar

Published by sajikoduvath

Leave a Comment