Law on Electronic Evidence in India: A Comparative Analysis with Other Jurisdictions

Saji Koduvath, Advocate, Kottayam.

Indian Law in a Nutshell

  • Electronic evidence cannot be ignored on any technicality.

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) reads as under:

  • “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.”
    • Note: Section 63 speaks about the proof of the copy of the electronic record (computer output) through the certificate provided under this section.

In Shafhi Mohammad v. State of Himachal Pradesh, AIR 2018 SC 714; 2018-2 SCC 801, our Supreme Court observed as under:

  • “21. ….. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant”. (Quoted in: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908)

S. 63 of the BSA Speaks about Admissibility of Electronic Records

Sub-sections (1) and (4) of Section 63, Bharatiya Sakshya Adhiniyam, 2023 speak about the admissibility of electronic records. They read as under:

  • “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 Cases in which secondary evidence relating to documents may be given. 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.”
  • “(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) 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.”

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Proof on Electronic Evidence – UK, US and Canada 

United Kingdom: In Halsbury’s Laws of England, Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure, the English law is explained, while dealing with “Documentary and Real Evidence”, as under:

  • “1471. Audio and video recordings. – An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [R. v. Maqsud Ali, (1965) 2 All ER 464, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. …. ” (Quoted in: P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161)

In the UK, the admissibility of electronic evidence is governed predominantly by common law principles. It gives broad discretion to the courts and requires a case-by-case judicial calibration. Section 5 of the UK Civil Evidence Act, 1968, which governed the admissibility of copy of the electronic evidence, was repealed by the Civil Evidence Act, 1995.

  • Note: As pointed out in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908), Section 65B, Evidence Act (Section 63 of the BSA), is a poor reproduction of Section 5 of the UK Act. Section 65B was incorporated in the Indian Evidence Act, by Act 21 of 2000. (By that time, Section 5 itself was not there in the UK statute book.)

The following are the well-accepted UK authorities on proof of electronic evidence.

  • (i) R. v. Maqsud Ali [1966] 1 QB 688)
  • (ii) R v. Clare and Peach (1995] 2 Cr App R 333) 
  • (iii) R v. Atkins [2009] EWCA Crim 1876

United States: US law on Electronic Evidence codifies a structured, certification-based proof for admitting electronic records—without the need to call a live witness. Federal Rules of Evidence (FRE – introduced in 1975) provide specific provisions relating to electronic records, under Rules 901 and 902. (Entire Rules 901 and 902 are quoted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1; AIR 2020 SC 4908.)

Sub-rule (13) and (14) of Rule 902 (incorporated by amendment in 2017) read as under:

  • Rule 902(13): “Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).”
  • Rule 902(14): “Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).”

Together sub-rules (13) and (14) –

  • eliminate the need for foundational oral evidence in routine cases,
  • reduce litigation costs and delays, and
  • recognize the reliability of modern electronic systems and forensic practices.

The following are important US authorities on the admissibility of electronic evidence without formal oral testimony.

  • (i) State of Nevada v. Archanian, 145 P 3d 1008 (2006), decision of Supreme Court of Nevada (a U.S. state)
  • (ii) United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), decision of U.S. Court of Appeals (Second Circuit)
  • (iii) United States v. Browne, 834 F.3d 403 (3d Cir. 2016), decision of U.S. Court of Appeals (Third Circuit).

Canadian Law: A similar facilitative approach, akin to Indian law, is discernible in Canadian law. Both the Canada Evidence Act and the Ontario Evidence Act also recognise a presumption as to the “integrity of an electronic documents system”, in the absence of evidence to the contrary.

The following are the well-accepted Canadian authorities on proof of videos.

  • (i)  R. v. Bulldog, 2015 ABCA 251 – Alberta Court of Appeal (Western Canada).
  • (ii) Her Majesty v. Jaiyhi He, 2017 ONCJ 790 –  Ontario Court of Justice (Canada).
  • (iii) R v Penney, (2002) 163 CCC (3d) 329 –  Supreme Court of Canada.

These decisions consistently laid down the following as to the admissibility of a video in evidence:

  • (a) The video must be relevant to the issues at trial.
  • (b) The video must be authentic – that it accurately represents the events depicted.

English Decisions: 1 – R. v. Maqsud Ali – tape recordings

R v. Maqsud Ali, (Court of Appeal, England and Wales, Criminal Division [1966] 1 QB 688), considered the admissibility of tape recordings. It is a foundational case on audio recordings. The accused were charged with murder. During the investigation, police secretly recorded their conversation in a police station. It was held as under:

  • “We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in light of all the circumstances of each case.” (Quoted in: Ram Singh v. Col. Ram Singh, AIR 1986 SC 3; 1985 Supp1 SCC 611; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143)

2 – R v. Clare and Peach – video recordings

In R v. Clare and Peach (Court of Appeal, England and Wales, Criminal Division, [1995] 2 Cr App R 333), a Police Constable Fitzpatrick had filmed supporters arriving at the football ground before the match. Also filmed them whilst they were in the stadium and as they left. Those colour films were of good quality. The video recordings made in the street were filmed in black and white. By studying the film, viewing the recording many times, the Police Constable was able to follow the movements of individuals and see what actions they took. By comparing the individuals performing violent acts with the colour pictures, he claimed to be able to identify not only the violent acts in the street but who was committing them. The court found that he had “special knowledge that the court did not possess”. His identifications were held to be ‘no more secondary evidence than any oral identification made from a photograph’.

3 – R v. Atkins – CCTV footage

R v. Atkins, [2009] EWCA Crim 1876, of the Court of Appeal (Criminal Division), England and Wales, is an often quoted decision on visual evidence (CCTV). It is a case where a team of three men committed two armed robberies at the homes of targeted victims in west London. The evidence included CCTV footage of violent attacks and murder. The faces of the culprits were not clearly visible in the footage. The prosecution relied on CCTV images and still photographs to identify the accused. They presented an expert who compared features from the CCTV images with photographs of the accused. The Court of Appeal held that expert evidence is admissible in such cases, for it helps the jury on matters beyond their ordinary experience. However, the Court stressed an important condition – the expert’s opinion must be based on a reliable and demonstrable method.

US Decisions: 1 – State of Nevada v. Archanian – surveillance digital video

State of Nevada v. Archanian, 145 P 3d 1008 (2006), was a murder case before the Supreme Court of Nevada (a U.S. state). A key piece of evidence was the digital video recorded by the store’s surveillance system. The accused questioned the authenticity of the video footage. It was argued that the VHS tape given to the police video technician was not the original. In the trial, the prosecution admitted that it could not authenticate the images as accurately transferred from the surveillance system. However, it claimed that it had been taken from the digital surveillance system itself. The Supreme Court of Nevada accepted the video evidence, holding as under:

  • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”

2 – United States v. Vayner – social networking website

United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), is rendered by the United States Court of Appeals for the Second Circuit. The evidence included a printout of a social-networking page allegedly belonging to the accused. It showed that he used the false name “Mark V.” The government did not offer any “direct” evidence. The court considered the ‘authentication’ of the electronic evidence under Rule 901 of the Federal Rules of Evidence. It was pointed out that anyone could create a similar page. Therefore, it was held that sufficient proof of authorship should be provided. The conviction was vacated, and a new trial was ordered.

3 – United States v. Browne – Facebook chat

The rise of social media has created new challenges. The US Court of Appeals (Third Circuit), in United States v. Browne, 834 F.3d 403 (3d Cir. 2016), put it as under:

  • “The authentication of social media evidence in particular presents some special challenges because of the great ease with which a social media account may be falsified or a legitimate account may be accessed by an imposter.” 

The accused in this case was convicted of serious offences, including child pornography and sexual offences involving minors. The conviction was based partly on Facebook chat records. The accused challenged the admissibility of the chat logs. He argued that the chats were not properly authenticated by oral testimony. The Government argued that the chats were self-authenticating. The Court did not accept this argument. However, it upheld the conviction, finding that the Government had produced more than sufficient “extrinsic evidence” to authenticate the chat logs under Rule 901(a). Because the evidence showed that the disputed Facebook records reflected real online conversations that took place between the accused and three of the four minors. The standard applied was proof by a “preponderance of the evidence”.

Canadian Decisions: 1 – R. v. Bulldog – surveillance camera video footage

R. v. Bulldog, 2015 ABCA 251, is a case that dealt with the video footage from surveillance cameras. In this case, it was alleged that the accused forcefully entered a residence, assaulted the occupants, and committed robbery. One of the main questions that arose was whether a digital video can only be authenticated by an eyewitness. The court answered it negatively. It is held – a video can be proved by any one of the following –

  • (1) the camera operator;
  • (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
  • (3) a person qualified to state that the representation is accurate; or
  • (4) an expert witness.

Should there be Proof – Video not been Altered or Changed?

This was another main question in this appeal. The finding, in a nutshell, was as under:

  • 1. When the accuracy of the video is satisfied, evidence regarding the absence of alteration is not necessary.
  • 2. The mere fact of alteration did not automatically render a video recording inadmissible.
  • 3. The Crown’s failure to establish that the DVD was not altered was not fatal if it is proved that the DVD was a substantially accurate and fair representation of what it purported to show.

2 – Her Majesty v. Jaiyhi He – surveillance camera

Acceptance of video taken by surveillance cameras was the main issue in the Ontario Court of Justice in Her Majesty v. Jaiyhi He, 2017 ONCJ 790. An officer found that two surveillance cameras of a company had captured the events of the crime on video. He watched the videos from those cameras. The manager in charge of the cameras copied the video from their system to a DVD. At the trial, the Crown had not called anyone from the company that kept the surveillance system. KENKEL J., relying on R. v. Bulldog, 2015 ABCA 251, held – so long as there is evidence which shows the video is accurate, no evidence regarding the absence of any change or alteration is necessary, and circumstantial evidence may be used to authenticate real evidence. It was also found that no particular evidence or a particular witness is essential to prove the video taken by surveillance cameras.

3 –  R v Penney – CCTV

In R v Penney, (2002) 163 CCC (3d) 329, the Supreme Court of Canada considered the legal effect of the jury’s comparison of a poor-quality video with the accused, without cogent supporting evidence.

The case was related to a robbery at a video store. The incident was captured on a security video (CCTV). The quality of the video was poor, and the offender’s face was not clearly visible. At trial, the jury had to compare the person in the video with the accused in court and decide if they were the same person. There was little or no additional evidence to connect the accused to the crime beyond the video. The core issue was whether a conviction can safely rest on a jury comparison of a poor-quality video image with the accused, without strong supporting evidence. The appeal court found a risk of mistaken identity. Conviction was set aside.

Indian Law Compared to other Jurisdictions

The US and Canada have specific statutory provisions for proving electronic evidence. Our legal position is closer to these jurisdictions. It differs from the position under UK common law, where courts exercise a wide discretion and decide each case on its own facts.

Indian law adopts a comparatively liberal approach. It relaxes the evidentiary burden for admitting electronic evidence. This approach is reflected in specific provisions under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023. It is also supported by the general presumptions contained in Section 119 of the Adhiniyam. This aligns with the Canadian presumption regarding the integrity of an electronic document system, in the absence of evidence to the contrary.

The Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129), referring Her Majesty v. Jaiyhi He (supra) and State of Nevada v. Archanian (supra), said as under:

  • “We have referred to these decisions in order to reiterate that a pragmatic and purposive interpretation of the law governing the admission of electronic evidence is consistent with the development of the law in international jurisdictions as well.
  • 116. We, therefore, unhesitatingly hold that the photos and videos in M.Os. 45, 49, 50, 51, 52 and 53 were taken contemporaneously when the attack was taking place and have not been doctored and can be read in evidence.”

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.”

Conclusion

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, prevents the exclusion of electronic evidence on purely technical grounds. In this sense, Section 61 responds to, and softens, the approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal.

The expression “subject to Section 63” in Section 61 requires that certain procedural requirements—such as certification and related safeguards— must be followed. These requirements apply when a party chooses to prove a computer output under this special statutory method. It is therefore arguable that Section 63 is enabling rather than exhaustive.

This construction aligns Indian law more closely with the law in this matter in the United Kingdom, the United States, and Canada.

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