Admissibility of Electronic Evidence: Does Section 61 of the BSA Permit Oral Proof (Overriding Arjun Panditrao)

Jojy George Koduvath.

Introduction

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is a new provision. It was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam says – the admissibility of evidence shall not be denied merely on the ground that it is in electronic form. It is largely declaratory in nature. It binds the sections on electronic evidence to follow.

The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, established a strict interpretation (prior to promulgation of Adhiniyam, 2023). It laid down that the proof by the certificate under Section 65B (Section 63, Adhiniyam) is mandatory for admitting a computer output (copy) in evidence. Arjun Panditrao interpreted to say that Section 65B is a complete code.

Section 61, Adhiniyam makes a drastic legislative change to this deliberation placed by Arjun Panditrao Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate contemplated in Section 63.

Section 61, Adhiniyam 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.”

Arjun Panditrao Overlooked Two Aspects

It appears that Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal overlooked two aspects –

  • First, the deeming fiction in Section 65B (now reflected in Section 63 of the Adhiniyam), which provides that “the computer output shall be deemed to be ALSO a document”.
  • Secondly, “Electronic record containing the statement” alone can be proved with Sec. 65B(4) Certificate— such as:
    • call detail records, bank statements, and transactional logs; and
    • not to all forms of electronic data, such as photographs or video recordings stored in digital media (like pen-drive, CD, etc.).

Section 63, BSA Certificate – an Enabling Provision

Section 63, Adhiniyam enables a computer output (copy) to be treated as an original document—because of the words: “the computer output shall be deemed to be ALSO a document”. Therefore, an electronic document can be dealt with in accordance with the general principles applicable to documentary evidence in other provisions of the Evidence Act/Adhiniyam. The certificate requirement (which allows marking a document without citing any witness) operates as an enabling or facilitative provision.

Section 61 appears to be a legislative response to the rigid evidentiary stance established in Arjun Panditrao. By affirming that electronic evidence is not inherently inadmissible, the legislature has sought to:

  • prevent exclusion on technical grounds,
  • align evidentiary rules with technological realities, and
  • promote a more pragmatic approach to proof.

This reflects a broader policy shift towards substantive justice over procedural rigidity.

Section 61, BSA is “Subject to Section 63”

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, Adhiniyam) is mandatory to admit a computer output (copy) in evidence. 
  • Arjun Panditrao, interpreting Section 65B, said that this section is a complete code.

In other words, Section 61 must be understood as a provision intended to secure alternative routes for admitting computer outputs (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 (Section 61), 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.

Conclusion

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, by way of the certificate (without examining a witness).

This approach also aligns with global trends in jurisdictions such as the United Kingdom, the United States, and Canada.

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