Electronic Evidence under  S. 61, 62, 63 of the BSA

Saji Koduvath, Advocate, Kottayam.

Introduction

Sections 56 to 60 of the Bharatiya Sakshya Adhiniyam, 2023, deal generally with law on documents. they read as under:

  • 56. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
  • 57. Proof of documents by primary evidence. Documents shall be proved by primary evidence except in the cases hereinafter
    mentioned.
  • 58. Secondary evidence. Secondary evidence includes—
    • (i) certified copies given under the provisions hereinafter contained;
    • (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
    • (iii) copies made from or compared with the original;
    • (iv) counterparts of documents as against the parties who did not execute them;
    • (v) oral accounts of the contents of a document given by some person who has himself seen it;
    • (vi) oral admissions;
    • (vii) written admissions;
    • (viii) 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.”
  • 59. Primary evidence. Primary evidence means the document itself produced for the inspection of the
    Court.
  • 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.
  • 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) clause (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 document.

1. Comer Output Shall Be Deemed To Be Also A Document

Section 63, Bhartiya Sakshya Act speaks as to copy(computer output)  –  

  • “ (1) Notwithstanding anything contained in the Act … any information contained in an electronic record which is printed on paper…. or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document …..”

2. 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: “Notwithstanding anything contained in the Act … the computer output shall be deemed to be ALSO a document”.
  • Section 63(4) reads: “where it is desired to give a statement in evidence, by virtue of this section“……it can be had by “a certificate”.
  • Note: Though there is a contradiction in terms on “Notwithstanding anything” on one hand and “also” and “desire” in another, on a ‘harmonious reading, it is definite that it is an enabling provision.
  • 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.

3. If The Conditions ….  Are Satisfied

  • “… (the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …..”

Section 63(4) BSA reads as under:

  • “(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);
Following are the clauses (a) to (e) of sub-section (3)
.(a) in stand-alone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource ….; or
(e) through an intermediary,
  • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
The conditions in sub-section (2)—
.(a) ….  during the period …. used regularly …;
(b) …. information ….. regularly fed;
(c) …. operating properly ….; and
(d) information …. fed … in the ordinary course …
  • 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.”

4. Section 61 BSA is a new provision

  • The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, established a strict interpretation. It laid down that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence.
  • Section 61 of the BSA, is a new provision. It was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam says 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.”

5. Drastic Legislative Change to Arjun Panditrao

  • Section 61, Adhiniyam made a drastic legislative change to the 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.
  • In any event, Section 61 is worded with a view that it 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.

6. Arjun Panditrao: ‘Statements’ Embrace even Video and Photograph

  • In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court adopted an expansive interpretation of the expression “statements.” It pressed the requirement of a certificate under Section 65B as a general condition for the admissibility of all forms of computer output (copies).
  • In other words, the term “statement” was construed to embrace all forms of computer output, regardless of their nature—whether a video, a photograph, or any other digital record. However, such an expansive construction does not appear to be supported either by the text of the provision or by its underlying rationale and intended scope.
  • Section 63, Adhiniyam, now requires expert opinion or hash value certification over and above the Certificate laid down in the former provision under Section 65B of the Indian Evidence Act.

7. Does “Subject to S. 63” Suggest Admissibility on Certificate Alone

  • An argument may yet be possible against the construction stated above, based on the words “subject to Section 63” in Section 61 – that these words signify that the admissibility of a computer output depends upon the compulsory production of the certificate under Section 63.
  • This argument can be responded as under:
  • The above interpretation (based on the words “subject to Section 63”) would defeat the very purpose of introducing the new provision (Section 61), which expressly states – “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”.
  • If the certificate under Section 63 were to remain as an inflexible rule, Section 61 would be rendered surplusage or otiose.
  • The harmonious construction would therefore be the following-
  • Section 61 seeks to mitigate the rigidity of the earlier position (as reflected in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal), which was understood to require that a computer output be proved only through a certificate under Section 63(4). And, Section 61 permits proof through any recognised mode, while retaining Section 63 as one of the available methods of proof.
  • Viewed in this light, Section 61 can be seen –
  • (i) as a legislative rebuttal to the strict and mandatory approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, and
  • (ii) as an attempt to ensure flexibility in the law relating to electronic evidence to align with global trends in jurisdictions such as the United Kingdom, the United States, and Canada.

8. HASH Value Certificate

The Certificate required in Sec. 63(4)(c) of the Sakshya Adhiniyam (BSA) must be:

  • (i) “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
  • (ii) “in the form specified in the Schedule”.
  • Note: 
    • Sec. 63(4)(c) of the BSA does not specifically mandate that hashing must be done at the time of copying.
    • But the judicial precedents require recording the hash values at the time of ‘copying’.

9. Conclusion

  • Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, has been introduced with following clear and purposeful objectives:
  • 1. To clarify that a computer output (i.e., a copy of an electronic record) can be proved by examining a competent witness, and not exclusively by producing a certificate under Section 63(4).
  • 2. To make it clear that the procedural requirements under Section 63(4), such as furnishing a certificate and hash value apply only when a party opts to rely on that mode of proof (without examining a witness).
  • In essence, Section 61 restores flexibility by recognising alternative modes of proof, while reserving Section 63 for a specific, certificate-based method of admissibility. 

End Notes:

  • Sections 61, 62, 63 read 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.
  • 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 63.
  • 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 or communication device 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 or communication device 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 or communication device 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 stand-alone 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 or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device 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) 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.
  • (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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