Electronic evidence under the BSA

1. Definitions

• Section 2(1)(d) “document” (old section 3) includes electronic and digital records. Illustration (vi): e-mails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.
• Section 2(1)(e) “evidence”: oral evidence includes statements given electronically which the Court permits; documentary evidence includes electronic or digital records produced for inspection.
• Words such as “electronic record”, “computer resource” and “electronic signature” take their meaning from the IT Act (section 2(2)).

2. Primary and secondary evidence

Section 57 (old section 62): primary evidence is the document itself produced for inspection. Four new Explanations deal with electronic records:

• Explanation 4: where an electronic or digital record is created or stored in multiple files, simultaneously or sequentially, each file is primary evidence.
• Explanation 5: an electronic or digital record produced from proper custody is primary evidence unless it is disputed.
• Explanation 6: where a video recording is stored and simultaneously transmitted, broadcast or transferred, each stored recording is primary evidence.
• Explanation 7: where a record is stored in multiple storage spaces in a computer resource, each automated storage, including temporary files, is primary evidence.

Section 58 (old section 63): secondary evidence includes certified copies, copies made by mechanical processes, counterparts, oral accounts, and (new) oral and written admissions and the evidence of a skilled person who has examined numerous documents.

3. The special code for electronic records

Section 63 in five points

1. Deeming (s.63(1)): information in an electronic record printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory, produced by a computer or any communication device (the “computer output”), is deemed to be a document and is admissible without further proof or production of the original, if the conditions are satisfied.
2. Conditions (s.63(2)): the output was produced during regular use of the device for regular activities by the person in lawful control; information of that kind was regularly fed in; the device was operating properly (or any defect did not affect the record); and the output reproduces information fed in the ordinary course.
3. Many devices as one (s.63(3)): devices used in standalone mode, on a computer system or network, on a computer resource, or through an intermediary, are treated as a single device.
4. Certificate (s.63(4)): identifying the record and how it was produced, giving particulars of the device, and dealing with the conditions. It must be submitted along with the electronic record at each instance it is submitted for admission, and signed by a person in charge of the device or management of the activities and an expert. Matters may be stated to the best of knowledge and belief, in the certificate specified in the Schedule.
5. Supply and production (s.63(5)): information supplied or output produced with or without human intervention is covered.

The Schedule certificate

• Part A is filled by the party: the device or source (computer, storage media, DVR, mobile, flash drive, CD/DVD, server, cloud), make, model, serial number, IMEI/UIN/MAC/Cloud ID, that it was under lawful control and working properly, whether owned, maintained, managed or operated by the deponent, and the hash value.
• Part B is filled by the expert: the device particulars and the hash value.
• The hash is obtained by a stated algorithm (SHA1, SHA256, MD5 or another legally acceptable standard), and a hash report is enclosed. Matching hash values show that the copy produced is identical to the original.

4. Electronic signatures and expert opinion

• Section 66 (old 67A): except for a secure electronic signature, the fact that an electronic signature is that of the subscriber must be proved.
• Section 73 (old 73A): the Court may direct steps to verify whether a digital signature is that of the person who purports to have affixed it.
• Section 39(2) (old 45A): when the Court must form an opinion on information transmitted or stored in a computer resource or other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the IT Act is a relevant fact. The Explanation says such an Examiner is an expert. Section 79A lets the Central Government notify any department, body or agency as an Examiner.

5. Presumptions

6. The cases

• State (NCT of Delhi) v. Navjot Sandhu, 2005 INSC 333 (Parliament attack case, 4 August 2005). Printouts of call records were admitted as secondary evidence under the general provisions (old sections 63 and 65) even without a section 65B certificate. This view was later overruled.
• Anvar P.V. v. P.K. Basheer, 2014 INSC 645 (18 September 2014, an election case on CDs of speeches and songs). Sections 65A and 65B are a complete code; a copy of an electronic record is admissible as secondary evidence only with the section 65B(4) certificate; the general rules on secondary evidence do not apply. Navjot Sandhu was overruled on this point. If the original device is produced, it is primary evidence and no certificate is needed.
• Shafhi Mohammad v. State of Himachal Pradesh, 2018 INSC 75. A two-judge bench treated the certificate as procedural and said it could be dispensed with where the party relying on the record is not in possession of the device. This was overruled in Arjun Panditrao Khotkar.
• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 INSC 453 (14 July 2020, three judges). The certificate under section 65B(4) is a condition precedent to admitting a copy of an electronic record; oral evidence cannot replace it. It is unnecessary only when the original device is produced and the owner proves it in the witness box. Anvar was affirmed with a clarification, and Shafhi Mohammad was overruled. Where the person in charge refuses to give a certificate, the party may ask the court to summon its production; the certificate may be furnished at a later stage, so long as the trial is not over and no prejudice is caused to the accused.

Under the BSA these holdings apply to section 63, with two changes to watch: the certificate is now in a fixed form with a hash value, and it is signed by both the person in charge and an expert.

How AIBE asks this

The most common question is the number: “Admissibility of electronic records is dealt with in section ___ of the BSA” (63) or “of the Evidence Act” (65B). Next is the case chain: which case held the certificate mandatory (Anvar), which overruled Shafhi Mohammad (Arjun Panditrao Khotkar), and which was overruled by Anvar (Navjot Sandhu). Presumption questions turn on “shall” versus “may” and the five-year rule.

Quick check

1. Section 65B of the Indian Evidence Act, 1872 corresponds to which section of the BSA?
   (A) Section 61
   (B) Section 62
   (C) Section 63
   (D) Section 39
   Answer

   (C). Section 63 deals with admissibility of electronic records; section 62 corresponds to old section 65A.
2. Under the Schedule to the BSA, Part B of the certificate is filled by:
   (A) the party producing the record
   (B) the expert
   (C) the Magistrate
   (D) the intermediary
   Answer

   (B). Part A is filled by the party and Part B by the expert; both state the hash value.
3. Which case overruled Shafhi Mohammad on the section 65B certificate?
   (A) Anvar P.V. v. P.K. Basheer
   (B) State (NCT of Delhi) v. Navjot Sandhu
   (C) Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
   (D) Shreya Singhal v. Union of India
   Answer

   (C). Decided in 2020 by a three-judge bench, it held the certificate to be a condition precedent.
4. The presumption about an electronic record five years old is in:
   (A) section 81 BSA
   (B) section 86 BSA
   (C) section 90 BSA
   (D) section 93 BSA
   Answer

   (D). Section 93 (old section 90A) is a “may presume” provision on the electronic signature.
5. The opinion of the Examiner of Electronic Evidence is made relevant by section 39(2) BSA. The Examiner is notified under:
   (A) section 70B of the IT Act
   (B) section 79A of the IT Act
   (C) section 63(4) BSA
   (D) section 176(3) BNSS
   Answer

   (B). Section 79A of the IT Act empowers the Central Government to notify Examiners of Electronic Evidence.