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Electronic Evidence under Article 32 of the

Bhartiya Sakshya Adhiniyam, COI

2023 « » No Automatic
 16-Jul-2024 Stay on Award
Upon Filing of
Appeal Under S.
Tags: Bharatiya Sakshya Adhiniyam, 2023 (BSA)
34

Introduction A Ayyasamy v. A
Section 62 and Section 63 of Bhartiya Sakshya Adhiniyam, Paramasivam &
2023 (BSA) lays down rules regarding admissibility of Ors. (2005)
electronic records.
Primary Relief
Section 62 and Section 63 of Bhartiya Time Barred

Sakshya Adhiniyam, 2023 (BSA)

Pension is Hard
Earned Property

Mehul Choksi –
Extradition Case

Guidelines on
Section 62 of BSA provides that the contents of electronic Child Trafficking
records may be proved in accordance with the provisions
of section 63. Offences Related
Section 63 of BSA provides for admissibility of electronic to False Evidence
records. under BNS

Section 63(1) provides that Notwithstanding anything

contained in this Adhiniyam, any information contained Copyright Design
in an electronic record which is printed on paper, stored, Conflict
recorded or copied in optical or magnetic media or
semiconductor memory which is produced by a Goods Exempted
computer or any communication device or otherwise from Customs
stored, recorded or copied in any electronic form Duty

(hereinafter referred to as the computer output) shall be

deemed to be also a document, if the conditions Kailash v.
mentioned in this section are satisfied in relation to the Nanhku (2005)
information and computer in question and shall be
admissible in any proceedings, without further proof or Earlier
production of the original, as evidence or any contents of Application
the original or of any fact stated therein of which direct under Section 42
of the Arbitration
evidence would be admissible.
Act
Section 63(2) provides that the conditions referred to in
sub-section (1) in respect of a computer output shall be
the following, namely: Sexual Offences
Against Children
the computer output containing the information was
Under POCSO Act
produced by the computer or communication device
during the period over which the computer or
Section 34 (3) of
communication device was used regularly to create,
Arbitration act
store or process information for the purposes of any and Section 5 of
activity regularly carried on over that period by the Limitation Act
person having lawful control over the use of the
computer or communication device; Complaint under
during the said period, information of the kind Sexual
contained in the electronic record or of the kind from Harassment of
Women at
which the information so contained is derived was
Workplace Act,
regularly fed into the computer or communication 2013
device in the ordinary course of the said activities.
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
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.
Section 63(3) provides that 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 standalone 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.

Section 63 (4) provides that 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.

Comparison between Indian Evidence

Act, 1872 (IEA) and Bhartiya Sakshya
Adhiniyam, 2023 (BSA)
Section 65B of Indian Section 63 of Bhartiya
Evidence Act, 1872 Sakshya Adhiniyam, 2023
(1) Notwithstanding
anything contained in
this Adhiniyam, any
(1) Notwithstanding
information contained in
anything contained in
an electronic record
this Act, any information
which is printed on paper,
contained in an
stored, recorded or
electronic record which is
copied in optical or
printed on a paper,
magnetic media or
stored, recorded or
semiconductor memory
copied in optical or
which is produced by a
magnetic media
computer or any
produced by a computer
communication device or
(hereinafter referred to
otherwise stored, recorded
as the computer output)
or copied in any electronic
shall be deemed to be
form (hereinafter referred
also a document, if the
to as the computer
conditions mentioned in
output) shall be deemed
this section are satisfied
to be also a document, if
in relation to the
the conditions mentioned
information and
in this section are
computer in question
satisfied in relation to the
and shall be admissible
information and
in any proceedings,
computer in question
without further proof or
and shall be admissible
production of the original,
in any proceedings,
as evidence or any
without further proof or
contents of the original or
production of the original,
of any fact stated therein
as evidence or any
of which direct evidence
contents of the original or
would be admissible.
of any fact stated therein
of which direct evidence
would be admissible.
Clause (2) is same
(3) Where over any (3) Where over any
period, the function of period, the function of
storing or processing creating, storing or
information for the processing information
purposes of any activities for the purposes of any
regularly carried on over activity regularly carried
that period as mentioned on over that period as
in clause (a) of sub- mentioned in clause (a)
section (2) was regularly of sub-section (2) was
performed by computers, regularly performed by
whether–– means of one or more
computers or
(a) by a combination of
communication device,
computers operating
whether—
over that period; or
(a) in standalone mode; or
(b) by different
computers operating in (b) on a computer system;
succession over that or
period; or (c) on a computer network;
(c) by different or
combinations of (d) on a computer resource
computers operating in enabling information
succession over that creation or providing
period; or information processing and
(d) in any other manner storage; or
involving the successive (e) through an
operation over that intermediary, all the
period, in whatever order, computers or
of one or more communication devices
computers and one or used for that purpose
more combinations of during that period shall be
computers, all the treated for the purposes
computers used for that of this section as
purpose during that constituting a single
period shall be treated computer or
for the purposes of this communication device;
section as constituting a and references in this
single computer; and section to a computer or
references in this section communication device
to a computer shall be shall be construed
construed accordingly. accordingly.
(4) In any proceeding
where it is desired to give
a statement in evidence
by virtue of this section, a
(4) In any proceedings
certificate doing any of
where it is desired to give
the following things shall
a statement in evidence
be submitted along with
by virtue of this section, a
the electronic record at
certificate doing any of
each instance where it is
the following things, that
being submitted for
is to say, ––
admission, namely:—
(a) identifying the
(a) identifying the
electronic record
electronic record
containing the statement
containing the statement
and describing the
and describing the
manner in which it was
manner in which it was
produced;
produced;
(b) giving such
(b) giving such
particulars of any device
particulars of any device
involved in the
involved in the
production of that
production of that
electronic record as may
electronic record as may
be appropriate for the
be appropriate for the
purpose of showing that
purpose of showing that
the electronic record was
the electronic record was
produced by a
produced by a computer
computer;
or a communication device
(c) dealing with any of referred to in clauses (a) to
the matters to which the (e) of sub-section (3);
conditions mentioned in
(c) dealing with any of
sub-section (2) relate,
the matters to which the
and purporting to be
conditions mentioned in
signed by a person
sub-section (2) relate,
occupying a responsible
and purporting to be
official position in relation
signed by a person in
to the operation of the
charge of the computer or
relevant device or the
communication device or
management of the
the management of the
relevant activities
relevant activities
(whichever is
(whichever is
appropriate) shall be
appropriate) and an
evidence of any matter
expert shall be evidence
stated in the certificate;
of any matter stated in
and for the purposes of
the certificate; and for
this subsection it shall be
the purposes of this sub-
sufficient for a matter to
section it shall be
be stated to the best of
sufficient for a matter to
the knowledge and belief
be stated to the best of
of the person stating it.
the knowledge and belief
of the person stating it in
the certificate specified in
the Schedule.

Major Changes Introduced by the BSA

The BSA has increased the ambit of the definition of the
term ‘document’ and provided that “electronic and digital
records’ shall fall within the ambit of the term document.
(Section 2(d) of BSA)
The BSA also made an addition to the definition of evidence
which shall include ‘information given electronically’ within
oral evidence and ‘or digital records’ within documentary
evidence.
Section 57 of BSA defines “primary evidence” and carries
four other explanations namely Explanation 4,5,6 and 7.
Explanation 4 provides that “Where an electronic or
digital record is created or stored, and such storage
occurs simultaneously or sequentially in multiple files,
each such file is primary evidence.”
Explanation 5 provides that “Where an electronic or
digital record is produced from proper custody, such
electronic and digital record is primary evidence unless it
is disputed.”
Explanation 6 provides that “Where a video recording is
simultaneously stored in electronic form and transmitted
or broadcast or transferred to another, each of the stored
recordings is primary evidence.”
Explanation 7 provides that “Where an electronic or
digital record is stored in multiple storage spaces in a
computer resource, each such automated storage,
including temporary files, is primary evidence.”
The BSA has introduced Section 61 which provides that
nothing in this Act shall be used to deny the admissibility of
an electronic or digital record as evidence on the basis that
it is an electronic or digital record. Such records, subject to
Section 63, shall have the same legal effect, validity, and
enforceability as other documents.
This Section treats electronic records at par with
documentary evidence as already treated under the IEA
as amended by the Information Technology Act, 2000
(IT).
Section 63 of BSA expands its reach to electronic records in
semiconductor memories, in addition to those on paper
and stored/recorded/copied in optical or magnetic
media.
Furthermore, the provision extends its applicability to
encompass 'any communication device,' broadening its
scope.
Subsection (3) of the provision refines the definition of a
computer or a communication device, providing it with a
more comprehensive interpretation.
Section 63(4) of BSA mandates a certification process
similar to Section 65B (4) of IEA with added safeguards like
producing the electronic record with the certificate.
The BSA provides that while producing electronic evidence,
the party must produce the certificate mentioned in the
Schedule.
The Certificate contained in the Schedule consist of two
parts:
Part A which has to be filled by the party;
Part B which has to be filled by the Expert.

Loopholes in BSA regarding Electronic

Evidence
The IEA defined “electronic form”, “electronic records” by
referring to section 2 (r) and section 2 (t) of the Information
Technology Act, 2000 (I.T. Act), respectively.
There is no reference to I.T. Act in the IEA and the BSA also
does not define the terms electronic records and
electronic form and uses them interchangeably.

Conclusion
The provisions related to electronic evidence in the BSA aim
to make the process of production of electronic evidence
more efficient. The standardization of process of production
of electronic evidence will minimize delays and procedural
disputes, contributing to a more efficient judicial system.

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