Electronic Evidence BSA 2023
Section 2 (d) "document" means any
matter expressed or described or
otherwise recorded upon any substance
by means of letters, figures or marks or
any other means or by more than one of
those means, intended to be used, or
which may be used, for the purpose of
recording that matter and includes
electronic and digital records.
Under Section 2 (1) (t) of the Information
Technology Act, 2000, ‘Electronic Record’
mean data, record or data generated,
image, or sound stored, received or sent
in an electronic form or micro film or
comput- er-generated micro fiche.
Illustration
(vi) An electronic record on emails,
server logs, documents on computers,
laptop
or smartphone, messages, websites,
locational evidence and voice mail
messages stored on digital devices are
documents;
(e) "evidence" means and includes—
(i) all statements including statements
given electronically which the Court
permits or requires to be made before it
by witnesses in relation to matters
of fact under inquiry and such statements
are called oral evidence; 30
(ii) all documents including electronic or
digital records produced for the
inspection of the Court and such
documents are called documentary
evidence;
Further, following are four explanations
added to section 57 BSA 2023 in relation
to electronic evidence in the definition of
primary evidence:
Explanation 4 to sec. 57 BSA.—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 to sec. 57 BSA —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 to sec. 57 BSA.—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 to sec. 57 BSA—Where an
electronic or digital record is stored in
multiple storage spaces in a computer
resource,each such automate storage,
including temporary files,is primary
evidence.
Secs. 61-64 (previously 65A and 65B)
61. 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. The contents of electronic records
may be proved in accordance with the
provisions of section 63.
63. (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 computer
outputs hall 5 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 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 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.
(4) In any proceeding where it is desired
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).
Relevant case laws
In M Malkani v State of Maharashtra,
(1973) 2 SCR 417, it was held: Tape
recorded conversation is admissible
provided first the conversation is relevant
to the matters in issue; secondly, there is
identification of the voice; and, thirdly, the
accuracy of the tape-recorded
conversation is proved by eliminating the
possibility of erasing the tape record.
Anvar P.V. V/s P.K. Basheer AIR 2015 SC
The Evidence Act does not contemplate
or permit the proof of an electronic record
by oral evidence, if requirements under
Section 65B are not complied with.
In the case of CD, VCD, chip, etc., the
same shall be accompanied by the
certificate in terms of Section 65B of the
said Act, obtained at the time of taking the
documents, without which, the secondary
evidence pertaining to that electronic
record is inadmissible.
In Shafhi Mohammad vs. The State of
Himachal Pradesh, [(2018) 2 SCC
It was further held that the requirement of
producing certificate is only rule of
procedure, and this requirement can be
relaxed by the court, if it is justified in the
interest of justice.
Further in Arjun Panditrao Vs. Kailash
Kushanrao
AIR 2020 SC, it was held where the
original electronic record is itself produced
then the production of certificate is not
necessary.