UNIVERSITY INSTITUTE OF LEGAL STUDIES
PANJAB UNIVERSITY, CHANDIGARH
BHARATIYA SAKSHYA ADHINIYAM (BSA) PROJECT
On the topic
ELECTRONIC RECORDS
SUBMITTED BY: ANURIMA GUPTA
ROLL NO: 194/21
B.COM. LL.B. (HONS.)
SEMESTER 7
SECTION D
SUBMITTED TO: Ms. UMANG GARG
1
ACKNOWLEDGEMENT
First and foremost, I would like to thank Almighty God for giving me the strength, knowledge, ability
and resources to undertake this wonderful project on the topic: “Electronic Records” and complete it
satisfactorily. Without his blessings it would not have been possible.
Secondly, I would like to express my special thanks of gratitude to my teacher Ms. Umang Garg who
guided me throughout this journey and gave me this golden opportunity to work on the above-
mentioned topic which helped me in doing a lot of research. The success and outcome of this project
required guidance and I am privileged to have the requisite assistance for completion of my
assignment.
Lastly, I would like to thank my family and my friends who helped me a lot in finalizing this project
within a limited time frame.
ANURIMA GUPTA
ROLL NO: 194/21
B.COM LL.B. (HONS.)
SEMESTER 7
SECTION-D
2
TABLE OF CONTENTS
SR. NO. PARTICULARS PAGE NO.
1. INTRODUCTION 4
2. SECTION 61 (Electronic or Digital Record) 5
3. SECTION 62 (Special Provisions as to evidence relating to 5
electronic record)
4. SECTION 63 (Admissibility of electronic records) 5
5. SECTION 66 (Proof as to Electronic Signature) 10
6. SECTION 81 (Presumption as to Gazettes in electronic or digital 10
record)
7. SECTION 85 (Presumption as to electronic agreements) 10
8. SECTION 86 (Presumption as to electronic records and electronic 11
signatures)
9. SECTION 87 (Presumption as to Electronic Signature Certificate) 11
10. SECTION 90 (Presumption as to electronic messages) 12
11. SECTION 93 (Presumption as to electronic records five years old) 12
12. CONCLUSION 13
13. REFERENCES 14
3
INTRODUCTION
The term evidence has come from the Latin word “evident” which means “to show clearly” or to
prove. Evidence contains everything that is used to reveal the truth or facts. In law the person on whom
the burden of proof lies has to produce the evidence before the court of law. It is also important that
the evidence which is produced before the court should be true.
The rise of the digital age has brought about several challenges, including the need to regulate
cyberspace and address legal issues related to violations of digital rights. Cybercrimes involve the
harmful use of electronic devices like mobile phones, computers, and networks to collect and transmit
data. Evidence gathered from such activities is referred to as electronic evidence. However, the
authenticity and reliability of this type of evidence are often questioned due to its susceptibility to
tampering and the need for specialized institutions and experts to verify its accuracy. The Information
Technology Act of 2000 plays a crucial role in regulating cybercrimes and e-commerce, applying not
only within India but also to offences committed on Indian computer systems or networks from outside
the country. The law amended the Indian Evidence Act of 1872 (now BSA) to include provisions on
the permissibility of electronic evidence in court.
While contents of a document can be proven by both primary and secondary evidence definitions
which are stated in section 57 and section 581 of BSA, 2023 respectively, the court withheld that as
mentioned in section 592 BSA, proof of document be given only by primary evidence except in cases
where the conditions provided in section 603 BSA are fulfilled. The sections 61, 62 and 634 BSA, state
that electronic records are deemed admissible in court only if followed by the conditions mentioned in
section 63. Section 63 states that the information contained in an electronic document is acceptable as
evidence and is considered original only if it meets the conditions set forth in Sections 63(2) to 63(5).
Therefore, the electronic evidence must be accompanied by the certificate generated upon completion
of the checklist provided in Section 63.
Evidence as defined under Section 2(e)5 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) “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;
(ii) all documents including electronic or digital records produced for the inspection of the Court
and such documents are called documentary evidence;
A collective reading of the definitions in Section 2(1)(t) and 2(1)(o), Information Technology Act,
2000, shows that an electronic record is a document and it is not confined to data alone. It also means
the record or data generated, received or sent in electronic form. "Data" includes not only active
memory of computer/hard disc but even subcutaneous memory.
1
Corresponding to section 61 and 62 IEA
2
Corresponding to section 64 IEA
3
Corresponding to section 65
4
Corresponding to section 65A and 65B IEA
5
Corresponding to section 3 IEA
4
PROVISIONS RELATED TO ELECTRONIC RECORDS
Section 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.”
Section 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.”
In Anvar P.V. v. P.K. Basheer6,the Court laid down that mode of proving will be as prescribed by
section 65B(4) IEA, and not the general law contained in Sections 63 and 65 IEA. It further held that,
admissibility of secondary evidence of electronic record depends upon satisfaction of conditions as
prescribed under Section 65B(4) IEA.
Section 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-
6
(2015) 10 SCC 473
5
(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 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).”
Section 63(1) states that if any information contained in an electronic record produced from a computer
has been copied onto an optical or magnetic media, then such electronic record that has been copied
‘shall be deemed to be also a document’ subject to conditions mentioned in sub-section (2) of Section
63.
The conditions which have to be satisfied so as to make a computer output as primary evidence are as
follows:-
(a) It is necessary that the computer output containing the information was produced by the computer
which was used regularly to store or process the information for the purposes of any activities being
regularly carried on by the person having lawful control over the use of the computer.
6
(b) the information is of the kind which was regularly fed into the computer in the ordinary course of
its activities,7
(c) the computer should have been operating properly during the period of the data feeding. If it was
not operating properly during that period or was out of operation, it is necessary that the gap was not
such as to affect the electronic record or the accuracy of its contents;
(d) the information contained in the electronic record was derived or was reproduced from the
information fed into the computer in the ordinary course of its activities.
Section 63(3) provides that, where the information was processed or fed into the computer on inter-
linked computers or one computer after the other in succession, all the computers so used are to be
treated as one single computer.
Section 63(4) provides that when a statement has to be produced in evidence under this section, it
should be accompanied by a certificate which should identify the electronic record containing the
statement. It should describe the manner in which it was produced; give the particulars of the device
involved in its production showing that the same was produced by a computer and showing compliance
with the conditions of sub-section (2). The statement should be signed by a person occupying a
responsible official position in relation to the operation or matter stated in the certificate, It should be
sufficient for this purpose that the management of the relevant activities. Such statement shall be
evidence of the statement is made to the best of knowledge and belief of the person making it.
In State (NCT of Delhi) v. Navjot Sandhu8, being an outcome of the attack on the Indian
Parliament, the case is also known as the Parliament Attack case. The accused was convicted under
IPC and POTA, 2002. One of the important pieces of evidence against the accused person was the call
records of the accused. The court said that the cellular phone records of the accused were admissible.
They were in the nature of secondary evidence. The primary evidence was the call servers maintained
by the telecom operators which was difficult to move and produce in court. The court said that even if
the requirements of certification under Section 65B(4) IEA were not complied with, there was no bar
in the production of secondary electronic evidence if the evidence is otherwise admissible under the
provisions of Sections 63 and 65 IEA.
In Anvar P.V. v. P.K. Basheer9, the rigid rule that emerged was that it is a mandatory pre-
requirement that secondary evidence of an electronic record has to be accompanied by a certificate as
provided in Section 65B(4) IEA, i.e. a certificate should accompany electronic records such as CD,
DVD, pen drive, etc. made from the original.
However, the Supreme Court in Shafhi Mohammad v. State of H.P.10, the court, in this case,
laid down in clear terms that applicability of the procedural requirement under Section 65B(4) IEA of
furnishing a certificate is to be applied only when such electronic evidence is produced by a person
who is in a position to produce such certificate being in control of the said device and not of the
opposite party. In a case where electronic evidence is produced by a party who is not in possession of
the device, applicability of Sections 63 and 65 IEA cannot be held to be excluded. In such a case, the
procedure under the said sections can certainly be invoked.
7
P. Padmanabh v. Syndicate Bank Ltd, AIR 2008 Kar. 42
8
(2005) 11 SCC 600
9
(2015) 10 SCC 473
10
(2018) 2 SCC 801
7
Arujn Panditrao Khotkar v. Kailash Kushnrao11, was decided by three judge bench of the Apex Court
of India. It was decided that a certificate issued as per the requirement of Section 65B(4) IEA is
compulsory for the admissibility of secondary electronic evidence. The Apex Court of India had upheld
the decision of Anvar P.V. case and over-ruled the Shafi Mohmmad case. The court said that an
application can be made before the Hon'ble Court regarding the production of a certificate from the
concerned authority or person according to the prescribed procedure of law. When the appropriate
certificate is not produced by the concerned person or denied to provide the certificate as per the
requirement of Section 65B(4) IEA, the Hon'ble Court may issue summons to the concerned person or
authority. Thus, the case held as follow:
1. Section 65B(4) differentiates between the original information contained in the “computer”
itself and copies made therefrom – the former being primary evidence, and the latter being
secondary evidence. Required certificate under Section 65B(4) is unnecessary if the
original document itself is produced.
2. When it is not possible to produce the original documents, then the copy shall be prepared
from the original documents and it shall be produced with a requisite certificate as per the
procedural requirement mentioned under Section 65B(4) of the India Evidence Act.
3. It is mandatory to supply a certificate as per the requirement of Section 65B(4) of Evidence
Act for the admissibility of secondary electronic (digital) evidence and in lieu of that it is
not allowed to accept oral evidence by a person who is in charge of the electronic (digital)
evidence.
Therefore, The position that now emerges is that compliance with Section 63(4) requirement is
essential for secondary electronic evidence to be admissible. The court relied upon the non-obstante
clause in Section 63 to hold that Section 63 is to override the general law on secondary evidence under
Sections 58 and 60.
Certificate when to be produced:
As to the stage when the certificate contemplated by Section 63 should be produced, there was a lot of
inconsistency in judicial opinions. In Ankur Chawla v. CBI12, it was held that an electronic record is
inadmissible in evidence unless accompanied by the certificate as envisaged under Section 63. But this
decision was overruled in Kundan Singh v. State13 , where the Division Bench of the Delhi High
Court held that such certificate may be produced at a later stage, say, the stage of appreciation of
evidence. The Rajasthan High Court in Paras Jain v. State of Rajasthan14 also opined that the
certificate could be filed at a later stage as late filing of certificate is only a procedural irregularity
which should be permitted to be rectified if there is still a rectifiable stage.
The above controversy seems to have been put at rest by the Supreme Court in State of
Karnataka v. M.R. Hiremath15. In this case, the Supreme Court said that failure to produce a
certificate under Section 63 at a stage when the charge sheet was filed is not fatal to the prosecution.
The court observed that the need for production of such a certificate would arise when the electronic
11
(2020) 3 SCC 216
12
2014 SCC OnLine Del 6461
13
2015 SCC OnLine Del 13647
14
2015 SCC OnLine Raj 8331
15
(2019) 7 SCC 515
8
record is sought to be produced in evidence at trial. It is at that stage that the necessity of production
of the certificate shall arise.
Also, in Union of India v. Ravindra V. Desai16, the Supreme Court had said that non-
production of certificate under Section 63 on earlier occasion is a curable defect.
Sub-section (5) provides that an information is to be taken to be supplied to a computer, if it is done
in any appropriate form whether directly with or without human intervention by means of any
appropriate equipment, or if the information is supplied by any official in the course of his activities
with a view to storing or processing it even if the computer is being operated outside those activities.
An Explanation to the section declares that for the purposes of S. 63 any reference to information being
derived from other information is to be taken to mean derived by calculation, comparison or any other
process.
Video-Conferencing
In a case where evidence is related to an electronic record, a prayer was made for producing it by
means of video-conferencing. The court said that there was no bar to examining a witness through
video-conferencing. This is a natural part of electronic method. The prayer was allowed with usual
safeguards.17
The facility of recording evidence by video-conferencing has already been accorded in criminal
cases. The court said that there could not be any plausible objection to adopting the same procedure in
civil cases also. But necessary precautions must be taken both as to identity of witness and accuracy
of the equipment used for the purpose.18
Audio CD
Compact disc (C.D.) is also a document.19 In a matrimonial proceedings for dissolution of marriage,
the wife was alleged to have abused and threatened her husband on his cell-phone and the same was
recorded in it. The matter was recorded by the husband in an audio C.D. The cell-phone was not
produced. Only the C.D. was exhibited. The wife objected alleging fabrication. The Court ordered the
C.D. to be marked as an exhibit subject to the condition that whenever it was played, opportunity for
cross-examination should be given to the wife.20
16
(2018) 16 SCC 273
17
Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11
18
Bodala Murali Krishna v. Bodala Prathima, AIR 2007 A.P. 43
19
Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
20
G. Shyamala Ranjini v. M.S. Tamizhnathan, AIR 2008 NOC 476 Mad.
9
OTHER PROVISIONS
Section 66- Proof as to Electronic Signature21
“Except in the case of a secure electronic signature, if the electronic signature of any subscriber is
alleged to have been affixed to an electronic record, the fact that such electronic signature is the
electronic signature of the subscriber must be proved.”
It may here be noted that the definition of 'digital signature'22 and of 'secure digital signature'23 is
contained in the Information Technology Act, 2000. Under this section If there is an electronic
signature and any person is contending that it is not his signature, and it has been affixed then it is the
contending person only who has to prove it. An exception to the same is of secure electronic signature.
Section 81- Presumption as to Gazettes in electronic or digital record24
“The Court shall presume the genuineness of every electronic or digital record purporting to be the
Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any
person, if such electronic or digital record is kept substantially in the form required by law and is
produced from proper custody.
Explanation.--For the purposes of this section and section 93 electronic records are said to be in
proper custody if they are in the place in which, and looked after by the person with whom such
document is required to be kept; but no custody is improper if it is proved to have had a legitimate
origin, or the circumstances of the particular case are such as to render that origin probable.”
The Court has to presume the genuineness of any electronic record purporting to be the Official Gazette
or purporting to be the electronic record directed by law to be kept by a person. It is necessary that the
electronic record is substantially kept in accordance with the form required by the law and is produced
from proper custody.
Section 85- Presumption as to electronic agreements25
“The Court shall presume that every electronic record purporting to be an agreement containing the
electronic or digital signature of the parties was so concluded by affixing the electronic or digital
signature of the parties.”
Where an electronic record purports to be an electronic agreement made through digital signatures, the
Court has to presume that the agreement was concluded as it purports to be, namely, by affixing the
digital signatures of the parties.
21
Corresponding to section 67A IEA
22
“Digital signature” means authentication of any electronic record by a subscriber by means of an electronic method or
procedure in accordance with the provisions of section 3.
23
“Secure electronic signature” -An electronic signature shall be deemed to be a secure electronic signature if-
(i) the signature creation data, at the time of affixing signature, was under the exclusive control of signatory and
no other person; and
(ii) the signature creation data was stored and affixed in such exclusive manner as may be prescribed.
Explanation- In case of digital signature, the “signature creation data” means the private key of the subscriber.
24
Corresponding to section 81A IEA
25
Corresponding to section 85A IEA
10
Section 86- Presumption as to electronic records and electronic signatures26
“(1) In any proceeding involving a secure electronic record, the Court shall presume unless contrary
is proved, that the secure electronic record has not been altered since the specific point of time to
which the secure status relates.
(2) In any proceeding, involving secure electronic signature, the Court shall presume unless the
contrary is proved that-
(a) the secure electronic signature is affixed by subscriber with the intention of signing or approving
the electronic record;
(b) except in the case of a secure electronic record or a secure electronic signature, nothing in this
section shall create any presumption, relating to authenticity and integrity of the electronic record or
any electronic signature.”
Where a proceeding involves a secure electronic record, the court has to presume that the record was
not altered since the specific point of time to which the secure status related. The section permits
evidence to the contrary. Evidence may be produced in rebuttal of the presumption.
There is a similar presumption as to a secure digital signature. When any proceeding involves a secure
digital signature, the Court has to make the following two presumptions :
a) that the secure digital signature was affixed by the subscriber with the intention of signing or
approving the agreement;
b) that the presumption will apply only to secure electronic record or secure digital signature and
that there is to be no presumption under the section relating to authenticity and integrity of the
electronic record or digital signature.
There can be evidence to the contrary.
A secure system is defined in S. 2 (ze) of the I.T. Act as "secure system" means computer hardware,
software, and procedure that-
a) are reasonably secure from unauthorised access and misuse;
b) provide a reasonable level of reliability and correct operation;
c) are reasonably suited to perform the intended functions; and
d) adhere to generally accepted security procedures.
Section 87- Presumption as to Electronic Signature Certificate27
“The Court shall presume, unless contrary is proved, that the information listed in an Electronic
Signature Certificate is correct, except for information specified as subscriber information which has
not been verified, if the certificate was accepted by the subscriber.”
The Court has to presume that the information listed in a digital signature certificate is correct if the
certificate was accepted by the subscriber. This presumption does not apply to information specified
as subscriber information which has not been verified.
26
Corresponding to section 85B IEA
27
Corresponding to section 85C IEA
11
Section 90- Presumption as to electronic messages28
“The Court may presume that an electronic message, forwarded by the originator through an
electronic mail server to the addressee to whom the message purports to be addressed corresponds
with the message as fed into his computer for transmission; but the Court shall not make any
presumption as to the person by whom such message was sent.”
The section provides that the court may presume that an electronic message forwarded by the originator
through an electronic mail server to the addressee corresponds with the message as fed into his
computer for transmission. The Court is not authorised to make any presumption as to the person by
whom such matter was sent.
Section 93- Presumption as to electronic records five years old29
“Where any electronic record, purporting or proved to be five years old, is produced from any custody
which the Court in the particular case considers proper, the Court may presume that the electronic
signature which purports to be the electronic signature of any particular person was so affixed by him
or any person authorised by him in this behalf.
Explanation.--The Explanation to section 81 shall also apply to this section.”
Where an electronic record purports to be or is proved to be five years old and is produced from any
custody which he court considers proper in the particular case, the court may presume that the
electronic signature which purports to be the electronic signature of any person was so affixed by him
or by any person authorised by him in that behalf.
Defining the expression "proper custody" the Explanation to the section says that electronic records
are said to be in proper custody if they are in the place in which and under the care of the person with
whom they would naturally be. But no custody is improper if it is proved to have had a legitimate
origin or the circumstances of the particular case are such as to render such an origin probable.
28
Corresponding to section 88A IEA
29
Corresponding to section 90A IEA
12
CONCLUSION
In conclusion, the advent of technology has made electronic records a vital component of modern
litigation. As highlighted in this project, the authenticity, admissibility, and reliability of electronic
evidence have become key factors in ensuring that justice is served in a digitally evolving world. The
legal framework in India, especially through the provisions of the Bharatiya Sakshya Adhiniyam
(BSA) 2023 and the Information Technology Act 2000, has made significant strides in incorporating
electronic records into the realm of admissible evidence.
Sections such as 61, 62, and 63 of the BSA provide a detailed structure on how electronic
records can be treated as documentary evidence. These provisions ensure that electronic records are
not only recognized but also given the same legal weight as traditional forms of evidence, provided
certain conditions are met. The importance of these sections is further emphasized by various
judgments, such as Anvar P.V. v. P.K. Basheer, which laid out the mandatory requirement of
certification under Section 63(4) for the admissibility of secondary electronic evidence. However,
subsequent judgments, like Shafhi Mohammad v. State of H.P., have introduced flexibility, ensuring
that justice is not hindered by procedural requirements when it comes to electronic evidence.
Therefore, the admissibility of electronic records is crucial for the legal system to keep pace
with technological advancements. These provisions not only address the challenges of proving the
authenticity of electronic records but also offer a clear legal pathway for their integration into court
proceedings, ultimately ensuring that justice is delivered efficiently in the digital age.
13
REFERENCES
BARE ACT
1. The Bharatiya Sakshya Adhiniyam, 2023; Law & Justice Publishing Co.
BOOKS
1. Vepa P. Sarathi’s Law of Evidence, K.A. Pandey, EBC Eighth Edition
2. Principles of Law of Evidence, Dr. Avtar Singh, Central Law Publications, 24th Edition
RESEARCH PAPERS
1. Scope of admissibility of electronic record by Fardeen Haque, 2.4 JCLJ (2022) 1980
2. Electronic Evidence - The Great Indian Quagmire, (2019) 3 SCC J-41
14
