Sections 62-65B Evidence Act vs Sections 57-63 BSA — Electronic Evidence Framework

In India, Sections 57 to 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Sections 62 to 65B of the Indian Evidence Act, 1872 (IEA) from 1 July 2024. The primary-and-secondary evidence rules carry over; the BSA adds four Explanations on electronic primary evidence, a new Section 61, and a Schedule certificate with hash values.

At a glance

What changed

• "Document", s.2(1)(d) (IEA s.3) — Expanded. "expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means" becomes "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", ending "and includes electronic and digital records". Illustration (vi) is new.
• "Evidence", s.2(1)(e) (IEA s.3) — Expanded. Oral evidence now includes "statements given electronically"; documentary evidence covers "electronic or digital records". The IEA's words "including electronic records" dated from Act 21 of 2000 (w.e.f. 17-10-2000).
• Primary evidence, s.57 (IEA s.62) — Expanded. The definition is identical. IEA Explanation 1 (several parts; counterparts) is split into Explanations 1 and 2 (minor edit); IEA Explanation 2 (uniform process) becomes Explanation 3 (identical). Explanations 4–7 are new. The placard illustration is identical.
• Secondary evidence, s.58 (IEA s.63) — Expanded. "means and includes" becomes "includes"; clauses (1)–(5) become (i)–(v); "insure the accuracy" becomes "ensure the accuracy" (minor edit). Clauses (vi) oral admissions, (vii) written admissions and (viii) evidence of a person skilled in examining numerous documents are new. Illustrations (a)–(d) are identical.
• Proof by primary evidence, s.59 (IEA s.64) — Minor edit. "must be proved" becomes "shall be proved".
• When secondary evidence may be given, s.60 (IEA s.65) — Minor edit. Clause (a)'s limbs are numbered (i)–(iii); the notice cross-reference moves from s.66 to s.64; the closing rules become an Explanation.
• Electronic or digital record, s.61 — New. No IEA counterpart.
• Contents of electronic records, s.62 (IEA s.65A) — Minor edit. "section 65B" becomes "section 63".
• Admissibility of electronic records, s.63 (IEA s.65B) — Modified. Sub-section (1) adds "or semiconductor memory", "or any communication device" and "or otherwise stored, recorded or copied in any electronic form". Sub-section (2)(a) adds "create". Sub-section (3) replaces combinations and successions of computers with five modes. Sub-section (4) adds submission "at each instance", replaces "a person occupying a responsible official position in relation to the operation of the relevant device" with "a person in charge of the computer or communication device", adds the signature of "an expert", and adds "the certificate specified in the Schedule". IEA s.65B(5)(b) and the closing Explanation are not carried over.
• The Schedule — New. A two-part certificate form, "[See section 63(4)(c)]".
• Oral admissions about electronic records (IEA s.22A) — Omitted. IEA s.22A (oral admissions as to the contents of electronic records relevant only if the record's genuineness is in question) has no separate BSA section. BSA s.20 repeats IEA s.22 on oral admissions as to the contents of "a document"; since s.2(1)(d) documents include electronic records, on a reading of the text s.20 now covers them.

Statutory text (relevant extract)

Section 2(1)(d) BSA — 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;

Section 57 BSA — Explanations 4 to 7:

Explanation 4.—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.—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.—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.—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.

Section 61 BSA:

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 63(3) and (4) BSA — extract:

(3) … 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 … as constituting a single computer or communication device …

(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, … 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 …

How it works — the steps

1. Is it a document? (s.2(1)(d)). Electronic and digital records are documents. "Electronic record" is not defined in the BSA, so by s.2(2) it takes the IT Act meaning in s.2(1)(t): "data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche". "Digital record" is defined in neither Act.
2. Contents are proved by primary or secondary evidence (s.56), and by primary evidence unless an exception applies (s.59).
3. Is the record itself before the Court? (s.57). Primary evidence is "the document itself produced for the inspection of the Court". Explanations 4–7 then say which electronic copies also count as primary evidence: each file in multiple-file storage, a record from proper custody unless disputed, each stored recording of a video stored and transmitted at once, and each automated storage in a computer resource, "including temporary files". The placard illustration still marks the limit: copies of a common original are not primary evidence of that original.
4. If not, can secondary evidence be given? (ss.58, 60). Section 58 lists the kinds; s.60 lists the cases (original with the other side after notice under s.64, lost or destroyed, not easily movable, a public document, and so on).
5. For the contents of an electronic record, use s.62 and s.63. Section 62: contents "may be proved in accordance with the provisions of section 63". Section 63(1) deems computer output a document, admissible without further proof or production of the original, if the four conditions in s.63(2) are met: regular use by the person having lawful control, information of that kind regularly fed in, proper operation, and derivation from information so fed.
6. Treat linked devices as one (s.63(3)). Where the function was performed by one or more computers or communication devices in standalone mode, on a computer system, network or resource, or through an intermediary, they are treated as a single device. "Communication device", "computer resource" and "intermediary" take their IT Act meanings (ss.2(1)(ha), (k), (w)).
7. Certify (s.63(4) and the Schedule). Part A ("To be filled by the Party") records the source (computer or storage media, DVR, mobile, flash drive, CD/DVD, server, cloud, other), make, model, serial number and IMEI/UIN/UID/MAC/Cloud ID, a statement tracking the s.63(2) conditions, the signatory's relationship to the device, and the hash value(s) and algorithm. Part B ("To be filled by the Expert") records the source particulars and the hash value(s) and algorithm, with name, designation and signature. Both parts end with date, time in 24-hour IST, and place, and both say "Hash report to be enclosed with the certificate".
8. Section 61 sits over all of this. An electronic record cannot be refused merely for being electronic, but its effect is "subject to section 63".

What this means in practice

• For the party producing a record. Decide first whether you are producing the record itself (s.57) or computer output (s.63). The Act does not say in terms that a record falling within Explanations 4–7 needs no s.63(4) certificate, and s.61 is "subject to section 63"; filing the Schedule certificate avoids the argument.
• For the party opposing a record. Explanation 5 holds only "unless it is disputed". Dispute authenticity expressly and early. Note that the s.81 Explanation defining "proper custody" applies, by its own words, only "for the purposes of this section and section 93"; applying it to s.57 would be a reading by analogy.
• For investigating officers. The Schedule asks for device identifiers and hash values from both the party and the expert, dated and timed. Since both parts state a hash value for the same record, on a reading any mismatch between them is a ground of challenge; hashing at the point of seizure and keeping the report avoids that. In Arjun Panditrao Khotkar (paras 62, 72(c)) the Supreme Court directed cellular companies and internet service providers to preserve CDRs seized during investigation until rules under s.67C of the IT Act are framed; whether such rules now exist was not checked for this page.
• For advocates. Check which Explanation you rely on and plead it. For the certificate's timing and the old case law on missing certificates, see the Section 65A–65B page.

Judgments that still matter

These judgments construe IEA ss.3, 62, 65A and 65B. BSA ss.2(1)(d), 57, 62 and 63 repeat or expand those words, so on a reading of the text the reasoning remains relevant; none construes the BSA.

P. Gopalkrishnan @ Dileep v. State of Kerala, [2019] 17 S.C.R. 422 (2019 INSC 1303), decided 29 November 2019. A.M. Khanwilkar J. delivered the judgment (with Dinesh Maheshwari J.). The question was whether the contents of a memory card, being an electronic record under s.2(1)(t) of the IT Act, are a "document" under s.3 IEA (para 2). The Court held "that the contents of the memory card/ pen drive being electronic record must be regarded as a document", so that an accused must ordinarily receive a cloned copy if the prosecution relies on it, subject to inspection-only access where privacy is at stake (paras 32, 44). Why it matters now: s.2(1)(d) BSA now says expressly that documents include electronic and digital records.

Anvar P.V. v. P.K. Basheer, [2014] 11 S.C.R. 399 (2014 INSC 645), decided 18 September 2014. Kurian Joseph J. delivered the judgment of a three-judge bench. The Court held that ss.63 and 65 "have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B" (para 22). It also clarified that "if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B" (para 24). Why it matters now: the primary/secondary split in para 24 is the line Explanations 4–7 to s.57 now draw in statutory words for particular kinds of record.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, [2020] 7 S.C.R. 180 (2020 INSC 453), decided 14 July 2020. R.F. Nariman J. delivered the judgment of a three-judge bench (with S. Ravindra Bhat and V. Ramasubramanian JJ.; Ramasubramanian J. also wrote a supplementing opinion). The Court read s.65B(1) as differentiating the original information in the computer where it is first stored, which is primary evidence, from copies, which are secondary evidence (para 31). It held that the certificate "is unnecessary if the original document itself is produced", for example by the owner of a laptop, tablet or mobile phone proving the device in the witness box; where the computer is part of a system or network that cannot be brought to Court, s.65B(1) with the certificate is the only route (paras 32, 72(b)). It read "doing any of the following things" in s.65B(4) as "doing all of the following things" (para 23). Why it matters now: s.63(4) BSA repeats "doing any of the following things"; whether Explanations 4–7 widen the "original" beyond para 32 is undecided in any judgment read here.

Which law applies to your case

BSA s.170(2) provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the IEA "as if this Adhiniyam had not come into force". A case pending on that date applies IEA ss.62–65B, with no s.61, no Explanations 4–7 and no Schedule certificate. On a reading of s.170(2), a proceeding begun later applies BSA ss.57–63. Section 170(2) lists "investigation" among pending matters but does not say which Act governs a later trial arising from it. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Which BSA sections replace Sections 62 to 65B of the Evidence Act? Section 62 IEA (primary evidence) is Section 57 BSA; Section 63 (secondary evidence) is Section 58; Section 64 is Section 59; Section 65 is Section 60; Section 65A is Section 62; and Section 65B is Section 63. Section 61 BSA, "Electronic or digital record", has no counterpart in the old Act. Section 61 IEA (proof of contents of documents) is Section 56 BSA.

Is an electronic record a "document" under the BSA? Yes. Section 2(1)(d) BSA defines "document" to include "electronic and digital records", and its Illustration (vi) names emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices. Under the old Act the Supreme Court reached the same result for the contents of a memory card in P. Gopalkrishnan v. State of Kerala (2019 INSC 1303, para 44). The BSA does not define "digital record".

When is an electronic or digital record primary evidence under Section 57 BSA? Explanations 4 to 7 to Section 57 cover four situations: storage simultaneously or sequentially in multiple files (each file is primary evidence); production from proper custody (primary evidence "unless it is disputed"); a video recording simultaneously stored and transmitted, broadcast or transferred (each stored recording is primary evidence); and storage in multiple storage spaces in a computer resource (each automated storage, including temporary files, is primary evidence). None of these had a counterpart in Section 62 IEA.

What does the new Section 61 BSA do? Section 61 provides that nothing in the Adhiniyam shall deny the admissibility of an electronic or digital record on the ground that it is an electronic or digital record, and that such a record shall have "the same legal effect, validity and enforceability as other document". The parity is expressly "subject to section 63", so on a reading of the text it does not displace the conditions and certificate in Section 63.

What must the Section 63(4) certificate contain? Section 63(4) requires a certificate identifying the electronic record and how it was produced, giving particulars of the device, and dealing with the Section 63(2) conditions, signed by the person in charge of the computer or communication device or the management of the relevant activities "and an expert". It is the certificate specified in the Schedule: Part A is filled by the party and Part B by the expert, and both state the hash value(s) of the record and the algorithm used (SHA1, SHA256, MD5 or another legally acceptable standard), with the hash report enclosed.

Does producing the original device avoid the Section 63 certificate? Under the old Act the Supreme Court held in Arjun Panditrao Khotkar (2020 INSC 453, para 72(b)) that the Section 65B(4) certificate is unnecessary if the original document itself is produced, for example by the owner of a phone stepping into the witness box. The BSA does not say in terms whether the same applies to a record that is primary evidence under Section 57; Section 61 makes an electronic record's effect "subject to section 63". Treating the certificate as unnecessary is therefore a reading that may be contested.

What does "unless it is disputed" in Explanation 5 to Section 57 mean for the other side? Explanation 5 makes an electronic or digital record produced from proper custody primary evidence "unless it is disputed". On a reading of the text, a party who wants to deny it that status should dispute it expressly, after which the producing party may have to prove it another way, such as through Section 63. The BSA does not define "proper custody" for Section 57; the Explanation to Section 81 defines it only for Sections 81 and 93.

Related

• Sections 65A–65B Evidence Act vs Sections 62–63 BSA — the electronic records certificate
• WhatsApp chats, emails and screenshots as evidence — BSA 61–63 vs IEA 65B
• Proving documents, photocopies and secondary evidence — BSA 56–64 vs IEA 61–66
• Section 45 Evidence Act vs Section 39 BSA — expert opinion
• Evidence Act to BSA — the full section mapping
• Offence before 1 July 2024 — which law applies

Sources

Acts and sections read (BSA from the Gazette, Schedule cross-checked against the library schedule file; Indian Evidence Act from the official text; IT Act from the Bare Act library): BSA ss.1(3), 2(1)(d)–(e), 2(2), 20, 56–64, 81, 170 and the Schedule (Parts A and B); IEA ss.3, 22A, 61–66; IT Act s.2(1)(ha), (i), (j), (k), (l), (t), (w).

Judgments read (full text, Veritect Supreme Court corpus): P. Gopalkrishnan @ Dileep v. State of Kerala (2019_17_422_473_EN.md); Anvar P.V. v. P.K. Basheer (2014_11_399_427_EN.md); Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020_7_180_282_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.