Section 65A-65B Evidence Act vs Section 57-58 BSA — Admissibility of Electronic Records

Quick Answer

Sections 65A and 65B of the Indian Evidence Act, 1872 — the two-section framework governing electronic evidence admissibility — have been replaced by a comprehensive framework spanning Sections 57-63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The most transformative change is the reclassification of electronic records from secondary evidence to primary evidence. Under the old Act, electronic records could only be proved as secondary evidence under Section 65B with a mandatory certificate. Under the BSA, Section 57 treats electronic records stored simultaneously across multiple files as primary evidence, and Section 61 expressly bars courts from denying admissibility solely on the ground that evidence is in electronic form. The certificate requirement is preserved but reformed under Section 63, now requiring hash value verification and a two-part certificate signed by both the producing party and an expert. This page covers Sections 57-58 specifically; for the full electronic framework (Sections 57-63), see the comprehensive electronic evidence page.

What Changed

Full Statutory Text

Section 65A, Evidence Act

The contents of electronic records may be proved in accordance with the provisions of section 65B.

Section 65B(1)-(4), Evidence Act

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (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 of 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 during the period over which the computer was used regularly to store or process information... (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... (c) throughout the material part of the said period, the computer was operating properly... (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate... identifying the electronic record... and describing the manner in which it was produced... and purporting to be signed by a person occupying a responsible official position... shall be evidence of any matter stated in the certificate.

Section 57, BSA (Primary Evidence — Electronic Record Provisions)

Primary evidence means the document itself produced for the inspection of the Court.

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, and such electronic or digital record is a copy of the original electronic or digital record, it shall be treated as 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 such copy transmitted, broadcast or transferred shall be primary evidence.

Explanation 7. — Where an electronic or digital record is the output of a computer, and such output is produced for the court's inspection, it shall be primary evidence.

Section 58, BSA (Secondary Evidence)

Secondary evidence includes — (a) certified copies given under the provisions of law; (b) copies made from the original by mechanical processes... (c) copies made from or compared with the original; (d) counterparts of documents as against the parties who did not execute them; (e) oral accounts of the contents of a document given by some person who has himself seen it or heard it read; (f) oral admissions; (g) written admissions.

Key Differences

1. Electronic records elevated to primary evidence. This is the single most important change in Indian evidence law in decades. Under the Evidence Act, electronic records were treated as secondary evidence requiring a Section 65B certificate for admissibility. The BSA's Section 57 Explanations 4-7 create multiple pathways for electronic records to qualify as primary evidence — simultaneous multi-file storage, output from proper custody, video recordings transmitted simultaneously, and computer output produced for court inspection.

2. Secondary evidence definition expanded. Section 58 BSA uses "includes" instead of the Evidence Act's "means and includes," making the list illustrative rather than exhaustive. This allows courts to recognise new forms of secondary evidence as technology evolves, without requiring legislative amendment.

3. Certificate requirement relocated and reformed. The Section 65B(4) certificate requirement has moved to Section 63 BSA, with significant enhancements: a standardised format prescribed in the Schedule, a two-part structure (Part A by the producing party, Part B by an expert), and mandatory hash value verification using approved algorithms (SHA1, SHA256, MD5, or other legally acceptable standards).

4. "Proper custody" pathway for primary evidence. Section 57 Explanation 5 introduces a presumption: an electronic record produced from proper custody and being a copy of the original is treated as primary evidence unless disputed. This reverses the old position where every copy was secondary evidence requiring certification.

5. Simultaneous storage equals primary evidence. Explanation 4 addresses the reality of modern computing: when a file is created and automatically backed up, synced, or stored across multiple servers, each copy is primary evidence. This is practically transformative for cloud-stored documents, emails stored on multiple servers, and data replicated across systems.

What This Means for Practitioners

The reclassification of electronic records as primary evidence fundamentally changes litigation strategy:

For parties producing electronic evidence. If the electronic record qualifies as primary evidence under any of the Section 57 Explanations, the Section 63 certificate is not required for admissibility. A party can produce the original device (laptop, phone, server) or establish that the record comes from proper custody and is undisputed. This eliminates the procedural hurdle that caused countless admissibility challenges under Section 65B.

For parties challenging electronic evidence. The "unless disputed" qualifier in Explanation 5 is critical. A party that wishes to challenge the authenticity or integrity of an electronic record produced from proper custody must actively dispute it. Once disputed, the producing party must resort to the Section 63 certificate route with hash value verification. Defence counsel should flag disputed electronic records early — in written statements or at the evidence stage — to trigger the higher authentication standard.

Certificate requirement still exists. Where an electronic record is produced as secondary evidence (a copy, printout, or extract not from proper custody), Section 63 applies with its full certification requirements. The enhanced certificate — with hash values and expert sign-off — is actually more rigorous than the old Section 65B certificate. Practitioners must understand the hash value computation process and be prepared to explain it in court.

Transition cases. For evidence collected under the old Act but presented in proceedings after 1 July 2024, the transitional provisions apply. Electronic records that had valid Section 65B certificates remain admissible. New evidence should comply with the BSA framework.

Does Old Case Law Still Apply?

The landmark decisions on electronic evidence require careful re-evaluation:

Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 — Held that Section 65B was a special provision overriding the general secondary evidence provisions, making the Section 65B certificate mandatory. Under the BSA, where electronic records qualify as primary evidence under Section 57, this holding is effectively superseded — the certificate is not needed for primary evidence. However, the decision's broader principles about the reliability of electronic evidence remain relevant.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 — Held that producing the original device eliminates the need for a Section 65B certificate. This principle is now codified in Section 57 Explanation 7 (computer output produced for court inspection is primary evidence). The decision's practical guidance on when certificates are required remains useful for secondary evidence situations under Section 63.

Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801 — The two-judge bench's more liberal approach to electronic evidence (which was curtailed by Arjun Panditrao) now finds partial legislative support in the BSA's primary evidence classification. However, the BSA does not abandon the certificate requirement entirely — it relocates it to Section 63 for secondary evidence.

Judicial interpretation under BSA Sections 57-58 (post-July 2024)

The following cases from the Veritect Legal Intelligence database show how courts are applying the reclassified electronic evidence provisions in practice:

Kailas v. State of Maharashtra (15 September 2025)

Court: Supreme Court of India | Judge: Manoj Misra | Result: Re-trial order set aside

The Supreme Court affirmed the BSA's primary evidence classification for electronic records. The Court held that a certified electronic record is admissible without mandatory courtroom replay, and that the Section 63 certificate with hash value verification provides sufficient authentication of the record's integrity. Critically for the Section 57-58 framework, the Court recognised that where the original electronic device is produced or the record comes from proper custody, it qualifies as primary evidence under Section 57 — without requiring the reformed Section 63 certificate. This is the first significant post-BSA decision confirming the practical operation of the primary evidence paradigm shift.

Veritect reference: Diary_8941-2025_Judgment

Emerging patterns

1. Primary evidence status is operational. Courts are applying the Section 57 Explanations to classify electronic records from original devices and proper custody as primary evidence, eliminating the need for Section 63 certification in such cases.
2. Defence must actively dispute. The "unless disputed" qualifier in Section 57 Explanation 5 is becoming a practical tool — defence counsel who fail to formally dispute electronic records early lose the opportunity to trigger the higher Section 63 authentication standard.
3. Old Anvar-Arjun Panditrao framework being superseded. For cases governed by the BSA, courts are applying the new Section 57 primary evidence classification rather than the old Section 65B mandatory certificate framework established in Anvar and Arjun Panditrao.

Frequently Asked Questions

Is the Section 65B certificate no longer needed? It depends. If the electronic record qualifies as primary evidence under Section 57 BSA (original device produced, simultaneous multi-file storage, proper custody), no certificate is needed. If it is secondary evidence (a copy, printout, or extract), the enhanced Section 63 certificate with hash value is required.

What is a hash value and why does it matter? A hash value is a unique alphanumeric string generated by running an electronic file through a cryptographic algorithm (SHA1, SHA256, or MD5). It functions as a digital fingerprint — if even one bit of the file changes, the hash value changes completely. The BSA requires hash values in the Section 63 certificate to verify that the electronic evidence has not been tampered with.

Can electronic evidence still be challenged on authenticity grounds? Yes. The reclassification as primary evidence addresses admissibility, not authenticity. A party can always challenge the authenticity, reliability, and integrity of electronic evidence through cross-examination, counter-forensics, or expert testimony, regardless of whether it was admitted as primary or secondary evidence.

How does this affect WhatsApp messages, emails, and CCTV footage? WhatsApp messages stored on the original phone are primary evidence under Section 57. Emails stored on a mail server are primary evidence (simultaneous multi-file storage). CCTV footage on the original DVR/NVR is primary evidence (computer output). Copies, screenshots, or printouts of any of these would be secondary evidence requiring Section 63 certification.