Electronic and Digital Evidence under Sections 61, 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023: Admissibility, the Four Conditions and the Certificate

Three sections govern the admissibility of electronic records. Section 61 removes the objection that a record is inadmissible because it is electronic. Section 62 directs that the contents of such records be proved in accordance with Section 63. And Section 63 sets out four conditions and requires a certificate in the form of the Schedule, whose validity the Supreme Court upheld in 2026. Together they are the most litigated part of the Adhiniyam and the part that has changed most from the law it replaced.

1. Section 61 — No Denial Merely Because Electronic

Section 61, BSA — 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 61 has no counterpart in the Indian Evidence Act and is one of the genuinely new provisions of the Adhiniyam. Its function is declaratory and negative: it removes an objection rather than conferring admissibility.

The objection it removes had a long history. Courts had at various times been invited to treat electronic material as inherently unreliable, as not a 'document' in the traditional sense, or as requiring some special justification before it could be received at all. Section 61 forecloses all of this. An electronic record stands on the same footing as any other document, and the party objecting must find some ground other than its electronic character.

⚠ The words 'subject to section 63' carry the whole qualification

Section 61 does not make every electronic record admissible. It says that admissibility shall not be denied merely because the record is electronic, and it makes the parity of legal effect subject to Section 63. A record that fails the conditions in Section 63, or is tendered as secondary evidence without the certificate, remains inadmissible — not because it is electronic, but because the statutory requirements for proving it have not been met. Section 61 answers a bad objection; it does not answer a good one.

2. Section 62 — The Route to Proof

Section 62, BSA — 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.

Section 62 corresponds to Section 65A of the Indian Evidence Act. It is a signpost, directing that the contents of an electronic record be proved under Section 63 and thereby making Section 63 the governing provision.

Its significance lies in what the courts made of the corresponding provision. In Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Supreme Court held that Sections 65A and 65B together formed a complete code for electronic evidence, applying the maxim generalia specialibus non derogant, and that a party could not fall back on the general provisions about secondary evidence to escape the certificate requirement. The same reasoning applies to Sections 62 and 63 of the Adhiniyam.

3. Section 63(1) — What Is Deemed a Document

Section 63(1), BSA — Admissibility of electronic records

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 (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 or communication device, 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.

Three features of the sub-section deserve attention.

The range of outputs is wide. A printout, a copy on optical or magnetic media, a copy in semiconductor memory, and any other electronic storage all qualify as computer output. The Adhiniyam has added communication device alongside computer, which brings mobile phones squarely within the provision — a matter that had produced argument under the earlier Act.

The output is deemed to be also a document, so that everything the Adhiniyam says about documents applies to it.

Admissibility is without further proof or production of the original, which is the practical point of the whole scheme. A party who satisfies the conditions need not produce the server, the device or the underlying storage.

4. Section 63(2) — The Four Conditions

Section 63(2), BSA

The conditions referred to in sub-section (1) are —

(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 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.

The four conditions are cumulative, and they are addressed to a single question: was the system one whose output can be trusted to reproduce what was put into it?

Condition	What it asks	How it is established
(a) Regular use	Was the device used regularly for the activity, by a person having lawful control?	Evidence of who controlled the device and what it was used for
(b) Regular feeding	Was information of this kind fed in regularly, in the ordinary course?	Evidence of the practice by which data entered the system
(c) Proper operation	Was the device working properly, or did any malfunction not affect the record?	Evidence of the condition of the device, and of any failure and its effect
(d) Derivation	Does the output reproduce or derive from what was fed in?	Evidence of how the output was generated from the stored data

Section 63(3) deals with distributed systems. Where over the period the information was processed by a combination of computers or communication devices — operating in standalone mode, over a computer system, over a computer network, or by any combination — all of them are treated as a single computer or communication device for the purposes of the section. This removes the argument that a record passing through several machines cannot satisfy conditions framed in the singular.

Section 63(5) contains three clarifications: information is supplied to a device whether directly or through appropriate equipment; information supplied to a computer operated otherwise than in the course of the relevant activities is nevertheless taken to be supplied in the course of them if duly supplied; and computer output is taken to have been produced by a device whether directly or by means of appropriate equipment.

5. Section 63(4) and the Schedule — The Certificate

Section 63(4), BSA

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;

(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 it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it, and in the certificate specified in the Schedule.

Two changes from the corresponding provision of the Indian Evidence Act are of real importance.

The first is the requirement that the certificate be signed by a person in charge and an expert. Section 65B(4) of the earlier Act required only the signature of a person occupying a responsible official position. The Adhiniyam adds an expert signature, and the Schedule gives effect to this by dividing the certificate into two Parts.

The second is the phrase 'at each instance where it is being submitted for admission'. The certificate accompanies the record each time it is tendered, which resolves a question that had been open about whether a single certificate served for all purposes.

5.1 The Schedule

The Schedule prescribes the form, and it is divided into two Parts.

Part A is completed by the party or the person in charge of the computer or communication device. It identifies the electronic record, describes how it was produced, gives the particulars of the device, and — the distinctive requirement — discloses the hash value of the electronic record, obtained through one of the specified algorithms.

Part B is completed by the expert. It records the expert's examination and carries his declaration in relation to the matters the sub-section requires.

⚠ The hash value is the point of Part A

A cryptographic hash is a digest of a file such that any alteration, however small, produces an entirely different value. Where the hash disclosed at the time of seizure or production matches the hash of the record tendered in court, the objection that the record has been altered is answered conclusively. Where no hash was taken, the objection cannot be answered at all. This is why the requirement was upheld as bearing a rational nexus with the object of securing authenticity, and it is why a party should compute and record the hash at the earliest possible moment rather than at the stage of tendering.

6. The Constitutional Challenge

📖 Pune Bar Assn. v. Union of India, 2026 SCC OnLine SC 1297 (decided 22 May 2026)

Facts: A writ petition challenged the constitutional validity of Section 63(4) read with the Schedule, contending that the requirement of a hash value in Part A and a signed expert declaration in Part B made electronic evidence practically unavailable to ordinary litigants, particularly if Part B could be signed only by an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000, of whom very few exist.

Held: A three-Judge Bench (Surya Kant, CJI, Joymalya Bagchi and Vipul M. Pancholi, JJ.) upheld the provision. Electronic records are a species of evidence liable to continuous mutation, and the requirements of hash-value disclosure and expert certification bear a rational nexus with the object of securing authenticity and integrity. Reading Sections 39(1) and 39(2) harmoniously, the Court held that the expert who signs Part B is not confined to an Examiner of Electronic Evidence notified under Section 79A. Any person possessing special skill and expertise in computer science or cyber forensics may sign, provided the court is satisfied of the credentials on unimpeachable material. The contrary view of the Madras High Court in R. v. B. was held not to operate as binding precedent, and the question of the scope of Part B certification was expressly left open.

Ratio: The certificate regime is constitutionally valid, and the class of persons competent to certify is considerably wider than had been feared.

The decision resolves the practical anxiety that had attended the new Schedule. A party need not find a notified Examiner; a competent cyber forensic examiner will do, subject to the court being satisfied of his credentials on unimpeachable material.

7. When the Certificate Is Not Required

The certificate is required where the record is tendered otherwise than as primary evidence. Two situations therefore fall outside it.

7.1 The original device is produced

📖 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Held: A three-Judge Bench restored and clarified Anvar P.V. The certificate is mandatory where secondary electronic evidence is relied upon, but is not required where the original device is itself produced by its owner. Where a party is unable to obtain the certificate because the device is in the control of another, the court may compel its production. Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 was held not to be good law, and Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 was declared per incuriam.

Ratio: Production of the original device dispenses with the certificate, and the court may compel production where the device is with another.

7.2 The Explanations to Section 57

The Adhiniyam has gone considerably further than Arjun Panditrao by adding four Explanations to Section 57, which deem specified electronic outputs to be primary evidence.

Explanation 3 — where a record is stored simultaneously or sequentially in multiple files, each file is primary evidence.
Explanation 4 — a record produced from proper custody is primary evidence unless it is disputed.
Explanation 5 — where a video recording is simultaneously stored and transmitted or broadcast, each stored recording is primary evidence.
Explanation 6 — where a record is stored in multiple storage spaces in a computer resource, each automated storage including temporary files is primary evidence.

Where an Explanation applies, the output is primary evidence and Section 63(4) does not operate. This removes a very large body of material from the certificate requirement, and it is the most significant practical change the Adhiniyam has made in this area.

⚠ Explanation 4 is conditional and the condition is outside the party's control

A record from proper custody is primary evidence unless it is disputed. The moment the opposite party disputes it, the Explanation ceases to operate and the certificate is required. A party cannot know at the time of tendering whether the Explanation will avail him, because that depends on the pleadings of his opponent. Obtain the certificate in any event where the record matters, and rely on Explanation 4 as an additional argument rather than as the primary one.

8. The Line of Authority

The current position is the product of a sequence of decisions, and knowing the sequence explains why the requirements are as strict as they are.

Decision	Position taken
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600	Permissive. Secondary electronic evidence could be proved under the general provisions without a certificate
Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473	Mandatory. Sections 65A and 65B are a complete code; the certificate is a condition precedent. Navjot Sandhu overruled to that extent
Tomaso Bruno v. State of U.P., (2015) 7 SCC 178	Reverted to the permissive view; later declared per incuriam
Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801	Relaxed the requirement where the party was not in possession of the device; later held not good law
Arjun Panditrao Khotkar, (2020) 7 SCC 1	Settled. Certificate mandatory for secondary evidence; not required where the original device is produced; court may compel production
BSA, 2023	Sections 57 (Explanations 3 to 6), 61 and 63 with the Schedule — statutory form of the settled position, going further on primary evidence
Pune Bar Assn., 2026 SCC OnLine SC 1297	Section 63(4) and the Schedule upheld; the expert signing Part B need not be a notified Examiner

9. Practical Working

Establish first whether the output is primary evidence under an Explanation to Section 57. If it is, no certificate is needed.
Compute and record the hash value at the earliest moment — at seizure, at imaging, or at the point of first production. A hash taken later is worth much less, and one never taken cannot be supplied.
Identify who is in charge of the device or the relevant activities, since Part A must be signed by that person.
Identify the expert for Part B. After Pune Bar Assn. this need not be a notified Examiner, but the credentials must rest on unimpeachable material, and they should be established in evidence.
Prepare evidence on the four conditions in Section 63(2) — regular use, regular feeding, proper operation, and derivation — since the certificate deals with these matters and the deponent may be examined about them.
Submit the certificate with the record at each instance it is tendered, as the sub-section requires.
Where the device is with another party, apply for its production. Arjun Panditrao holds that the court may compel it, and a party unable to obtain a certificate through no fault of his own is not left without a remedy.

10. What the Certificate Does Not Do

Three limits are worth stating, because the certificate is frequently treated as though it settled more than it does.

It does not prove the contents are true. The certificate establishes that the output corresponds to the record in the device. Whether the statement in the record is true remains a question of hearsay and its exceptions, and the record is evidence of its truth only where a provision makes it so — most commonly as an admission under Section 15, which expressly extends to a statement contained in electronic form.

It does not establish attribution. That a message was sent from a particular account or device is one thing; that a particular person sent it is another. Attribution is to a device or an account, and who was operating it must be established by other evidence. This remains the largest gap in electronic evidence cases and no provision addresses it.

It does not answer questions of interpretation. What a fragment means, whether it is complete, and what it was part of are matters for expert opinion under Section 39(2) and for Section 33, which requires enough of a record to be produced for its meaning to be understood. A certified record may still be worthless because it cannot be placed in context.

11. The Position Stated Shortly

Section 61 is new and removes the objection that a record is inadmissible because it is electronic, subject to Section 63.
Section 62 directs that contents be proved under Section 63, and the two are a complete code on the reasoning of Anvar P.V.
Section 63(1) deems computer output to be a document, admissible without production of the original if the conditions are met, and it now expressly includes communication devices.
Four cumulative conditions in Section 63(2) — regular use, regular feeding, proper operation, and derivation from what was fed in.
Section 63(3) treats a combination of devices as a single device, which accommodates networked and distributed systems.
The certificate under Section 63(4) and the Schedule requires two signatures — a person in charge for Part A, disclosing the hash value, and an expert for Part B.
Pune Bar Assn. upheld the provision, and held that the expert need not be a notified Examiner under Section 79A of the IT Act.
No certificate is required where the output is primary evidence under an Explanation to Section 57, or where the original device is produced.

12. Related Topics and Provisions

Topic or provision	Connection
Electronic or Digital Record as Primary Evidence	The Explanations to Section 57, which determine whether the certificate is needed at all
Opinion of the Examiner of Electronic Evidence	Section 39(2), and who may sign Part B after Pune Bar Assn.
Documentary Evidence — Sections 56 to 60	Primary and secondary evidence, and the grounds in Section 60
Forensic Evidence	Chain of custody, forensic imaging and hash verification
Section 33, BSA	How much of an electronic record must be produced for its meaning to be understood
Section 15, BSA	Admissions contained in electronic form
Sections 90 and 93, BSA	Presumptions as to electronic messages and as to electronic records five years old
Sections 105, 176(3) and 183, BNSS, 2023	The audio-video recordings the criminal procedure legislation now requires