Electronic and Digital Records as Primary Evidence under Section 57 of the Bharatiya Sakshya Adhiniyam, 2023: Explanations 3 to 6

An electronic record has no original in the sense the best evidence rule assumes. A message exists on the sender's device, on the recipient's device, on one or more servers, and in cached and temporary copies, and no one of them is the document from which the others were made. The Adhiniyam resolves the difficulty by four new Explanations to Section 57, which declare that each such file is itself primary evidence. This is the most consequential change the statute has made to the law of documentary evidence.

1. The Provision

Section 57, BSA — Primary evidence

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

Explanation 1. — Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. — Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original.

Explanation 3. — 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 4. — Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.

Explanation 5. — 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 6. — 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.

Explanations 1 and 2 are carried forward from Section 62 of the Indian Evidence Act. Explanations 3 to 6 have no counterpart in the earlier Act and are among the most significant additions the Adhiniyam has made.

2. The Problem They Solve

The best evidence rule assumes a physical original from which copies are made. Applied to a paper document the assumption holds: there is a deed, and everything else is a copy of it. Applied to an electronic record the assumption breaks down completely.

Consider a message sent from one phone to another. It exists in the sending application's database on the sender's device. It exists on the service provider's servers, frequently in more than one data centre. It exists in the receiving application's database on the recipient's device. It may exist in a backup, in a cache, and in temporary files created while the application was running. None of these was made from any of the others in the sense Explanation 2 contemplates; they came into existence together, by the operation of a system.

Under the pre-Adhiniyam scheme the argument was available that every one of these was a copy and therefore secondary evidence, requiring a certificate under Section 65B of the Indian Evidence Act. The argument produced a great deal of litigation and considerable inconvenience, because it meant that a party producing his own phone with his own message on it was tendering secondary evidence of a record whose original nobody could identify.

Explanations 3 to 6 cut through this. Each file is primary evidence. The question 'which of these is the original' does not have to be answered, because the statute declares that each of them is.

3. Explanation 3 — Multiple Files

Where a record is created or stored and the storage occurs simultaneously or sequentially in multiple files, each file is primary evidence.

This covers the ordinary case of a record replicated across devices and servers. A message present on the sender's device and on the recipient's device is a single record stored in two files, and either may be produced as primary evidence. The same applies to a document synchronised across a computer, a phone and a cloud account, and to a record written to a database and mirrored to a backup.

The words 'simultaneously or sequentially' are wide. Simultaneous storage covers replication happening at the moment of creation; sequential storage covers a record written first to one location and afterwards to another. Both are within the Explanation, and the interval between them is immaterial.

4. Explanation 4 — Proper Custody

Where a record is produced from proper custody, it is primary evidence unless it is disputed. This is the most useful of the four Explanations and also the most treacherous, and both features come from the qualification at the end.

4.1 Proper custody

The expression is not defined in Section 57, but it is used elsewhere in the Adhiniyam in the context of ancient documents, and the sense is the same: a document is in proper custody where it is in the place in which, and under the care of the person with whom, it would naturally be. A message on the phone of the person who sent or received it, a record produced from the server of the entity that maintains it, a file produced from the computer on which it was created — each is from proper custody.

What is not proper custody is a record produced by somebody with no natural connection to it, or from a device whose provenance is unexplained, or after passing through hands nobody can account for.

4.2 The qualification

⚠ 'Unless it is disputed' is the whole difficulty

Explanation 4 confers primary status conditionally. The moment the opposite party disputes the record, the Explanation ceases to operate and the record falls to be proved as secondary evidence under Section 63, with the certificate prescribed by the Schedule to Section 63(4) — hash value in Part A, expert declaration in Part B. A party relying on Explanation 4 therefore cannot know in advance whether it will avail him, because that depends on what the other side chooses to do. Prudent practice is to obtain the certificate in any event where the record matters, and to rely on Explanation 4 only as an additional argument.

A second and more difficult question is what amounts to a dispute. A bare denial in a written statement is arguably enough to displace the Explanation; a positive assertion that the record has been fabricated certainly is. The safer view for a party tendering the record is to treat any denial as sufficient, and the safer view for a party challenging it is to put the dispute on record clearly and early.

5. Explanation 5 — Simultaneous Video Recordings

Where a video recording is simultaneously stored in electronic form and transmitted, broadcast or transferred to another, each of the stored recordings is primary evidence.

This addresses a situation that arises constantly with modern recording systems. A closed-circuit camera writes to a local recorder and simultaneously streams to a remote server. A body-worn camera records locally and uploads. A live broadcast is recorded at the studio and at the transmission point. Each of these produces several recordings of the same event, created at the same moment by the same process, and Explanation 5 makes each of them primary evidence.

The Explanation has obvious application to the audio-video recordings the Bharatiya Nagarik Suraksha Sanhita, 2023 now requires — the recording of search and seizure under Section 105, the recording of forensic collection at the scene under Section 176(3), and the recording of statements and confessions by a Magistrate under the proviso to Section 183(1). Where such a recording is stored in more than one place at the moment of recording, each stored copy is primary evidence.

6. Explanation 6 — Multiple Storage Spaces and Temporary Files

Where a record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

This is the widest of the four and the most technically informed. Modern systems do not store a record in one place. An application writes to its database, the operating system writes to a cache, a journal file records the transaction, a temporary file holds the data while it is being processed, and unallocated space may retain fragments after deletion. Every one of these is an automated storage of the record, and Explanation 6 declares each to be primary evidence.

The practical significance is greatest in digital forensics. Where an examiner recovers a fragment from a temporary file or from a cache, he is not producing a copy of something else; he is producing primary evidence within Explanation 6. The same applies to data recovered from journal files, from swap space, and from application caches — material that under the earlier scheme would have been characterised as derivative and treated with corresponding suspicion.

⚠ Primary status does not answer the question of interpretation

Explanation 6 settles that a recovered temporary file is primary evidence. It says nothing about what the fragment means, whether it is complete, whether it is dated, or what it was part of. Those are questions for the 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 fragment that is primary evidence of itself may still be worthless because it cannot be placed in context.

7. How the Explanations Fit with Sections 61 and 63

Three provisions govern electronic records and they perform different functions. Running them together is the commonest source of confusion in this area.

Provision	Function
Section 57, Explanations 3 to 6	Determine whether a given electronic output is primary evidence. If it is, no certificate is required
Section 61	Provides that admissibility shall not be denied merely because a record is electronic, and that such a record has the same legal effect as any other document, subject to Section 63
Section 63	Governs admissibility of electronic records, and sub-section (4) requires the certificate in the Schedule where the record is not primary evidence — hash value in Part A, expert declaration in Part B

The sequence in practice is therefore: first ask whether the output falls within an Explanation to Section 57. If it does, it is primary evidence and Section 63(4) does not apply. If it does not — or if Explanation 4 has been displaced by a dispute — the output is secondary evidence, the conditions in Section 60 must be satisfied, and the certificate is required.

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

Held: A three-Judge Bench restored and clarified Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473. The certificate under Section 65B(4) of the Indian Evidence Act 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: The distinction between a record produced from the device and a copy tendered as secondary evidence. The Explanations to Section 57 are the statutory form of that distinction, and they go considerably further than the decision did.

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

Held: A three-Judge Bench upheld Section 63(4) and the Schedule. 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 expert who signs Part B is not confined to an Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000; any person possessing special skill in computer science or cyber forensics may sign, provided the court is satisfied of the credentials on unimpeachable material.

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

8. What Primary Status Does Not Give

It is easy to over-read the Explanations, and three limits should be kept in view.

Primary status is not authenticity. A file is primary evidence of itself; it is not thereby shown to be genuine, unaltered, or created when it purports to have been. Where those matters are in issue they must be established, ordinarily by expert examination under Section 39(2) and by hash verification.

Primary status is not attribution. That a message exists on a device is one thing; that a particular person sent it is another entirely. 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 most electronic evidence cases and no Explanation addresses it.

Primary status does not dispense with Section 33. A record must be produced in sufficient measure for its meaning to be understood. Three messages extracted from a thread of three hundred may each be primary evidence and may together convey the opposite of what the exchange actually said.

A fourth limit is worth adding. Primary status does not make the contents true. An electronic record proved as primary evidence establishes that the statement was made; whether the statement 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.

9. The Position Stated Shortly

Explanations 3 to 6 are new to the Adhiniyam and have no counterpart in the Indian Evidence Act.
They solve a problem the best evidence rule could not. An electronic record has no single original, and the statute declares each file to be primary evidence rather than asking which came first.
Explanation 3 covers simultaneous and sequential storage in multiple files.
Explanation 4 covers records from proper custody, but only unless disputed, and a dispute throws the record back to Section 63 and the certificate.
Explanation 5 covers simultaneously stored video recordings, which matters for the recordings the BNSS now requires.
Explanation 6 covers automated storage including temporary files, which is of the greatest significance in digital forensics.
Where an Explanation applies, no certificate under Section 63(4) is required. Where it does not, both Section 60 and the certificate apply.
Primary status is not authenticity, attribution, completeness or truth, and each of those must be established separately.

10. Related Topics and Provisions

Topic or provision	Connection
Documentary Evidence — Sections 56 to 60	Primary and secondary evidence and the best evidence rule
Kinds of Secondary Evidence	What is required where the Explanations do not apply
Opinion of the Examiner of Electronic Evidence	Section 39(2), and what the certificate does not establish
Documentary Evidence — General Principles	The definition of document and the three questions
Sections 61 and 63 and the Schedule, BSA	Admissibility of electronic records and the certificate
Section 33, BSA	How much of a record must be produced for its meaning to be understood
Section 15, BSA	Admissions contained in electronic form
Sections 105, 176(3) and 183, BNSS, 2023	The audio-video recordings the criminal procedure legislation now requires