Electronic Evidence under the IT Act: Section 65B IEA and Section 63 BSA

Electronic records are now the most common evidence in criminal and civil trials: call records, CCTV footage, WhatsApp messages, emails, bank logs. The IT Act opened the door for them by amending the Indian Evidence Act in 2000, and the Bharatiya Sakshya Adhiniyam, 2023 has since rewritten the rules. This note explains the role of the IT Act, the special procedure for proving electronic records, the certificate requirement and the cases that shaped it, the statutory presumptions, and the related provisions of the BNSS.

1. The Sealed Parcel

When a court receives a copy of an electronic record, it faces the problem of a parcel that could have been opened and resealed without a trace. A digital file can be edited leaving no visible mark. The law's answer is a sealed parcel with a label: a certificate from someone responsible for the device, stating where the record came from and that it was produced in the ordinary course, and, under the BSA, a hash value that works like a tamper-evident seal. If the original device itself is brought to court, no label is needed: the court can open the parcel for itself.

Figure 1: From the IT Act amendments to the BSA

2. The Role of the IT Act

• Amendments of 2000. Section 92 and the Second Schedule of the IT Act amended the Evidence Act: 'evidence' was defined to include electronic records, and Sections 65A and 65B, 22A, 47A, 67A, 73A, 81A, 85A to 85C, 88A and 90A were inserted. The Bankers' Books Evidence Act was also amended to cover printouts of electronic records, with a certificate under Section 2A.
• Legal recognition. Section 4 of the IT Act makes electronic records satisfy requirements of writing, and Section 2(1)(t) defines 'electronic record'. Admissibility in court remains a matter for the law of evidence.
• Examiner of Electronic Evidence (s.79A). Inserted in 2008. The Central Government may notify any department, body or agency as an Examiner of Electronic Evidence to give expert opinion; its opinion is relevant under Section 45A IEA, now Section 39(2) BSA.
• Preservation. Section 67C requires intermediaries to preserve and retain information, and the CERT-In Directions of 2022 require logs to be kept for 180 days, which makes evidence available for investigation.

3. The Bharatiya Sakshya Adhiniyam, 2023

Figure 2: Evidence Act provisions and their BSA counterparts

• Document (s.2(1)(d)). Includes electronic and digital records, with illustrations such as emails, server logs, documents on computers, laptops or smartphones, messages, websites, locational evidence and voice mail messages stored on digital devices.
• Primary evidence (s.57). New Explanations treat electronic records as primary evidence in stated cases: where a record is stored simultaneously or sequentially in multiple files, each file is primary evidence; a record produced from proper custody is primary evidence unless disputed; each stored copy of a video recording simultaneously transmitted is primary evidence; and each automated storage, including temporary files, is primary evidence.
• Proof of contents (s.62). The contents of electronic records may be proved in accordance with Section 63.
• Admissibility (s.63(1)). Information in an electronic record printed on paper, or stored, recorded or copied in optical or magnetic media or semiconductor memory, produced by a computer or communication device, is deemed a document and is admissible without further proof of the original, if the conditions in the section are satisfied.

The Four Conditions (Section 63(2), formerly Section 65B(2))

Figure 3: Conditions for admitting a computer output

The Certificate (Section 63(4))

• Contents. A certificate identifying the electronic record and describing how it was produced, giving particulars of the device, and dealing with the conditions in Section 63(2)
• Signatories. Signed by the person in charge of the computer or communication device or the management of the relevant activities, and by an expert, in the form set out in the Schedule.
• Each instance. The certificate must be submitted along with the electronic record at each instance where it is submitted for admission.
• Change from Section 65B. Under the old law one certificate by a person in a responsible official position was enough; the BSA adds the expert's part and hash values, and extends the section to communication devices and semiconductor memory.

Figure 4: The two parts of the certificate in the Schedule to the BSA

Figure 5: When is a certificate needed?

4. The Supreme Court Cases

• State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. In the Parliament attack case, printouts of call records were admitted as secondary evidence under Sections 63 and 65 IEA, even without a Section 65B certificate.
• Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473. A three-judge Bench held that Sections 65A and 65B are a complete code for secondary evidence of electronic records; such evidence is inadmissible without a Section 65B(4) certificate; Navjot Sandhu was overruled on this point. If the original record itself is produced, the certificate is not required.
• Tomaso Bruno v. State of U.P., (2015) 7 SCC 178. The prosecution's failure to produce available CCTV footage led to an adverse inference; the Court stressed the value of electronic evidence in modern investigation.
• Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570. An objection to the absence of a certificate for call records concerns the mode of proof and cannot be raised for the first time in appeal, because the defect could have been cured if raised at trial.
• Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801. A two-judge Bench held that the certificate requirement is procedural and may be relaxed where the party producing the record is not in possession of the device.
• State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515. The certificate need not accompany the charge-sheet; it may be produced later.

• Ravinder Singh @ Kaku v. State of Punjab, (2022) 7 SCC 581. Call records without a Section 65B certificate were inadmissible, applying Arjun Panditrao.
• P. Gopalkrishnan @ Dileep v. State of Kerala, (2020) 9 SCC 161. The contents of a memory card are a 'document', and the accused is entitled to a copy, subject to conditions protecting the victim's privacy.

5. Presumptions about Electronic Records

Figure 6: Presumptions inserted by the IT Act, as renumbered in the BSA

• Electronic messages. The presumption is only that the message received matches the one the originator fed into his computer for transmission. There is no presumption as to the person who sent it, so authorship must be proved.
• Secure records and signatures. The stronger presumptions attach only to 'secure' records and signatures under Chapter V of the IT Act.
• Other provisions. Electronic Gazettes are presumed genuine (s.81 BSA, formerly s.81A IEA), and proof of an electronic signature, other than a secure one, must be given where it is alleged (s.66 BSA, formerly s.67A IEA)

6. Collecting Electronic Evidence under the BNSS

• Production (s.94 BNSS). A court or police officer may summon any document or electronic communication, including a communication device likely to contain digital evidence.
• Search and seizure (s.105 BNSS). The process of search and seizure, including the list of seized items, must be recorded through audio-video electronic means.
• Forensics (s.176(3) BNSS). For offences punishable with seven years or more, a forensic expert must visit the crime scene, and the process must be videographed.
• Electronic proceedings (s.530 BNSS). Trials, inquiries and proceedings, including summons and recording of evidence, may be held in electronic mode.
• Good practice. Seize original devices, compute and record hash values at seizure, use write-blockers and forensic images, and maintain a chain of custody, so that the certificate can truthfully state that the record is unaltered.

7. Quick Revision and Memory Aids

• 'Sealed parcel with a label'. A copy needs a certificate; the original device does not.
• 'Sandhu out, Anvar in, Shafhi out, Arjun settles'. The line of cases.
• '65A, 65B become 62, 63'. The BSA renumbering.
• 'Regular use, regular feeding, proper operation, faithful reproduction'. The four conditions.
• 'Party plus expert plus hash'. The BSA certificate.
• 'Message yes, messenger no'. The presumption for electronic messages.

8. Frequently Asked Questions

Is a Section 65B or Section 63 certificate mandatory?

Yes, whenever an electronic record is offered as secondary evidence, such as a printout or a copy on a CD or pen drive (Anvar P.V.; Arjun Panditrao). It is not required where the original device is produced and proved by its owner.

What did the BSA change?

It declares electronic records admissible on the same footing as other documents (s.61), treats electronic records as primary evidence in specified cases (s.57), and requires a certificate signed by both the person in charge and an expert, with hash values, in the form in the Schedule (s.63).

9. Related Topics

• Topic 6: Legal Recognition. Section 4 and electronic records.
• Topics 7 and 8: Offences; Privacy and Data Protection. What electronic evidence proves, and the privacy limits.