Primary and Secondary Electronic Evidence under the Bharatiya Sakshya Adhiniyam, 2023: How to Classify an Output

Whether a certificate under Section 63(4) is needed depends entirely on whether the output tendered is primary or secondary evidence, and that classification is not intuitive. A printout from one's own phone may be primary evidence; a printout of the same message from the other party's phone may not be. This topic takes the question in the order a practitioner actually faces it — here is an output, what is it, and what must be done with it.

1. Why the Classification Matters

Everything turns on it. If the output is primary evidence, Section 63 does not operate: no certificate is required, no hash need be disclosed in a prescribed form, and no expert signature is needed. If it is secondary evidence, the four conditions in Section 63(2) must be satisfied, the certificate under Section 63(4) must be furnished in the form of the Schedule at each instance of tender, and it must carry two signatures including that of an expert.

The difference is therefore between producing a document and mounting an exercise. Parties spend a great deal of effort on certificates for material that did not need one, and tender material that did need one without any.

2. The Governing Provisions

Section 57, BSA — Explanations 3 to 6

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.

To these must be added the rule established before the Adhiniyam and preserved by it.

📖 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 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.

Ratio: Production of the original device dispenses with the certificate, and this operates alongside the Explanations to Section 57.

3. The Sequence to Follow

Five questions, in order. The first affirmative answer ends the enquiry.

Is the original device being produced by its owner, for the court to inspect? If so, no certificate is required — Arjun Panditrao.
Is the record stored in multiple files, simultaneously or sequentially? If so, each file is primary evidence under Explanation 3, and no certificate is required.
Is it a video recording that was simultaneously stored and transmitted or broadcast? If so, each stored recording is primary evidence under Explanation 5.
Is it in automated storage in a computer resource, including a cache or a temporary file? If so, it is primary evidence under Explanation 6.
Is it produced from proper custody, and is it undisputed? If so, it is primary evidence under Explanation 4 — but only for as long as it remains undisputed.

If none of these applies, the output is secondary evidence, and three things follow: a ground under Section 60 must be established, the four conditions in Section 63(2) must be satisfied, and the certificate under Section 63(4) must be furnished in the form of the Schedule.

⚠ Explanation 3 is stronger than Explanation 4 and is under-used

Explanation 4 is the one everybody reaches for, and it is the weakest of the four, because it fails the moment the record is disputed — which in contested litigation it always is. Explanation 3 carries no such qualification. Since almost every electronic record of consequence is stored in more than one file — on the sender's device, the recipient's device, a server, a backup, a synchronisation cache — Explanation 3 is available in most cases and is not defeated by the opponent's pleading. It requires the party to establish, as a matter of fact, that the record is so stored; that is a small burden and is well worth discharging.

4. Common Outputs Classified

The following classifications follow from applying the sequence, and they cover most of what is tendered in practice.

Output	Classification	What must be done
The device itself, produced by its owner	No certificate required — Arjun Panditrao	Produce the device; be ready for the court to inspect it
A message printout from the party's own phone	Primary under Explanation 3 (stored in multiple files) and Explanation 4 (proper custody, unless disputed)	Rely on Explanation 3; obtain the certificate in any event where the record matters
A message printout from the opposite party's phone	Secondary — not from the party's proper custody, and he cannot establish the storage	Ground under Section 60, conditions under Section 63(2), certificate; or apply for production of the device
A forensic extraction from a seized device	Primary under Explanation 6 as to automated storage, and under Explanation 3 as to replicated records	Prove the imaging and the hash; the examiner's evidence establishes the storage
A recovered deleted fragment	Primary under Explanation 6 — automated storage including temporary files	Prove the recovery; address Section 33 on completeness
A CCTV clip exported from a recorder	Primary under Explanation 5 if simultaneously stored and transmitted; otherwise secondary	Establish whether the system transmitted as it recorded; certificate if not
A server record produced by an operator or platform	Secondary in the hands of a litigant	Certificate from the provider's nodal officer under Section 63(4)
A download of the party's own cloud account	Primary under Explanation 3, the record being replicated	Hash at download; certificate as person in charge of the relevant activities
A screenshot	Primary of itself; secondary of the underlying record	Produce the underlying record; use the screenshot as an aid
A printout of an email from the party's own account	Primary under Explanation 3	Produce the full headers; hash at preservation
A recording made by the party	Primary if the original file is produced from the recording device; secondary if a copy	Preserve the original; satisfy the Ram Singh conditions as well

5. Explanation 4 and the Dispute Problem

Explanation 4 deserves separate treatment because it is the only provision in the Adhiniyam whose operation depends on what the opposite party chooses to plead.

A record from proper custody is primary evidence unless it is disputed. A party tendering such a record therefore cannot know, at the moment of tender, whether he needs a certificate — that depends on whether the other side disputes the record, which he learns afterwards.

Two further questions arise and neither is settled.

What amounts to a dispute? A bare denial in a written statement is arguably enough. A positive assertion of fabrication certainly is. A submission that the record is genuine but irrelevant is probably not a dispute of the record at all. The safer view for a party tendering is to treat any denial as sufficient to displace the Explanation.

When must the dispute be raised? If it can be raised for the first time in argument, a party who relied on Explanation 4 throughout the trial is ambushed at the end, when no certificate can be obtained. The better view is that a dispute going to the genuineness of a record is an objection to mode of proof and should be taken when the record is tendered, on the reasoning in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003) 8 SCC 752 — but this has not been decided.

⚠ The practical answer is not to depend on Explanation 4

Obtain the certificate where the record matters, and advance Explanation 4 as an additional argument. The cost of an unnecessary certificate is trivial; the cost of discovering at the close of evidence that one was needed is the case. Where a certificate genuinely cannot be obtained, build the Explanation 3 argument instead, which does not depend on the opponent.

6. Secondary Electronic Evidence

Where the output is secondary, three requirements operate together and all three must be satisfied.

A ground under Section 60. Secondary evidence of a document is admissible only in the enumerated cases. For electronic records the grounds that ordinarily apply are (a), where the original is in the possession or power of the opposite party or of a person out of reach and is not produced after notice under Section 64; and (c), where the original cannot be produced for a reason not arising from the party's own default — which covers a device destroyed, a system decommissioned, or an account closed.

The four conditions in Section 63(2). Regular use of the computer or communication device for an activity regularly carried on by a person having lawful control; regular feeding of information of that kind in the ordinary course; proper operation, or a malfunction not affecting the record; and derivation of the output from what was fed in. Where several devices were involved, Section 63(3) treats them as a single device, which now expressly covers networks, computer resources and intermediaries.

The certificate under Section 63(4) and the Schedule. Signed by a person in charge and by an expert, disclosing the hash value in Part A, and submitted with the record at each instance where it is tendered for admission.

A party who satisfies two of the three has not satisfied the requirement. The commonest failure is a complete certificate with no attention to Section 60, and the second commonest is the reverse.

7. Where the Original Is With the Other Side

This is the recurring practical situation, and it has a settled answer that is under-used.

Where the record is on the opponent's device or in his account, the party cannot produce the device, cannot establish proper custody, and cannot obtain a certificate from the person in charge — because that person is his opponent.

Three routes exist and they should be taken together.

Notice to produce under Section 64. Where the original is in the possession or power of the opposite party and is not produced after notice, ground (a) of Section 60 permits secondary evidence of the contents. This does not solve the certificate problem but it establishes the ground.

An application to compel production. Arjun Panditrao holds that where a party cannot obtain the certificate because the device is in another's control, the court may compel production. The application should identify the device, the account or the system, and the person who can certify.

Explanation 3. Where the record is replicated — and a communication always is, existing on both sides — the party may be able to produce his own copy of the same record and rely on Explanation 3. This is frequently the simplest answer and is overlooked because parties think of the opponent's device as the source. In a communication between two people there is no single source; each holds a file storing the record, and each file is primary evidence.

8. What the Classification Does Not Settle

Establishing that an output is primary evidence answers one question. Four others remain and are frequently confused with it.

Relevance. A record admissible under Section 57 must still be relevant under Part II, and must fall within an exception to the rule against hearsay if it is offered to prove the truth of what it asserts.

Authenticity. Primary status establishes the character of the output, not that it is genuine. A fabricated record stored in multiple files is primary evidence of a fabrication.

Attribution. No provision connects a record to a person. Section 90 forbids any presumption as to who sent an electronic message, and attribution must be built from ordinary evidence.

Completeness. Section 33 requires enough of a record to be produced for its meaning to be understood, and this applies to primary and secondary evidence alike.

9. The Position Stated Shortly

The classification decides whether a certificate is needed, and nothing else in the scheme matters as much.
Five questions in order — original device produced; multiple files; simultaneous video storage; automated storage; proper custody undisputed.
Explanation 3 is the strongest, because it carries no unless-disputed qualification and almost every record of consequence is replicated.
Explanation 4 is the weakest, because its operation depends on what the opponent pleads.
Explanation 6 covers forensic recovery, including caches, temporary files and material recovered from unallocated space.
Where the output is secondary, three requirements operate together — a ground under Section 60, the conditions in Section 63(2), and the certificate under Section 63(4).
Where the original is with the opponent, produce your own replicated copy under Explanation 3, serve notice under Section 64, and apply to compel production.
Classification settles admissibility, not relevance, authenticity, attribution or completeness.

10. Related Topics and Provisions

Topic or provision	Connection
Electronic or Digital Record as Primary Evidence	The Explanations to Section 57 examined in detail
Electronic and Digital Evidence — Sections 61 to 63	Admissibility, the four conditions and the certificate
Section 63 Certificate — Complete Note	What the certificate requires and when it is not needed
Primary Evidence vs Secondary Evidence	The distinction as it applies to documents generally
Kinds of Secondary Evidence	The eight categories in Section 58 and the grounds in Section 60
Screenshots as Electronic Evidence	The output whose classification is most often misunderstood
Section 64, BSA	Notice to produce, required for ground (a) of Section 60
Section 33, BSA	Completeness, which the classification does not address