The Role of the Expert in the Section 63 Certificate under the Bharatiya Sakshya Adhiniyam, 2023: Who May Sign Part B and What He Must Do

The requirement that an expert sign the certificate is the single most consequential change the Adhiniyam has made to the law of electronic evidence, and it very nearly made that law unworkable. If Part B could be signed only by a notified Examiner of Electronic Evidence, of whom very few exist, ordinary litigants would have been unable to prove electronic records at all. The Supreme Court resolved the difficulty in 2026, and the position that emerges is workable but demanding.

1. The Requirement

Section 65B(4) of the Indian Evidence Act required the certificate to be signed by 'a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities'. One signature, and no technical qualification required.

Section 63(4) requires a person in charge and an expert. The Schedule gives effect to this by dividing the certificate into Part A, completed by the person in charge, and Part B, carrying the expert's declaration.

The change is deliberate and the reason for it is not difficult to see. A responsible official can say how a system was used and whether it was working; he cannot say whether the particular output tendered corresponds to what was in the device, whether it bears signs of alteration, or whether the hash value is what it is claimed to be. Those are technical questions, and the Adhiniyam now requires somebody technically competent to answer them.

2. The Problem the Requirement Created

The difficulty arose from the interaction between Section 63(4) and Section 39(2).

Read together, the two provisions supported an argument that the 'expert' contemplated by Section 63(4) was the Examiner of Electronic Evidence named in Section 39(2) — that is, a body notified under Section 79A. If that reading were correct, every certificate would require the signature of an officer of one of a small number of notified agencies.

The practical consequence would have been severe. The volume of electronic evidence tendered in Indian courts each year runs to hundreds of thousands of records; the number of notified Examiners is a fraction of what would be needed. Electronic evidence would have become the preserve of litigants with the resources and the access to obtain a notified Examiner's signature, and unavailable to everybody else.

3. The Constitutional Challenge

3.1 The reasoning

The Court's route to this conclusion turns on the structure of Section 39.

Section 39(1) makes relevant the opinion of persons specially skilled in foreign law, science, art, handwriting, finger impressions or in any other field. The residuary words were added by the Adhiniyam and are not in Section 45 of the Indian Evidence Act. Cyber forensics is plainly a field within them.

Section 39(2) says that the opinion of a notified Examiner is relevant. It does not say that only such an opinion is relevant, and it contains no exclusionary language. It confers a status — the opinion of a notified Examiner is relevant without further enquiry into competence — rather than an exclusive licence.

Reading the two harmoniously, the general category in sub-section (1) survives sub-section (2). A person skilled in computer science or cyber forensics is an expert under Section 39(1) whether or not his employer holds a notification, and there is no reason why such a person cannot be the 'expert' Section 63(4) requires.

4. Who Qualifies as an Expert

After Pune Bar Assn. the position is that the expert must be a person possessing special skill and expertise in computer science or cyber forensics, and that the court must be satisfied of his credentials on unimpeachable material.

Two things follow, and the second is more demanding than the first.

The category is wide. A notified Examiner qualifies, but so does an officer of a State forensic science laboratory working in the cyber division, a qualified private cyber forensic examiner, an information security professional with relevant certification and practice, and an academic or practitioner with demonstrable expertise. What matters is skill, not affiliation.

The credentials must be established, not asserted. The words 'unimpeachable material' are not decorative. A witness described as an expert, with no qualification stated, no training described and no experience evidenced, is not an expert within Section 39(1) any more than within Section 63(4). This is the same foundational requirement that applies to every expert.

The practical consequence is that the expert's qualifications, training and experience should be set out in or annexed to the certificate, and the expert should be available to be examined about them. Preparing this material before the certificate is drawn costs little; assembling it after an objection has been taken is considerably harder.

5. What the Expert Actually Does

Signing Part B is not a formality, and an expert who signs without doing the work exposes both himself and the party relying on him.

The work that precedes a properly signed Part B ordinarily involves the following.

1. Examining the source. Establishing where the record came from — the device, the system, the account, the service provider — and satisfying himself that the source is what it is said to be.
2. Verifying the manner of production. Confirming how the output was generated, whether by export, extraction, download or query, and whether that process is one that reproduces the record accurately.
3. Computing and verifying the hash. Calculating the hash value of the record by the specified algorithm and, where a hash was recorded at an earlier stage, verifying that the two match.
4. Checking for signs of alteration. Examining the record and its metadata for indications that it has been modified, and reporting any that appear.
5. Assessing completeness. Considering whether the output represents the whole of the relevant record or an extract, which bears on Section 33.
6. Recording what was done. Keeping a note of the tools used, their versions, the steps taken and the results, so that the examination can be described if the expert is examined.

6. The Certificate and the Opinion Are Different Things

A recurring confusion is between the expert's role under Section 63(4) and his role under Section 39(2). They are distinct, and a party may need both, one, or neither.

The practical illustration is a recovered deleted message. Part B certifies that the output tendered corresponds to what was recovered and states its hash. An opinion under Section 39(2) is needed to explain where the fragment was recovered from, whether it is complete, what its metadata shows, and what it can and cannot establish. A party who obtains the certificate and stops has an admissible record nobody can interpret.

7. May the Expert Be Examined?

Section 63(4) provides that a certificate purporting to be signed by the person in charge and an expert shall be evidence of any matter stated in it. The certificate therefore has evidentiary effect without the signatories being called.

That does not make them immune from examination. Three situations arise in practice.

Where the certificate is challenged, the party disputing it may apply to have the signatories summoned and examined. The certificate is evidence of the matters stated, but it is not conclusive, and a party against whom it operates is entitled to test it.

Where the credentials are in issue, the expert will ordinarily have to be examined, because the court must be satisfied of them on unimpeachable material and a bare assertion in the certificate may not suffice where the point is contested.

Where an opinion is also relied upon, the expert is being called under Section 39(2) in any event, and his examination will cover both his opinion and his certification.

An expert asked to sign Part B should therefore be told that he may have to explain what he did, and should keep the working notes that would allow him to do so.

8. Practical Guidance

1. Engage the expert early, before the record is produced rather than after an objection is taken. An expert brought in at the stage of tender has usually lost the opportunity to verify the source.
2. Give him access to the source where possible — the device, the system, the account — rather than a printout. What he can certify depends on what he was allowed to examine.
3. Have him compute the hash himself rather than adopting a value somebody else supplies, or, where he is verifying an earlier hash, have him state that he verified it and how.
4. Prepare the credentials material — qualifications, certifications, training, experience, publications — and annex it to the certificate.
5. Have him record his method — tools, versions, steps, results — so that he can describe the examination if called.
6. Do not ask for more than he can support. A qualified declaration that states what was examined and what was found is stronger than a comprehensive one that collapses in cross-examination.
7. Consider whether an opinion under Section 39(2) is also needed, and if so obtain it from the same expert at the same time.

9. The Position Stated Shortly

1. Section 63(4) requires two signatures — a person in charge for Part A and an expert for Part B. Section 65B(4) required one.
2. The expert need not be a notified Examiner under Section 79A of the IT Act — Pune Bar Assn.
3. Any person with special skill in computer science or cyber forensics may sign, provided the court is satisfied of the credentials on unimpeachable material.
4. Section 39(2) confers a status, not a monopoly, and the residuary words in Section 39(1) keep the general expert category open.
5. The scope of Part B certification was expressly left open, so the expert should certify what he has actually done and found rather than adopting a formula.
6. Credentials must be established, not asserted, and the requirement is the same as for any expert under Jai Lal.
7. The certificate and the opinion are different things. One goes to admissibility, the other to meaning, and a party may need both.
8. The expert may be examined where the certificate or his competence is challenged, and he should keep the notes that allow him to explain his method.

10. Related Topics and Provisions