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Tag: Concept of Digital / Electronic Evidence

Digital Evidence under the Bharatiya Sakshya Adhiniyam, 2023

1. Introduction

With the exponential growth of technology, electronic records have become an integral part of criminal and civil adjudication. Emails, WhatsApp messages, call detail records, CCTV footage, digital photographs, social media posts, server logs, and cloud-stored data are now frequently relied upon as evidence. Recognising this reality, the Indian legislature replaced the Indian Evidence Act, 1872 with the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force along with the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Nyaya Sanhita (BNS).

The BSA modernises evidentiary rules by explicitly recognising digital and electronic evidence, simplifying procedures, and aligning the law with contemporary technological practices.

2. Concept of Digital / Electronic Evidence

Digital evidence refers to information of probative value stored or transmitted in electronic form. It includes data generated, sent, received, or stored through electronic devices such as computers, mobile phones, servers, and digital networks.

Under the BSA, the term “electronic record” has been retained and expanded in line with the Information Technology Act, 2000, thereby ensuring consistency across statutes.

3. Statutory Recognition of Digital Evidence under BSA

Section 2 – Definitions

Section 2 of the BSA adopts an inclusive definition of “electronic records”, which includes:

  • Emails
  • Messages (SMS, WhatsApp, Telegram, etc.)
  • Digital photographs and videos
  • Audio recordings
  • CCTV footage
  • Computer output
  • Data stored in cloud servers

This definition ensures that modern and future forms of electronic communication fall within the evidentiary framework.

4. Electronic Records as Documentary Evidence

Section 61 – Documentary Evidence

Section 61 of the BSA expressly states that documentary evidence includes electronic records. This is a significant departure from the traditional paper-centric approach of the Evidence Act, 1872.

👉 Legal Impact:
Electronic records now stand at par with physical documents, eliminating ambiguity regarding their evidentiary status.

5. Primary and Secondary Electronic Evidence

Section 62 – Primary Evidence

Primary evidence refers to the original electronic record itself, such as:

  • The original hard drive
  • The original mobile phone
  • Original memory card or server data

In digital context, courts recognise that “original” is conceptual, as electronic data can be reproduced identically.

Section 63 – Secondary Evidence

Secondary evidence includes:

  • Computer printouts
  • Copies stored in CDs, DVDs, pen drives
  • Screenshots
  • Mirror images of digital storage

These are admissible subject to statutory compliance, especially certification requirements.

6. Admissibility of Electronic Evidence

Section 65B (Retained in Substance under BSA) – Computer Output

One of the most crucial provisions governing digital evidence is Section 65B, which continues in substance under the BSA.

Conditions for Admissibility:

For a computer output to be admissible:

  1. The computer was used regularly
  2. Information was fed in the ordinary course of activities
  3. The computer was operating properly
  4. The information is derived from such data

Section 65B Certificate

A certificate must accompany the electronic record, specifying:

  • The device used
  • The manner of production
  • Authenticity of the data
  • Signature of a responsible official

👉 This certificate is mandatory unless the original device itself is produced before the court.

7. Oral Evidence and Digital Records

Section 55 – Oral Evidence

Oral evidence cannot substitute the contents of an electronic record unless permitted by law. Witnesses may testify about the existence, operation, or identification of electronic records but not override documentary digital proof.

8. Presumptions Relating to Electronic Evidence

Section 85B – Presumption as to Electronic Records

Courts may presume:

  • Integrity of electronic records
  • Authenticity of secure electronic records
  • Proper functioning of electronic systems

These presumptions reduce the burden of proof, especially in routine digital transactions.

Section 90A – Presumption as to Electronic Records Five Years Old

Electronic records older than five years may enjoy a presumption of authenticity, similar to old documents under traditional evidence law.

9. Digital Evidence and Expert Opinion

Section 45 – Expert Evidence

Courts may rely on:

  • Cyber forensic experts
  • Digital analysts
  • Hash value examiners

Expert testimony becomes crucial in cases involving:

  • Tampering
  • Deepfakes
  • Altered videos
  • Metadata manipulation

10. Judicial Approach and Case Laws

Although the BSA is recent, judicial precedents under the Evidence Act, 1872 remain relevant, as the principles are retained.

1. Anvar P.V. v. P.K. Basheer (2014)

The Supreme Court held that Section 65B certificate is mandatory for admissibility of electronic evidence. Oral evidence cannot replace statutory requirements.

2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

The Court reaffirmed Anvar P.V. and clarified:

  • Certificate under Section 65B is compulsory
  • It can be produced at a later stage
  • Courts must insist on statutory compliance

3. State (NCT of Delhi) v. Navjot Sandhu (Parliament Attack Case, 2005)

Earlier allowed electronic evidence without certificate, but this position was overruled by Anvar P.V.

4. Tomaso Bruno v. State of Uttar Pradesh (2015)

The Court emphasised the importance of CCTV footage and electronic evidence and held that adverse inference may be drawn if such evidence is withheld.

5. Shafhi Mohammad v. State of Himachal Pradesh (2018)

Relaxed the requirement of certificate in certain circumstances, but this was later clarified and restricted by Arjun Panditrao.

11. Digital Evidence and Fair Trial

Digital evidence directly impacts:

  • Article 21 – Right to Fair Trial
  • Transparency in investigation
  • Speedy justice

Improper handling or exclusion of electronic evidence may vitiate trials, especially in cybercrime, economic offences, and terrorism-related cases.

12. Challenges in Digital Evidence

Despite statutory recognition, challenges persist:

  • Possibility of manipulation and deepfakes
  • Lack of forensic infrastructure
  • Data privacy concerns
  • Chain of custody issues

The BSA seeks to address these through certification, expert evidence, and presumptions.

13. Conclusion

The Bharatiya Sakshya Adhiniyam, 2023 marks a progressive shift from colonial evidentiary principles to technology-centric adjudication. By formally recognising digital evidence, prescribing clear admissibility standards, and incorporating judicial safeguards, the BSA strengthens the evidentiary framework of Indian courts. However, effective implementation depends on judicial awareness, forensic capacity, and strict adherence to statutory requirements.