Admissibility of Electronic or Digital Records (ss. 61–63) — BSA (Law of Evidence) Notes

Admissibility of Electronic or Digital Records (ss. 61–63)

The evidence that decides a modern case is rarely a signed paper. It is a WhatsApp chat, a CCTV clip, a call-recording, a bank’s server log. But you cannot lug a server into a courtroom, and a printout can be edited in seconds. So the law needs a way to let a computer output in while guarding against tampering — and in Anvar P.V. vs P.K. Basheer (2014) the Supreme Court made the guard mandatory: no certificate, no admissibility, however genuine the file.

The Bharatiya Sakshya Adhiniyam was written for this world, and it supplies a three-section framework. Read them as a ladder: parity, then the special provision, then the operative certificate rule.

A. Parity — s. 61

Section 61 removes the old suspicion of anything electronic. An electronic or digital record shall not be denied admissibility merely because it is electronic — it is to have the same legal effect as paper evidence, subject to the conditions in s. 63. In short, being a computer file is not, by itself, a ground of objection.

B. Special provisions — s. 62

Section 62 says the contents of an electronic record may be proved in accordance with s. 63, and provides for the manner of doing so. It is the bridge that points you to the operative section and, with the Schedule, prescribes the form of the certificate.

C. The operative rule — s. 63 (the old s. 65B)

Section 63 is the section that actually gets a computer output into evidence. It says a computer output — a printout, or a copy on optical/magnetic media (a CD, a pen-drive) produced by a computer or communication device — is admissible as a document without producing the original computer/device, provided two things are satisfied:

  1. The conditions as to the computer/device:
    • the output was produced by a computer/device used regularly to store or process information;
    • information of that kind was regularly fed into it in the ordinary course of activities;
    • the device was operating properly (or any malfunction did not affect the accuracy of the record); and
    • the information reproduced is derived from the information fed in.
  2. The certificate — a certificate identifying the electronic record and describing the manner of its production, giving the particulars of the device, signed by (i) the person in charge of the computer/device or the management of the relevant activities, AND (ii) an Examiner of Electronic Evidence (the expert notified under s. 39(2)). The BSA requires both signatures.

The certificate is the key to the door. Without a valid s. 63 certificate the electronic record is inadmissible, however authentic it is — this is the point Anvar P.V. laid down (overruling the earlier view in Navjot Sandhu), and Arjun Panditrao Khotkar (2020) reaffirmed. There is a narrow relief: where a party genuinely cannot obtain the certificate because the device is in another’s control, the court may summon its production.

🔑 Two applications the examiner sets: (1) tape-recorded conversations are admissible only if the recording is proved genuine, relevant, and free of tampering, and (under the BSA) accompanied by the certificate; the voice must be identified. (2) A WhatsApp/CCTV printout offered without the s. 63 certificate is inadmissible even if no one disputes it was taken from the phone.

D. A quick orientation (the 6W)

  • What — the rules making electronic records admissible: parity (s. 61), the mode (s. 62), and the certificate-gated computer output (s. 63).
  • Why — electronic evidence is central to modern trials but easy to alter; the certificate is the safeguard.
  • Who — the person in charge of the device and the Examiner of Electronic Evidence must sign the certificate.
  • When — whenever a computer output (in place of the original device) is tendered.
  • How — satisfy the four conditions and file the dual-signed s. 63 certificate; without it the record is shut out.

🧩 WORKED EXAMPLE — the CCTV printout without a certificate

Facts. The prosecution tenders a printout of CCTV footage and a pen-drive copy to prove the accused was at the scene, but files no certificate under s. 63. The defence objects.

Rule. Under s. 63 a computer output is admissible without the original device only if the statutory conditions are met and a certificate signed by the person in charge and by an Examiner of Electronic Evidence is produced (Anvar P.V.; Arjun Panditrao Khotkar).

Apply. The footage may be perfectly genuine, but s. 61’s parity is expressly “subject to s. 63”, and s. 63 makes the certificate mandatory. No certificate has been filed.

Conclusion. The printout and pen-drive are inadmissible as they stand. The prosecution must either produce the original recording device (as primary evidence) or file the s. 63 certificate.

Note the limit. If obtaining the certificate is impossible because the device is in a third party’s hands, the court may order its production — the requirement is not defeated by genuine inability.

Section 61, BSA 2023: “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”

In Simple Terms: A computer file is not rejected just for being a computer file — it is as good as paper (s. 61). But to prove a computer output without hauling in the original device, you must meet the reliability conditions and file the s. 63 certificate, signed both by the person in charge and by an Examiner of Electronic Evidence. No certificate, no admissibility.

flowchart TD
    ROOT["Electronic / digital record offered"]:::root
    ROOT --> A["s. 61 — not denied merely for being electronic<br/>(subject to s. 63)"]:::leaf
    ROOT --> B["s. 62 — contents proved as per s. 63"]:::leaf
    ROOT --> Q1{"Original device produced?"}
    Q1 -->|"Yes"| PRIM["Primary evidence (s. 57)"]:::leaf
    Q1 -->|"No — computer output"| Q2{"s. 63 conditions met<br/>+ dual-signed certificate?"}
    Q2 -->|"No"| OUT["INADMISSIBLE<br/>(Anvar P.V.; Arjun Panditrao)"]:::diamond
    Q2 -->|"Yes"| IN["Admissible as a document"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

  • Anvar P.V. vs P.K. Basheer (2014) — an electronic record can be proved only by satisfying the s. 65B (now s. 63) conditions and certificate; the certificate is mandatory, overruling State (NCT of Delhi) vs Navjot Sandhu (2005).
  • Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020) — reaffirmed that the certificate is a condition precedent to admissibility; where a party cannot obtain it, the court may order its production.
  • Tukaram S. Dighole vs Manikrao Shivaji Kokate (2010) — tape-recorded/electronic conversations must be proved genuine, relevant and untampered, and the voice identified, before they are admitted.

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