Section 63 of Bharatiya Sakshya Adhiniyam

Section 65B of Indian Evidence Act (IEA) was a very important amendment made to the age old Indian Evidence Act 1872 consequent to the passing of Information Technology Act 2000 (ITA 2000) notified on 17th October 2000.

This section provided the means of bringing electronic evidence as an admissible evidence in a Court of law and Naavi.org has discussed this several times in the last 20 years. Naavi even published an E Book on the topic (Which is now due for revision).

Now with the passage of the Bharatiya Sakshya Adhiniyam 2023 (BSA 2023) which has been notified for effectiveness on 1st July 2024 along with the new IPC and new CrPC., the section 65B of IEA will be replaced by Section 63 of BSA 2023 with similar provisions.

The objective of this article is to highlight the difference between Section 65B of IEA 1872 and Section 63 of BSA 2023. Section 65B of IEA had 5 sub sections and Section 63 of BSA also has 5 subsections along with a Schedule that prescribes a draft form of a certificate.

Naavi had presented the first Section 65B certificate in any Indian Court in the case of Government of Tamil Nadu vs Suhas Katti in AMM Egmore in 2024 which resulted in a successful conviction of the accused. Subsequently Naavi has provided many such certificates. Till 2012 when Supreme Court came out with the famous Basheer Judgement, views of Naavi were not being accepted by a part of the community but the Basheer judgement cleared most of the doubts prevalent in the market.

However there was no uniformity on the format in which the certificates were provided and all sorts of certificates might have been provided and accepted by the Courts.

Now the Section 63 of BSA clears most of the doubts and has brought some clarity. At the same time it might introduce some additional questions which need to be clarified by domain experts. An attempt has been made below to explain the thoughts of Naavi in this regard.

Let us now analyse this section in depth.

Section 63 of BSA 2023 Vs Section 65B of IEA:

Admissibility of Electronic Records

It is important to note that this subsection defines what is a “Computer Output” to which the other subsections of Section 63/65B applies. According to the section information contained in an electronic record is referred to as “Computer output” and it can be either “Printed on paper” or “Stored” on an optical media or magnetic media or semi conductor memory.

In ITA 2000, a document printed out of a computer or binary documents that are processed by a computer are all considered electronic documents and hence the word “Electronic Record” includes such documents even if it is not mentioned.

The critical aspect of the section is that such a Computer output when produced as per this section “Shall” be admissible in the proceedings without the production of the original. The judiciary does not have a discretion not to admit an electronic document unless some lacuna in the process of certification is brought to its notice. Hence this section will be widely debated in all future discussions in the Court involving electronic documents as evidence.

Overall considering the effect of this sub section, there is no difference between the two versions of the sub section 1.

The next sub section 63(2) and 65B(2) compare as follows.

We may observe here that the word” Or Communication device” has been added in the section so that mobile data is clearly within the purview of the section. This was also redundant but clarity is welcome.

Since sub section (1) speaks of “Computer output” the sub section (2) should be attributed to the “Computer Output”. Hence the device referred to in this sub section refers to the computer from which the “Computer Output” is produced. Since “Computer Output” could also be a “Stored” or “Copied” version, the computer device referred to in the sub section (2) should be considered as referring to that computer in which the “Computer Output” was stored or copied and from which the evidence is being extracted.

This interpretation is important since in the cases of documents on the web some people will argue that the hosting operations need to be certified as “working properly” etc., which is incorrect and infeasible. If Mr X is using his computer K to generate the “Computer Output” then K is the device whose owner is relevant for this section and K needs to be working properly etc.

Generating of a “Computer Output” is an activity such as “Printing out”, “Storing”, “Making a copy in a media” etc and the period referred to here is the period of creating such an output. If the print out is a 10 year Bank statement, it is not necessary that it is to be certified that the computer was working properly for 10 years.

Sub section 63(3) is slightly differently worded than 65B(3) though the objective of both is to ensure that a computer output created by a combination of computers such as a Server and a Client etc is within the definition of the section.

The section states as follows:

It is interesting to note that Section 63 provides a clarity that even if part of the process of producing a computer output involves a different legal entity which is an “Intermediary”, it is considered as a valid document created by the subject computer owner. During this process the document leaves the custody of the subject computer owner, gets processed outside and returns back.

This operation of processing through an intermediary involves “transmission of data out”, “Storage in the intermediary resources”, “Processing in intermediary resources” and “Re-transmission back to the subject computer owner”. It is difficult to accept the integrity of the document processed with the intermediary except with a “Certificate from the Intermediary” that the data received, processed and re-transmitted has not modified the evidentiary value of the electronic record.

In other words the Intermediary has to provide his own “certificate” as an agent of the subject computer owner as part of his data processing network. The drafting of this aspect is therefore open to interpretation which may be disputed and requires a future clarification from the Supreme Court.

For the time being the Jurisprudential advice from us would be that

“Where the processing of the computer output involves computers owned by multiple owners, the owner who presents the evidence must hold confirmatory certificates from the other sub processors that during the processing of data at their end, the material value of the evidentiary content has not been altered”.

For this purpose the sub processor may be called to the Court for evidence or may submit the details of the tool and how it processes the data in the form of a certified document.

The next most important section is Section 65B(4) or Section 63 (4) which speaks of the manner in which certificate has to be issued.

This sub section defines the contents of the Certificate and how it is to be issued.

The certificate needs to contain the “Identity of the electronic record”, “Particulars of the devices involved in its production” and “Signed by the person in charge of the computer” and an expert. A copy of such certificate is provided in the schedule also.

The persons who have drafted this sub section have considered that the “Person in charge of a computer” and the “Expert” are two different persons. When this is looked at along with the earlier sub section related to an “Intermediary”, it is possible to interpret that certificate is required by the “Intermediary” also which is not ordinarily feasible.

We should therefore jurisprudentially interpret that certificate is required only from the owner of the computer from which the computer output was produced and will be supported by a “Declaration” that the owner believes that the processing at the hands of the intermediary has not materially altered the evidentiary value of the document.

The sub section uses a terminology “an Expert”. Fortunately it does not use the term “The expert”. In case the words “The expert” had been used, it would have introduced a confusion with the Section 79A expert. “An Expert” means any other person with necessary expertise.

The copy of the certificate template as given in the schedule is as follows:

It is observed that the “Computer Output” in the form of a print out may not have a hash value of its own and the hash value stated here should be considered as referring to the original from which the print out was taken. This means that the electronic document should be first saved as a document in the media for the purpose of calculating the hash value. Whoever drafted this was not fully aware of the implications of this suggestion and hence we need to develop a work around for this. The “Expert” should either store one electronic version of the document which is printed out or state that since the computer output is in the form of a paper document, the hash value refers to the scanned copy of the print out.

The last sub section namely 63(5) refers to a context where the subject computer device from which the evidence is extracted and certified may itself get the feed from another computer. It is not necessary that it should originally be produced by the computer itself.

This sub section states as follows:

This subsection provides a possible solution to the problem of obtaining a certificate of assurance from the sub processors that when the evidentiary computer output is produced in multiple computers owned by different owners.

The observation is that after the processing by the sub processor, a final version is back with the subject computer owner. If the certificate is produced for the “As is where is version of the electronic document”, it may be possible not to insist on the assurance certificates from the previous processors.

As an example, let us say there is a document D1 with Mr X in a Computer K. This is sent to an intermediary M who returns a version of the document D2.

Now the document provided for evidentiary purpose may be either D1 or D2.

D1 may be in a format that is not easily readable and hence converting it to D2 may be essential.

The question that arises is whether M should be considered as an intermediary and if so how should we account for the change of D1 to D2 and possible implication on the integrity of the evidence.

In the earlier paragraph we suggested that we can take the certificate of assurance from M that the evidentiary integrity of D1 has not been altered in D2. (eg: D1 is an image which is compressed into D2 and no other change is made).

In view of the 63(5) an alternative exists to avoid the need for the certificate from the intermediary.

We may consider that D2 is the evidentiary document provided to the Court and earlier processing is not under the control of the person who owns the computer and produces D2 as evidence with necessary certification.

The experts who provide Section 63 certificates need to therefore incorporate these description of how the document originated in the annexure to the certificate using the scheduled format as a covering certificate.

To sum up, there is a fresh requirement of experts and lawyers to understand Section 63 of Bharatiya Sakshya Adhiniyam and for Judges also to appreciate the points mentioned above.

I am certain that the above discussion is the first such discussion on the section and there will be many more discussions and seminars in which this will be discussed till one day the Supreme Court also understands it and puts it into one of its judgements.

Naavi in the meantime continue to use the thoughts provided here to issue certificates if required. (P.S: At present Naavi has stopped issuing Section 65B certificates due to his pre-occupations with DPDPA related activities).

Naavi