Sections 61, 62, and 63 of the Bharatiya Sakshya Adhiniyam
Electronic or digital record
61. 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.
Special provisions as to evidence relating to electronic record.
62. The contents of electronic records may be proved in accordance with the provisions of section 63.
Admissibility of electronic records.
63. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information creation or providing information processing and storage; or
(e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).
Explanation of Sections 61, 62, and 63 on the Admissibility of Electronic Records
Section 61: Admissibility of Electronic or Digital Records
- This section confirms that electronic or digital records cannot be denied as evidence merely because they exist in electronic form.
- If the requirements of Section 63 are met, electronic records hold the same legal weight as physical documents or records.
- This provision enables courts to accept digital evidence like emails, WhatsApp chats, social media posts, and digital contracts in legal proceedings.
Section 62: Proof of Electronic Records
- Electronic records must be treated like any other document when presented as evidence.
- This section highlights that the rules under Section 63 must be followed to prove electronic records, ensuring they carry the same evidentiary value as physical documents.
Section 63: Conditions for the Admissibility of Electronic Records
Section 63 outlines the specific conditions under which electronic records can be admitted as evidence:
- Electronic Records as Documents: Information stored or recorded in digital form (e.g., on a computer or mobile device) can be treated as a document, provided certain conditions are met.
- Conditions for Admissibility:
- The electronic record must have been created or stored on a computer or device that was regularly used to store or process information.
- The information should have been entered into the system during the normal course of activities.
- The computer or device must have been functioning properly when the information was entered. Any malfunction should not impact the accuracy of the record.
- The electronic record must accurately reflect the information that was inputted.
- Multiple Devices Treated as One: If multiple devices were used over a period to store or process the information, they will be treated as one. This allows for interconnected systems (e.g., cloud storage) to be considered a single entity for evidentiary purposes.
- Certification Requirement: A certificate must accompany any electronic record submitted as evidence. This certificate should:
- Identify the electronic record and describe how it was produced.
- Provide details of the devices used to produce the electronic record.
- Be signed by the person responsible for the device or system.
This certification is important and mandatory to validate electronic records, ensuring their admissibility in court.
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Procedure for Proving WhatsApp Chats, Social Media Records, and Digital Evidence
- Presenting the Electronic Record:
- WhatsApp chats, social media records, images, and videos can be submitted by printing them out or storing them on an appropriate medium (e.g., USB drive, CD).
- These records must accurately reflect the original communication or data.
- Providing a Certificate under Section 63: A critical aspect of proving digital evidence is submitting a certificate authenticating the electronic record. This certificate must:
- Describe how the electronic record was produced and stored.
- Provide details about the device used (e.g., mobile phone, computer).
- Be signed by the individual responsible for managing the system where the record was created or stored.
- Proving Authenticity: The electronic record must meet the following conditions to ensure its authenticity:
- It was created or stored during regular business or personal activities.
- The device or system was functioning properly during the time of creation or storage.
- The record has not been altered or tampered with.
- Linking the Record to Relevant Facts: Producing the record alone is insufficient. It must be linked to the case, demonstrating how it supports the claims being made in court. For example, WhatsApp chats in a defamation case must directly relate to the defamatory statements in question.
Important Case Laws on Digital Evidence under Section 65B
Several landmark rulings have shaped the admissibility of electronic evidence in India:
- Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020):
The Supreme Court reinforced the requirement of submitting a Section 65B certificate along with electronic evidence. Without the certificate, the evidence cannot be admitted, even if it is relevant to the case.
- Anvar P.V. v. P.K. Basheer (2014):
This case clarified the mandatory submission of a Section 65B certificate for the admissibility of electronic evidence. It also stated that the original electronic device need not be presented if the certificate is provided.
- Shafhi Mohammad v. State of Himachal Pradesh (2018):
The court introduced an exception, allowing electronic evidence without a Section 65B certificate if it is impractical to obtain one, provided other means of authentication are available.
- P. Gopalkrishnan vs State of Kerala (2020):
The Kerala High Court stressed the importance of maintaining the integrity of electronic records and ensuring their authenticity during storage and presentation in court.
FAQs on Proving Electronic Evidence in Court
- Is a screenshot of a WhatsApp chat admissible as evidence?
Yes, but it must be accompanied by a Section 63 certificate under the Bharatiya Sakshya Adhiniyam, 2023 (previously a Section 65B certificate under the Indian Evidence Act). The certificate confirms the chat’s authenticity and how it was obtained.
- Can a video from social media be used as evidence in a criminal case?
Yes, provided the video is presented in its original format (or a verified copy) and is accompanied by the necessary certification under Section 63 (previously Section 65B), confirming its authenticity.
- What happens if the certificate under Section 63 (or Section 65B in old cases) is not provided?
Without the certificate, the court may refuse to admit the electronic record as evidence, regardless of its relevance to the case.
- Can electronic evidence be submitted without producing the original device?
Yes, as long as a Section 63 certificate is submitted. The original device does not need to be produced.
- What if there are allegations that the electronic record has been tampered with?
If the record’s authenticity is questioned, the court may reject it as evidence. The integrity of the data must be maintained to ensure its admissibility.
- Is a printout of a WhatsApp chat admissible in court?
Yes, a printout is admissible if accompanied by a Section 63 certificate under the Bharatiya Sakshya Adhiniyam, 2023. The printout must accurately represent the original record, and the process of printing must be documented.
- What should be included in the Section 63 certificate?
The certificate must identify the electronic record, describe how it was produced, provide details about the devices involved, and be signed by the person responsible for managing the device where the record is stored.
- Can social media posts be used as evidence in court?
Yes, social media posts can be used as evidence if accompanied by a Section 63 certificate confirming their authenticity and accurate reproduction.
- Can a video or image recorded on a phone be admitted as evidence?
Yes, videos and images stored on phones are admissible, but like all electronic evidence, they must be submitted with a Section 63 certificate explaining how they were recorded, stored, and verified.
- What happens if the electronic record has been tampered with?
If tampering is proven, the court will likely reject the record as evidence. The integrity of the data is crucial for its acceptance in court.
- How to get a Section 65B certificate?
Under the old Indian Evidence Act, a Section 65B certificate is provided by the person in charge of the computer or device that produced the electronic evidence, certifying its authenticity. The certificate must include details of how the record was produced and ensure the accuracy of the content.
- What is Section 65E of the Indian Evidence Act?
Section 65E refers to the admissibility of secondary evidence in the form of electronic records, provided certain conditions, such as the record’s authenticity, are met.
- Who can give a Section 63 (or Section 65B) certificate?
A certificate can be given by a person who manages, controls, or is responsible for the computer or device that created or stored the electronic record.
- Is a Section 63 (or Section 65B) certificate required for photographs?
Yes, if the photographs are stored or transmitted electronically (e.g., through digital cameras or phones), a Section 63 (or 65B) certificate is required to establish their authenticity.
- How to prove electronic evidence in court?
Electronic evidence must be accompanied by a Section 63 (or 65B) certificate, confirming its authenticity and providing details about the device that produced it. The certificate ensures the evidence is admissible without the need for the original device.
- Can WhatsApp messages be used as evidence in India?
Yes, WhatsApp messages can be used as evidence, but they must be accompanied by a Section 63 (or 65B) certificate to verify the authenticity of the electronic record.
- How to prove CCTV footage in court?
To prove CCTV footage, a Section 63 (or 65B) certificate must be produced alongside the footage, confirming that the recording is genuine and identifying the device used to capture it.
- Can a Section 63 (or Section 65B) certificate be produced at any stage?
Yes, according to a recent ruling by the Supreme Court, if the certificate is not initially submitted, it can still be produced at any stage of the trial.
Sample Format of Section 63 Certificate (Bharatiya Sakshya Adhiniyam, 2023)
Sample Format of Section 63 Certificate:
Section 63 Certificate
Case Title: [Name of the Case]
Court: [Name of the Court]
Case Number: [Case Number]
1. I, [Name of the Certifying Officer], [Designation/Position] at [Organization/Company Name], certify that I am responsible for managing, controlling, and maintaining the computer system or communication device where the relevant electronic records are stored or processed.
2. The document(s) produced, including [WhatsApp chats, social media records, images, or videos], is/are an accurate and true reproduction of the original information stored on the device/computer system used by [name of person/company] in the ordinary course of business or personal use.
3. The computer or communication device from which the electronic record has been generated was operating regularly during the period of the record’s creation, storage, or processing, and the functioning of the device did not affect the accuracy or integrity of the data.
4. I certify that the information contained in the electronic record was regularly fed into the system in the ordinary course of the activities, and the record has not been altered or tampered with after its creation.
5. The electronic record has been produced in the format that can be verified for authenticity, and all necessary technical safeguards were employed during its creation, storage, and reproduction.
6. I further state that, to the best of my knowledge and belief, the contents of the document(s) are accurate and true.
- Details of the Device/System:
- – Device/Computer Used: [Model/Type/Serial Number]
- – Software/Operating System: [Details of Software/OS]
- – Date and Time of Record Creation: [Date & Time]
Name:
Designation:
Signature:
Date:
Place:
Disclaimer:
The content of this article is intended for educational and informational purposes only and should not be construed as legal advice. While every effort has been made to ensure the accuracy of the information provided, the laws and their interpretations may change over time. Readers are advised to consult with a qualified legal professional for specific legal advice or assistance.