Section 2(1) (e) of the Bharatiya Sakshya Adhiniyam, 2023 corresponds to Section 3 of the Indian Evidence Act, 1872.

Under the new definition of "evidence" in Section 2(1) (e) of the Bharatiya Sakshya Adhiniyam, 2023, 'statements including statements given electronically' are to be treated as evidence as well as oral evidence. This is a logical corollary to Section 530 of Bharatiya Sakshya Adhiniyam, 2023 (BNSS) providing for examination of complainant and witnesses in electronic mode by use of electronic communication or by audio-video electronic means.

Indian Evidence Act, 1872

As per Section 3 of the Indian Evidence Act of 1872:

• "Evidence" refers to the following:
• Every statement that the Court allows or mandates to be presented by witnesses regarding the factual matters being examined; these statements are referred to as oral evidence.
• All materials presented for the Court's evaluation, including electronic records, are referred to as documentary evidence.

Under the Indian Evidence Act, 1872, only electronic records were treated as documentary evidence and there was no express mention of digital records in the definition of 'evidence' under the Indian Evidence Act, 1872. However, some experts argue that electronic evidence includes digital evidence.

Bharatiya Sakshya Adhiniyam, 2023

Section 2 (1) (e) of Bharatiya Sakshya Adhiniyam, 2023 specifically includes electronic or digital records as documentary evidence. According to Section 2 (1) (e) of the Bharatiya Sakshya Adhiniyam:

• The term "evidence" encompasses and consists of:
• All verbal statements, including those provided electronically, that the Court allows or mandates to be presented by witnesses concerning the factual matters being investigated; these statements are referred to as oral evidence.
• All documents, including electronic or digital records, submitted for the Court's examination; these documents are known as documentary evidence.

Electronic Records:

Electronic records refer to documents created, stored, and accessed through electronic means. This term typically covers a wide range of digital records, while also including other types of electronic formats, such as audio recordings.

• Emails: Messages exchanged electronically via email platforms.
• Word Processing Documents: Files produced using word processing applications like Microsoft Word or Google Docs.
• Spreadsheets: Collections of data and calculations maintained within software such as Excel or Google Sheets.
• Databases: Organized data housed within systems such as SQL databases or Microsoft Access files.
• Scanned Documents: Physical papers converted into electronic versions, typically saved as PDFs.
• Audio Recordings: Captured conversations or interviews saved as electronic files (e.g., MP3, WAV).
• Presentations: Slide presentations created using software like PowerPoint or Google Slides.

Digital Records:

Digital records are created in digital format and are stored digitally, prioritizing their content and metadata over the medium of storage.

• Digital Photographs: Images taken using digital cameras or smartphones.
• Social Media Posts: Content that is generated and shared on platforms such as Twitter, Facebook, or Instagram.
• Web Pages: Material published online, stored as HTML files or within content management systems.
• Digital Videos: Videos produced using digital cameras, webcams, or software, typically saved as files like MP4.
• Cloud Documents: Files that are stored and accessed through cloud storage services such as Google Drive, Dropbox, or OneDrive.
• Digital Signatures: Signatures that are stored electronically, frequently used for the electronic verification of documents.
• Digital Artifacts: Files that include 3D models, software code repositories, or virtual reality environments.

In conclusion, electronic records encompass both items that are born-digital and digitized versions of analogue records, while digital records are specifically those that originate in a digital format.

In the case of Arjun Panditrao Khotkar v. Kailash Gorantyal (2020), the Supreme Court of India partially set aside the ruling in Shafhi Mohammad v. State of Himachal Pradesh (2018). The Court reiterated that the requirement for a certificate is an essential condition for the acceptance of any electronic record as evidence in court. Although the Court recognized the practical challenges associated with obtaining these certificates, it stressed that this procedural measure is vital for ensuring the reliability and authenticity of electronic evidence.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565