Section 65B of the Indian Evidence Act (IEA) was a significant amendment to the historic Indian Evidence Act of 1872, introduced following the Information Technology Act 2000, which came into effect on October 17, 2000.

This Section facilitated the admission of electronic evidence in court. However, with the enactment of the Bharatiya Sakshya Adhiniyam 2023 (BSA), effective from July 1, 2024, along with the Bharatiya Nyaya Sanhita, 2023 (repealing IPC) and Bharatiya Nagarik Suraksha Sanhita, 2023 (repealing CrPC), Section 65B of the IEA will be replaced by Section 63 of the BSA, which incorporates similar provisions but with some key changes.

Section 63 BSA - Admissibility of Electronic Records:

Sub-section (1) of Section 63 BSA:

Any information saved electronically, whether printed, stored on a disk, or kept in any digital form, can be treated as a valid document. As long as certain conditions (mentioned in Sub-section (2) of Section 63 BSA) are met, this electronic information can be used as evidence in legal matters without needing to present the original physical document itself.

Note: The key point of this section is that computer-generated outputs created according to its guidelines "shall" be accepted in proceedings without requiring the original document. The judiciary must admit electronic documents unless there is a significant issue with the certification process that is brought to its attention.

Section 63 of the BSA replaces the term "computer" with "computer or any communication device."

According to Section 65B (1) of the Indian Evidence Act, 1872, any information from an electronic record that has been printed on paper or stored, recorded, or copied through optical or magnetic media produced by a computer (known as computer output) will be considered a document, provided that certain conditions regarding the information and the computer are met. This evidence can be presented in any legal proceedings without the need for further proof or the original document, serving as evidence for the contents of the original or any facts stated within it that could have been admitted as direct evidence.

As per this section, the information within an electronic record is known as "computer output." This output can be either "printed on paper" or "stored" on optical media, magnetic media, or semiconductor memory.

Sub-section (1) of Section 63 of the BSA broadens the application of this provision to include information stored in semiconductor memory or any communication device (such as a smartphone) or any other electronic format.

The term "or communication device" was added to include mobile data in this section, which is helpful for clarity.

Sub-section (2) of Section 63 BSA:

The conditions mentioned in Sub-section (1) of Section 63 BSA regarding computer output shall be as follows:

1. The information was created by the computer or device while it was regularly used for its normal activities by the person who had control over it.
2. During that time, similar information was regularly entered into the computer or device as part of its normal use.
3. For most of the time, the computer or device was working correctly. If it had issues or wasn't working for a while, those problems didn't affect the accuracy of the electronic record.
4. The information in the electronic record matches or comes from the information that was regularly entered into the computer or device during normal use.

Sub-section (3) of Section 63 BSA:

If, during a certain period, information was regularly created, stored, or processed using one or more computers or devices - whether they were used alone, as part of a computer system, connected in a network, used for creating or storing information, or through an intermediary - all of those computers or devices will be considered as one single unit for the purposes of this section.

Sub-section (4) of Section 63 BSA:
In any case where you want to use a statement as evidence under this section, you must submit a certificate with the electronic record every time it is presented for admission. The certificate should:

1. Identify the electronic record and explain how it was created.
2. Provide details about any device used to create the record, showing it was made by a computer or device as described earlier in clauses (a) to (e) of Sub-section (3).
3. Address any relevant conditions mentioned above in Sub-section (2).

The certificate must be signed by someone in charge of the device or activities, and the details should be based on their best knowledge and belief.

Note: Sub-section (4) of Section 63 BSA explains what the certificate should include and how it should be issued.

The certificate must state the identity of the electronic record, details about the devices used to create it, and must be signed by the person in charge of the computer and an expert (there is a separate format to be submitted by an expert). Hash value of the electronic/digital record should also be mentioned in both the certificates by the person in charge of the computer and an expert respectively.

So, it's best to interpret that the certificate is only needed from the owner of the computer that created the output. This should be supported by a declaration stating that the owner believes the intermediary's processing did not change the document's value.

Format of Certificate under Section 63(4) of the BSA which is to accompany electronic record evidence is specified in Schedule to BSA. There was no such format specified in the Indian Evidence Act, 1872 for certificate in Section 65B (4) of the said Act.

it's advisable that if multiple owners are involved in processing the data, the person presenting the evidence should have certificates from the other parties confirming that the data's value has not changed. The intermediary may need to provide details of their processing methods or testify in court.

Hash Value Calculation

To compute a hash value using HashCalc, adhere to the following instructions:

• Download and Install HashCalc:
  • Go to the HashCalc download page.
  • Download the software and follow the on-screen prompts to install it.
• Open HashCalc:
  • Launch the HashCalc application using your Start Menu or via a desktop shortcut.
• Configure Hash Calculation:
  • Select Hash Function: Within HashCalc, you can choose from a range of hash functions (e.g., MD5, SHA-1, SHA-256). Pick the hash function you wish to use from the available options.
  • Input File: Click on the "File" tab to search for the file for which you want to calculate the hash. Alternatively, you can drag and drop the file directly into the HashCalc interface.
• Generate Hash Value:
  • Calculate: Once you have chosen the file and hash function, press the "Calculate" button. HashCalc will then process the file and produce the hash value.
  • View Result: The resulting hash value will be displayed in the output field of the HashCalc window, generally in hexadecimal format.
• Save or Copy the Hash Value:
  • Save: You have the option to save the hash result either to a file or to the clipboard by clicking on the "Copy to Clipboard" or "Save to File" buttons.
  • Copy: To copy the hash value for use elsewhere, highlight the result and use Ctrl+C (or right-click and choose "Copy").

This method guarantees that you receive a distinct hash value for your file, which can be utilized to confirm its integrity.

Sub-section (5) of Section 63 BSA:

• Information is considered supplied to a computer or device if it is given in any suitable form, whether directly or through equipment, with or without human help.
• A computer output is considered to have been produced by a computer or device if it was made directly, or through equipment or other electronic means mentioned earlier in clauses (a) to (e) of Sub-section (3), with or without human help.

Supreme Court Judgment:
In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao (2020 SCC), the Supreme Court clarified how provisions concerning electronic records should be interpreted. The Court highlighted that electronic records can be accepted as evidence, provided they fulfil specific criteria, including regular creation and maintenance by the computer or device, and accurate reproduction of information from the original source. The judgment emphasized that these records need to be accompanied by a certificate that confirms their authenticity and the proper operation of the device that generated them. This ruling emphasized the necessity of preserving the integrity and reliability of electronic evidence in legal contexts.

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