Can you record videos of a crime, show it in the Court and assume that it will be right away be believed and the criminal will be behind the bars? What if the video is doctored, meaning the same contains faces of someone and body of another, with the help of one of those Artificial Intelligence tools? Courts have to assess all the stakeholders while considering a piece of evidence, especially electronic ones whose genuineness needs to be affirmed. Admissibility of electronic record has been states under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. The provision clarifies what all it takes for legal recognition of electronic evidence. So here, we have simplified it for your understanding of what kind of electronic evidence can be taken up before Courts, and the formalities pertaining to its admissibility.
Admissibility of Electronic Records in BSA
There is a lot of confusion among the general public regarding the acceptance or legal recognition of electronic evidence like images, call records, videos, etc. by the Courts. While the Evidence Act addressed the same, how could the Bharatiya Sakshya Adhiniyam, 2023 miss out on this technological aspect. While Section 65 B of the Indian Evidence Act provided for admissibility of electronic records, the same has been included in Section 63 of BSA. The provision has been reproduced and explained below.
Section 63 of Bharatiya Sakshya Adhiniyam
63. Admissibility of electronic records – (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.
Comment: The provision hereby states about the admissibility of electronic record produced by a computer/ communication device as a document if the conditions mentioned for admissibility of electronic records in BSA Section 63 are met. Such an electronic record may be in the printed form, stored, recorded or copied in optical or magnetic media or semiconductor memory. The sub-section states that such an electronic record shall be admissible without any further proof or original evidence.
(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;
Comment: This part of Section 64 of BSA requires a computer output (A document or file made on a computer or communication device) to be made during the period when the said device was being used regularly for the purpose of creating/storing/processing the information. The context should be the activity being carried out regularly by someone having lawful control of the same.
(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;
Comment: It requires the information so questioned for the purpose of admissibility of electronic evidence should have been a routine activity. In other words, if a screen recording is made for WhatsApp chats on a smartphone, the said smartphone should have been ordinarily used for WhatsApp communication during the said period.
(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
Comment: Legal recognition of electronic evidence mandates for the device to be operating during the course in question. It should not be out of operation in a way to affect the said electronic record or the accuracy of the information it contains.
(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.
Comment: It states that the information so reproduced or derived from the device should be part of ordinary course/activity while using the said device.
(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.
Comment: This part states that the information under BSA Section 63 (2)(a) by a person having lawful control over the device could be in standalone mode, a computer system or network, computer resource, or through an intermediary as well. If used in ordinary course, such reference to 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:—
Comment: For admissibility of electronic records under BSA Section 63, sub-section 4 states that a certificate needs to be submitted (Used to be certificate under Section 65B of Evidence Act) for each instance when legal recognition of electronic evidence is sought before the Court of Law. The purpose or contents to be mentioned in such certificate have been explained below.
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
Comment: The certificate should identify when, where and which circumstances the said electronic evidence 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);
Comment: While certifying admissibility of electronic evidence under Section 63 of BSA, one may provide the details in case the device was in standalone mode, a computer system or network, computer resource, or through an intermediary.
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
Comment: The certificate may state about the regular and ordinary course of use of device pertaining to the electronic record produced as evidence.
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.
Comment: The provision requires the certificate for admissibility of electronic records in BSA Section 63 to be signed by the person who owns/controls/manages the said computer or device, evidenced by an expert.
(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).
Comment: This part clarifies that the information or computer output referred for the purpose of legal recognition as electronic evidence shall be assumed to be produced originally, in a direct or indirect manner, or supplied (transferred from one device to another).
Crux of Admissibility of Electronic Evidence under BSA
With this long and lengthy provision, one thing regarding legal recognition of electronic evidence is clear that what you produce as a record should be a regular course for that device. In addition, you need to prepare a certificate for admissibility of electronic records in BSA Section 63 for it to be admissible as evidence before the Court. So if it is a video of someone’s dying declaration, you produce the video, confirm its authenticity for the device, prepare a certificate, and it should be admissible.
