Proving a Cyber Offence: Electronic Evidence
Chapter One Hundred Twenty-Seven
Syllabus topic 4.5, "Offences and Prosecution"
Pages 820 to 829 of 948
In one line
An electronic record is admissible, its contents are proved under one section, and the argument for twenty years has been about whether the certificate that section requires is mandatory, which the Supreme Court settled in 2020.
The concordance
The Indian Evidence Act, 1872, was repealed on 1 July 2024 by the Bharatiya Sakshya Adhiniyam, 2023. Every case in this field was decided under the old numbers, so a student must know both.
| Evidence Act, 1872 | Bharatiya Sakshya Adhiniyam, 2023 | Subject |
|---|---|---|
| 3, definition of "evidence" | 2(1)(e) | Evidence includes any information given electronically |
| 22A | 20, read with 2(1)(d) | Oral admissions as to contents of a document, and a document now includes an electronic record |
| 45A | 39(2) | Opinion of the Examiner of Electronic Evidence |
| 47A | 41(2) | Opinion of the Certifying Authority as to an electronic signature |
| 65A | 62 | Contents of electronic records proved under the following section |
| 65B | 63 | Admissibility of electronic records and the certificate |
| 67A | 66 | Proof as to the electronic signature of a subscriber |
| 73A | 73 | Proof as to the verification of a digital signature |
| 81A | 81 | Presumption as to Gazettes in electronic forms |
| 85A, 85B, 85C | 85, 86, 87 | Presumptions as to electronic agreements, records and certificates |
| 88A | 90 | Presumption as to electronic messages |
| 90A | 93 | Presumption as to electronic records five years old |
Two entries in that table deserve to be read out rather than looked up. Section 2(1)(d) defines a document as any matter expressed, described or recorded upon any substance by letters, figures, marks or any other means, intended to be used or usable for recording that matter, and it includes electronic and digital records. Its illustrations name emails, server logs, documents on a computer, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices. And section 2(1)(e) defines evidence to mean and include all statements including statements given electronically that the Court permits or requires a witness to make, and all documents including electronic or digital records produced for the Court's inspection.
Why that pair matters more than any other change. Under the Evidence Act an electronic record was let in by a special gateway. Under the Adhiniyam it is a document by definition, so every rule about documents reaches it without a bridging provision, and the illustrations put a server log and a website beyond argument. Chapter 940.
And there is a new provision with no predecessor. Section 57 of the Adhiniyam rewrites primary evidence, and Explanations 4 to 7 are new: where an electronic record is stored simultaneously or sequentially in multiple files, each file is primary evidence; where it is produced from proper custody it is primary evidence unless disputed; where a video recording is stored and simultaneously transmitted or broadcast, each stored recording is primary evidence; and where a record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.
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