Master Section 63 BSA: The Arjun Panditrao Case

This article is written by Simran Sanjay Doshi, Studying at Kes ‘Shri Jyantilal H. Patel Law College, L.L.B, 1^st Year during her internship at LeDroit India.

Scope of the Article 

1. Introduction 

2. Why BSA replaced the IEA?

3. The Foundational Split: Primary vs. Secondary Electronic Evidence

4. The Section 65A and 65B of IEA: Brief of Old Regime

5. Section 63 of BSA: Conditions, Devices and Definitions

6. The Certificate under Section 63(4) of BSA: Part A, Part B, Hash Value and Chain of Custody

7. Section 65B vs. Section 63: Comparative analysis of old and new regimes

8. Landmark Judgements in India on Electronic Evidences from Arjun Panditrao case and the 2026 Supreme Court rulings on Section 63 of BSA

9. Conclusion  

10. Reference

Abstract:

The most important question that lies before the Indian trial courts is that How does anyone know whether it is genuine or fake when a WhatsApp chat, a clip of CCTV or any call recordings are placed before a Judge? This becomes a major question as it takes just seconds to fake a screenshot, change words by opening chat with the browser’s developer tools, grab any picture, the videos can also be deepfake, which raises doubt on admissibility of such evidences about to what extend they are reliable. This question kept moving around before the court for many years. Firstly, they allowed electronic evidences admissible after a little scrutiny, then demands for a strict certificate.

After which the two-judge bench relaxed this rule for the parties who could not get one certificate. Then again in 2020, by the three-judge bench all rules overruled again and there was made mandatory certificate for electronic evidences to be admissible. The Bhartiya Sakshya Adhiniyam, 2023 under Section 63 it answers to all the questions clearly as the provisions they have electronic evidences at the centre which is also the successor of Section 65B of Indian Evidence Act, 1872. This article it also states the role of landmark case law Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, clearly held decisions which are in use by the court for electronic evidences. 

Key Words: Bhartiya Sakshya Adhiniyam, 2023, Indian Evidence Act, 1872, Mandatory Certificate, Electronic Evidence, Admissible, Hash Value.

Introduction 

By replacing the Section 65B of the Indian Evidence Act, 1872, the new law which came into force on 1^st July, 2024 known as Section 63 of Bhartiya Sakshya Adhiniyam, 2023. This Section 63 rewrote the rules for the governing of the electronic records. There were arguments to the new regime rulings but the Court upheld them describing the hash value as an ‘electronic fingerprint’ which gives court a reliable way to test whether any file has been tampered with or not. And thus, the rulings of the Section 63 of BSA, 2023 matters.

This rule it added provisions like a hash value, instead of one signature it mandates two signatures, a digital fingerprint of the file, and it follows a prescribed schedule format. This law helps by taking the electronic records without producing the original devices, but provided a certificate accompanying the records.

The primary evidence remains admissible without certificate under Section 57 of BSA, 2023 and the Supreme Court guides us on the practical applications of the rules by holdings in the case of Arjun Panditrao case landmark decisions where it mandates certificate for the secondary electronic evidence.

This article examines the replacement and comparison of old and new regime, the 2026 rulings of Supreme Court, the landmark cases how it shaped the electronic records and evidence as per Section 63 of BSA, when certificates mandatory, it’s practical applications, and challenges.

Why BSA replaced the IEA?

In era of 1872, the Indian Evidence Act was drafted for paper documents and eventually around 1990s and 2000s the flooding od digital records began in the courtrooms. Hence, due to this the Parliament through the Information Technology Act, 2000 it inserted into this Indian Evidence Act the Section 65A and 65B. Section 65A it made that the electronic records are relevant and the Section 65B declared that without producing original devices if the set-out conditions under computer output they can be admitted. They struggled with the CCTV Footages, WhatsApp, Smartphones, Cloud storages, etc.

Hence, to overcome this gap a new act was specially designed and enacted as a part of legal framework known as the Bhartiya Sakshya Adhiniyam, 2023 on 1^st July, 2024. The architecture which contains basic conditions for admissibility plus a certificate requirement are preserved but the scope is wider where certificate id more demanding. And this removes one significant source of ambiguity by enabling a new provision of Section 61 under the BSA, 2023.

The Foundational Split: Primary vs. Secondary Electronic Evidence

The distinction between the primary and secondary evidence is essential to know before understanding BSA evidence framework under Section 63.

Primary Evidence:

It means that the production of the original documents itself for inspection before the Courts. Under Section 57 of BSA (which replaces Section 62 of IEA), the explanation 4 to 7, it provides how expressly the electronic and digital records are been incorporated into the primary evidence definition.

Thus, there is no need of certificate if it is primary evidence as when it is produces by parties me from original device, original file or copy generated which does not have disputes.

Secondary Evidence:

This basically means which is not the original in itself like copy of original documents, computer output or anything printout. This is the main provision which is governed by Section 63 of BSA, 2023. The answers about the mandatory certificate requirements made clearer by the structural separation of BSA. 

Thus, for primary evidences the certificates are not mandatory but for the secondary evidence the Section 63 applies and the certificate becomes mandatory. 

The Section 65A and 65B of IEA: Brief of Old Regime

For the understanding of what changed, we need to know about what actually came before. There were basically no own rules which governed electronic evidences. To deal with the problems of the computer output through the Information Technology Act, 2000 under the IEA, 1872 the Sections 65A and 65B were inserted, Where the Section 65A is stated that electronic records content can be proved in accordance to Section 65B. The 4 Conditions are set out in 65B and one certificate, where the conditions formed to check the reliability of computer which produced the output.

4 Conditions under Section 65B (2):

1. Computer output produced when it is used by a person who has lawful control and during that period was used regularly to store or process information.
2. In ordinary of activities this information is fed into the computer on regular basis.
3. The computer was perfectly in operation at the time and if any malfunction then it had not affected the accuracy of electronic records.
4. Information in record had to reproduce or derived from information fed into computer in ordinary course.

Also, the Section 65B (4) where the certificate to be signed by a person who occupies responsible official position in relation to operation of relevant devices. Thus, mandates One signature, One responsible person.

Section 63 of BSA: Conditions, Devices and Definitions

For admitting the computer output as secondary evidences the Section 63 of BSA they established a framework which contains the five sub-sections:

Section 63(1): This is an operative rule which is also generally known as admissibility engine. Here, it is deemed that computer output as a document shall be admissible in any proceedings without the production of original or further proof as the evidence of any original contents or facts stated directly such evidences would be admissible, provided the conditions satisfied. To compliance with the Section 63 is itself sufficient for admission where the phrase ‘without further proof or production of the original’ is of importance.

Section 63(2): 4 Conditions are set-out as follows:

1. The computer or communication devices was used regularly for creating, storing or processing information in ordinary course of activities at relevant time.
2. In ordinary course the information of kind contained was regularly fed into electronic records.
3. The devices were perfectly operating at that period or if any malfunction then made sure that it did not affect the accuracy of the records.
4. The electronic records reproduced or derived information was regularly supplied to device in ordinary course of activities.

Section 63(3): It is important as it deal with the multiple device scenarios and explicitly contemplated cloud infrastructure, distributed systems and communication relay chains. Hence, activities carried on using combinations of computers, communication devices or networks then all devices to be treated as a single computer or communication device for the purpose of this section for the relevant period.

Section 63(5): Here, it defined hoe information is supplied to a device covering both the direct input by human and the indirect derivation by computer like records generated by software, database synchronization.  

The 4 kinds of electronic evidences which comes up most often by the Indian Courts and common threads among all is that produce the record in certificate form, capture the hash and get the right certificate. 

The Certificate under Section 63(4) of BSA: Part A, Part B

Among Section 65B and Section 63 the certificate requirements is of the most consequential change. Where BSA replaces with the two parts certificate as prescribed in Schedule of the act.

Section 63(4) which the Certificate must contain are:

• A clean identification of electronic record and exactly describe how it was produced.
• In produced records the following particulars of devices involved.
• It is required to show under Section 63(2) all the conditions are met properly.
• Along with the algorithm the hash value of electronic record used.
• Signature of person in charge of device in Part A.
• Under Part B the signature and details of the experts.

Part A: It is to be signed by the party who is producing the records or the custodian of the device. The example is SHA-256, SHA-1, MD5. Basically, saying that records came from this device produced in this way and here is its hash value.

Part B: It is to be signed by the Technical Expert having adequate expertise in relevant field not restricted to only person examined under Information Act, 2000 by government. He certifies and examines electronic records which states Part A is accurate and attests integrity of records by confirming the hash value.

Section 65B vs. Section 63: Comparative analysis of old and new regimes

• The 65B is operative since Information Technology Act, 2000 while the 63 was enacted on 1^st July, 2024.
• The 65B covered computers which stores or processes while the 63 it has computer or communication devices which creates, stores or process.
• The single responsible official under 65B for certificate signature whereas in 63 it needs one person in charge plus one expert signatures.
• 65B it has no certificate format or hash value but 63 it has schedule of BSA prescribed Part A and Part B and for mandatory schedule certificate also has hash value.
• Certificate under 65B file at any stage as per Supreme Court rulings, but in Section 63 at each instance the record to be submitted for admission.

Landmark Judgements in India on Electronic Evidences from Arjun Panditrao case and the 2026 Supreme Court rulings on Section 63 of BSA

The 4 judgements of electronic evidences in India from Section 65B to 63 which shows how the Certificate rule evolved over the time.

1. The State v. Navjot Sandhu (2005 11 SCC 600), which is the permissible baseline where the two-judge bench held that for admitting electronic records that no condition is precedent as that of Section 65B Certificate. Here, if no certificate still electronic evidences were considered admissible even without authenticity.

2. In Anvar P.V. v. P.K.Basheer (2014 10 SCC 473), here it was held by the three-judge bench which overruled the Navjot Sandhu permissive view where Sections 65A and 65B formed which is a complete code for electronic records as secondary evidences mandate certificate under Section 65(4).

3. As pe Shafi Mohammad v. State of Himachal Pradesh (2018 2 SCC 801), it was held that the requirement of certificate was procedural and can be relaxed when the parties are relying on the evidences produced when the device is not in their possession. Here, the two-judge bench it dilutes the rule made by three-judge bench which arose a dispute of dilution.

4. Under Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020 2 SCC 1), where the three-judge bench held that the certificate is mandatory precedent to the secondary evidence being admitted as electronic records. Here, the dispute under law was solved by Supreme Court, it stated in Anvar case it was restored and clarified and state law as incorrect of the decisions of Shafi Mohammad’s case. It addressed that the Certificates to be produced at each stage of trial and if parties cannot obtain it then Court can order production if device with someone else. 

Under the Pune Bar Association v. Union of India, Writ Petition (Civil No. 599 of 2026), the constitutional validity of Section 63(4) was challenged on arguing mandatory hash value and expert certification are onerous and keeps out the ordinary litigants, but a three-judge bench judge led by Chief Justice upheld the provision by rejecting this challenges in May, 2026.

Conclusion 

The replacement of the Indian Evidence Act, 1872 under Section 65B to Section 63 of Bhartiya Sakshya Adhiniyam, 2023 which is enacted on 1^st July, 2024 is proved to be more effective and powerful as for the governing of provisions for electronics and digital records. The primary evidences need no certificate but they are mandatory for secondary evidence to be admissible in the Court. The new format and hash value are been made and provided under BSA Section 63.

In current forensic practice the certificates must state that the hash value on electronic evidences. The Section 61 is of importance as it added the provision added where just because it is electronic the record cannot be rejected. The landmark case law Arjun Panditrao case it settled the law by mandating the certificate under Section 63 of BSA for the electronic evidences to be admissible in Courts.

Reference

1. Bhartiya Sakshya Adhiniyam, 2023

2. Indian Evidence Act, 1872

3. Information Technology Act, 2000

4. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (AIR 2020 SC 4908)

5. https://indiankanoon.org/doc/172105947/

6. https://www.scconline.com/blog/post/2021/06/07/electronic-evidence-2/

7. https://niyam.ai/blog/bsa-section-63-electronic-evidence

8. https://blog.ipleaders.in/electronic-evidence-under-the-bsa-2023/

9.https://lawfullegal.in/section-63-of-bsa-certificate-latest-judgment-and-legal-position-20242026/