Section 63 BSA — Updated Electronic Evidence Regime (Section 65B IEA)

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaces Section 65B of the Indian Evidence Act, 1872 (IEA) with a structurally similar but textually broadened certificate regime for the admissibility of electronic records. The provision codifies the position taken by the Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, expands the categorical scope to capture communication devices and semiconductor memory natively, broadens the class of authorised certifying persons, and prescribes a schedule-form certificate that must accompany the electronic record at each instance of its production.

The provision is one of the BSA's two signature substantive innovations (the other being Explanation II to Section 24 BSA on joint trials). Read this chapter together with the chapter on Evidence Act and BSA for the larger framework, and alongside the chapter on the expanded definition of document under Section 2(1)(d) BSA, which settles the categorical status of electronic records as documents before Section 63 BSA's admissibility regime kicks in.

Statutory anchor: Section 63 BSA

Section 63 BSA carries forward the structure of Section 65B IEA. The provision applies notwithstanding anything contained in the BSA: any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or magnetic media or semiconductor memory or any communication device or otherwise stored, recorded, or copied in any electronic form (the "computer output") is deemed to be a document and is admissible without further proof of the original, provided the conditions in subsection (2) and the certificate in subsection (4) are satisfied.

The four IEA conditions in subsection (2) are preserved with textual updates:

1. The electronic record was produced during a period when the computer or communication device was used regularly to store or process information for the activities of the person having lawful control.
2. Information of the kind contained in the record was regularly fed into the computer or communication device in the ordinary course of those activities.
3. Throughout the material period, the computer or communication device was operating properly, or any malfunction did not affect the accuracy of the contents.
4. The information reproduces or is derived from such information fed in the ordinary course of those activities.

What the BSA adds to the IEA framework

The textual additions in Section 63 BSA — flagged in the BSA-IEA correspondence table — are several:

• Semiconductor memory. Subsection (1) now expressly covers electronic records stored in "semiconductor memory" — capturing solid-state drives, eMMC chips, NAND flash, and the entire generation of post-magnetic-media storage.
• Communication devices. The phrase "or any communication device" is added throughout, recognising that smartphones, tablets, and IoT devices are now primary sources of electronic evidence — not just secondary derivatives of computer storage.
• "Otherwise stored, recorded, or copied in any electronic form". A residual catch-all phrase that captures forms of electronic storage not covered by the enumerated categories — cloud-based storage, distributed ledgers, blockchain records.
• New clauses (a) to (e) in subsection (3). Subsection (3) of Section 65B IEA spoke generically of "computer"; Section 63 BSA replaces this with "by means of one or more computers or communication devices" and adds five new clauses (a) to (e) covering different categories of multi-device production: combinations operating together, in succession, by different operators, for different purposes, and so on.
• Schedule-prescribed certificate form. Subsection (4) now requires the certificate to be in the form prescribed in the Schedule to the BSA, and to be "submitted along with the electronic record at each instance where it is being submitted for admission". The IEA's Section 65B did not specify a form, leaving it to judicial improvisation.
• Broadened class of certifying persons. Where Section 65B IEA spoke of "a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities", Section 63 BSA replaces this with "a person in charge of the computer or communication device or the management of the relevant activities". The shift is from "responsible official position" to "in charge" — a broader category that captures de facto controllers, not just formal post-holders.
• Expert certification. The words "and an expert" are added, recognising that for complex electronic records (forensic images, server-resident logs, encrypted records), an expert may be required to certify the conditions in subsection (2) — alongside the in-charge person.

The Anvar PV — Arjun Panditrao trajectory

The doctrinal road that Section 63 BSA codifies runs through three Supreme Court decisions:

1. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 — the parliament-attack case. The Supreme Court permitted secondary evidence of electronic records under the general primary-and-secondary-evidence framework of the IEA (Sections 63 and 65), treating Section 65B as one of several available routes. This reading was later overruled.
2. Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 — the election-law case. The Supreme Court held that Section 65B was a special, exclusive provision that displaced Sections 63 and 65 of the IEA in respect of electronic records. The Section 65B certificate became a mandatory pre-condition for admissibility.
3. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 — the election-law follow-up. A three-judge bench reaffirmed and clarified Anvar P.V., holding that the certificate is mandatory but recognising a narrow exception where the certificate cannot be obtained despite the party's reasonable efforts (e.g., where the original device is in third-party possession that refuses to certify).

Section 63 BSA largely codifies the Arjun Panditrao position. The certificate is mandatory; it must be submitted at each instance of production; the schedule prescribes its form; the class of certifying persons is broader than the IEA's. The narrow exception from Arjun Panditrao — for cases where the certificate is genuinely unobtainable — is not expressly written into the BSA but survives by judicial doctrine.

The 'each instance' rule — a practical tightening

The most operationally consequential addition in Section 63 BSA is the requirement that the certificate be submitted "along with the electronic record at each instance where it is being submitted for admission". The IEA was silent on the timing of certificate production, and trial courts had developed varying practices — some accepted late certificates, some required them at the marking-of-exhibit stage, others permitted certificates filed even after evidence had been led.

Section 63 BSA settles the practice. Each time the electronic record is tendered as evidence, the certificate must accompany it. A trial advocate cannot tender the record at the marking-of-exhibit stage and produce the certificate later; cannot rely on a certificate filed in a related proceeding; cannot ask the court to dispense with the certificate in the absence of a genuine impossibility. The practical consequence is that prosecutors, plaintiffs, and respondents alike must integrate certificate-preparation into the discovery and tendering workflow from the start.

The schedule-form certificate

The certificate must be in the form prescribed in the Schedule to the BSA. The schedule prescribes the contents in a structured form: identification of the electronic record and the device or devices producing it; particulars of the device including model, serial number, and operating environment; statement of the conditions in subsection (2); identification of the person certifying and their relationship to the device or activities; signature and date.

The schedule-form requirement reduces the litigation that arose under the IEA over the adequacy of certificates. Under Anvar P.V., the Supreme Court had identified the broad contents required, but the form was left to judicial improvisation. Section 63 BSA's schedule provides a tested template, and a certificate that follows the schedule's structure is presumptively in order.

The broadened class of certifying persons

Under Section 65B IEA, the certificate had to come from "a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities". The phrase "responsible official position" produced repeated litigation: was a system administrator a "responsible official"? A managing partner of a small firm? A freelance IT contractor? Trial courts often took narrow views, requiring formal corporate office.

Section 63 BSA replaces "responsible official position" with "a person in charge of the computer or communication device or the management of the relevant activities". The phrase "in charge" is broader and de facto in nature. A system administrator who actually runs the server is "in charge", regardless of formal title. The proprietor of a small business who manages the WhatsApp account through which messages were sent is "in charge". The shift is from formal hierarchy to operational control. The chapter on proof of documents situates this within the broader framework of who must prove a document.

The addition of "and an expert" in subsection (4) recognises that for complex electronic exhibits, expert testimony may be required to establish the conditions in subsection (2). The expert is not a substitute for the in-charge person but a complement — both may need to certify in tandem for highly technical exhibits.

What Section 63 BSA does not change

Three things are conspicuously preserved from the IEA framework:

• The four conditions in subsection (2) are preserved with textual updates. Regular use during the material period; ordinary-course feeding of information; proper operation (or non-affecting malfunction); reproduction or derivation from regularly-fed information.
• The deeming structure — the electronic output is "deemed to be a document" — is preserved. The deeming is now arguably redundant because Section 2(1)(d) BSA itself includes electronic records within the definition of document. But the deeming-language in Section 63 BSA carries forward to ensure backward compatibility with the IEA case law.
• The connection to relevancy — Section 63 BSA's admissibility regime operates only after the electronic record has cleared the relevancy filter in Sections 3 to 50 BSA. Section 63 is not a relevancy provision; it is an admissibility provision.

Section 63 BSA and the original device

An important practical point is that Section 63 BSA's certificate regime applies only when the original device producing the electronic record is not itself produced before the court. If the original phone, server, or hard-drive is brought into court, the electronic record stored on it can be tendered as the original document under the primary-evidence rules in Section 57 to Section 60 BSA, without the Section 63 certificate. The certificate is the gatekeeper for cases where the record is reproduced via printout, copy, or extract — that is, in nearly every modern criminal or commercial trial, but not always.

The doctrinal architecture is layered: (i) the electronic record is a document by Section 2(1)(d); (ii) where the original device is produced, primary-evidence rules apply; (iii) where a copy or extract is tendered, Section 63 BSA's certificate regime applies. The same record may also operate as an admission against the maker's interest when its contents include a statement adverse to the maker's case. The trial advocate must know which layer is operative for each exhibit.

Cross-examination on Section 63 certificates

A Section 63 certificate is a document admitted into evidence; the maker may be cross-examined on its contents. The cross-examination typically focuses on three points: (i) whether the certifier was actually "in charge" of the device during the material period; (ii) whether the four conditions in subsection (2) were genuinely met; (iii) whether the chain of custody from the device to the printout or copy was preserved. A successful cross-examination on any of these points may render the electronic record inadmissible despite the certificate being on record. Where this happens, the cross-examined record may also be challenged through the structured framework of examination-in-chief and cross-examination, with potential implications for hostile-witness treatment of the certifier. Cross-examination on prior writings — including the certifier's earlier statements about the device — proceeds under Section 145 BSA.

Practical fact-patterns

Three fact-patterns recur in mains and prelims questions:

1. The CCTV footage scenario. A robbery is captured on a shop's CCTV; the prosecution tenders a USB-stick copy. Question: what certificate is required? Answer: Section 63 BSA certificate from the shopkeeper or the person in charge of the DVR, identifying the device, asserting the four conditions, and accompanying the USB-stick at the time of marking.
2. The corporate email scenario. A breach-of-contract suit relies on emails extracted from the company's archive. Question: who certifies? Answer: the person in charge of the archive system — typically the IT manager or external archive administrator. "In charge" under Section 63 BSA captures de facto operational control, not just formal designation.
3. The smartphone WhatsApp scenario. A dowry-harassment prosecution relies on WhatsApp messages from the deceased's phone. The phone is not produced; printouts are tendered. Question: who certifies? Answer: the person in charge of the phone (typically a family member) or, if forensic extraction was performed, the forensic examiner — both certifying that the printouts accurately reproduce the messages and that the phone was operating properly during the material period.

BSA shift summary

The BSA's changes to the electronic-evidence regime can be summarised in five propositions:

1. The categorical scope is broadened — semiconductor memory, communication devices, and electronic forms generally are now expressly within Section 63 BSA.
2. The class of certifying persons is broadened — "in charge" replaces "responsible official position", and an expert may certify alongside the in-charge person.
3. The certificate must be in the schedule-prescribed form and must accompany the record at each instance of production.
4. The substantive doctrine from Anvar P.V. and Arjun Panditrao is largely codified.
5. The narrow Arjun Panditrao exception for genuinely unobtainable certificates survives by judicial doctrine, even though it is not expressly written into the BSA.

Section 63 BSA and chain of custody

A subtler practical issue is the chain of custody for electronic exhibits. Section 63 BSA does not expressly require chain-of-custody documentation, but cross-examination of the certifier routinely tests it. The trial advocate tendering an electronic record should be prepared to establish: (i) when and how the record was extracted from the originating device; (ii) who handled the storage media at each step; (iii) whether hash values were captured and verified; (iv) whether write-blocking protocols were observed during forensic extraction. A certificate that asserts the four conditions in subsection (2) but cannot withstand cross-examination on chain-of-custody questions will, in practice, be of limited evidentiary value.

This is particularly important for criminal trials involving forensic extraction from seized devices. The investigation officer who seizes the phone, the forensic examiner who extracts the data, and the prosecutor who tenders the printout should all be available — at least the relevant chain-of-custody links should be on record. The chapter on the burden of proof in criminal cases reinforces this: the prosecution carries the burden to establish admissibility beyond reasonable doubt, and gaps in chain of custody work against it.

Section 63 BSA and special statutes

Several special statutes — the Information Technology Act, 2000, the Prevention of Money Laundering Act, 2002, and certain anti-terror statutes — contain their own provisions on electronic records. Where the special statute provides a self-contained electronic-evidence regime, Section 63 BSA may operate as a default that fills gaps. Where the special statute is silent, Section 63 BSA controls by default. The trial advocate appearing in such matters should always check the special statute first; the BSA's general provisions apply only to the extent the special statute does not displace them.

Search-intent overlay: what to remember

For Civil Judge prelims, judiciary mains, and judicial-service interviews, four propositions on Section 63 BSA recur:

1. The certificate is mandatory, schedule-prescribed, and must accompany the electronic record at each instance of production.
2. The certifier must be a person in charge of the computer or communication device or the management of the relevant activities — "in charge" is broader than "responsible official position".
3. The four conditions in subsection (2) — regular use, ordinary-course feeding, proper operation, derivation from fed information — are preserved from the IEA framework with textual updates for communication devices.
4. The Anvar P.V. / Arjun Panditrao case law continues to control the operation of Section 63 BSA, including the narrow exception for genuinely unobtainable certificates.

Conclusion

Section 63 BSA is the most consequential substantive shift in the Adhiniyam. It codifies two decades of Supreme Court jurisprudence on electronic records, broadens the categorical scope to capture every contemporary form of digital storage, prescribes a tested certificate form, and broadens the class of authorised certifiers from formal post-holders to de facto controllers. The regime is more demanding than the IEA's in its insistence on each-instance production, but it is also more workable — the schedule-form certificate provides a clear template, and the broader certifier class accommodates the realities of small-firm and individual-controlled electronic exhibits.

For the aspirant, mastering Section 63 BSA means understanding both the textual additions (semiconductor memory, communication devices, schedule certificate, in-charge certifier) and the substantive case-law continuity (Anvar P.V., Arjun Panditrao, the four conditions, the each-instance rule). The judiciary aspirant who can articulate both halves has the BSA's signature electronic-evidence innovation in working form. Read this chapter alongside the expanded definition of document, which settles the categorical foundation on which Section 63 BSA's admissibility regime now operates. The facts-which-need-not-be-proved framework supplies the related set of presumptions that operate on official electronic records once they are in evidence — a domain where Section 63 BSA and judicial notice routinely interact in regulatory and tax matters.

A final practical observation: Section 63 BSA rewards the disciplined trial advocate who builds the certificate at the start of the case rather than scrambling at the marking-of-exhibit stage. The schedule-form certificate, the in-charge person's identification, and the chain-of-custody documentation should be prepared during the discovery phase. By the time the electronic record is tendered, the certificate should be ready in compliant form and the certifier available for cross-examination. This procedural discipline is what separates a successful electronic-evidence prosecution from one that collapses on a missing certificate or a failed in-charge identification. The investment in early certificate preparation pays dividends throughout trial — and protects the record from the appellate review that would otherwise turn on materiality questions under Section 169 BSA. For the trial-bound aspirant, this is the operational lesson worth carrying forward beyond the exam: build the certificate at the start, document the chain at every step, and cross-examine the certifier with the four conditions in subsection (2) firmly in mind.

Frequently asked questions

What does Section 63 BSA add to Section 65B IEA?

Five additions stand out. First, the categorical scope is broadened to include semiconductor memory and communication devices, with a residual catch-all for any electronic form. Second, subsection (3) is restructured to cover production by multiple computers or communication devices acting together, in succession, or in combination, with five new clauses (a) to (e). Third, the certificate must be in the form prescribed in the Schedule to the BSA. Fourth, the certificate must be submitted along with the electronic record at each instance of its production. Fifth, the class of certifiers is broadened from 'responsible official position' to 'in charge of the computer or communication device or the management of the relevant activities', and an expert may certify alongside the in-charge person.

Does Section 63 BSA overrule Anvar P.V. v. P.K. Basheer?

No. Section 63 BSA codifies the position taken in Anvar P.V. (2014) and refined in Arjun Panditrao Khotkar (2020). The certificate is mandatory; the only routes to admissibility are through the certificate or, in narrow cases, through the Arjun Panditrao exception for genuinely unobtainable certificates. The textual additions in Section 63 BSA broaden the categorical scope and tighten the procedural discipline, but they do not displace the Anvar P.V. — Arjun Panditrao trajectory. A trial court applying Section 63 BSA continues to read those decisions as controlling on the doctrinal architecture, while drawing the textual specifics from the new statute.

Who is 'in charge' of a computer or communication device for purposes of Section 63 BSA?

A person who has actual operational control over the device or the management of the relevant activities. The phrase replaces the IEA's 'responsible official position', which had produced narrow readings requiring formal corporate office. 'In charge' captures system administrators, IT managers, proprietors of small businesses, individuals managing their own smartphones, and external service providers running the device. The test is de facto operational control, not formal designation. The broadening accommodates the reality that electronic exhibits routinely come from non-corporate sources — individuals, small firms, freelancers — where formal-hierarchy language did not fit. The chapter's coverage of cross-examination explains how a trial advocate can challenge a certifier's actual in-charge status.

When must the Section 63 BSA certificate be produced?

At each instance where the electronic record is submitted for admission. The phrase in subsection (4) — 'shall be submitted along with the electronic record at each instance where it is being submitted for admission' — is a deliberate tightening of the IEA practice, under which trial courts had developed varying timing rules. A trial advocate cannot tender the record at the marking-of-exhibit stage and produce the certificate later; cannot rely on a certificate filed in a related proceeding; cannot ask the court to dispense with the certificate except on the narrow Arjun Panditrao ground that the certificate is genuinely unobtainable despite the party's reasonable efforts.

Does Section 63 BSA apply when the original device is produced in court?

No. Section 63 BSA's certificate regime applies only when the electronic record is reproduced via printout, copy, or extract. If the original device — phone, server, hard-drive — is brought into court, the electronic record on it can be tendered as primary evidence under Sections 57 to 60 BSA, without a Section 63 certificate. The certificate is the gatekeeper for derivative reproductions, which is the typical case in modern criminal and commercial trials but is not the only case. Trial advocates dealing with electronic exhibits should always ask first: is the original device available? If yes, primary-evidence rules apply. If no, Section 63 BSA's certificate regime governs.