Electronic Evidence Under Bharatiya Sakshya Adhiniyam: What Changed

This article is for general legal information and does not constitute legal advice. Verify every citation against the official source before relying on it in court.

Electronic evidence under Bharatiya Sakshya Adhiniyam turns on Section 63 BSA, certificate discipline, source-device facts, and the Anvar / Arjun Panditrao line of authority. This post is part of the Criminal Procedure in India 2026 pillar, because digital proof now appears in most criminal workflows.

Electronic evidence under Bharatiya Sakshya Adhiniyam is now centred on the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872 (IEA) with effect from 1 July 2024. Section 63 BSA is the operative provision for the admissibility of electronic records, replacing Section 65B IEA, with Section 63(4) BSA carrying forward the certificate requirement that Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 made mandatory and that the three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 reaffirmed and refined. The statutory label changed; the certificate-jurisprudence continues.

This guide covers what changed in the move from Section 65B IEA to Section 63 BSA, the certificate regime under Anvar P.V. and Arjun Khotkar, the primary-vs-secondary electronic evidence distinction, the handling of WhatsApp, emails, CCTV and call recordings, and the most common evidentiary mistakes during the transition.

What is Section 63 BSA, in one paragraph?

Section 63 BSA carries forward the architecture of Section 65B IEA. Sub-section (1) deems any information contained in an electronic record produced by a computer to be a document for the purposes of the BSA. Sub-section (2) sets out the conditions of admissibility — the computer was in regular use, the information was regularly fed in, the computer was operating properly. Sub-section (4) prescribes the certificate that must accompany the secondary electronic evidence and identifies the person competent to issue it. The text closely tracks Section 65B IEA, with updated drafting reflecting current technology.

The official consolidated text of the BSA is published on India Code and on the Department of Justice three-new-laws portal.

Section 63 BSA vs Section 65B IEA: side-by-side

The fastest way to internalise the change is a direct comparison on the points that actually move in evidentiary practice.

| Point of comparison | Section 65B IEA, 1872 | Section 63 BSA, 2023 | |---|---|---| | Effective from | 17 October 2000 (as inserted by IT Act, 2000) | 1 July 2024 | | Subject matter | Admissibility of electronic records | Admissibility of electronic records | | Conditions of admissibility | Sub-section (2) — computer in regular use, regular feeding, proper operation | Sub-section (2) — substantively the same conditions | | Certificate requirement | Sub-section (4) — certificate by responsible official | Sub-section (4) — substantively the same certificate requirement | | Person competent to certify | "Person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities" | Same formulation | | Controlling Supreme Court authority | Anvar P.V. (2014); Arjun Khotkar (2020) | Same authorities continue to govern | | Treatment of primary electronic evidence | Section 65B does not apply to original electronic record produced from the source device | Same; Section 63 does not displace primary-evidence handling |

The point of the table is the same point as the rest of the BNS / BNSS / BSA transition. The statute is reorganised; the doctrine is not reset. Cite the live provision (Section 63 BSA) and rely on the established jurisprudence (decided under Section 65B IEA) as the doctrinal source.

Why is the Anvar P.V. certificate requirement still mandatory?

Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 was a three-judge bench decision that held the certificate under Section 65B(4) IEA to be mandatory for the admissibility of secondary electronic evidence. The earlier permissive reading in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, which had allowed electronic records to be proved through general witnesses, was held to be no longer good law to that extent.

Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 — a two-judge bench — sought to relax Anvar P.V. by holding that the certificate requirement could be dispensed with where the party did not have control over the device. The relaxation was short-lived.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 — a three-judge bench — overruled Shafhi Mohammad and reaffirmed Anvar P.V.. The Court clarified:

1. The certificate under Section 65B(4) IEA is mandatory for the admissibility of secondary electronic evidence.
2. The certificate must be produced when the electronic record is tendered in evidence, but failure to produce the certificate at that stage may, in appropriate cases, be cured if the certificate is produced subsequently — the Court should permit production where it is genuinely possible.
3. Where the certificate is genuinely impossible to obtain — for example, the device is in the custody of an opponent who refuses to issue the certificate — the Court can require its production through subpoena or, in a narrow set of cases, dispense with the requirement.
4. The party seeking to rely on the certificate must take all steps to obtain it before invoking any relaxation.

Section 63 BSA carries forward the certificate requirement substantively unchanged. The Arjun Khotkar framework therefore continues to govern post-1 July 2024 evidentiary proceedings.

What is the difference between primary and secondary electronic evidence?

The certificate regime under Section 63(4) BSA applies only to secondary electronic evidence — copies, printouts, or extracts of an electronic record produced from a device different from the one on which the record was originally created.

The distinction in practice:

| Type | Example | Certificate required? | |---|---|---| | Primary electronic evidence | Original mobile phone produced in court showing the original WhatsApp conversation | No certificate required; produced as primary evidence | | Primary electronic evidence | The CCTV server/DVR produced in court with the recording played back | No certificate required; produced as primary evidence | | Secondary electronic evidence | A printout of the WhatsApp conversation taken from the mobile phone | Section 63(4) certificate required | | Secondary electronic evidence | A pen drive containing a copy of the CCTV footage | Section 63(4) certificate required | | Secondary electronic evidence | An email forwarded from the original recipient's account to a different account | Section 63(4) certificate required |

The drafting move when relying on electronic evidence is to confirm the source device, identify whether what is being tendered is the primary record or a copy, and ensure the Section 63(4) certificate is in place at the time of tender.

How are WhatsApp messages, emails and CCTV handled under Section 63 BSA?

The most-litigated electronic evidence categories — WhatsApp messages, emails, SMS, call recordings and CCTV footage — are admissible under Section 63 BSA subject to the certificate requirement under Section 63(4). Each has a workflow.

WhatsApp messages. Best evidence is the original device. Where a printout or screenshot is tendered, a Section 63(4) certificate from a responsible person familiar with the device is required. The certificate should identify the device, the application version, the period of regular use, and the integrity of the record. WhatsApp's end-to-end encryption complicates third-party verification; tender the messages through the original device wherever possible.

Emails. Tender as printouts with a Section 63(4) certificate, or through the email-server administrator where a copy is taken from the server. The certificate should identify the email account, the server, and confirm regular operation.

Call recordings. Tender as the recording file plus the device certificate. The chain of custody from recording to tender must be unbroken; gaps invite cross-examination on tampering.

CCTV footage. Tender as the original DVR or a copy on a pen drive with a Section 63(4) certificate from the person responsible for the CCTV system. The certificate should confirm the date, time, location, and that the system was operating properly.

SMS. Tender as the original device or as a printout with a Section 63(4) certificate. Where the evidence is being obtained from the telecom operator, the certificate should be from the operator.

For the procedural side of producing this evidence in court, the workflow is in How to Check Criminal Case Status Online.

What does a Section 63(4) BSA certificate look like in practice?

A Section 63(4) BSA certificate must:

1. Identify the electronic record (with sufficient particulars to link the certificate to the record tendered).
2. Identify the device or computer system on which the record was created or stored.
3. State that the device was in regular use at the relevant time, that the information was regularly fed in, and that the device was operating properly (or that any malfunction did not affect the accuracy of the record).
4. Be signed by a person occupying a responsible official position in relation to the operation of the device or the management of the relevant activities.
5. Be dated and capable of identification by the Court at the time of tender.

A working certificate paragraph (drafting for adaptation):

I, [name], holding the position of [designation] at [organisation], being a person occupying a responsible official position in relation to the operation of [device / system], hereby certify that the electronic record annexed at [Annexure / Exhibit reference] is a true and accurate copy of the original record [stored on / transmitted by] the said device. The said device was, throughout the relevant period, in regular use, was operated properly, and the information contained in the said record was regularly fed in or stored in the ordinary course of activities. This certificate is issued under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023.

To pressure-test the certificate against the facts of a live matter, run a Lawbot Express prompt on the evidence list.

When can the certificate requirement be relaxed?

The relaxation is narrow. The Arjun Khotkar framework, applied to Section 63 BSA, permits the Court to dispense with the certificate only where:

1. The party has taken all reasonable steps to obtain the certificate.
2. The device is in the custody or control of an opponent or a third party who has refused to issue the certificate despite due request.
3. The Court has exercised its powers under the BSA and the BNSS to compel production where possible (subpoena, production order to a telecom operator, etc.) and the certificate still could not be obtained.
4. The evidence is otherwise genuine and the party seeking to rely on it has not engaged in fault or delay.

The relaxation is not a route around the certificate; it is an exception in narrowly defined circumstances. The discipline at the trial court is to begin by attempting to obtain the certificate and to document each step.

What are the most common drafting and tendering mistakes?

The five recurring mistakes under the BSA transition:

1. Citing Section 65B IEA after 1 July 2024. The live provision is Section 63 BSA. The statutory label must match the live statute even where the underlying jurisprudence is Anvar P.V. / Arjun Khotkar.
2. Tendering electronic evidence without the certificate. The first opportunity to produce the certificate is at the time of tender. Late production may be permitted but is not guaranteed.
3. Treating Shafhi Mohammad as live law. Shafhi Mohammad was overruled by Arjun Khotkar. Citing it as good law is a substantive error.
4. Not documenting the chain of custody. Electronic evidence is uniquely vulnerable to tampering allegations. The chain from generation to tender must be documented.
5. Citing fabricated BSA-era authorities. The Supreme Court treats reliance on fake AI-generated authorities as misconduct; see Supreme Court Calls AI Fake Citations 'Misconduct' and Why ChatGPT Gives Indian Lawyers Fake Citations.

How does the BSA transition interact with the BNS and BNSS?

The three new criminal laws operate together. An FIR registered on or after 1 July 2024 charges offences under the BNS (substantive law), is investigated and tried under the BNSS (procedural law), and the evidence in the trial is governed by the BSA. For the substantive concordance, see BNS to IPC Conversion Table. For the procedural transition, see Section 482 BNSS vs Section 438 CrPC: Anticipatory Bail Guide.

The bottom line on electronic evidence under the BSA

Section 63 BSA is the live provision for admissibility of electronic records. The certificate requirement under Section 63(4) is mandatory. Anvar P.V. and Arjun Khotkar continue to govern. Shafhi Mohammad is overruled and not good law. Get the section number right, identify primary versus secondary electronic evidence, obtain the certificate at the time of tender, and document the chain of custody.

To run the electronic-evidence workflow on a live matter, start a free Lawbot Express session and paste the evidence list and the source devices in.