Section 63 BSA Explained — Admissibility of Electronic Evidence, Successor to Section 65B

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Overview

A WhatsApp chat screenshot, a CCTV clip, or a mobile call detail record (CDR) can decide a case — but only if it is placed before the court in the way the law requires. A large number of electronic records are kept out of evidence not because they are fake, but because the party producing them skipped a certificate. This article explains Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — the provision that governs when an electronic record is admissible in evidence, when it applies, and why courts routinely reject WhatsApp chats, CCTV footage, and CDRs produced without it.

The Statutory Framework

The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872 with effect from 1 July 2024. It carries forward, almost intact, the electronic-evidence framework that Indian courts have applied since 2000 under the old Section 65B of the Indian Evidence Act, 1872. Three provisions work together:

Section 61 provides that an electronic or digital record is not to be denied admissibility merely because it is electronic, subject to Section 63.
Section 62 provides that the contents of an electronic record may be proved in accordance with Section 63.
Section 63 sets out the conditions and the certificate requirement — this is the operative provision, and the direct successor to Section 65B of the 1872 Act.

What Section 63(1) Says

Section 63(1) provides that information contained in an electronic record — whether printed on paper, or stored, recorded, or copied in optical or magnetic media or semiconductor memory, produced by a computer or any communication device, or otherwise stored, recorded, or copied in any electronic form (defined in the section as “computer output”) — is deemed to be a document, and is admissible without further proof or production of the original, as evidence of any contents of the original or of any fact stated in it of which direct evidence would be admissible, provided the conditions in the section are satisfied.

In plain terms: an electronic record can stand in for the original device or document in court, but only if the section’s conditions and certificate requirement are met.

The Four Conditions — Section 63(2)

Section 63(2) sets out four conditions that must be satisfied in respect of the computer output:

The computer output was produced by the computer or communication device during the period it was regularly used to create, store, or process information for an activity regularly carried on by the person having lawful control over the device.
During that period, information of the kind contained in the electronic record was regularly fed into the device in the ordinary course of that activity.
Throughout the material part of that period, the device was operating properly — or, if not, the malfunction did not affect the electronic record or its accuracy.
The information in the electronic record reproduces, or is derived from, the information fed into the device in the ordinary course of that activity.

Multiple Devices Treated as One — Section 63(3)

Where the relevant activity was carried out using more than one computer or communication device — whether standalone, on a computer system, on a computer network, on a computer resource, or through an intermediary — Section 63(3) treats all of them as a single computer or communication device for the purposes of the section.

The Certificate — Section 63(4)

This is the part that most often trips up litigants. Section 63(4) requires that a certificate be submitted along with the electronic record, at each instance it is submitted for admission, which:

identifies the electronic record and describes how it was produced;
gives particulars of the device involved, sufficient to show it falls within Section 63(3); and
addresses the conditions in Section 63(2).

The certificate must purport 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. This is a change from the old Section 65B(4) of the Indian Evidence Act, which required only one signatory occupying a responsible official position — Section 63(4) of the BSA requires both a person connected with the device or activity and a separate expert to sign. It is sufficient for a matter in the certificate to be stated to the best of the knowledge and belief of the person making it, in the form specified in the Schedule to the Act.

The Schedule — Certificate Format

The Schedule to the BSA (referenced in Section 63(4)(c)) sets out a two-part certificate:

Part A, filled by the party producing the record — identifying the device (computer, storage media, DVR, mobile, flash drive, CD/DVD, server, cloud, or other), its make, model, and serial number/IMEI/UID/MAC or cloud ID as applicable, a statement that it was under lawful control and functioning properly, and the hash value of the electronic record with the algorithm used (SHA1, SHA256, MD5, or another legally acceptable standard).
Part B, filled by an expert, covering the same particulars and hash value from the expert’s independent examination.

Section 63(5) — Interpretation

Section 63(5) clarifies two interpretive points: information is “supplied” to a device whether directly or through appropriate equipment, with or without human intervention; and a computer output is taken to be “produced by” the device whether produced directly or through such equipment, consistent with Section 63(3).

Why It Matters: WhatsApp Chats, CCTV, and CDRs

None of these are exceptions to Section 63 — each is a “computer output” within its meaning:

A WhatsApp chat exported from a phone, or a screenshot of one, is secondary electronic evidence of the messages stored on the device. Without a Section 63 certificate (or the phone itself being produced and proved by its owner in the witness box), a court is not obliged to look at the screenshot as proof of the conversation.
CCTV footage, once extracted from a DVR or NVR onto a pen drive or disc, is likewise a computer output. The certificate must identify the DVR, the extraction process, and the hash value, so the court can be satisfied the clip has not been altered.
A call detail record (CDR), typically supplied by a telecom operator as a printout or spreadsheet, is proved through the operator’s certificate under the equivalent provision, not merely by producing the paper.

If the certificate is missing, incomplete, or signed by the wrong person, the electronic record itself does not become false — but it is not admissible as evidence of its contents unless the requirement is satisfied or an established exception applies.

Key Case Law

Because Section 63 substantially reproduces Section 65B of the Indian Evidence Act, 1872, the Supreme Court’s reasoning on Section 65B is expected to continue to guide how courts read Section 63.

Anvar P.V. v. P.K. Basheer & Ors. (Supreme Court of India, 18 September 2014) held that an electronic record produced as secondary evidence is admissible only if the certificate requirement under Section 65B(4) is satisfied, and that being a special provision, Section 65B prevails over the general secondary-evidence provisions. The Court held that CDs produced without the required certificate were inadmissible, and to that extent overruled the earlier view in State (NCT of Delhi) v. Navjot Sandhu that had permitted electronic evidence without strict Section 65B compliance.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. (Supreme Court of India, three-judge bench, 14 July 2020) reaffirmed that the certificate requirement is mandatory for secondary electronic evidence, while clarifying two important points: first, the certificate is not required where the original device itself is produced in court and its owner or operator steps into the witness box to prove it as primary evidence; second, where a party has made genuine efforts to obtain the certificate from a person or authority who has custody of the device but that person refuses or is unable to supply it, the court may consider directing production or otherwise addressing the impossibility, applying the general principle that the law does not compel what is impossible.

Read together, these two decisions establish that the certificate is not a technicality that can be waived by consent or convenience — it is a condition of admissibility for secondary electronic evidence, subject only to the narrow exceptions the Court itself recognised.

Practical Points

Decide early which route applies. If the original device can be brought to court and its owner can testify to it, the certificate under Section 63(4) is not required — but that route depends on the device being available and the witness being able to prove it.
Obtain the certificate at the time of collection, not at trial. Both signatories — the person connected with the device or activity, and the expert — should be identified and the hash value recorded as close to the time of extraction as possible.
One certificate per production. Section 63(4) requires a certificate “at each instance” the record is submitted for admission — a certificate obtained for one proceeding cannot automatically be assumed to cover a later, separate submission of the same record.
If custody of the device lies with someone else (a telecom operator, a housing society’s CCTV system, a bank), a written request for the certificate should be made promptly and kept on record, in case the impossibility exception under Arjun Panditrao needs to be invoked later.
Questions about whether a particular electronic record meets the Section 63 requirements, or how to obtain a certificate from a third party, are best discussed with a qualified advocate on the specific facts.

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