Legal Guide by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
More criminal cases collapse on this provision than on any question of fact. The CCTV footage is there. The call recording is there. The WhatsApp chat is there. And it is all inadmissible, because nobody filed a certificate.
Electronic evidence is now governed by Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, in force since 1 July 2024. It replaces Section 65B of the Indian Evidence Act, 1872 — but it does not merely reproduce it. The certificate requirement has become stricter, not looser.
1. The Core Rule in One Line
If you produce the original device, no certificate is needed. If you produce anything else — a printout, a pen drive, a CD, a screenshot — the certificate under Section 63(4) is mandatory, and without it the evidence is inadmissible.
Everything below is an elaboration of that sentence.
2. The Gateway Provisions — Sections 61 and 62
Section 61 BSA removes the threshold objection. It provides that nothing in the Adhiniyam shall be applied to deny the admissibility of an electronic or digital record merely because it is electronic, and that such a record shall have the same legal effect as any other document.
Section 62 then directs that the contents of electronic records are to be proved in accordance with Section 63.
So the structure is: Section 61 says electronic evidence is not inferior. Section 63 says here is the only way you may prove it.
3. Section 63 — The Four Conditions
Section 63(1) provides that information contained in an electronic record which is printed on paper, or stored, recorded or copied in optical or magnetic media or semiconductor memory, produced by a computer or a communication device, shall be deemed to be a document and is admissible without further proof of the original — provided the conditions in sub-section (2) are satisfied.
Note the words “communication device”. This is an expansion on Section 65B, and it squarely brings mobile phones within the provision.
The four conditions under Section 63(2):
- The computer or communication device producing the record was in regular use at the relevant time by a person having lawful control over it;
- Information of that kind was regularly fed into it in the ordinary course of activities;
- The device was operating properly throughout the material part of the period — or, if not, the malfunction did not affect the accuracy of the record;
- The information reproduced is derived from information fed in in the ordinary course of those activities.
Section 63(3) deals with records produced over a period by a combination of computers or devices, whether operating in succession or in different combinations — all of them are treated as a single device for the purposes of the section. This matters for server logs and networked systems.
4. The Certificate — Section 63(4) and the Schedule
This is where the BSA departs meaningfully from the old law.
Under Section 63(4), a certificate must:
- Identify the electronic record and describe the manner of its production;
- Give particulars of the device involved in its production;
- Deal with the conditions in sub-section (2); and
- Be in the form prescribed in the Schedule to the Adhiniyam.
The Schedule certificate is in two parts. Part A is completed by the party or the person in lawful control of the device. Part B is completed by an expert. The certificate must be signed by both, and must state the hash value of the electronic record.
The hash — a fixed-length digital fingerprint generated by an algorithm such as SHA-256 — changes entirely if a single character of the file is altered. Its inclusion converts the certificate from a statement of belief into something verifiable.
| Basis | Section 65B, Evidence Act 1872 | Section 63, BSA 2023 |
|---|---|---|
| Source device | “Computer” | Computer or communication device |
| Form of certificate | No prescribed format | Format prescribed in the Schedule |
| Who signs | Person occupying a responsible official position | Person in charge and an expert — two signatures |
| Hash value | Not required | Required |
| Mandatory? | Yes, for secondary evidence (Arjun Panditrao) | Yes — position unchanged |
5. Arjun Panditrao — The Governing Authority
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, a three-Judge Bench, settled the law. Though decided under Section 65B, its reasoning applies to Section 63, which is in substance the same provision.
What it held:
- The certificate is a condition precedent to admissibility of secondary electronic evidence. It is not a mere technicality.
- Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801, which had held the requirement to be procedural and relaxable, was overruled.
- Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, was declared per incuriam.
- Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 — which had itself overruled State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 — was affirmed, with a clarification correcting its reference to Section 62.
- Where the original is produced — the owner steps into the witness box with the device itself — no certificate is required at all.
- The Court also issued directions to telecom and internet service providers to preserve call detail records and relevant data, so that the material remains available when required.
6. Original Versus Secondary — And Section 57
The distinction that decides most cases is whether what you are producing is the original or a copy.
If the laptop, the mobile phone or the CCTV DVR is itself produced in court and proved by the person who owns or operates it, Section 63 is not attracted. The record is primary evidence.
The BSA has additionally widened what counts as primary. The Explanations to Section 57 provide that where an electronic record is created or stored simultaneously in several files, each such file is primary evidence; where it is stored in a device and copies are made, each copy is primary evidence; and where a video recording is simultaneously stored and transmitted, each stored recording is primary evidence.
This is a genuine relaxation, and it is under-used in practice. It will not, however, help you with a printout or a forwarded screenshot — those remain squarely within Section 63.
7. When You Cannot Obtain the Certificate
A recurring practical problem: the device belongs to a mobile company, a bank, or the opposite party, and they will not sign.
Arjun Panditrao answers it. Where a party has genuinely tried and failed to obtain the certificate, it may apply to the court, and the court may summon the person in control of the device and direct production of the certificate. Once the party has done all it can, it cannot be penalised for the default of a third party — the maxim applied is lex non cogit ad impossibilia: the law does not compel the impossible.
The practical route is therefore an application to the court at the earliest, coupled — in a criminal matter — with the power to summon documents under the BNSS.
8. When Must the Objection Be Taken?
A point that decides appeals. In Sonu alias Amar v. State of Haryana, (2017) 8 SCC 570, the Supreme Court drew the distinction between an objection to the admissibility of a document and an objection to its mode of proof.
An objection to the mode of proof — which is what the absence of a certificate ordinarily is — must be taken when the document is tendered at trial. If it is not, it cannot be raised for the first time in appeal, because the defect is curable and the other side has lost the chance to cure it.
For defence counsel the lesson is blunt: object at the time of exhibiting, and get the objection recorded. For the prosecution, the corollary is that a certificate can often still be brought on record if the objection is taken early enough.
9. Expert Opinion — Section 39(2)
Where the court has to form an opinion on any matter relating to information transmitted or stored in a computer resource or other electronic device, the opinion of the Examiner of Electronic Evidence notified under Section 79A of the Information Technology Act, 2000 is a relevant fact under Section 39(2) BSA.
This connects directly to the Schedule: Part B of the certificate contemplates an expert, and the notified Examiner is the natural person to complete it.
10. A Practical Checklist
- Take the hash at the point of seizure or collection, not later. A hash generated after the file has been moved about proves little.
- Obtain the certificate early — ideally when the record is collected, not on the eve of evidence.
- Produce the original device wherever possible. It is the cleanest route and dispenses with the certificate altogether.
- If the device is with a third party, apply to the court immediately and place the refusal on record.
- Use the Schedule format. A certificate in your own words risks being held non-compliant.
- Object at the time of exhibiting, or lose the point.
11. Common Misconceptions
- “A screenshot of a WhatsApp chat is enough.” It is a copy. It needs a certificate, and ordinarily the phone itself is better evidence.
- “The certificate is a formality the court will overlook.” After Arjun Panditrao, it is a condition precedent to admissibility.
- “Since the BSA is new, the old case law is gone.” Section 63 substantially reproduces Section 65B. Anvar P.V. and Arjun Panditrao continue to govern.
- “If I cannot get the certificate, the evidence is lost.” Not necessarily — apply to the court.
- “Any officer can sign.” Under the BSA Schedule the certificate requires two signatures, one of them an expert's.
12. Quick Revision — For Exams and Vivas
- Sections: 61 (electronic record not to be denied admissibility), 62 (proof in accordance with 63), 63 (admissibility and certificate), 63(4) + Schedule (form of certificate), 57 Explanations (primary evidence), 39(2) (Examiner of Electronic Evidence).
- Certificate: two parts — Part A by the person in charge, Part B by an expert; must state the hash value.
- Leading case: Arjun Panditrao Khotkar, (2020) 7 SCC 1 — certificate mandatory; Shafhi Mohammad overruled; Tomaso Bruno per incuriam; Anvar P.V. affirmed.
- Exception: original device produced and proved — no certificate.
- Impossibility: lex non cogit ad impossibilia — apply to the court.
- Objection: mode of proof — take it at trial, not in appeal (Sonu v. State of Haryana).
- Trap question: is Section 63 BSA more relaxed than Section 65B? No — it is stricter.
Conclusion
The law of electronic evidence rests on a single anxiety: a digital file can be altered without leaving a mark. Every requirement in Section 63 — the conditions, the certificate, the expert, the hash — exists to answer the question how do we know this file is what it claims to be.
Read that way, the certificate stops looking like a bureaucratic obstacle and starts looking like what it is: the chain of custody, written down.
The practical discipline is unglamorous and decisive. Secure the original. Take the hash early. Get the certificate in the prescribed form, signed by both hands the Schedule requires. Do that, and the footage speaks. Skip it, and the strongest evidence in the file never reaches the record at all.
Disclaimer: This article is intended for general information and legal education only and does not constitute legal advice. The law stated is based on the Bharatiya Sakshya Adhiniyam, 2023, the Information Technology Act, 2000 and the judgments cited; readers should refer to the bare provisions, the Schedule to the Adhiniyam and the full text of those judgments. Anyone dealing with electronic evidence in a live matter should consult a qualified advocate. Please read our Disclaimer for more details.
