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Legal Framework for Electronic Evidence

Section 63, Bharatiya Sakshya Adhiniyam 2023

This provision (replacing Section 65B of the Indian Evidence Act) governs the admissibility of electronic records. Key requirements:

  • The electronic record must be produced from a computer used regularly for lawful activities
  • Information was fed into the computer in the ordinary course of activities
  • The computer was operating properly during the relevant period
  • A certificate under Section 63(4) must accompany the electronic record

Chain of Custody Principles

Maintaining an unbroken chain of custody is essential for electronic evidence:

  • Identification: Clearly identify the device/media containing the evidence
  • Collection: Document how and when the evidence was collected
  • Preservation: Use write-blockers, create forensic images, compute hash values
  • Documentation: Maintain detailed logs of every person who handled the evidence
  • Verification: Re-compute hash values at each transfer to confirm integrity

Key Case Laws

Case Key Holding
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 Certificate under Section 65B is mandatory for electronic evidence admissibility
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 Clarified and affirmed mandatory certificate requirement; relaxed requirement when original device is produced
State of NCT of Delhi v. Navjot Sandhu (2005) 11 SCC 600 Electronic evidence requires proper authentication and foundation
Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801 Certificate requirement should not be mandatory in all cases (later partially overruled)

Best Practices for Legal Professionals

  • Always compute hash values immediately upon receiving electronic evidence
  • Maintain multiple copies on different storage media
  • Document all metadata before opening/viewing the document
  • Never work on original evidence; use forensic copies
  • Prepare Section 63(4) certificate with complete technical details
  • Consider engaging a certified forensic expert for disputed documents