A Judicial Guide to Protecting Digital Evidence in the Age of Bharatiya Sakshya Adhiniyam 2023
OPENING: THE
OPERATIONAL TRAP MOST COURTS FALL INTO
Your
muddemal room receives a pen drive containing critical CCTV footage. The
prosecutor and defence counsel walk into your chambers and ask the same simple
question: “Your Honour, can your court’s computer room just copy this for us?”
Your administrative officer is standing by, computer room staff are available, and it seems like a five-minute fix.
Stop. If you say yes to this, your evidence is legally dead.
This
is not legal technicality. This is not bureaucratic red tape. This is the
difference between a conviction that stands and a conviction that gets
overturned on appeal—potentially years later, after time has been wasted,
witness memories have faded, and justice has been delayed.
The
answer is unequivocally: No. Your computer room must never touch
forensic evidence.
This
article explains why, and more importantly, what to do instead.
THE LEGAL
REVOLUTION YOU HAVEN’T NOTICED: Bharatiya Sakshya Adhiniyam 2023
For
two decades, Indian courts operated under the principle that all copies of
electronic evidence were secondary evidence requiring Section 65B(4)
certificates. This was the law from Anvar P.V. v. P.K. Basheer
(2014) 10 SCC 473 until very recently.
That law has fundamentally changed.
The
Bharatiya Sakshya Adhiniyam (BSA), 2023, introduced Section 57, which
provides:
“Electronic
records produced from proper custody shall be treated as primary
evidence unless the custody is disputed.”
This
single section overturns decades of understanding. Let me explain what this
means:
Before BSA 2023:
•
Copy of electronic evidence =
automatically secondary evidence
•
Secondary evidence = mandatory
Section 65B(4) certificate
•
No certificate = no
admissibility, full stop
•
Every copy required a new
certificate process
After BSA 2023:
•
Electronic record from proper
custody = primary evidence
•
Primary evidence = no automatic
certificate requirement
•
“Proper custody” becomes the
key battleground
•
Only if custody is disputed
does certificate become essential
This changes everything
about how you handle electronic evidence. But it
also creates a critical obligation: you must establish and maintain “proper
custody.” And the first step is ensuring your computer room never touches
that evidence.
THE CRITICAL
CLARIFICATION: WHO CAN ISSUE SECTION 65B(4) CERTIFICATES?
The
Rajasthan High Court settled this definitively in September 2025:
Section 65B(4) certificates can ONLY be issued by the person who
originally recorded or created the electronic record.
This
is crucial. Let’s say your case involves CCTV footage: - The CCTV operator who
recorded it = can issue a valid certificate - The forensic examiner who
copied it = cannot issue a valid certificate - Your court’s computer
room staff who copied it = absolutely cannot issue a valid certificate -
A certificate issued by the wrong person = invalid, evidence inadmissible
The
Rajasthan ruling closes the loophole that many courts thought existed. You
cannot substitute a computer room “certificate” or a forensic lab examiner’s
“certificate” for the original device owner’s certificate. The law is now
clear: only the original source, only that person.
This
doesn’t mean every case needs a certificate from the original owner. Under BSA
2023, if proper custody is maintained, no certificate is needed unless someone
challenges the custody. But IF a certificate is needed, it has to come from the
right person—and your computer room staff are never that person.
THE OPERATIONAL
MISSTEP: WHY COURT COMPUTER ROOMS CANNOT HANDLE FORENSIC COPYING
Court
computer rooms are designed for administrative functions: printing, scanning,
making office copies, managing digital files for internal use. They are not
forensic facilities.
When
a court computer room copies a pen drive containing electronic evidence, five
critical failures occur:
Failure #1: No
Write-Blocking Technology
Forensic
copying requires write-blockers—hardware devices that allow reading data
from a device but prevent any writing or modification. Think of them as
“read-only doors.” Without write-blockers, the very act of connecting a pen
drive to a computer risks alteration.
Your
court’s computer room has no write-blockers. They have standard computers.
Connecting a pen drive to a standard computer means the computer’s operating
system automatically attempts to access, potentially read, potentially modify
the device. This alone breaks the chain of custody.
Failure #2: No Hash
Value Verification
A hash
value is a cryptographic fingerprint of a file. If you hash a file and get
SHA-256 value A7F3B2C1D4E5..., that exact value can
ONLY be replicated if the file is 100% identical. Change one byte, and the hash
changes completely.
When
a forensic examiner copies a pen drive: 1. Hash the original: A7F3B2C1D4E5F6A7... 2. Copy the data 3.
Hash the copy: A7F3B2C1D4E5F6A7... (identical) 4.
Document that the hashes match = proof of exact duplication
Your
court computer room? They copy the file. They do not calculate hash values.
They do not verify them. They do not document them. They have no proof the
copy is authentic.
This
is legally catastrophic. In cross-examination, defence counsel asks: “How do we
know this copy wasn’t altered? Where is your hash value proof?” Your answer:
“We don’t have that.” Your case dies.
Failure #3: No
Audit Logs or Documentation
Forensic
procedures create detailed audit trails: - What tool was used (and its version)
- Who performed the procedure (with signature) - When it was performed (exact
date/time) - What the procedure consisted of (step-by-step) - What the results
were (hash values, file counts, etc.) - Were there any issues or anomalies
A
court computer room? Someone walks to the computer, plugs in the pen drive,
copies the file. Done. No documentation. No audit trail. No proof of proper
handling.
This
fails every chain of custody standard.
Failure #4:
Wrong Person in the Chain of Custody
Every
person who handles evidence is a link in the chain. The more links, the more
opportunities for something to go wrong. But here’s the critical point: each
link must be authorized.
A
forensic examiner is authorized to handle electronic evidence. They have
training, credentials, professional responsibility.
Your
court’s computer room staff? They have training in office administration. They
are not trained or authorized to handle forensic evidence. The moment they
touch the original pen drive or create a copy, they are an unauthorized link
in the chain of custody. This alone can render evidence inadmissible.
The
Rajasthan High Court’s 2025 ruling makes this crystal clear: certificates from
“wrong persons” are invalid. Your computer room staff are the “wrong persons.”
Failure #5: No
Forensic Expertise to Address Technical Issues
What
if the pen drive has a corrupted file? What if some files are unreadable? What
if the device has physical damage? What if there are metadata inconsistencies?
A
forensic examiner is trained to identify these issues, document them, and
explain their implications for evidence reliability. They know how to handle
technical failures gracefully and document them transparently.
Your
court’s computer room? If the copying fails or is incomplete, they may not even
realize it. They may copy some files but not others. They may copy corrupted
versions. They may have no idea what went wrong or why.
This
is a disaster waiting to happen, with the disaster hidden inside the computer
room.
THE LEGAL
FRAMEWORK: WHAT YOU MUST NOW KNOW (UPDATED FOR 2025)
The Supreme
Court’s “Complete Code” Principle
Anvar P.V. v. P.K. Basheer (2014) 10 SCC
473 established that Sections 65A and 65B of the Indian Evidence Act form a complete
and exclusive code for electronic evidence. This remains the foundational
principle.
But
it has evolved:
Under the old framework (pre-2023):
Section 65B(4) certificates were mandatory for all secondary electronic
evidence.
Under the new framework (post-2023):
Section 65B(4) certificates are conditional. If electronic evidence is from
“proper custody,” it is primary evidence and may not require a certificate
unless custody is disputed.
The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal (2020) 7 SCC 1 directed that courts
must establish: - Chain of custody procedures - Stamping and record maintenance
- Preservation of metadata to avoid corruption - For the entire duration of
trials and appeals
These
are not suggestions. These are judicial directives. And the first requirement
is: ensure proper custody of the original evidence.
Section 207
CrPC: Your Duty to Furnish, Not to Handle
Section
207 of the Criminal Procedure Code mandates that magistrates furnish copies of
all documents (including electronic records) to the accused free of cost,
without delay.
This
is your duty to furnish. But it is NOT your authority to handle
forensic procedures.
The
Supreme Court in P. Gopalakrishnan @ Dileep v. State of Kerala (2020) 9
SCC 161 clarified:
“The
accused is ordinarily entitled to a cloned copy to prepare effective
defence. However, such cloning must be done through the mode envisaged by
law—meaning established forensic procedures.”
Notice
the phrase: “mode envisaged by law.” This means proper, documented,
professional forensic procedures. Not your computer room. Not shortcuts. Not
administrative convenience.
The law envisages forensic labs or qualified forensic examiners, not
court administrative staff.
The New
Framework: “Proper Custody” Under BSA 2023
The
Bharatiya Sakshya Adhiniyam, 2023, Section 57 introduces the concept of “proper
custody” as the threshold for primary evidence status.
What
constitutes “proper custody”? The Act doesn’t provide exhaustive definition,
but judicial interpretation is emerging:
Proper custody means:
1. Evidence secured immediately after creation/seizure
2. Evidence stored in secure, locked facilities (muddemal/malkhana) 3. Evidence handled only by authorized persons
4. All transfers documented on chain of custody forms
5. No unauthorized access or alteration possible
6. Forensic procedures following established standards (write-blockers, hash verification)
7. Complete audit trail of all persons who handled evidence and when
Improper custody would be: - Evidence
handled by unauthorized persons (like your computer room staff) - Evidence
handled without documentation - Evidence handled on non-forensic equipment -
Evidence handled without hash verification - Evidence where chain of custody
has gaps
The
moment your computer room copies a pen drive without forensic procedures, you
are creating an improper custody incident. This allows defence counsel
to challenge the evidence at trial: “This copy was made improperly. We cannot
trust it.”
Even
if the copy is technically accurate, it becomes legally tainted.
THE KARNATAKA
HIGH COURT SEIZURE GUIDELINES: THE FOUNDATION OF PROPER CUSTODY
The
Karnataka High Court (2021) issued comprehensive guidelines for seizure and
handling of electronic devices that courts increasingly follow:
Minimum Safeguards During Search and Seizure:
1.
Qualified Forensic Examiner
Must Accompany Search Team
–
Not optional
–
Examiner present from moment
device is accessed
–
Examiner witnesses all handling
2.
Investigating Officer Must
NOT Use Seized Device
–
No “checking” the device to see
what’s on it
–
No preliminary examination
–
No curiosity copying
–
This prevents any risk of
alteration
3.
Electronic Devices Seized
and Packed in Faraday Bag
–
Blocks all electromagnetic
signals
–
Prevents remote access, GPS
tracking, automatic uploads
–
Protects device during
transport
4.
Chain of Custody Forms
Signed at Every Transfer
–
Who gave it, who received it
–
Date, time, condition
–
Both parties sign
–
No transfer without
documentation
These
are not ceremonial requirements. These are forensic best practices that
prevent evidence from being challenged. When you follow them, you create
“proper custody” under BSA 2023. When you skip them (or worse, when your
computer room handles evidence), you create “improper custody.”
THE BOTTOM LINE FOR JUDGES: FOUR CRITICAL PRINCIPLES
Principle 1:
Your Duty is to Furnish, Not to Handle Forensic Procedures
You
MUST furnish copies under Section 207 CrPC. You CANNOT do this through your
computer room. The reconciliation is simple: Direct investigating officer to get created copies through qualified forensic expert and then furnish them.
Your
duty is fulfilled. Your responsibility to evidence is protected.
Principle 2:
“Proper Custody” Under BSA 2023 is Your Gold Standard
Establish
proper custody through: - Forensic procedures (write-blockers, hash
verification) - Documentation (chain of custody forms, procedure reports) -
Authorization (qualified examiners only) - Audit trails (timestamp all
transfers, who touched evidence and when)
When
proper custody is established, evidence is primary evidence under BSA 2023.
You’re not fighting uphill battles on admissibility.
Principle 3:
Section 65B(4) Certificates Must Come From the Original Device Owner
Remember
the Rajasthan HC ruling. If a certificate is needed, it comes from the person
who created the original evidence—the CCTV operator, the video recorder, the
person who first captured the data. Not from intermediaries. Not from your
court.
If
the original device owner is unavailable, you can order production of the
certificate under Sections 91 CrPC or 165 Evidence Act. If still not available,
you may permit admission under secondary evidence provisions. But you cannot
substitute certificates from “wrong persons.”
Principle 4:
Your Computer Room is Off-Limits
Express,
unambiguous direction: Your court’s computer room must never copy electronic
evidence. Not for administrative convenience. Not for budget reasons. Not
for speed. Not ever.
If
prosecutor or defence counsel request copies from the computer room, refuse
immediately. Explain the law and tell them investigating officer should supply copy to them after following the proper forensic procedure.
Protect the evidence—and protect your judgment from appellate reversal.
PRACTICAL
SOLUTIONS FOR COMMON OBJECTIONS
“But the Forensic
Lab Will Take Weeks!”
Yes,
forensic procedures take time. A delayed but valid chain of custody is
infinitely better than a broken one.
Judges
manage case timelines around forensic procedures routinely. International
courts do this. Your court can do this.
Moreover,
BSA 2023 allows you flexibility. If proper custody is established, you don’t
need the forensic examination to be completed before trial. You can continue
the trial with the original evidence and furnish copies later (though this is
less ideal).
The
point: don’t sacrifice legality for speed.
“What if the Evidence
is Voluminous?”
Section
207 CrPC itself permits exceptions. If a pen drive contains 500 files or 100 GB
of data, you may: - Furnish representative forensic copies (key files, key
portions) instead of complete copies - Permit counsel to inspect the complete
evidence at the forensic lab under supervision - Create redacted copies if
sensitive (intimate content in sexual offence cases)
The
law provides flexibility for voluminous records. Use it. But ensure whatever
you furnish is properly forensically copied, not carelessly duplicated.
“Can’t We Just
Add Hash Values After Copying?”
No. Hash
values are calculated during forensic imaging. They prove the copy process was
clean. Retroactive hash value calculations prove nothing—they cannot show that
data was not altered between copying and verification.
Hash
values must be contemporaneous with copying. This is non-negotiable.
“What if the
Original Device Owner Can’t Provide a Certificate?”
Under
Sections 91 CrPC and 165 of the Indian Evidence Act, you can order the device
owner to produce a certificate. If they refuse or are unavailable, you may:
1.
Permit the prosecutor to prove
the evidence through other means (testimony of witnesses who saw the CCTV
recording)
2.
Admit the evidence under
secondary evidence provisions (Section 64 of the Evidence Act)
3.
Allow the evidence with reduced
weight due to the certification issue
But
you cannot substitute a certificate from a forensic examiner or court staff for
the certificate from the original device owner.
WHY THIS MATTERS: THE APPELLATE CONSEQUENCES
Let’s
be clear about what happens if you ignore this guidance:
Scenario 1: Copy Made by Court Computer Room (Improper) - Evidence is admitted at trial - Conviction is recorded - Accused
appeals - Appellate court reviews chain of custody - “The evidence was copied
by court computer room staff without forensic procedures, without hash
verification, without authorization under Section 79A.” - Appellate court:
“Chain of custody broken. Evidence inadmissible. Conviction reversed.” - Years
of trial wasted. Retrial ordered. Or acquittal.
Scenario 2: Copy Made by Qualified Forensic Examiner (Proper) - Evidence is admitted at trial - Conviction is recorded - Accused
appeals - Appellate court reviews chain of custody - “The evidence was
forensically copied with write-blockers, hash verification, and chain of
custody forms. Proper custody established.” - Appellate court: “Chain of
custody maintained. Evidence admissible. Conviction affirmed.” - Your judgment
stands. Justice is not second-guessed.
The
difference is not trivial procedural compliance. The difference is whether your
judgment survives appellate scrutiny.
CONCLUSION: INTEGRITY IS NOT OPTIONAL
Electronic
evidence is becoming increasingly critical in criminal cases: CCTV footage,
dash-cam videos, video-recorded panchnama, WhatsApp messages, call data,
location data, email trails.
Your
court’s handling of this evidence defines the integrity of your trial. It
defines whether convictions will survive appeal. It defines whether justice is
actually done or merely appeared to be done.
The
temptation to use your computer room—to take a shortcut, to save time, to
handle it administratively—is understandable. The operational convenience is
real.
But
the legal cost is catastrophic.
The
Bharatiya Sakshya Adhiniyam 2023 has given courts a new tool: the concept of
“proper custody” as the basis for primary evidence status. This is a gift. Use
it. Establish proper custody through forensic procedures. Document it
meticulously. Protect your evidence and protect your judgments.
Your
computer room is excellent for printing, scanning, and office management. It is
utterly unfit for forensic evidence handling. Know the difference. Protect the
difference.
Because
in the end, electronic evidence is just evidence—and evidence deserves the same
professional, meticulous, legally defensible handling that physical evidence
receives. Nothing less.
KEY TAKEAWAYS FOR JUDGES
✅ Bharatiya
Sakshya Adhiniyam 2023, Section 57 = Electronic records from proper custody
are primary evidence
✅ “Proper
custody” means forensic procedures (write-blockers, hash verification),
authorized handlers, complete documentation, audit trails
✅ Rajasthan
HC 2025 ruling = Section 65B certificates must come ONLY from original
device owner, not forensic examiners or court staff
✅ Section 207
CrPC = Your duty to furnish copies, but NOT to create them through improper
procedures
✅ Court
computer rooms = Absolutely prohibited from forensic copying
✅ Forensic
examiners = Can be from State FSL, police lab, or authorized private
professionals, as long as they use write-blockers and hash verification
✅ Chain of
custody = Document every transfer, maintain sealed packets, preserve audit
trails for entire trial and appeals
✅ Appellate
consequences = Improper chain of custody = reversed conviction; proper
chain = affirmed conviction
SUPREME COURT
AND HIGH COURT PRECEDENTS REFERENCED
1.
Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 - Sections 65A-65B as complete code
2.
Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal (2020) 7 SCC 1 - Chain
of custody procedures mandatory
3.
P. Gopalakrishnan @ Dileep
v. State of Kerala (2020) 9 SCC 161 - Cloned copies
through proper forensic procedures
4.
Rajasthan High Court (September 2025) - Section 65B certificates from original device
owner only
5.
Karnataka High Court (2021) - Seizure guidelines: write-blockers, Faraday bags, forensic
examiners required
6.
Bharatiya Sakshya Adhiniyam
(BSA), 2023, Section 57 - Proper custody = primary
evidence
AUTHOR’S NOTE
This article addresses a
procedural confusion that is widespread in Indian courts—a confusion made more
urgent by the Bharatiya Sakshya Adhiniyam 2023. The legal framework has evolved
rapidly, but judicial practice has not caught up everywhere.
The principles outlined here
are established by the Supreme Court and High Courts. The implementation is
within judicial discretion. But the choice is clear: proper procedure or
appellate reversal.
Courts do not get judged for
delays caused by proper procedure. Courts get judged harshly for convictions
based on legally questionable evidence.
Choose integrity.
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