“Whose Voice Is It? Lessons from a Malaysian WhatsApp Voice‑Note Case for India’s Bharatiya Sakshya Adhiniyam”

The Malaysian High Court decision in Chuah Soo Peng v Ong Chin Wei is highly instructive for Indian courts interpreting the Bharatiya Sakshya Adhiniyam, 2023 (BSA), especially on how much proof is needed to link a WhatsApp voice note to an alleged sender. While not binding, its reasoning dovetails with India’s evolving jurisprudence on electronic records—from Anvar P.V. to Arjun Panditrao—and offers a practical, context‑sensitive approach that can be harmonised with sections 62–63 BSA.

Malaysian lesson: context, relationship and probabilities

In Chuah Soo Peng, the Sessions Court demanded technical confirmation (telco records, formal WhatsApp verification) before accepting that a WhatsApp voice note came from the defendant, even though the plaintiff and defendant were close friends and clients, and the plaintiff positively identified the defendant’s voice. The High Court corrected this, holding that in a civil case between well‑known parties, oral identification of the voice, combined with surrounding circumstances (subsequent meeting, contract clause drafted at defendant’s insistence), was sufficient on a “balance of probabilities” without mandatory telco proof.

Read full judgment here: Click here.

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Important Supreme Court Judgments on electronic evidence

 

1) Supreme Court: Not Required To Play Video Evidence Before Witness Or Transcribe Its Contents For Admissibility

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4041 of 2025 (Arising out of SLP (Criminal) No. 4646 of 2025)

Decided On: 15.09.2025

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Manoj Misra, J.

Citation: 2025 INSC 1117,MANU/SC/1283/2025

https://www.lawweb.in/2025/09/supreme-court-not-required-to-play.html

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A Legal Practitioner's Guide to Electronic Evidence under the Bharatiya Sakshya Adhiniyam, 2023

 

1.0 Introduction: The Paradigm Shift from IEA 1872 to BSA 2023

The enactment of the Bharatiya Sakshya Adhiniyam (BSA), 2023, marks a fundamental evolution in Indian evidentiary law. Formally repealing the colonial-era Indian Evidence Act (IEA) of 1872, the BSA is not merely a procedural update but a comprehensive legislative adaptation to the realities of a society driven by digital communication and data. With 23 Sections Modified, 5 Sections Repealed, and 1 New Section Added, the scale of this overhaul is significant. For legal practitioners, understanding this shift is paramount, as the new law fundamentally re-calibrates how evidence is defined, collected, certified, and presented in court. This analysis will deconstruct the critical changes introduced by the BSA, focusing specifically on the new regime for electronic and digital evidence.

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Your Digital Life on Trial: 5 Game-Changing Rules in the New Bharatiya Sakshya Adhiniyam

 

Introduction

Every day, we generate a massive digital trail. We send a WhatsApp message to a friend, save a document to the cloud, and allow our phone to track our location for navigation. These actions feel routine and private, but have you ever stopped to consider their legal standing? What happens when these digital footprints step out of our personal lives and into a courtroom?

India's legal system has just undergone a seismic shift to answer that very question. The new Bharatiya Sakshya Adhiniyam (BSA), 2023, has replaced a legal framework designed for paper and ink in 1872, officially bringing Indian evidence law into the digital age. This isn't just a minor update; it's a fundamental overhaul involving 23 modified sections, 5 repealed sections, and 1 new section compared to the old framework. Here are the five most surprising and impactful takeaways from this new act.

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“e‑Sakshya” Comes to Maharashtra: How Digital Evidence Will Now Be Collected, Stored and Used

The State of Maharashtra has taken a significant step towards a fully digital criminal justice system by notifying the “Bharatiya Nagarik Suraksha Sanhita the State of Maharashtra eSakshya Management Rules, 2025”. These rules operationalise the concepts of digital investigation and electronic evidence envisaged under the new criminal laws, especially the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA).

At the heart of this framework lies the eSakshya Mobile Application, designed to ensure that video, photographs and other electronic records collected during investigation are securely captured, authenticated, transmitted and used in court.

Read Notification here: Click here.

What is “e‑Sakshya”?

The rules define “Sakshya” as any evidence collected or recorded as a document through the eSakshya Mobile Application. This includes:

·       Video recording(s)

·       Photograph(s)

·       Photograph(s) of witnesses

·       Photograph of the investigating/recording officer

Every such act of recording generates an “eSakshya Packet” with the following features:

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From Paper to Pixels: What is importance of theory of Functional Equivalence under IT Act and BSA 2023?

 Theory of Functional Equivalence in Indian Cyber Law, Information Technology Act, and Bharatiya Sakshya Adhiniyam

The theory of functional equivalence represents a foundational legal principle that ensures electronic records and transactions receive the same legal validity and treatment as their traditional paper-based counterparts. In the context of Indian cyber law, this principle serves as the cornerstone for digital transformation while preserving the integrity of existing legal frameworks.

Core Concept of Functional Equivalence

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How to prove electronic evidence under BSA 2023?

 Proving Electronic Evidence Under BSA 2023

The Bharatiya Sakshya Adhiniyam has refined and expanded the electronic evidence framework:

Key Provisions

Section 61 explicitly recognizes electronic records as admissible evidence, preventing denial solely based on their electronic nature.

Section 62 provides that contents of electronic records may be proved in accordance with Section 63.

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What is Expert Evidence as per S 39 of BSA?

 Expert evidence refers to testimony provided by a person who possesses specialized knowledge, skills, or experience in a particular field relevant to a legal case. This expertise enables them to provide opinions that are beyond the understanding of the average person and assists the court in reaching informed decisions on complex or technical matters.

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What are essential ingredients of offence of dowry death?

 The essential ingredients of dowry death under Indian criminal law remain consistent between the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS), with Section 304B of IPC now replaced by Section 80 of BNS.

Essential Ingredients of Dowry Death

The following four essential ingredients must be established to prove dowry death under both legal frameworks:

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The Application of Hearsay Evidence Principles to Electronic Evidence: Legal Evolution from Indian Evidence Act to Bharatiya Sakshya Adhiniyam

 The intersection of traditional hearsay evidence principles with modern electronic evidence represents one of the most significant developments in Indian evidentiary law. As digital technology becomes increasingly prevalent in legal proceedings, courts must navigate the complex relationship between age-old hearsay rules and contemporary forms of electronic proof. This evolution reached a pivotal moment with the Delhi High Court's decision in Kundan Singh v. The State (2015) and has been further transformed by the enactment of the Bharatiya Sakshya Adhiniyam (BSA) 2023, which fundamentally reimagines how electronic evidence is treated within the Indian legal framework.

Understanding the Hearsay Evidence Principle

Foundational Concepts of Hearsay

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How to prove electronic evidence including WhatsApp posts, CCTV footage, digital camera photographs, and digital pictures under Bharatiya Sakshya Adhiniyam?

 The digital transformation of Indian society has fundamentally altered the evidentiary landscape in judicial proceedings, requiring courts to adapt their evaluation frameworks to accommodate the complexities of electronic evidence authentication. The Bharatiya Sakshya Adhiniyam 2023 represents a paradigmatic shift in how Indian courts approach the admissibility and proof of electronic documents, moving beyond the colonial-era constraints of the Indian Evidence Act 1872 to establish a comprehensive framework specifically designed for the digital age. This transformation has particular significance for courts dealing with increasingly prevalent forms of electronic evidence, including WhatsApp communications, CCTV footage, digital camera photographs, and various forms of digital pictures that have become central to modern litigation. The judicial system's approach to these digital records requires a nuanced understanding of both legal requirements and technological realities, as courts must balance procedural rigor with practical considerations to ensure that justice is not compromised by overly technical requirements.

Evolution of Electronic Evidence Framework: IEA 1872 vs BSA 2023

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The Influence of Criminology, Criminal Law, and Penology on the Enactment of New Criminal Laws BNS, BNSS and BSA

 The enactment of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) marks a significant transformation in India's criminal justice system. These new laws, effective from July 1, 2024, replace the colonial-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively. Their development reflects a profound interrelation between criminology, criminal law, and penology, which has shaped these legislative reforms to address contemporary challenges in crime and justice.

Criminology's Role in Legislative Reform

Criminology provides essential insights into the nature of crime and the factors that contribute to criminal behavior. In the context of the new laws:

- Understanding Crime Trends: Criminological research has highlighted the rise of organized crime, cybercrime, and other modern offenses. The BNS specifically addresses these issues by defining organized crime comprehensively and introducing stricter penalties to deter such activities.

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What is difference between document and instrument?

 Document vs. Instrument

Document: Defined under Section 3(18) of the General Clauses Act, 1897. A document can be any written or recorded proof like letters, emails, photographs, or agreements. Basically, anything that can be used as evidence.

Section 2(d) of BSA 2023- "Document" means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

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Madras high court directs MEITY to expeditiously notify experts as per S 79A of Information technology Act for authenticating electronic evidence

 Section 63 of BSA, 2023 deals with the admissibility of electronic records. Sub-section (4) of the said provision is as follows :

“(4)In any proceeding where it is desired to give a

statement in evidence by virtue of this section, a certificate doing

any of the following things shall be submitted along with the

electronic record at each instance where it is being submitted for

admission, namely:—

(a) .....

(b) ...

 (c)....

and purporting 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 shall

be evidence of any matter stated in the certificate; and for the

purposes of this sub-section it shall be sufficient for a matter to be

stated to the best of the knowledge and belief of the person stating it

in the certificate specified in the Schedule.”

The effect of the above provision is that filing of the certificate is mandatory along with the electronic record. The certificate is to be signed by the person in charge of the computer system and an expert. The sub-section itself refers to a schedule annexed to the Act which is in two parts, Part A and Part B.Part A is to be filled by the party and Part B is to be filled by the expert. Section 39 of the BSA, 2023 deals with opinions of experts. Section 39(2) deals with experts in relation to electronic evidence. Section 39(2) is as follows :

“(2) When in a proceeding, the court has to form an opinion on

any matter relating to any information transmitted or stored in any

computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000, is a relevant fact.

Explanation.—For the purposes of this sub-section, an

Examiner of Electronic Evidence shall be an expert .”

The above provision takes us to Section 79A of the Information Technology Act, 2000. It reads as follows :

“79A.Central Government to notify Examiner of Electronic Evidence.–The Central Government may, for the purposes of providing expert opinion on electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Explanation.–For the purposes of this section, -electronic form evidence? means any information of probative value that is either

stored or transmitted in electronic form and includes computer

evidence, digital audio, digital video, cell phones, digital fax

machines.”

In the light of the above three provisions, namely, Section 63 and Section 39 of BSA, 2023 and Section 79A of the Information Technology Act, 2000, one can conclude that a person desirous of relying on any electronic record as a document in evidence must submit a certificate at the time of filing the electronic record. The certificate must be in two parts, Part A and Part B. Part B must be filled up by the expert notified under Section 79A of the Information Technology Act, 2000.

6.It is admitted by the Central Government that only a handful of entities have been notified till date as experts under Section 79A of the Act. It is surprising to note that no expert has been notified in the State of Tamil Nadu. It is beyond dispute that Tamil Nadu has good I.T infrastructure and skilled manpower. Since BSA has already come into force, very soon there will be need for certificates under Section 63(4) of BSA for securing admission of electronic records. If experts are not available in Tamil Nadu, that would result in denial of the right of access to justice which is a fundamental right. I,therefore, direct the second respondent to expeditiously notify sufficient number of persons/bodies/entities as experts in the State of Tamil Nadu.The number to be so notified will have be commensurate with the possible demand. It would be advisable to have such experts in each district in Tamil Nadu. This exercise of assessment and notification shall be carried out within a period of three months from the date of receipt of copy of this order. Since the position as on date is that meeting the statutory requirement is not possible of compliance, the learned amicus wanted me to read down the Section so that any person who is specially skilled in computer science can be recognised as an expert for the purpose of filling up Part B of the certificate. I do not want to travel that far as that would amount to re-writing Section 79A of the I.T Act. But such an occasion may arise if the notification directed to be issued under Section 79A of the I.T Act, 2000 is not issued by the Central

Government.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CRP(MD)No.2362 of 2024

R..... ... Petitioner/Petitioner/Respondent

vs.

1.B..... ...Respondent/Respondent/Petitioner

2.The Secretary to Government,

 Ministry of Electronics and

Information Technology

(MEITY), Government of India,

 New Delhi. ... 2nd respondent

CORAM

 MR.JUSTICE G.R.SWAMINATHAN

Pronounced on : 30.10.2024.

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How does Section 79A of Information technology Act read with S 63 of BSA addresses the issue of electronic evidence tampering?

 Section 79A of the Information Technology Act, 2000 addresses the issue of electronic evidence tampering by empowering the Central Government to designate specialized agencies as Examiners of Electronic Evidence. These designated examiners play a crucial role in ensuring the authenticity and integrity of electronic evidence presented in courts and other authorities.

 Ensuring Authenticity and Integrity

- The designated Examiners of Electronic Evidence are responsible for conducting thorough examinations of electronic data to verify its authenticity and integrity.

- Their analysis focuses on assessing whether the evidence is genuine and has not been altered, tampered with, or manipulated in any way.

- By providing expert opinions on the reliability of electronic evidence, the Examiners help safeguard against potential tampering or misinterpretation of digital data.

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Central Govt Issues Notification: References To IPC, CrPC & Evidence Act In Existing Laws To Be Read As References To BNS, BNSS & BSA

https://drive.google.com/file/d/1QqEEmpK8tn030PaJvk43804n7zejRGbd/view?usp=sharing

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New Criminal Laws : Important Articles On BNS, BNSS & BSA

 

1) Important highlights of new IPC new CRPC and new Evidence act as enacted in 2023.

https://www.lawweb.in/2024/02/important-highlights-of-new-ipc-new.html

2) 18 Important Changes Introduced by Bharatiya Nyaya Sanhita{BNS}{NEW IPC}.

https://www.lawweb.in/2024/06/18-important-changes-introduced-by.html

3) Important features of Bharatiya Nyaya Sanhita, 2023{NEW IPC}

https://www.lawweb.in/2024/06/important-features-of-bharatiya-nyaya.html

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What is basic concept of leading questions as per S 146 of Bharatiya Sakshya Adhiniyam? Explain this concept with examples

 The concept of leading questions is addressed in S 146 of Bharatiya Sakshya Adhiniyam. Here’s a detailed explanation of the concept, along with examples:

Definition and Legal Basis

Leading Question:

• A leading question is one that suggests the answer desired by the questioner, typically by putting words into the mouth of the witness.
• Section 146(1) of BSA defines leading questions as: "Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question."

• Leading questions are generally not allowed during the examination-in-chief (the initial questioning of a witness by the party who called the witness) or re-examination unless they relate to matters which are introductory or undisputed, or which have already been sufficiently proved.

• Leading questions are allowed during cross-examination (questioning of a witness by the opposing party).

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What is basic concept of plea of alibi? Explain this concept with examples

The concept of the plea of alibi is an important defense mechanism in criminal law, and it is articulated in the S 9 of Bharatiya Sakshya Adhiniyam or S 11 of Indian Evidence Act, 1872. Here’s a detailed explanation along with examples:

Definition and Legal Basis

Alibi: The term "alibi" is derived from Latin, meaning "elsewhere." A plea of alibi is a defense used by an accused person claiming that they were at a different location at the time the alleged offense was committed, making it impossible for them to be the perpetrator.

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Important features of Bharatiya Sakshya Adhiniyam,2023

 1. The new Act on law of evidence has been named as “Bharatiya Sakshya Adhiniyam (BSA), 2023” which has replaced the Indian Evidence Act, 1872.

2. The words like ‘Parliament of the United Kingdom’, ‘Provincial Act’, ‘notification by the Crown Representative’, ‘London Gazette’, ‘any Dominion, colony or possession of his Majesty, ‘Jury’, ‘Lahore’, ‘United Kingdom of Great Britain and Ireland’, ‘Commonwealth,’ ‘Her Majesty or by the Privy Council,’ ‘Her Majesty's Government’, ‘copies or extracts contained in the London Gazette, or purporting to be printed by the Queen’s Printer’, ‘possession of the British Crown’, ‘Court of Justice in England’, ‘Her Majesty’s Dominions’, ‘Barrister’ have thus been deleted as they are no longer relevant.

3. Language of the BSA has been modernized. The words like ‘Vakil’, ‘Pleader’ and ‘Barrister’ have been replaced with the word ‘Advocate’.

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