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 With 23 Sections Modified, 5 Sections Repealed, and 1 New Section Added, the scale of this overhaul is significant.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 This isn't just a minor update; it's a fundamental overhaul involving 23 modified sections, 5 repealed sections, and 1 new section compared to the old framework.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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Supreme Court: WhatsApp messages are virtual verbal communications which requires cumulative deciphering of context

 The High Court by its order dated 30.08.2019 affirmed the order of injunction holding that the communication of acceptance to the draft MoU sent by e-mail dated 30.03.2018 coupled with the exchange of WhatsApp correspondences between the parties amounted to a concluded contract. {Para 4}

The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-in-chief and cross examination. The e-mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9346 of 2019 

Decided On: 06.01.2020

Ambalal Sarabhai Enterprise Limited and Ors. Vs. KS Infraspace LLP Limited and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and Navin Sinha, JJ.

Author: Navin Sinha, J.

Citation:  MANU/SC/0003/2020.

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Digital Signature Authentication in India's New Legal Framework: Understanding Section 73 of Bharatiya Sakshya Adhiniyam

 Introduction: The Evolution of Digital Evidence

As India transitions into a digitally-driven legal ecosystem, the authentication of electronic documents and digital signatures has become paramount in judicial proceedings. With the implementation of the new criminal laws in 2023, the framework for proving digital signatures has been modernized and strengthened under the Bharatiya Sakshya Adhiniyam (BSA), replacing the traditional provisions of the Indian Evidence Act.

The Legal Transformation: From Evidence Act to BSA

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What is object of recording statement of victim by audio video means as per S 26(4) of Pocso Act ?

 • About digital evidence

28. When entire judgment is perused, the trial court has not made any comment about the digital evidence produced in the form of memory card. It contains recording of statement done by the police. There are special provisions by way of sub-section (4) to Section 26 of the Protection of Children from Sexual Offences Act about manner of recording the statement of the child. It should with the help of not only audio but by video recording means.

• Purpose of incorporating Section 26 (4) in the POCSO Act

29. Why Learned Judge has overlooked these provisions when it was followed by the investigating officer? Learned Judge has totally overlooked them and also overlooked the evidence adduced. Learned Judge could have verified the fact 'the child has really stated the facts forming part of statement reduced into writing'. There is definite purpose for inserting these provisions in the said Act. It is for the purpose having transparency. In future, the child should not make a grievance 'she has not stated particular portion but still it is appearing in her police statement'. At the same time such provision is also incorporated in order to have check on conduct of the victim in resiling from her police statement. Even in a given case, the accused can make use of this audio-video recording in case of inconsistency in between oral testimony and contents of police statement. The legislatures have incorporated such provision for the protecting the interest of all the concerned persons. I want to emphasis on this provision in the Act. There are training conducted in Maharashtra Judicial Academy on POCSO Act also. This Court expects the Judges be made aware of these provisions and let have deliberation on this aspect. When the trial Court Judges start recognizing the purpose of incorporating Section 25(6) in the said Act, there will be check on the hostility of the victims.

30. For all these reasons, the trial court ought to have made some comment on digital evidence. But it seems that this piece of evidence has slipped from the mind. There is reason to believe that the learned trial judge has only proceeded in the direction of convicting the Appellant.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 990 of 2019

Decided On: 09.05.2024

Deelip Tatoba Raje Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.M. Modak, J.

Citation: MANU/MH/3173/2024.

Read full Judgment here: Click here.

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Precaution to be taken by investigating officer for preserving electronic evidence if mobile phone was used for commission of crime

 In a case in which a mobile phone is used for the commission of the crime, the first and foremost thing the officer should have done was to secure the phone to prevent the destruction/manipulation of data. He should have first recorded the status of the device after taking a photograph and record any on-screen information. If the device was switched on, it should have been switched off and the batteries should have been removed. Turning off the phone would preserve the various information, metadata and call logs and it would also prevent any attempt to wipe off the contents of the phone remotely. The officer also was bound to seize all cables, chargers, packaging, manuals etc. if possible to assist the enquiry and minimise the delays in any examination by the digital evidence specialist. The password/pin of the device, if any, also had to be obtained from the owner of the phone. The phone had to be packed and sealed in antistatic packaging such as plastic bag, envelope or cardboard box and the secured device along with the collected data had to be sent to the digital evidence specialist. Only the said specialist can obtain and copy the digital evidence and also provide an analysis of the evidence. None of these procedures were adopted by the investigating officer. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 7022 of 2018

Decided On: 02.11.2018

 Vijesh  Vs. The State of Kerala and Ors.

Hon'ble Judges/Coram:

Raja Vijayaraghavan V., J.

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Whether documents in digital form in pen drive and hard disk can be given to accused?

 Prosecution will have no objection to running a software on the hard discs of the home and office PCs which will indicate the various charges the hard disc has been subject to indicating the file name, date of creation, date last accessed, file size and path of the contents of the hard disc. The print out of the results of the software so run on the hard disc authenticated and certified, should be handed over to the accused.

30. As regards the documents mentioned in para 13, i.e. Envelopes (W), (X) and Annexures A, B if it they are in the form of hard copies, then the certified/authenticated copies of the hard copies will be furnished to the Petitioner but this is subject to the condition that neither the Petitioner nor his counsel will further disseminate or in any manner transmit such document or allow it to be accessed or read/write or inspected by any person other than the Petitioner and counsel for the Petitioner. Apart from the hard copies of Envelopes (W), (X) and Annexures A, B, the copies of the documents in the hard disc being relied upon by the prosecution duly authenticated should be supplied to the petitioner. As regards the home PC is concerned, the hard disc thereof if it any documents being relied upon by the prosecution then authenticated hard copies thereof should be provided to the Petitioner. If these directions are complied with the cloned copies of the pen drives and hard discs need not be provided.

Delhi High Court

Ujjal Dasgupta vs State on 25 April, 2008

Author: S Muralidhar

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