Conditions for the Admissibility of Computer Output under Section 63(2) of the Bharatiya Sakshya Adhiniyam, 2023

Section 63(2) sets out four conditions, all of which must be satisfied before a computer output becomes admissible. They are not technical formalities. Each addresses a distinct way in which an electronic record might be unreliable, and together they ask a single question: was this a system whose output can be trusted to reproduce what was put into it? The certificate under Section 63(4) deals with these matters, but the conditions exist independently of the certificate and may be probed in cross-examination.

1. The Provision

Correspondence: Section 65B(2) of the Indian Evidence Act, carried forward with 'communication device' added throughout. The substance is unchanged, and the case law on the earlier provision applies.

The conditions are cumulative. Failure of any one defeats admissibility, and a certificate that deals with three of them and is silent on the fourth is incomplete.

2. The Underlying Idea

The four conditions descend from the law relating to business records, and the resemblance to Section 28 of the Adhiniyam is not accidental. Entries in books of account regularly kept in the course of business are relevant because routine supplies a guarantee: a record made day after day, as a business requires, before any dispute existed, carries no motive to misstate and no opportunity for selective creation.

Section 63(2) applies the same reasoning to machines. A computer used regularly for an activity regularly carried on, into which information of the relevant kind is regularly fed in the ordinary course, and which was working properly, produces output that can be trusted for the same reason a well-kept ledger can. The conditions are, in substance, a routine test applied to a system rather than to a clerk.

This explains why the conditions are framed as they are, and it explains their principal weakness. A record created specially for the purposes of the litigation, or on a system used irregularly, or by a person having no lawful control over it, fails the test — not because the record is necessarily false, but because the guarantee routine supplies is absent.

3. Condition (a) — Regular Use by a Person in Lawful Control

The first condition contains four elements, and each must be established.

The output was produced by the device. The printout, copy or file tendered must have come from the computer or communication device in question, and not from some intermediate source whose relationship to the device is unexplained.

During the period of regular use. The device must have been in regular use for creating, storing or processing information over the relevant period, and the output must date from that period. A record produced from a system that had fallen into disuse, or from a device pressed into service for the occasion, does not satisfy the condition.

For an activity regularly carried on. The activity for which the device was used must itself have been regular. This covers a business, a profession, an office, a public authority, and — since the Adhiniyam now includes communication devices — the ordinary personal use of a phone for messaging and calls.

By a person having lawful control. The person using the device must have had lawful control over its use. This excludes a record produced from a device to which the party had no right of access, and it is the element most likely to matter where a phone has been taken from somebody else or a system accessed without authority.

4. Condition (b) — Regular Feeding in the Ordinary Course

The second condition looks at the input rather than the output. Information of the kind contained in the record must have been regularly fed into the device in the ordinary course of the activities.

Two words carry the weight. 'Regularly' requires that information of that kind entered the system as a matter of routine, not on isolated occasions. 'Ordinary course' requires that it entered by the normal process by which such information reaches the system, and not by some special or exceptional route.

The condition is directed at the risk of selective or purposive creation. A record made specially, in contemplation of a dispute, has none of the reliability that routine supplies, and the condition excludes it. Where a party has created an entry for the purpose of the litigation and tenders the system output containing it, condition (b) is the ground of objection.

It also addresses automatically generated data. Server logs, transaction records, call detail records, location data and system audit trails are all fed into the system automatically in the ordinary course of its operation, and they satisfy the condition comfortably. Indeed such records satisfy it better than manually entered data, because no human decision intervenes between the event and the record.

5. Condition (c) — Proper Operation

The third condition requires that throughout the material part of the period the device was operating properly, or, if it was not, that the improper operation or the period out of operation was not such as to affect the record or the accuracy of its contents.

The structure is important and is frequently misread. The condition does not require a perfect record of uninterrupted operation. It offers an alternative: either the device was working properly, or any malfunction did not affect this record. A system that crashed on a Tuesday does not thereby become incapable of producing admissible output for the preceding month.

What the condition requires the certifying person to address is therefore either that the device was working properly during the material part of the period, or that whatever went wrong had no bearing on the accuracy of the record in question. The words 'material part' confine the enquiry to the period that matters, and not to the entire operational history of the system.

6. Condition (d) — Derivation

The fourth condition requires that the information in the record reproduces or is derived from the information fed into the device in the ordinary course of the activities.

The two limbs are distinct and the distinction matters.

Reproduction covers the straightforward case: the output shows what was put in. A printout of a message displays the message; a copy of a stored file contains the file.

Derivation covers processed output — a summary, a report, a total, a filtered extract, a chart. The information was not put in in that form; the system generated it from what was put in. Such output is within the condition, but it requires the certifying person to be able to say how the derivation was performed.

The condition is directed at the gap between the data and the presentation. A report is only as good as the query that produced it, and a filtered extract may exclude precisely what matters. Where the output is derived rather than reproduced, two further questions arise which condition (d) does not itself answer: Section 33, whether enough has been produced for the meaning to be understood, and Section 39(2), whether expert opinion is needed to explain how the derivation was made and what it excludes.

7. Section 63(3) — Combinations of Devices

This provision does essential work and is easy to overlook. Modern records do not originate in one machine. A message passes from a phone through a service provider's servers to another phone; a transaction passes from a terminal through a network to a database and back as a receipt. If the four conditions had to be satisfied separately for each machine in the chain, almost no electronic record could ever be proved.

Section 63(3) treats every device involved as a single device, so the conditions in sub-section (2) are applied once to the system as a whole. The Adhiniyam has expanded the earlier provision considerably: Section 65B(3) of the Indian Evidence Act spoke of computers used in succession or in different combinations, whereas Section 63(3) enumerates standalone mode, a computer system, a computer network, a computer resource, and — the significant addition — through an intermediary.

The addition of intermediaries matters because so much electronic material now passes through service providers, hosting platforms and messaging services. Under the earlier language it was arguable that such a chain fell outside a provision framed around the successive operation of computers; the enumeration removes the argument.

8. Section 63(5) — The Clarifications

Three clarifications remove technical objections that would otherwise be available.

Information supplied through equipment. Information is taken to be supplied to a device whether it was supplied directly or by means of any appropriate equipment. A reading taken by a sensor and transmitted to a server is supplied to the server.

Processing on an outside system. Where information is supplied in the course of an official's activities with a view to being stored or processed by a computer operated otherwise than in the course of those activities, it is nevertheless taken to be supplied in the course of them. This covers outsourced data processing and cloud-hosted systems, where the machine belongs to somebody else.

Output produced through equipment. A computer output is taken to have been produced by the device whether directly or by means of any appropriate equipment or by other appropriate means. A file exported to a drive and then printed was produced by the device.

Section 65B of the Indian Evidence Act also carried an Explanation defining 'computer' widely. The Adhiniyam does not reproduce it, relying instead on Section 2(2), which incorporates the definitions in the Information Technology Act, 2000 for expressions used but not defined in the Adhiniyam.

9. Establishing the Conditions in Practice

The conditions are dealt with in the certificate, but they are matters of fact and may be probed. A party relying on an electronic record should be able to establish each of them by evidence if required.

The person signing Part A of the Schedule must be able to speak to these matters, though Section 63(4) permits the statement to be made to the best of his knowledge and belief. He need not have personal knowledge of every element, which is a necessary concession in the case of large systems, but he must be somebody in a position to hold the belief.

10. Where the Conditions Do Not Apply

The conditions govern the admissibility of computer output under Section 63. They do not arise in two situations.

Where the output is primary evidence under an Explanation to Section 57. A record stored in multiple files, produced from proper custody and undisputed, simultaneously recorded on video, or held in automated storage including temporary files is primary evidence, and Section 63 does not operate on it at all.

Where the original device is itself produced by its owner. On the authority of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, no certificate is required in that case, and the conditions in Section 63(2) are directed at output tendered without the device.

11. The Position Stated Shortly

1. Four cumulative conditions in Section 63(2), and failure of any one defeats admissibility.
2. Condition (a) — the output was produced by a device in regular use, for an activity regularly carried on, by a person having lawful control.
3. Condition (b) — information of that kind was regularly fed in, in the ordinary course, which excludes records created specially for the litigation.
4. Condition (c) — the device was operating properly, or any malfunction did not affect the record or the accuracy of its contents.
5. Condition (d) — the information reproduces or is derived from what was fed in, and derived output raises further questions under Sections 33 and 39(2).
6. The conditions descend from the law on business records, and they apply a routine test to a system rather than to a clerk.
7. Section 63(3) treats a combination of devices as one, and now expressly includes networks, computer resources and intermediaries.
8. The conditions do not arise where the output is primary evidence under an Explanation to Section 57, or where the original device is produced.

12. Related Topics and Provisions