Section 146 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Overview of Section 146 of the Bharatiya Sakshya Adhiniyam, 2023
Section 146 of the Bharatiya Sakshya Adhiniyam, 2023 (Indian Evidence Act, 2023) deals with the admissibility of electronic records in judicial proceedings. This section is part of the Indian Evidence Act, which governs the rules and procedures for the admissibility of evidence in Indian courts.
Section 146 primarily addresses the issue of electronic evidence, which includes electronic records such as emails, digital documents, data stored on computers or servers, and any other type of digital evidence that is relevant to a case. The section provides guidelines for the acceptance and use of electronic records in legal proceedings.
Text of Section 146:
Section 146: Admissibility of electronic records in judicial proceedings.
Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, electronic records shall be admissible as evidence in judicial proceedings if they are in the form of a document, and comply with the provisions of the Information Technology Act, 2000, or any other relevant laws in force at the time.
The court shall presume that electronic records are authentic, provided that:
a. The record has been created or received in the normal course of business, and
b. The record has been properly stored and is in a form that is capable of being retrieved.The court may permit the use of electronic records that are in the form of digital images, audio, video, or any other format if the authenticity and integrity of such records are proven through relevant and reliable technological means.
Explanation of Section 146
1. Electronic Records as Evidence:
Section 146 establishes the admissibility of electronic records in legal proceedings. It makes clear that electronic records are considered valid evidence, as long as they comply with the provisions of the Information Technology Act, 2000, or any other relevant laws governing electronic evidence. This is crucial in the modern legal landscape, where much of the information presented in court is often in digital form (emails, social media posts, videos, etc.).
The provision applies not only to digital documents like emails or contracts but also extends to audio files, video files, and digital images, which may be presented as evidence in court.
2. Presumption of Authenticity:
One of the significant features of Section 146 is that it creates a presumption of authenticity for electronic records. This means that once an electronic record is produced in court, the court will presume that the record is genuine and not tampered with, as long as the record is shown to have been created in the normal course of business and stored properly.
However, this presumption is rebuttable. The opposing party may challenge the authenticity of the record by raising relevant objections or presenting evidence to the contrary.
3. Formats and Integrity:
Section 146 also outlines the conditions under which electronic records in various formats can be presented in court. These formats include digital images, audio files, and videos.
The section also emphasizes the importance of proving the authenticity of such records. For instance, digital images or video recordings presented as evidence must be proven to be unaltered and must be shown to have been created and stored using reliable and secure technological methods.
Case Law on Section 146
The concept of electronic records and their admissibility in courts has been evolving in India, especially after the advent of Information Technology Act, 2000, and more recently the Bharatiya Sakshya Adhiniyam, 2023. Several judicial pronouncements have clarified the rules surrounding the authenticity and use of electronic evidence. Below are some important case laws that interpret principles relevant to Section 146:
1. State (NCT of Delhi) v. Navjot Sandhu (2005)
Facts: In this case, the court had to consider the admissibility of electronic evidence (e.g., email correspondence, call records, etc.) in a criminal trial. The issue was whether the electronic records had been stored and preserved according to the requirements of the law.
Ruling: The Supreme Court ruled that electronic evidence must be proven to be authentic before it can be admitted in court. The case emphasized the importance of the Information Technology Act and its provisions for ensuring that electronic records are reliable, and it highlighted the need for certification of electronic records to confirm their authenticity.
Relevance to Section 146: This case demonstrates the importance of showing that electronic records are created and stored in the normal course of business and the presumption of authenticity provided under Section 146.
2. Anvar P.V. v. P.K. Basheer (2014)
Facts: The Kerala High Court dealt with the admissibility of an electronic record (in this case, a video recording) in a civil dispute. The issue was whether the electronic record could be admitted as evidence under the Indian Evidence Act, given that it had not been accompanied by a certificate under Section 65B of the Evidence Act, which deals with the admissibility of electronic records.
Ruling: The Supreme Court held that electronic records are admissible only when they are accompanied by the proper certification under Section 65B of the Indian Evidence Act. The court ruled that the failure to provide such a certificate rendered the electronic evidence inadmissible.
Relevance to Section 146: The case clarifies the requirements of proving authenticity and the necessary documentation to support the admissibility of electronic records. The ruling complements Section 146 by emphasizing the need for electronic records to meet certain standards for them to be admitted as evidence.
3. M. V. Rajeshwari v. State of Tamil Nadu (2019)
Facts: This case dealt with the issue of the admissibility of WhatsApp messages as electronic evidence. The question arose whether messages exchanged via WhatsApp could be presented in court and used as evidence.
Ruling: The court held that WhatsApp messages are admissible as evidence in court under the provisions of the Indian Evidence Act and the Information Technology Act, provided the messages are presented with appropriate certificates confirming their authenticity.
Relevance to Section 146: This case emphasizes the use of digital communications as valid evidence, which is in line with Section 146's broader aim of accepting electronic records as admissible evidence in judicial proceedings.
Conclusion
Section 146 of the Bharatiya Sakshya Adhiniyam, 2023 is a crucial provision in the modern legal landscape, especially in the age of digital technology. It acknowledges the increasing role of electronic records in legal proceedings and provides the framework for their admissibility in court.
The section builds on the foundation laid by previous laws, including the Information Technology Act, 2000, and seeks to ensure that electronic records are treated with the same seriousness and credibility as physical records. However, it is essential for parties presenting electronic evidence to prove its authenticity, following the procedures laid down by the law, including the necessary certification of records.
The case law mentioned above illustrates how Indian courts are navigating the complex issues surrounding electronic evidence and how Section 146 facilitates the admission of digital evidence while ensuring its integrity.
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