THE SECOND SCHEDULE
(See section 92)
amendments to the indian evidence act, 1872
(1 of 1872)
1. In section 3,-
(a) in the definition of "Evidence", for the words "all documents produced
for the inspection of the Court", the words "all documents including
electronic records produced for the inspection of the Court" shall be
substituted;
(b) after the definition of "India", the following shall be inserted,
namely:— 'the expressions "Certifying Authority", "digital signature",
"Digital Signature Certificate", "electronic form", "electronic records",
"information", "secure electronic record", "secure digital signature" and
"subscriber" shall have the meanings respectively assigned to them in the
Information Technology Act, 2000.'.
2. In section 17, for the words "oral or documentary,", the words "oral or
documentary or contained in electronic form" shall be substituted.
3.After section 22, the following section shall be inserted, namely: -
When oral admission as to contents of electronic records are relevant.
"22A. Oral admissions as to the contents of electronic records are not
relevant, unless the genuineness of the electronic record produced is in
question.".
4. In section 34, for the words "Entries in the books of
account", the words "Entries in the books of account, including those maintained
in an electronic form" shall be substituted.
5. In section 35, for the word "record", in both the places where it occurs,
the words "record or an electronic record" shall be substituted.
6. For section 39, the following section shall be substituted, namely:-
What evidence to be given when statement forms part of a conversation,
document, electronic record, book or series of letters or papers.
"39. When any statement of which evidence is given forms
part of a longer statement, or of a conversation or pan of an isolated
document, or is contained in a document which forms part of a book, or is
contained in part of electronic record or of a connected series of letters
or papers, evidence shall be given of so much and no more of the statement,
conversation, document, electronic record, book or series of letters or
papers as the Court considers necessary in that particular case to the full
understanding of the nature and effect of the statement, and of the
circumstances under which it was made.".
7. After section 47, the following section shall be inserted, namely: -
Opinion as to digital signature where relevant.
"47A. When the Court has 10 form an opinion as to the
digital signature of any person, the opinion of the Certifying Authority
which has issued the Digital Signature Certificate is a relevant fact.".
8. In section 59, for the words "contents of documents" the words "contents
of documents or electronic records" shall be substituted.
9. After section 65, the following sections shall be inserted, namely: -
Special provisions as to evidence relating to electronic record.
'65A. The contents of electronic records may be proved in accordance with
the provisions of section 65B.
Admissibility of electronic records.
65B. (1) Notwithstanding anything contained in this Act,
any information contained in an electronic record which is printed on a
paper, stored, recorded or copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer output) shall be deemed to
be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section
(1) in respect of a computer output shall be the following, namely: -
(a) the computer output containing the information was
produced by the computer during the period over which the computer was
used regularly to store or process information for the purposes of any
activities regularly carried on over that period by the person having
lawful control over the use of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind from which the
information so contained is derived was regularly fed into the computer in
the ordinary course of the said activities;
(c) throughout the material part of the said period,
the computer was operating properly or, if not, then in respect of any
period in which it was not operating properly or was out of operation
during that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d) the information contained in the electronic record
reproduces or is derived from such information fed into the computer in
the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing
information for the purposes of any activities regularly carried on over
that period as mentioned in clause (a) of sub-section (2) was regularly
performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in succession
over that period; or
(d) in any other manner involving the successive operation over
that period, in whatever order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that
period shall be treated for the purposes of this section as constituting a
single computer; and references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things, that is to say, -
(a) identifying the electronic record containing the
statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in
the production of that electronic record as may be appropriate for the
purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities (whichever is
appropriate) 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.
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a
computer if it is supplied thereto in any appropriate form and whether
it is so supplied directly or (with or without human intervention) by
means of any appropriate equipment;
(b) whether in the course of activities carried on by
any official, information is supplied with a view to its being stored or
processed for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information, if
duly supplied to that computer, shall be taken to be supplied to it in
the course of those activities;
(c) a computer output shall be taken to have been produced by a
computer
whether it was produced by it directly or (with or without human
intervention)
by means of any appropriate equipment.
Explanation. - For the purposes of this section any reference to
information being derived from other information shall be a reference to
its being derived there from by calculation, comparison or any other
process.
10. After section 67, the following section shall be inserted,
namely:-
Proof as to digital signature.
"67A. Except in the case of a secure digital
signature, if the digital signature of any subscriber is alleged to have
been affixed to an electronic record the fact that such digital
signature is the digital signature of the subscriber must be proved.".
11. After section 73, the following section shall be inserted,
namely:-
Proof as to verification of digital signature.
'73A. In order to ascertain whether a digital signature is that of the
person by whom it purports to have been affixed, the Court may direct-
(a) that person or the Controller or the Certifying Authority to
produce the Digital Signature Certificate;
(b) any other person to apply the public key listed
in the Digital Signature Certificate and verify the digital signature
purported to have been affixed by that person.
Explanation.- For the purposes of this section,
"Controller" means the Controller appointed under sub-section (1) of
section 17 of the Information Technology Act, 2000'.
12. Presumption as to Gazettes in electronic forms.
After section 81, the following section shall be inserted, namely:-
"81 A. The Court shall presume the genuineness of every
electronic record purporting to be the Official Gazette, or purporting to
be electronic record directed by any law to be kept by any person, if such
electronic record is kept substantially in the form required by law and is
produced from proper custody.".
13. Presumption as to electronic agreements.
After section 85, the following sections shall be inserted, namely:-
"85A. The Court shall presume that every electronic
record purporting to be an agreement containing the digital signatures of
the parties was so concluded by affixing the digital signature of the
parties.
Presumption as to electronic records and digital
signatures.
85B. (1) In any proceedings involving a secure
electronic record, the Court shall presume unless contrary is proved, that
the secure electronic record has not been altered since the specific point
of time to which the secure status relates.
(2) In any proceedings, involving secure digital signature, the Court
shall presume unless the contrary is proved that—
(a) the secure digital signature is affixed by subscriber with
the intention of signing or approving the electronic record;
(b) except in the case of a secure electronic
record or a secure digital signature, nothing in this section shall
create any presumption relating to authenticity and integrity of the
electronic record or any digital signature.
Presumption as to Digital Signature Certificates.
85C. The Court shall presume, unless contrary is
proved, that the information listed in a Digital Signature Certificate is
correct, except for information specified as subscriber information which
has not been verified, if the certificate was accepted by the
subscriber.".
14. Presumption as to electronic messages.
After section 88, the following section shall be inserted, namely:-
'88A. The Court may presume that an electronic message
forwarded by the originator through an electronic mail server to the
addressee to whom the message purports to be addressed corresponds with
the message as fed into his computer for transmission; but the Court shall
not make any presumption as to the person by whom such message was sent.
Explanation.- For the purposes of this section, the
expressions "addressee" and "originator" shall have the same meanings
respectively assigned to them in clauses (b) and (za) of
sub-section (1) of section 2 of the Information Technology Act, 2000.'.
15. Presumption as to electronic records five years old.
After section 90, the following section shall be inserted, namely:-
"90A. Where any electronic record, purporting or proved
to be five years old, is produced from any custody which the Court in the
particular case considers proper, the Court may presume that the digital
signature which purports to be the digital signature of any particular
person was so affixed by him or any person authorised by him in this
behalf.
Explanation.- Electronic records are said to be in
proper custody if they are in the place in which, and under the care of
the person with whom, they naturally be; but no custody is improper if it
is proved to have had a legitimate origin, or the circumstances of the
particular case are such as to render such an origin probable.
This Explanation applies also to section 81A.".
16. For section 131, the following section shall be substituted,
namely:-
Production of documents or electronic records which another person,
having possession, could refuse to produce.
"131. No one shall be compelled to produce documents in
his possession or electronic records under his control, which any other
person would be entitled to refuse to produce if they were in his
possession or control, unless such last-mentioned person consents to their
production.".