Bharatiya Sakshya Adhiniyam, 2023
Section 93 BSA: Presumption as to Electronic Records Five Years Old
Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 deals with a discretionary evidentiary presumption concerning an electronic record that purports or is proved to be five years old and is produced from custody that the Court considers proper.
Section 93: Presumption as to Electronic Records Five Years Old
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 electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.
Explanation. The Explanation to section 81 also applies to section 93.
What Section 93 Means
The provision permits the Court, in an appropriate case, to draw a presumption about the authenticity of the electronic signature appearing on an older electronic record. The presumption is not automatic merely because an electronic record is five years old. The record must also come from custody that the Court considers proper.
Section 93 concerns the electronic signature on the record. It does not state that every statement contained in a five-year-old electronic record is automatically true, nor does it remove other applicable requirements governing relevance, admissibility and proof of electronic evidence.
Conditions for Applying Section 93
- The material must be an electronic record.
- The electronic record must purport or be proved to be five years old.
- It must be produced from custody that the Court considers proper in the circumstances of the case.
- The record must purport to bear the electronic signature of a particular person.
- Even when these conditions are satisfied, the Court may presume the signature was affixed by that person or by a person authorised by him; the language is discretionary.
What Is "Proper Custody" for Section 93?
Section 93 expressly adopts the Explanation to section 81 of the BSA. For this purpose, an electronic record is treated as being in proper custody when it is kept in the place and looked after by the person with whom it is required to be kept. The Explanation also makes clear that custody is not necessarily improper if the record is proved to have had a legitimate origin, or if the circumstances make that origin probable.
Practical point: The age of the record and the source from which it is produced both matter. The Court evaluates whether the custody is proper in the facts of the particular case.
Meaning of "May Presume"
Section 2(1)(h) of the Bharatiya Sakshya Adhiniyam defines "may presume". When the Adhiniyam says that the Court may presume a fact, the Court may either treat that fact as proved unless and until it is disproved, or may require proof of the fact. Therefore, the presumption under section 93 is permissive and not mandatory.
Electronic Records under the BSA
The BSA expressly treats electronic and digital records as documents. Section 61 provides that an electronic or digital record is not to be denied admissibility merely because it is electronic or digital, subject to section 63. Sections 62 and 63 contain the special rules governing proof and admissibility of electronic records.
| Provision | Subject |
|---|---|
| Section 61 | Legal effect and admissibility of electronic or digital records, subject to section 63. |
| Section 62 | Special provisions for proving the contents of electronic records. |
| Section 63 | Admissibility requirements for computer output and electronic records. |
| Section 81 | Presumption regarding Gazettes in electronic or digital record and the proper-custody explanation relevant to section 93. |
| Section 86 | Presumption as to electronic records and electronic signatures. |
| Section 93 | Presumption as to electronic records five years old. |
Official Sources
For the authoritative statutory text and commencement information, refer to the official Government sources:
Note: This page is a general legal information resource. The application of evidentiary rules depends on the facts, the nature of the electronic record and the procedural context of the case.