Chamber Notes
The Certificate in the Schedule: What Section 63 Asks the Party to Affirm
13 September 2026 · 13 min read
The certificate for an electronic record is treated in most files as a covering page. A CD or a pen drive is prepared, someone in the office types a paragraph tracking the language of the section, a signature goes at the bottom, and the sheet is stapled to the front of the annexure. On that understanding the certificate is a formality that accompanies the real evidence.
The Bharatiya Sakshya Adhiniyam, 2023 does not treat it that way. Section 63 makes the certificate a thing that must be filed, prescribes who must sign it — two people, not one — and sets out its contents in a Schedule to the Adhiniyam itself. What changed is not the strictness of the rule. It is the location of the rule, and the consequences of that relocation run in a direction that is not obvious.
Where the compulsion used to come from
Section 65B(4) of the Indian Evidence Act, 1872 did not say that a certificate had to be filed. Read closely, it said something narrower. Its opening words were "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", and its closing words were that such a certificate, "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".
That is a clause about proof, not about filing. It told a court what weight to give a certificate if one was produced. It did not, in terms, say what happened if none was.
The answer came from the Supreme Court. In Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, a Bench of three Judges held the certificate to be a precondition, and in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, a Bench of the same strength reiterated the position after the intervening Division Bench decisions had unsettled it. The Court put it in a single sentence: "the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly 'clarified' in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law."
That sentence was necessary because the section had not said it. The obligation to file was judicial construction laid over a clause that, on its face, described only evidentiary effect.
Where it comes from now
Section 63(4) of the Adhiniyam reproduces that opening almost exactly — "proceedings" becomes "proceeding" — and then departs from it:
In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission…
Three parts of that insertion do the work. "Shall be submitted" converts the clause from a rule of proof into a rule of filing. "Along with the electronic record" fixes what the certificate attaches to. And "at each instance where it is being submitted for admission" fixes when — not once in the proceeding, but on each occasion the record is put forward.
The practical reading of the last phrase is the one that is easiest to get wrong. The certificate under this drafting does not belong to the case. It belongs to the act of production. A recording filed with an application at an interlocutory stage, and filed again when evidence is led, has been submitted for admission twice, and the sub-section contemplates a certificate on each occasion. Nothing in the section says that the earlier certificate on the record answers the later production.
What the insertion did not change is the phrase "any of the following things", carried over from section 65B(4) and still governing clauses (a) to (c). Dealing with those words in the old section, the Supreme Court in Arjun Panditrao held that "doing any of the following things…" must be read as doing all of the following things, "it being well settled that the expression 'any' can mean 'all' given the context". The certificate is therefore not a choice among the three clauses. It has to identify the record and describe how it was produced, give the particulars of the device, and deal with the sub-section (2) conditions.
The second signature
The closing words of section 63(4) keep the structure of the old clause and add one person to it. The certificate is to purport to be signed
by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert…
The Evidence Act asked for one signature — a person occupying a responsible official position. The Adhiniyam asks for that person, described slightly differently, and then for an expert as well. The conjunction is "and", and there is no clause permitting one in the absence of the other.
Who the expert is, the section does not say. "Expert" is not among the expressions defined in section 2(1). Section 39(1) supplies a functional description rather than a definition: where the Court has to form an opinion on a point of foreign law, science, art "or any other field", the opinions of "persons specially skilled" in it are relevant, "and such persons are called experts". Section 39(2) then makes the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 a relevant fact where the Court has to form an opinion on information stored or transmitted electronically, and its Explanation provides that such an Examiner "shall be an expert".
That Explanation runs in one direction only. It tells us that an Examiner is an expert. It does not tell us that the expert contemplated by section 63(4) must be an Examiner. Part B of the Schedule, which is the form that person fills, asks only for "Name, designation and signature". Whether a departmental forensic officer, a private computer engineer or an Examiner notified under section 79A is what the sub-section requires is left to be worked out, and the text supplies no obvious answer.
What the Schedule actually asks
The Schedule is headed "CERTIFICATE" and carries the citation line "[See section 63(4)(c)]". It is in two parts. Part A is marked "(To be filled by the Party)". Part B is marked "(To be filled by the Expert)".
Part A opens in the form of an affidavit — "I, ______ (Name), Son/daughter/spouse of ______ residing/employed at ______ do hereby solemnly affirm and sincerely state and submit as follows" — and then asks for three categories of material.
The first is identification of the source. The form offers tick boxes for computer or storage media, DVR, mobile, flash drive, CD/DVD, server, cloud and other, and then asks for make and model, colour, serial number and "IMEI/UIN/UID/MAC/Cloud ID (as applicable)".
The second is the substance of the section 63(2) conditions, reproduced as a first-person narrative: that the device or source "was under the lawful control for regularly creating, storing or processing information for the purposes of carrying out regular activities", that during that period it "was working properly", that information "was regularly fed into the computer during the ordinary course of business", and that any period of malfunction "has not affected the electronic/digital record or its accuracy". It closes with four tick boxes — Owned, Maintained, Managed, Operated — followed by the words "by me (select as applicable)".
The third is the hash. The deponent states the hash value of the record and ticks the algorithm used — SHA1, SHA256, MD5, or another "(Legally acceptable standard)" — and the form adds, in parenthesis, "(Hash report to be enclosed with the certificate)". The certificate then takes a date in DD/MM/YYYY, a time in IST in the 24-hour format, and a place.
Part B repeats the device identification and the hash, in the expert's name, and omits the paragraph about lawful control and regular use.
The person the section names and the person the form names
The two are not the same, and in the ordinary case they cannot be.
Section 63(4) describes the signatory by reference to the machine: a person in charge of the computer or communication device, or of the management of the relevant activities. That is a custodian's description. The Schedule describes the signatory by reference to the litigation: "To be filled by the Party".
Those descriptions coincide only where the party is also the custodian — the litigant producing a recording from a phone that belongs to him, or a company producing a printout from its own server. They part company in most of the situations in which electronic records are actually relied on. The footage comes from a camera installed by a shopkeeper. The call detail record comes from a telecom company. The message comes from a platform. The bank statement comes from a bank. In each of those the party is producing a record created and held by somebody else, and the paragraph in Part A asks that party to affirm, in the first person and on solemn affirmation, that the device was under lawful control for regular activity, that it was working properly, that information was fed into it in the ordinary course of business, and that it is owned, maintained, managed or operated "by me".
A party who is not the custodian cannot truthfully complete that paragraph. A party who completes it anyway has made a statement on affirmation about a machine he has never seen. And a custodian brought in to sign Part A instead is filling a part of the form addressed to someone else.
The mismatch is not resolved anywhere in the section. It is worth noticing that the Schedule's own citation line refers to section 63(4)(c) alone — the clause dealing with the sub-section (2) conditions — although the closing words of sub-section (4) speak of "the certificate specified in the Schedule" without limitation, and although Part A in fact performs the work of clauses (a) and (b) as well by identifying the record and giving the particulars of the device. Whether the form is the whole certificate or one component of it is a question the drafting leaves open.
Affirmation against knowledge and belief
Section 63(4) carries forward, word for word, the concession that closed section 65B(4): "it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule."
The Schedule does not reflect that concession anywhere. Part A and Part B both open with "do hereby solemnly affirm and sincerely state", and every statement that follows is unqualified. A form drafted to match the sub-section would have carried the words "to the best of my knowledge and belief" at least against the paragraph on the working of the device — which is precisely the paragraph a non-custodian cannot speak to directly.
The point matters because the concession is the only softening the section contains, and it is the natural answer to the mismatch described above. It is also a phrase the Supreme Court has already had occasion to read. Dealing with the identical words in section 65B(4), the Court in Arjun Panditrao observed that "the word 'and' between knowledge and belief in Section 65B(4) must be read as 'or', as a person cannot testify to the best of his knowledge and belief at the same time". Those words survive unchanged into section 63(4). The reading given to them does not sit comfortably with a form that asks for solemn affirmation and offers no space for belief.
What the hash fixes
The hash requirement is new, and its effect is easy to underestimate. A hash value identifies a file, not a recording. Two exports of the same footage, made at different times or through different software, are ordinarily different files, and a different file produces a different value.
Read with the requirement that a certificate accompany the record "at each instance where it is being submitted for admission", this has a consequence at the stage of preparing the paper book. If the copy filed later is bit-for-bit the same file, its hash is the same and the later certificate repeats the earlier value. If it has been re-exported, re-compressed or re-burned in the interval, the value has changed, and a certificate carrying the old value describes a file that is not the one before the Court. The safe course is to hash once, keep the hashed file, and produce copies of that file rather than fresh extractions.
The form also requires the hash report to be enclosed. That enclosure is not mentioned in section 63 at all. It appears only in the Schedule, in a parenthesis, in both parts.
Two regimes in the same building
Section 170(1) repeals the Indian Evidence Act. Section 170(2) then provides that where, immediately before the commencement of the Adhiniyam, "there is any application, trial, inquiry, investigation, proceeding or appeal pending", it "shall be dealt with under the provisions of the Indian Evidence Act, 1872, as in force immediately before such commencement, as if this Adhiniyam had not come into force".
The saving is keyed to the pendency of the proceeding. It is not keyed to when the electronic record was created, when it was collected, or when it is produced. The Adhiniyam came into force on 1 July 2024. In a trial that was pending on 30 June 2024, a recording produced for the first time today is governed by section 65B: one signature, no prescribed form, no expert, no hash, and the question of when it must be produced left to what the Court has said rather than settled by the words "at each instance". In a trial instituted after that date, the same recording produced on the same day requires the Schedule, the second signature and the hash report.
Both certificates can be filed in the same building on the same morning, and which one is correct turns on a date that has nothing to do with the record.
The drafting consequence
None of this is work that can be done after the record is filed. Three questions have to be answered before it is:
Who is in charge of the device or of the relevant activities, and is that person the party? If not, the custodian has to be approached at the stage of collection rather than after the record has been filed on somebody else's affirmation.
Who is the expert, and on what footing is he an expert? Part B needs a name and a designation, and the designation is the only thing on the form that will answer the question if it is raised.
Which file is being certified? The hash has to be taken of the file that will actually be produced, and that file has to be preserved so that every later production is a copy of it rather than a fresh extraction.
Under the Evidence Act the certificate was a page the office added at the end. Under section 63 it is an instrument with two authors, a prescribed form, an enclosure and a timestamp, and its contents are settled by decisions taken when the record is collected. The certificate is drafted first, in substance, whatever order it is typed in.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.