S. 63 (4) BSA | MEITY Must Notify Electronic Evidence Experts In Each District Of TN Within 3 Months: Madras High Court

Noting that no experts are notified in Tamil Nadu, Justice GR Swaminathan held that absence of experts would deny the right of access to justice which is a fundamental right. The court opined that experts should be notified expeditiously to commensurate with the possible demand. The court thus directed the Ministry of Electronics and Information Technology (Meity) to notify experts within 3 months.

“It is surprising to note that no expert has been notified in the State of Tamil Nadu. It is beyond dispute that Tamil Nadu has good I.T infrastructure and skilled manpower. Since BSA has already come into force, very soon there will be need for certificates under Section 63(4) of BSA for securing admission of electronic records. If experts are not available in Tamil Nadu, that would result in denial of the right of access to justice which is a fundamental right…. It would be advisable to have such experts in each district in Tamil Nadu. This exercise of assessment and notification shall be carried out within a period of three months from the date of receipt of copy of this order ,” the court observed.

Section 63 of the BSA, which is similar to Section 65B of the Indian Evidence Act, any electronic evidence has to be accompanied with a certificate signed by a person in charge of the computer or communication device or the management of the relevant activities and an expert. Further Section 39(2) of the BSA states that in any proceedings, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form based on the opinion of the Examiner of Electronic Evidence referred to in Section 79A of the IT Act. This examiner of electronic evidence or expert under Section 79A is any Department, body or agency of the Central Government or a State Government notified by the Central Government in the official gazette.

The court thus noted that any person desirous of relying on any electronic record as document in evidence must submit a certificate at the time of filing an electronic record.

Though the court was requested to read down Section 63 of the BSA as statutory compliance was not possible at present in the absence of experts, the court was not inclined to do so as it felt it would amount to re-writing Section 79A of the IT Act. However, the court also remarked that such a situation may arise if the notification was not issued by the Central Government.

The court was dealing with a petition filed by a wife against the sub-court's refusal to reject the call records submitted by the husband in a matrimonial dispute. The court noted that the husband had stealthily obtained the wife's call records without her consent when her mobile phone and sim was in his custody.

Noting that the call records submitted by the husband was not accompanied with the requisite certificate under Section 65 of the Evidence Act and noting that the evidence obtained in violation of the fundamental right of privacy was inadmissible, the court allowed the wife's plea and set aside the order of the Sub-Judge.

Counsel for the Petitioner: Mr. D.Senthil

Counsel for the Respondent: Mr.J.Senthil Kumaraiah, Mr.K.Govindarajan, Deputy Solicitor General of India

Amicus Curiae: Mr.Srinath Sridevan, Senior Counsel

Citation: 2024 LiveLaw (Mad) 414

Case Title: R v B

Case No: CRP(MD)No.2362 of 2024