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THE SECOND SCHEDULE
(See
section 92)AMENDMENTS TO THE INDIAN
EVIDENCE ACT, 1872 (1 OF 1872)
1. In section 3,�
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(a)
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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;
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(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.
2. 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.".
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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.
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In section 35, for the word
"record", in both the places where
it occurs, the words "record or an
electronic record" shall be
substituted.
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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.".
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In section 59, for the words
"contents of documents" the
words "contents of documents or
electronic records" shall be
substituted.
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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.
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(2)
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The conditions referred to in
sub-section (1) in respect of a computer
output shall be the following, namely: �
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(a)
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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;
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(b)
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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;
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(c)
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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
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(d)
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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.
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(3)
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Where over any period, the function of
storing or processing information for
thepurposes of any activities regularly
carried on over that period as mentioned
in clause (a) ofsub-section (2) was
regularly performed by computers,
whether�
-
(a)
-
by a combination of computers operating
over that period; or
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(b)
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by different computers operating in
succession over that period; or
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(c)
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by different combinations of computers
operating in succession over that
period; or
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(d)
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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.
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(4)
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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, �
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(a)
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identifying the electronic record
containing the statement and describing
the manner in which it was produced;
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(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;
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(c)
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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.
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(5)
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For the purposes of this section, �
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(a)
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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;
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(b)
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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;
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(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 therefrom
bycalculation, 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�
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(a)
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that person or the Controller or the
Certifying Authority to produce the
Digital Signature Certificate;
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(b)
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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
aggrements.
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.
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(2)
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In any proceedings, involving secure
digital signature, the Court shall
presume unless the contrary is
proved that�
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(a)
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the secure digital signature is
affixed by subscriber with the
intention of signing or approving
the electronic record;
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(b)
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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.".
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