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THE SECOND SCHEDULE
(AMENDMENTS TO THE INDIAN EVIDENCE ACT, 1872)
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| 1 |
In section 3,- |
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| (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;
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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, 1999;
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| 2 |
In section 17,
for the words "Oral or documentary,", the words "Oral or Documentary or contained in
electronic format " shall be substituted.
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| 3 |
After section 22,
the following section shall be inserted, namely -
"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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| 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.
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| 5. |
In section 35
for the word "Record", in both the places where it occur, the words "Record or an Electronic Record" shall be substituted.
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| 6. |
For section 39
the following section shall be substituted, namely -
39. When any statement of which evidence is given forms part of a longer statement, or of a conversation or part 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.
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| 7. |
After section 47 the following section shall be inserted; namely -
| 47A |
When the Court has to 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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| 8. |
In section 59
for the words "contents of documents" the words
"contents of documents or electronic records" shall be substituted.
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Special provisions as to evidence relating to electronic record. |
| 9 |
After section 65 the following sections shall be inserted, namely -
| 65A. |
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The contents of electronic records may be proved in. accordance with
the provisions of section 65B |
| 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) |
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 to
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 reform 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 any respect of any
period in which it was not .operating properly of was out of
operation during that part of the period, was not such as to affect
the electronic reform 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. |
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(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. |
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(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. |
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(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 therefrom by
calculation, comparison or any other process;
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| 10. |
After section 67, the following section shall be inserted, namely -
| 67A |
Except in the case of a secure digital signature, if the digital
signature of any subscriber is alleged o have been affixed to an
electronic record the fact that such digital signature is the digital
signature of the subscriber must be proved |
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| 11. |
After section 73, the following section shall be inserted, namely -
| 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) |
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 thattttttt 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, 1999.
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| 12 |
After section 81, the following section shall be inserted, namely-
| 81A |
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 |
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| 13 |
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. |
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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 |
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| 85C |
Presumption as to electronic messages
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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. |
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| 14 |
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 (z) of
sub-section (1) of section 2 of the Information Technology Act, 1999.
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| 15 |
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 AQ 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
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| 16 |
For section 131, the following section shall be substituted, namely -
| 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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