1[THE SECOND SCHEDULE
[See sub-section (1) of section 3 A]
ELECTRONIC SIGNATURE OR ELECTRONIC AUTHENTICATION TECHNIQUE AND PROCEDURE
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1. Substituted vide Information Technology (Amendment) Act, 2008 Prior to substitution text read as under :-
"THE SECOND SCHEDULE
[See section92]
AMENDMENTSTO THE INDIAN EVIDENCE ACT, 1872
[Act,No. 1 of1872]
1. In section3,-
(a) in the definition of "Evidence", for the words "all documents produced for the inspection of the Court", the words "all documents includingelectronic records produced for the inspection of the Court" shall be substituted;
(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 meaningsrespectively 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.
3. After section 22, the following section shall be inserted, namely:-
"22A. When oral admission as to contents of electronic records are relevant.-Oral admissions as to the contents ofelectronic records are not relevant, unless the genuineness of the electronic record produced is in question.".
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.
5. In section 35, for the word "record", in both the places where it occurs, the words "recordor an electronic record" shall be substituted.
6. For section 39, the following section shall be substituted, namely:-
"39. What evidence to be given when statement forms part of a conversation, document, electronic record,book or series of letters or papers.-When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of anisolated document, or is contained in a document which forms part of a book, oris contained in part of electronic record or of a connected series of letters orpapers, evidence shall be given of so much and no more of the statement,conversation, document, electronic record, book or series of letters or papersas the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of thecircumstances under which it was made.".
7. After section 47, thefollowing section shall be inserted, namely:-
"47A. Opinion as to digital signature whenrelevant.-When the court has to form an opinion as to the digital signature ofany person, the opinion of the Certifying Authority which has issued the DigitalSignature Certificate is a relevant fact.".
8. In section 59, for the words "contents ofdocuments " the words "contents of documents or electronicrecords" shall be substituted.
9. After section 65, thefollowing sections shall be inserted, namely:-
'65A. Special provisions as to evidencerelatingto electronic record.-The contents of electronic records may be proved inaccordance with the provisions of section 65B.
65B. Admissibility of electronicrecords.-(1)Notwithstanding anything contained in this Act, any information contained in anelectronic record which is printed on a paper, stored, recorded or copied inoptical or magnetic media produced by a computer (hereinafter referred to as thecomputer output) shall be deemed to be also a document, if the conditionsmentioned in this section are satisfied in relation to the information andcomputer in question and shall be admissible in any proceedings, without furtherproof or production of the original, as evidence of any contents of the originalor of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to insub-section (1) in respect of a computer output shall be the following, namely:-
(a) the computer outputcontaining the information was produced by the computer during the period overwhich the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period by the personhaving lawful control over the use of the computer;
(b) during the said period,information of the kind contained in the electronic record or of the kind fromwhich the information so contained is derived was regularly fed into thecomputer in the ordinary course of the said activities;
(c) throughout the material partof the said period, the computer was operating properly or, if not; then inrespect of any period in which it was not operating properly or was out ofoperation during that part of the period, was not such as to affect theelectronic record or the accuracy of its contents; and
(d) the information contained inthe electronic record reproduces or is derived from such information fed intothe computer in the ordinary course of the said activities.
(3) Where over any period, thefunction of storing or processing information for the purposes of any activitiesregularly 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 computersoperating over that period; or
(b) by different computersoperating in succession over that period; or
(c) by different combinations ofcomputers operating in succession over that period; or
(d) in any other manner involvingthe successive operation over that period, in whatever order, of one or morecomputers and one or more combinations of computers,
all the computers used forthat purpose during that period shall be treated for the purposes of thissection as constituting a single computer; and references in this section to acomputer shall he construed accordingly.
(4) In any proceedings where itis desired to give a statement in evidence by virtue of this section, acertificate doing any of the following things, that is to say-
(a) identifying the electronicrecord containing the statement and describing the manner in which it wasproduced;
(b) giving such particulars ofany device involved in the production of that it electronic record as may beappropriate for the purpose of showing that the electronic record was producedby a computer;
(c) dealing with any of thematters to which the conditions mentioned in sub-section (2) relate,
andpurporting to be signed by a person occupying a responsible official position inrelation to the operation of the relevant device or the management of therelevant activities (whichever is appropriate) shall be evidence of any matterstated in the certificate; and for the purposes of this sub-section it shall besufficient for a matter to be stated to the best of the knowledge and belief ofthe person stating it.
(5) For the purposes of thissection,-
(a) information shall be taken tobe supplied to a computer if it is supplied thereto in any appropriate form andwhether it is so supplied directly or (with or without human intervention) bymeans of any appropriate equipment;
(b) whether in the course ofactivities carried on by any official, information is supplied with a view toits being stored or processed for the purposes of those activities by a computeroperated otherwise than in the course of those activities, that information, ifduly supplied to that computer, shall be taken to be supplied to it in thecourse of those activities;
(c) a computer output shall betaken to have been produced by a computer whether it was produced by it directlyor (with or without human intervention) by means of any appropriate equipment.
Explanation.-For the purposes of this section anyreference to information being derived from other information shall be areference to its being derived therefrom by calculation, comparison or any otherprocess.'.
10. After section 67, thefollowing section shall he inserted, namely:-
"67A. Proof as to digitalsignature.-Exceptin the case of a secure digital signature, if the digital signature of anysubscriber is alleged to have been affixed to an electronic record the fact thatsuch digital signature is the digital signature of the subscriber must beproved.".
11. After section 73, thefollowing section shall be inserted, namely:-
"73A. Proof as in verification of digitalsignature.-In order to ascertain whether a digital signature is that of theperson by whom it purports to have been affixed, the Court may direct-
(a) that person or the Controlleror the Certifying Authority to produce the Digital Signature Certificate;
(b) any other person to apply thepublic key listed in the Digital Signature Certificate and verify the digitalsignature purported to have been affixed by that person.
Explanation.-For the purposes of this section,"Controller" means the Controller appointed under sub-section (1) ofsection 17 of the Information Technology Act, 2000.".
12. After section 81, thefollowing section shall be inserted, namely:-
"81A. Presumption as to Gazettes inelectronic forms.-The Court shall presume the genuineness of every electronicrecord purporting to be the Official Gazette, or purporting to be electronicrecord directed by any law to be kept by any person, if such electronic recordis kept substantially in the form required by law and is produced from propercustody.".
13. After section 85, thefollowing sections shall be inserted, namely:-
"85A. Presumption as to electronicagreements.-The court shall presume that every electronic record purporting tobe an agreement containing the digital signatures of the parties was soconcluded by affixing the digital signature of the parties.
85B. Presumption as to electronic records anddigital signatures.-(1) In any proceedings involving a secure electronicrecord, the Court shall presume unless contrary is proved, that the secureelectronic record has not been altered since the specific point of time to whichthe secure status relates.
(2) In any proceedings, involvingsecure digital signature, the Court shall presume unless the contrary is provedthat-
(a) the secure digital signatureis affixed by subscriber with the intention of signing or approving theelectronic record;
(b) except in the case of asecure electronic record or a secure digital signature, nothing in this sectionshall create any presumption relating to authenticity and integrity of theelectronic record or any digital signature.".
85C. Presumption as to Digital SignatureCertificates.-The Court shall presume, unless contrary is proved, that theinformation listed in a Digital Signature Certificate is correct, except forinformation specified as subscriber information which has not been verified, ifthe certificate was accepted by the subscriber.".
14. After section 88, thefollowing section shall be inserted, namely:-
"88A. Presumption as to electronicmessages.-The Court may presume that an electronic message forwarded by theoriginator through an electronic mail server to the addressee to whom themessage purports to be addressed corresponds with the message as fed into hiscomputer for transmission; but the Court shall not make any presumption as tothe person by whom such message was sent.
Explanation.-For the purposes of this section,the expressions "addressee" and "originator" shall have thesame meanings respectively assigned to them in clauses (b) and (za) ofsub-section (1) of section 2 of the Information Technology Act, 2000.".
15. After section 90, thefollowing section shall be inserted, namely:-
"90A. Presumption as to electronic recordsfive years old.-Where any electronic record, purporting or proved to be fiveyears old, is produced from any custody which the Court in the particular caseconsiders proper, the Court may presume that the digital signature whichpurports to be the digital signature of any particular person was so affixed byhim or any person authorised by him in this behalf.
Explanation.-Electronic records are said to be inproper custody if they are in the place in which, and under the care of theperson with whom, they naturally be; but no custody is improper if it is provedto have had a legitimate origin, or the circumstances of the particular case aresuch as to render such an origin probable.
This Explanation applies also to section81A.".
16. For section 131, thefollowing section shall be substituted, namely:-
"131. Production of documents or electronicrecords which another person, having possession, could refuse to produce.-Noone shall be compelled to produce documents in his possession or electronicrecords under his control, which any other person would be entitled to refuse toproduce if they were in his possession or control, unless such last-mentionedperson consents to their production."