Opinion of Examiner of Electronic Evidence: Section 45A and BSA Section 39(2)
The opinion of an officially notified Examiner of Electronic Evidence can help a court evaluate computer data, digital records and forensic findings. Former Section 45A of the Indian Evidence Act, 1872 is now substantially reflected in Section 39(2) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Section 39(2) of the Bharatiya Sakshya Adhiniyam, 2023
Under Section 39(2), when a court must form an opinion about information transmitted or stored in a computer resource or in any other electronic or digital form, the opinion of an Examiner of Electronic Evidence referred to in Section 79A of the Information Technology Act, 2000 is a relevant fact. The statutory explanation treats that Examiner as an expert.
This rule is the present-day counterpart of Section 45A of the Indian Evidence Act, 1872, which recognised the expert opinion of an Examiner of Electronic Evidence. Section 45A was introduced by the Information Technology (Amendment) Act, 2008 and brought into force on 27 October 2009.
What does "relevant fact" mean?
A relevant fact is information the law permits the court to consider in determining a disputed issue. The examiner's opinion is therefore admissible for consideration when the statutory conditions are met; it does not automatically or conclusively establish that a digital record is genuine, untampered with or attributable to a particular person.
Related provision: Section 39(1)
Section 39(1) deals with opinions of persons specially skilled in fields such as foreign law, science, art, handwriting identification and finger impressions. Section 39(2) specifically recognises the Examiner of Electronic Evidence in matters involving electronic or digital information.
Who is an Examiner of Electronic Evidence?
Section 79A of the Information Technology Act, 2000 empowers the Central Government to notify a department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence for providing expert opinions on electronic-form evidence before a court or other authority.
In this context, electronic-form evidence can include information of probative value stored or transmitted in electronic form, including computer evidence, digital audio, digital video, mobile-phone data and other digital information. A forensic laboratory or private analyst is not automatically a Section 79A Examiner merely because it performs digital forensic work; the relevant government notification and scope of recognition should be checked.
Typical forensic questions
- Whether a computer file appears to have been modified or manipulated.
- Whether relevant metadata, logs or device artefacts support a proposed timeline.
- Whether deleted material can be recovered and reliably associated with a device.
- Whether an audio or video recording shows signs of editing.
- Whether the methods used to acquire, preserve and examine data were scientifically reliable.
The examiner's findings must be assessed in light of the examination performed, the available material, limitations of the techniques and any contrary evidence.
Expert opinion is different from proof of electronic records
The BSA separately regulates electronic and digital records. Section 61 provides that an electronic or digital record is not to be denied admissibility merely because it is electronic or digital, subject to Section 63. Section 63 specifies conditions and certification requirements for proving computer output and electronic records in the situations to which that section applies.
Accordingly, an expert report under Section 39(2) should not be treated as a blanket substitute for the applicable requirements governing the production, authenticity and proof of an electronic record. The court may also consider the source device, acquisition method, chain of custody, hash values, accompanying certificates, witness testimony and the circumstances of the case.
| Provision | Subject | Practical significance |
|---|---|---|
| BSA Section 39(1) | General expert opinion | Expertise in science, handwriting, fingerprints and specified other fields |
| BSA Section 39(2) | Examiner of Electronic Evidence | Relevance of the opinion of a Section 79A Examiner |
| IT Act Section 79A | Notification of Examiners | Government designation of eligible examining bodies or agencies |
| BSA Sections 61 and 63 | Electronic records | Legal effect, conditions and certification for electronic evidence |
| BSA Section 170 | Repeal and savings | Transition from the former Evidence Act |
Practical illustrations
Example 1: Disputed CCTV footage
A party alleges that a CCTV recording was edited before it was submitted to court. A properly notified Examiner of Electronic Evidence examines the original recording, file structure and available metadata. The resulting opinion may be relevant to the authenticity dispute, but the court must evaluate it alongside the other evidence.
Example 2: Messages recovered from a mobile phone
Investigators recover messages from a seized phone. A forensic examination may address whether the messages were stored on that device and whether extraction was performed reliably. The court must still decide what the messages prove, who authored them and whether the applicable evidentiary conditions are satisfied.
Example 3: Altered digital document
In a commercial dispute, one party claims that a PDF contract was changed after signing. A forensic opinion about file versions, timestamps and document properties may assist the court, but the examiner's conclusion is not binding on the judge.
These are explanatory examples, not statutory illustrations or findings from decided cases.
How courts evaluate an examiner's opinion
The weight of an expert opinion depends on the expert's competence and designation, the materials examined, the clarity of the methodology, the reasoning behind the conclusions, the preservation of the original evidence and the opportunity to test the findings. An opinion that merely states a conclusion without explaining its basis may carry less persuasive value.
Parties may question the scope of the expert's assignment, the tools and procedures used, the availability of original data and any uncertainty in the result. Expert evidence assists the court; it does not replace the court's independent evaluation of facts and law.
Frequently asked questions
Is Section 45A of the Indian Evidence Act still in force?
The Indian Evidence Act, 1872 was repealed when the BSA took effect on 1 July 2024, subject to the saving provisions in BSA Section 170. The corresponding current rule is Section 39(2) of the BSA.
Can any computer expert be treated as an Examiner under Section 79A?
No. The specific statutory designation under Section 79A depends on a Central Government notification. Other qualified experts may have relevance under the general rules for expert opinion, depending on the circumstances.
Does a favourable examiner's report prove a digital document is authentic?
No. The opinion is relevant evidence, not conclusive proof. The court considers its reliability and all other applicable evidence.
Is an electronic evidence certificate always unnecessary when an examiner gives an opinion?
No. The rules for expert opinions and those for proving electronic records are distinct. The requirements of BSA Section 63 must be examined independently where applicable.
Official legislation and further reading
- Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023) - India Code, official Act PDF
- Information Technology Act, 2000 - India Code (see Section 79A; confirm the latest consolidated text and notifications)
- Indian Evidence Act, 1872 - historical provisions and related reading
- Section 45 - opinions of experts
- Section 46 - facts bearing upon expert opinions
This article provides general legal information. The statutory text, applicable commencement and saving provisions, relevant notifications and case-specific facts should be checked before relying on a particular rule in proceedings.