Section 93 BSA: Presumption as to electronic records five years old

Bharatiya Sakshya Adhiniyam, 2023

Section 93 BSA at a Glance

Section 93 BSA deals with presumption as to electronic records five years old. It replaced Section 90A IEA on 1 July 2024.

Was IEA

Section 90A →

Section 93 BSA Bare Act Text

93. Presumption as to electronic records five years old

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 electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Explanation

The Explanation to section 81 shall also apply to this section.

Source: Section 93, Bharatiya Sakshya Adhiniyam, 2023

Section 93 BSA in Simple Words

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 applies from 1 July 2024 to old electronic records produced in court. It lets a court presume (accept as true without separate proof) that an electronic signature on a five-year-old electronic record is genuine. The court can treat the signature as affixed by the named person or by someone authorised by that person. Because the Adhiniyam uses the words may presume, the court has a choice and does not have to make this presumption.

For Section 93 BSA to apply, the electronic record must be claimed or proved to have reached five years of age. The record also has to be produced from custody that the court considers proper in that case.

To define proper custody, Section 93 BSA applies the Explanation to Section 81 BSA (which covers electronic or digital Official Gazettes and records required by law to be kept). Under that Explanation, custody is proper when the record stays at the required place under the care of the person meant to keep that document. Custody is also valid if a legitimate origin is proved, or if the case circumstances make that origin probable.

When Section 93 BSA Applies

  • A party produces an electronic record in court that is claimed or proved to have reached five years of age.
  • The electronic record comes from custody that the court considers proper for the case.
  • Proper custody is judged under the Explanation to Section 81 BSA, meaning the record was kept at the required place with the person meant to look after it, or has a proved or probable legitimate origin.
  • When these conditions are met, the court may presume that the electronic signature was affixed by the named person or by an authorised person.

Example of Section 93 BSA

In August 2024, a court in Jaipur hears a dispute over an electronic lease agreement carrying the electronic signature of Priya. The record was created five years earlier and is produced by Farhan, the office registrar required to keep the document at the company registry. Applying the Explanation to Section 81 BSA, the court finds that the file comes from proper custody. Under Section 93 BSA, the court may presume that the electronic signature on the electronic lease agreement was affixed by Priya or by an authorised person.

Section 93 BSA in the IEA (Previous Law)

Section 93 BSA replaces Section 90A IEA from the old criminal code.

Section 90A of the Indian Evidence Act, 1872 became Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The rule is the same. The Explanation on "proper custody" is no longer spelled out here and now refers to the Explanation to Section 81, which tests where a record is "required to be kept".

FAQs on Section 93 BSA

What is Section 93 BSA?▼

Section 93 of the Bharatiya Sakshya Adhiniyam, 2023 is the rule on five-year-old electronic records produced in court. When such a record comes from proper custody, the court may presume that the electronic signature on it was affixed by the named person or an authorised person.

Does a court have to accept an electronic signature as genuine under Section 93 BSA?▼

No. Section 93 BSA says that the court may presume the signature was affixed by the named person or an authorised person. The court can still ask for proof instead of making the presumption.

How does a court decide what is proper custody under Section 93 BSA?▼

By applying the Explanation to Section 81 BSA. Under that rule, custody is proper when the record stays at the place and with the person required to look after the document, or when a legitimate origin is proved or probable from the facts of the case.

What is Section 93 BSA in IEA?▼

Section 90A IEA. Section 93 BSA replaced Section 90A IEA on 1 July 2024 while keeping the same rule. The Explanation on proper custody is not written out inside Section 93 BSA itself and instead points to the Explanation to Section 81 BSA. That Explanation looks at where the record is required to be kept, not where it would naturally be.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·