For a century and a half, "primary evidence" meant one thing: the original paper document, placed on the judge's table for inspection. Section 57 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) keeps that classic definition intact — and then quietly does something significant. It adds four new Explanations that extend the concept of the original into the digital world, treating certain electronic and digital records as primary evidence in their own right. In a chapter full of small edits, this is one of the most consequential, because it changes what a litigant can put forward as the best evidence of a document's contents.
57. Primary evidence. Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.
Illustration. A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
The classic core, unchanged
The definition itself, and Explanations 1 to 3, come straight from Section 62 of the Indian Evidence Act, 1872 (IEA) without alteration. Primary evidence is the document itself. Where a document is executed in several parts, each part is primary evidence; where executed in counterpart, each counterpart is primary against the party who signed it; and where several documents are produced by one uniform process, each is primary evidence of the others — though not of a common original from which all are copied, a point the placard illustration drives home. These rules have been applied for generations and needed no revision.
Four new Explanations for electronic records
The novelty is entirely in Explanations 4 to 7, which the BSA adds to bring digital material within the definition of primary evidence. This is the single change the recodification made to this section, and it is a substantial one.
| Aspect | Section 62, IEA | Section 57, BSA |
|---|---|---|
| Core definition | The document itself produced for inspection | Identical |
| Number of Explanations | Three (paper documents) | Seven (three paper + four electronic) |
| Electronic/digital records | Not addressed | Explanations 4–7: multiple files, proper custody, video recordings, multiple storage spaces |
Each new Explanation answers a real question about digital storage. Explanation 4 treats each file as primary evidence where a record is stored simultaneously or sequentially across multiple files — recognising that a single logical document may exist as many physical files. Explanation 6 does the same for a video recording stored in electronic form while being transmitted, broadcast, or transferred, so each stored copy is primary. Explanation 7 reaches even automated and temporary storage — cache and temporary files in a computer resource — deeming each such automated storage primary evidence. Together they abandon the paper-era instinct that only one "original" can exist, and accept that digital information is inherently multiply-instantiated.
Why this matters for the certificate under Section 63
The practical stakes of calling an electronic record "primary evidence" are considerable, and they connect directly to the certificate regime in Section 63. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court held that the mandatory certificate for electronic records applies when the record is tendered as secondary evidence, but that no certificate is required where the original electronic record is itself produced and proved — for example, by the owner of a phone stepping into the witness box with the device. Explanations 4 to 7 sharpen this distinction by identifying, within the statute, the situations in which an electronic record is the original rather than a copy. A litigant who can bring a record within one of these Explanations may be able to prove it as primary evidence, engaging Section 63's certificate machinery only when relying on a computer output as secondary evidence instead.
That said, the two routes are complementary, not a loophole. The contents of electronic records are still to be proved in accordance with Section 63 where the secondary-evidence route is used, and the presumptions and authentication rules later in the chapter continue to apply. Explanations 4 to 7 widen what counts as an electronic original; they do not dissolve the discipline that surrounds digital proof.
Key Takeaways
- Classic definition preserved: primary evidence is still the document itself produced for the court's inspection, with Explanations 1–3 carried over unchanged from Section 62 IEA.
- Four new Explanations: the BSA adds Explanations 4–7, treating multiple files, records from proper custody, video recordings, and multiple storage spaces as primary evidence.
- Digital records can be originals: the section abandons the idea that only one physical original can exist for information that is inherently multiply-stored.
- Explanation 5 is conditional: proper custody is required, and the primary status yields where the record is genuinely disputed.
- Link to Section 63: per Arjun Panditrao, producing an electronic original avoids the certificate needed for secondary electronic evidence — and these Explanations help identify when a record is the original.
Conclusion
Section 57 shows the BSA doing what a modern evidence code must: keeping what works and extending it to new realities. The definition of primary evidence and its paper-era Explanations survive untouched, while four new Explanations bring electronic and digital records — files, custody-verified records, videos, and even automated storage — into the fold of the original. For practitioners, the message is to think carefully about whether a digital record can be presented as primary evidence at all, because doing so can change both the burden of authentication and the interplay with the Section 63 certificate. The original still reigns; the Act has simply recognised that, in the digital age, an original can take many forms.