Malaysian Criminal Law- Islamic Law -Sodomy (Liwat) under Islamic Law and Malaysian Law


Question 1




What is meant by sodomy in Islamic law?


Answer:
Sodomy refers to anal sexual intercourse between two males. In Islamic teachings, it is regarded as an unnatural sexual act committed for sexual gratification and is considered destructive to morality, social order, and human nature.

Question 2




What is the Qur’anic basis for the prohibition of sodomy?


Answer:
The prohibition is derived from Qur’anic narratives concerning the people of Prophet Lut (AS). Allah condemns their conduct for engaging in sexual relations with men instead of women, describing it as a form of lewdness unprecedented among earlier communities and as conduct that exceeds moral limits (Surah al-A‘raf 7:80–81; Surah Ash-Shu‘ara 26:165–166).

Question 3




What do the Hadiths say about sodomy?


Answer:
Several Hadiths strongly condemn sodomy. The Prophet (SAW) described same-sex acts as a grave wrongdoing and expressed fear for his community regarding the acts of the people of Lut. Other narrations state that those who engage in such acts incur Allah’s curse. These Hadiths form the moral and legal basis for the prohibition of sodomy in Islam.

Question 4




How does Islam view sodomy in relation to human nature?


Answer:
Islam views sodomy as contrary to human nature (fitrah). Human beings are created in complementary pairs—male and female—and moral, emotional, and physical fulfilment is achieved through heterosexual marriage. Homosexual conduct is therefore seen as contradicting the natural order established by Allah.

Question 5




Is sodomy treated as a hadd offence or a ta‘zīr offence in Islamic law?


Answer:
There is juristic disagreement:

• Imam Malik, Imam Shafi‘i, Imam Ahmad, and the Zaydi school regard sodomy as a hadd offence equivalent to zina, relying on Hadiths that prescribe severe punishment.
• Imam Abu Hanifah considers sodomy a ta‘zīr offence, not a hadd offence, meaning punishment is discretionary and determined by the authority.

Question 6




What is the position on sodomy under Malaysian Syariah law?


Answer:
Under section 25 of the Syariah Criminal Offences (Federal Territories) Act 1997, sodomy is criminalised as liwat.

Question 7




How is “liwat” defined under Malaysian Syariah law?


Answer:
Section 2 of the Syariah Criminal Offences (Federal Territories) Act 1997 defines liwat as sexual relations between male persons.

Question 8




What is the punishment for liwat under section 25 of the 1997 Act?


Answer:
Upon conviction, an offender is liable to:

• A fine not exceeding RM5,000, or
• Imprisonment for a term not exceeding three years, or
• Whipping not exceeding six strokes, or
• Any combination of the above.

Question 9




How does sodomy under Syariah law relate to offences under the Penal Code?


Answer:
The offence of liwat under Syariah law overlaps with offences under the Penal Code, particularly:

• Section 377A (sexual intercourse against the order of nature), and
• Section 377D (outrages on decency).

However, the Penal Code provisions are broader in scope than the Syariah offence of liwat.

Question 10




What was decided in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia?


Answer:
The court held that when an act constitutes an offence under the Penal Code, the civil courts retain jurisdiction, even if the conduct may also be described using Syariah terminology. The Sessions Court was competent to try the offence under section 377D of the Penal Code, as it was not trying an offence of liwat under Syariah law.

Question 11




What is the effect of the Federal Court decision in Iki Putra bin Mubarrak v Kerajaan Negeri Selangor on sodomy offences?


Answer:
The Federal Court ruled that state Syariah provisions criminalising unnatural sex were unconstitutional because criminal law falls under Parliament’s legislative power. As a result, state Syariah enactments creating offences that overlap with federal criminal law may be invalid.

Question 12




What is the overall legal position on sodomy in Malaysia?


Answer:
While sodomy is condemned under Islamic law and addressed in Syariah enactments, its enforcement in Malaysia is subject to constitutional limits. Where conduct falls within the Penal Code, civil courts have jurisdiction, and Syariah provisions must not encroach upon Parliament’s exclusive power over criminal law.


Exam Tip (One-liner)

Sodomy (liwat) is morally condemned in Islam, juristically disputed as hadd or ta‘zīr, and constitutionally constrained in Malaysia due to Parliament’s exclusive power over criminal law.

Kembaraxtra-Islamic Law-Khalwat (Proximity) under Islamic Law and Malaysian Syariah Law

Question 1

What is meant by khalwat in Islamic law?


Answer:
Khalwat refers to a situation where a man and a woman who are not married to each other and not mahram are found together in seclusion or in circumstances that may give rise to a reasonable suspicion of immoral conduct. Islam prohibits such proximity as it may lead to immoral acts.

Question 2

What is the Islamic basis for the prohibition of khalwat?


Answer:
The prohibition of khalwat is based on the saying of the Prophet (SAW):


“Whoever believes in Allah and the Last Day must never be in proximity with a woman without there being a mahram with her, for otherwise Satan will be the third person with them.”


This reflects Islam’s preventive approach in safeguarding morality by avoiding situations that may lead to sinful behaviour.

Question 3

Who is considered a mahram in Islamic law?


Answer:
A mahram is a person with whom marriage is permanently prohibited. This includes:

• Husband
• Father, grandfather
• Son, grandson
• Brother
• Uncle (father’s or mother’s side)
• Nephews
• Foster relatives through suckling

The prohibited degrees of marriage are laid down in Surah Al-Nisa (4): 22–24.

Question 4

What circumstances amount to the offence of khalwat?


Answer:
An offence of khalwat arises when:

• A man and a woman are alone together;
• They are not husband and wife and not mahram;
• They are found in a secluded place, house, or room; and
• The circumstances give rise to a reasonable suspicion that they were engaged in immoral acts.

Question 5

What is the legal provision governing khalwat in Malaysia?


Answer:
Khalwat is governed by section 27 of the Syariah Criminal Offences (Federal Territories) Act 1997, which criminalises close proximity between non-mahram men and women in suspicious circumstances.


Question 6

What are the essential elements of the offence under section 27?


Answer:
The prosecution must prove:

1. The accused is a man or woman;
2. Found together with a person of the opposite sex;
3. They are not spouses and not mahram;
4. The place is secluded (house, room, or similar); and
5. The circumstances give rise to suspicion of immoral conduct.

Question 7

What is the punishment for khalwat under the Syariah Criminal Offences (Federal Territories) Act 1997?


Answer:
Upon conviction, the offender is liable to:

• A fine not exceeding RM3,000, or
• Imprisonment for a term not exceeding two years, or
• Both.

Question 8

What principle was illustrated in Pendakwa Syariah v Ghazali & 5 Ors (Kedah case)?


Answer:
The case illustrates that mere presence of men and women in the same premises is insufficient to prove khalwat. The prosecution must show that the accused were together in seclusion under circumstances giving rise to suspicion of immoral acts. Failure to prove these elements will result in acquittal.

Question 9

What was decided in Pendakwa v Zahid Nasir and Juniadah (Perak case)?


Answer:
The court found the accused guilty of khalwat as the evidence established suspicious proximity. Each accused was sentenced to a fine of RM3,000 or three months’ imprisonment, demonstrating that where suspicion of immorality is proven, conviction will follow.


Question 10

How does marriage operate as a defence to a charge of khalwat?


Answer:
Marriage is a complete defence if it is valid under Hukum Syarak. In Pendakwa Syarie, Kelantan v Mat Rahim & Anor, the accused successfully proved that they were lawfully married in Thailand. As the marriage was recognised by the Islamic Religious Council, the court acquitted them.



Question 11

What was the significance of Ketua Pendakwa Syarie v Ahmad bin Rashid & Anor (Negeri Sembilan)?


Answer:
The case emphasised that clear evidence of suspicious circumstances is required. Where the prosecution’s evidence is weak and the defence provides a reasonable explanation (such as a business meeting), the accused cannot be convicted.


Question 12


Can a confession alone support a conviction for khalwat?


Answer:
Yes. In Syarie Prosecutor v Sukree bin Masuyu, the accused was convicted based on a voluntary triple confession, which was made without inducement, threat, or coercion. The confession, together with suspicious circumstances, was sufficient to establish guilt.
​

Exam Tip (One-liner)

Khalwat is a ta‘zīr offence aimed at preventing immorality, and conviction depends on seclusion + non-mahram relationship + reasonable suspicion, not mere association.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Primary Evidence [Section 57]

Section 57: Meaning of Primary Evidence
​Section 57 of the Bharatiya Sakshya Adhiniyam, 2023 defines primary evidence as the document itself produced before the Court for inspection. The expression “itself” signifies that the original document or original data must be produced by the party relying upon it.
The purpose of producing primary evidence is to enable the Court to directly inspect the originality, authenticity, and contents of the document. This provision is founded on the Best Evidence Rule, which requires that the best available evidence within the power and possession of the party must be placed before the Court.
As a general rule, the contents of a written document must be proved by the document itself so long as it exists. Where documentary evidence is available, oral evidence cannot substitute it and carries no evidentiary weight.
IllustrationWhere the dispute relates to the contents of a contract, sale deed, or gift deed and the document itself is produced before the Court, such document constitutes primary evidence.

(a) Primary Evidence Where a Document Is Executed in Several Parts(Explanation 1)
Where a document is executed in several identical parts, each part constitutes primary evidence of the document. Such execution is generally done for convenience and record-keeping.
Judicially, carbon copies prepared through the same process as the original and signed by the parties have been recognised as original documents and treated as primary evidence.
Examples

• Identical copies of agreements (lease, partnership, settlement agreements) signed by all parties
• Duplicate original property deeds executed and sealed by both parties
• Multiple signed copies of a will created for safekeeping
• Identical original copies of powers of attorney

In all such cases, each signed copy is primary evidence.

(b) Primary Evidence Where a Document Is Executed in Counterparts(Explanation 2)
Where a document is executed in counterparts, each counterpart is signed by one or some of the parties and exchanged between them.

• Each counterpart is primary evidence against the party who executed it
• As against a party who did not execute it, the same counterpart constitutes secondary evidence

This method of execution is commonly adopted where two parties execute separate but identical instruments, such as Patta and Qabuliat.
IllustrationAn instrument signed by A and delivered to B is:

• Primary evidence against A
• Secondary evidence against B

Similarly, the instrument signed by B is primary evidence against B and secondary evidence against A.

(c) Primary Evidence Where Documents Are Made by One Uniform Process(Explanation 3)
Where several documents are produced by one uniform process, such as printing, lithography, or photography, each document is primary evidence of the contents of the others.
However, where all such documents are merely copies of a common original, they do not constitute primary evidence of the original document, though they may be primary evidence inter se.
Examples

1. Multiple printed copies made from the same original manuscript are primary evidence of each other.
2. Several photocopies of a document are primary evidence of one another but secondary evidence of the original.
3. Placards printed at one time from a single original—any placard is primary evidence of the contents of another, but not of the original.

(d) Primary Evidence of Electronic or Digital Records Stored in Multiple Files(Explanation 4 – Newly Inserted)
Where an electronic or digital record is created or stored simultaneously or sequentially in multiple files, each such file is treated as primary evidence.
Examples

• Database entries stored across multiple tables
• Cloud storage files stored across different servers
• Digital receipts generated in multiple formats (PDF, XML, JSON)
• Electronic medical records stored in multiple modules
• Financial statements generated in multiple formats
• Transaction logs stored in main, backup, and audit logs
• Emails stored in separate databases or folders

(e) Primary Evidence Where Electronic or Digital Record Is Produced from Proper Custody(Explanation 5 – Newly Inserted)
Where an electronic or digital record is produced from proper custody, it shall be treated as primary evidence, unless its authenticity is disputed.
Examples

• Call Detail Records produced by telecom authorities
• Electronic bank statements certified by authorized officers
• CCTV footage produced from secure storage
• Certified email records from service providers
• Digital forensic reports from accredited laboratories
• Electronic medical records from hospital databases
• GPS location data from service providers
• Social media records produced by platforms
• ATM transaction records produced by banks
• Digitally signed emails, provided the signature is verified and untampered

(f) Primary Evidence of Video Recordings Stored and Transmitted Simultaneously(Explanation 6)
Where a video recording is simultaneously stored in electronic form and transmitted, broadcast, or transferred, each stored recording constitutes primary evidence.
Examples

• Court proceedings recorded and live-streamed
• Online meetings recorded and transmitted
• Webinars recorded and broadcast live
• Live television broadcasts
• Live sports event recordings
• Reality TV shows recorded and broadcast
• CCTV surveillance footage
• Police body camera recordings
• Traffic monitoring footage

(g) Primary Evidence Where Electronic Record Is Stored in Multiple Storage Spaces(Explanation 7 – Newly Inserted)
Where an electronic or digital record is stored in multiple storage spaces within a computer resource, each automated storage, including temporary files, is treated as primary evidence.
Examples

• Data backups stored in multiple locations
• Data mirroring systems
• Email archiving systems
• Documents stored across multiple cloud platforms
• Distributed databases
• Blockchain-based data storage systems

Conclusion (Exam-Ready)
Primary evidence under Section 57 represents the original and best form of proof of documentary and electronic records, ensuring authenticity, reliability, and direct judicial inspection under the Bharatiya Sakshya Adhiniyam, 2023.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Documents by Primary Evidence [Section 59]

Section 59: General Rule
Section 59 of the Bharatiya Sakshya Adhiniyam 2023 lays down the fundamental rule that documents must be proved by primary evidence, except in cases where the Act expressly permits proof by secondary evidence.

(a) Scope and Principle of Section 59
This section embodies the general principle of documentary proof, namely that the original document itself must be produced before the court for inspection. The concept of primary evidence has been explained under Section 57, which treats the original document as the best evidence of its contents.
However, the legislature has recognized that strict adherence to technical rules should not defeat the ends of justice. Accordingly, Section 60 provides specific exceptions where secondary evidence may be admitted. Secondary evidence is not a matter of right and is permitted only in the circumstances expressly mentioned in the Adhiniyam.
Before secondary evidence can be admitted, the party relying upon it must first prove the existence of one of the statutory grounds justifying the non-production of the original document. In the absence of such proof, secondary evidence is inadmissible. For instance, a certified copy of a registered document cannot be admitted unless a satisfactory explanation is given for the absence of the original document.

(b) Stage for Raising Objections
Any objection relating to the mode of proof of a document, particularly regarding the admissibility of secondary evidence, must be raised at the trial stage itself. If no objection is taken at the time when the document is tendered in evidence, such objection cannot ordinarily be raised for the first time at the appellate stage.
Judicial pronouncements have consistently held that an objection raised for the first time at the appellate stage is belated and would generally not be entertained where no objection was raised before the trial court.

(c) Primary Evidence and Secondary Evidence – Note Form1. Meaning

• Primary Evidence
  • Refers to the original document itself produced before the court.
  • Defined under Section 57 of the Adhiniyam.
  • It is the most authentic and reliable form of documentary evidence.
• Secondary Evidence
  • Refers to copies or substitutes of the original document.
  • Enumerated under Section 58, subject to the conditions under Section 60.
  • Admissible only when the original cannot be produced for legally recognized reasons.

2. Rule and Exception

• Primary Evidence
  • Proof by primary evidence is the general rule under Section 59.
  • Documents must ordinarily be proved by producing the original.
• Secondary Evidence
  • Proof by secondary evidence is an exception to the general rule.
  • Permissible only in cases expressly provided under Section 60.

3. Best Evidence Rule

• Primary Evidence
  • Forms an integral part of the Best Evidence Rule.
  • The original document is regarded as the best proof of its contents.
• Secondary Evidence
  • Does not form part of the Best Evidence Rule.
  • It is inferior and derivative in nature.

4. Requirement of Notice

• Primary Evidence
  • No prior notice is required to be given to the opposite party before producing primary evidence.
• Secondary Evidence
  • Prior notice to the opposite party is generally required before leading secondary evidence, as contemplated under Section 60(a).

5. Evidentiary Value

• Primary Evidence
  • Possesses higher evidentiary value due to its originality and authenticity.
• Secondary Evidence
  • Possesses comparatively lesser evidentiary value as it depends upon the accuracy and existence of the original.

6. Admissibility

• Primary Evidence
  • Admissible as a matter of course once produced before the court.
• Secondary Evidence
  • Admissible only after establishing the statutory grounds for non-production of the original document.

Conclusion
Section 59 reinforces the principle that primary evidence is the normal and preferred mode of proof of documents, while secondary evidence is an exception allowed only upon strict fulfillment of the conditions prescribed under the Bharatiya Sakshya Adhiniyam, 2023.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Cases in Which Secondary Evidence Relating to Documents May Be Given – Section 60
1. Introduction
The Bharatiya Sakshya Adhiniyam, 2023 adopts the well-established principle of the Best Evidence Rule, which mandates that the original document is the most reliable proof of its contents. However, the law also recognizes that circumstances may arise where production of the original document is impossible or impracticable. To meet such situations, Section 60 provides for admission of secondary evidence, subject to strict conditions.
Section 60 thus acts as an exception to the primary evidence rule, ensuring that justice is not defeated merely because the original document cannot be produced for reasons beyond the control of the party relying upon it.

2. Scope and Object of Section 60
Section 60 specifies the situations in which secondary evidence may be led to prove:

• the existence of a document,
• its condition, or
• its contents.

The underlying principle is that secondary evidence is permissible only when primary evidence is unavailable for legitimate reasons and not due to the negligence or fault of the party relying on it. Before permitting secondary evidence, the Court must be satisfied that:

• the original document once existed,
• its non-production is satisfactorily explained, and
• the party seeking to rely on secondary evidence has acted with due diligence.

Secondary evidence cannot be admitted where the original itself is legally inadmissible, such as an unregistered document compulsorily required to be registered.

3. Statutory Situations Permitting Secondary Evidence
Section 60 enumerates specific circumstances under which secondary evidence may be given. These are discussed below:

(a) Original in Possession of Opposite Party or Third Person
Where the original document:

• is in the possession or power of the opposite party,
• or is with a third person who is beyond the reach of the Court or legally bound to produce it,
  and such person fails to produce the document despite due notice, secondary evidence becomes admissible.

The purpose of issuing notice is to provide the holder of the document an opportunity to produce the best evidence. Upon failure, the law allows reliance on secondary evidence of the document’s contents.
Nature of secondary evidence admissible:
Any form of secondary evidence is permissible in this situation.

(b) Written Admission of Contents
If the existence, condition, or contents of the original document are admitted in writing by the person against whom the document is sought to be proved, such written admission itself becomes admissible.
Important aspects:

• Only written admission is acceptable; oral admissions are excluded.
• The original document may still exist, but production becomes unnecessary once written admission is proved.

(c) Loss or Destruction of Original Document
Secondary evidence may be given where:

• the original document has been destroyed,
• or it has been lost,
• or cannot be produced within a reasonable time for reasons not attributable to the fault or neglect of the party.

The party must establish:

• prior existence of the document, and
• diligent but unsuccessful efforts to locate it.

A mere assertion of loss is insufficient; the explanation must inspire confidence.
Nature of secondary evidence admissible:
Any form of secondary evidence may be produced.

(d) Original Not Easily Movable
When the original document is of such a nature that it cannot conveniently be produced in Court—such as inscriptions on buildings, monuments, or permanent fixtures—secondary evidence is permitted.
Illustration:
Inscriptions engraved on walls, stones, or historical monuments may be proved through copies, photographs, or oral testimony.

(e) Original Is a Public Document
When the original document falls within the category of public documents under Section 74, secondary evidence is admissible even if the original is available.
However, in such cases:

• only a certified copy is admissible, and
• no other form of secondary evidence is permitted.

This rule is based on public policy considerations, as public documents cannot ordinarily be removed from official custody.

(f) Documents of Which Certified Copies Are Permitted
Where the law expressly permits certified copies to be given in evidence—either under the Adhiniyam or any other law—secondary evidence in the form of certified copies may be produced.
This applies particularly to:

• registered instruments,
• judicial records,
• official registers.

Again, only certified copies are admissible, not other forms of secondary evidence.

(g) Numerous Documents or Accounts
Where the originals consist of voluminous records or numerous documents and examination of each document in Court would be impractical, evidence may be given as to the general result of the documents.
Such evidence must be:

• given by a person who has examined the documents, and
• who is skilled in the examination of such records.

The opposing party retains the right to cross-examine the witness to test the accuracy of the summary.

4. No Hierarchy Among Secondary Evidence
As a general rule, the law does not recognize degrees of secondary evidence. Any legally permissible form of secondary evidence may be adduced at the choice of the party.
However, this rule is subject to statutory exceptions—particularly in cases involving public documents or certified copies—where the law restricts admissibility to specific forms of secondary evidence.

5. Photocopies and Xerox Copies as Secondary Evidence
Courts have consistently held that photocopies may be admitted as secondary evidence, provided statutory conditions are fulfilled. Key principles include:

• Proof of existence and loss or non-production of the original,
• Establishment of authenticity and accuracy of the photocopy,
• Satisfaction of the Court regarding absence of manipulation.

Admission of a photocopy does not automatically prove its contents; its evidentiary value must be independently assessed.

6. Important Doctrinal Observations
From judicial interpretation and statutory provisions, the following principles emerge:

• The Best Evidence Rule remains central to documentary proof;
• Secondary evidence is an exception, not the norm;
• Foundational facts must be strictly proved before allowing secondary evidence;
• Mechanical copies are admissible only when their accuracy is established;
• The Court must guard against fraud, fabrication, or manipulation, particularly in photocopies and electronic reproductions.

7. Conclusion
Section 60 of the Bharatiya Sakshya Adhiniyam, 2023 provides a comprehensive framework governing the admissibility of secondary evidence. It balances the necessity of preserving the Best Evidence Rule with the practical realities of document loss, destruction, or inaccessibility. By imposing strict safeguards and requiring judicial satisfaction, the provision ensures that secondary evidence serves the cause of justice without undermining evidentiary reliability.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Electronic Evidence (E-Evidence): Sections 62 and 63
1. Introduction to Electronic EvidenceWith the increasing reliance on digital communication and electronic storage, the law of evidence has evolved to recognize electronic records as a distinct and independent form of evidence. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) incorporates special provisions to regulate the proof and admissibility of electronic records, commonly referred to as e-evidence.
Two key provisions govern this area:

1. Section 62 – Special provisions relating to evidence of electronic records
2. Section 63 – Admissibility of electronic records

These provisions collectively ensure that electronic evidence is admitted in a manner that safeguards authenticity, reliability, and procedural fairness.

2. Special Provisions Relating to Electronic Records – Section 62
Section 62 acts as an enabling provision for electronic evidence. It clarifies that the contents of electronic records shall be proved in accordance with the procedure laid down in Section 63.
In essence, Section 62 does not itself prescribe the mode of proof; rather, it refers and links the proof of electronic records directly to Section 63. Thus, any attempt to rely upon electronic evidence must satisfy the requirements stipulated under Section 63.

3. Admissibility of Electronic Records – Section 63
Section 63 lays down a comprehensive legal framework for determining when and how electronic records may be admitted in evidence.

3.1 Computer Output Deemed to Be a Document – Section 63(1)
Section 63(1) provides that any information contained in an electronic record which is:

• Printed on paper, or
• Stored, recorded, or copied on optical media, magnetic media, semi-conductor memory, or
• Produced by a computer, communication device, or any electronic means

shall be treated as a “document”, provided the statutory conditions are fulfilled.
Once these conditions are satisfied:

• Such computer output becomes admissible in evidence, and
• It may be relied upon without producing the original electronic record,
• As evidence of both the contents and the facts stated therein, where direct evidence would otherwise be admissible.

This provision legally equates a valid computer output with a traditional documentary record.

3.2 Conditions for Admissibility of Computer Output – Section 63(2)
For a computer output to be admissible under Section 63(1), all four statutory conditions must be satisfied:
(i) Regular Use of Computer or Communication Device – Section 63(2)(a)
The computer or communication device must have been:

• Used regularly during the relevant period,
• By a person having lawful control or charge over it,
• For activities that were routinely carried on during that period.

This ensures that the device was not specially created or manipulated for litigation.

(ii) Information Fed in Ordinary Course of Activities – Section 63(2)(b)
The information contained in the electronic record must have been:

• Regularly fed into the system,
• In the ordinary course of business or activities,
• And not introduced as an afterthought or for the purpose of evidence.

(iii) Proper Functioning of the Device – Section 63(2)(c)
The computer or communication device must have been:

• Operating properly during the relevant period, or
• Any malfunction must not have affected the accuracy or integrity of the electronic record.

This condition ensures technical reliability of the data.

(iv) Information Derived from Ordinary Input – Section 63(2)(d)
The electronic record must:

• Reproduce information directly fed into the system, or
• Be derived from such information supplied in the normal course of activities.

This safeguards against fabrication or alteration.

3.3 Multiple Devices Treated as a Single System – Section 63(3)
Section 63(3) recognizes the practical reality of modern digital infrastructure. Where information is created, stored, or processed through:

• Multiple computers or communication devices,
• Whether functioning independently or as part of a system,
• Including networks, cloud systems, intermediaries, or integrated resources,

—all such devices shall be treated as one single computer or communication device for the purpose of admissibility.
This provision avoids technical objections based on the complexity of digital systems.

3.4 Mandatory Certificate Accompanying Electronic Evidence – Section 63(4)
A certificate is a crucial requirement for admitting electronic evidence. Whenever electronic evidence is sought to be admitted, a certificate must accompany the record and must:

1. Identify the electronic record and describe the manner in which it was produced;
2. Specify particulars of the device used in producing the record, sufficient to establish that it qualifies as a computer or communication device under the Act;
3. Address compliance with the conditions laid down in Section 63(2);
4. Be signed by a person:
   • In charge of the computer or communication device, or
   • Responsible for the management of the relevant activities.

An expert’s involvement may also be reflected where appropriate. The certificate may state facts based on the best knowledge and belief of the certifying person, as prescribed in the Schedule.
Such a certificate itself constitutes evidence of the matters stated therein.

3.5 Meaning of Computer Input and Output – Section 63(5)
For clarity, Section 63(5) explains:

• Computer input includes information supplied to a computer or communication device:
  • In any form,
  • Directly or indirectly,
  • With or without human intervention.
• Computer output includes information produced:
  • Directly by the device, or
  • Through auxiliary equipment or electronic means,
  • As part of systems referred to in Section 63(3).

This provision adopts a technology-neutral approach, ensuring adaptability to evolving digital methods.

4. Conclusion
Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023 provide a robust statutory framework for the admissibility of electronic evidence. By treating valid computer outputs as documents, prescribing strict conditions for reliability, and mandating certification, the law strikes a balance between technological advancement and evidentiary integrity. These provisions ensure that electronic records are admitted not merely for convenience, but on the basis of trustworthiness and procedural compliance.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof of Signature and Handwriting of a Person Alleged to Have Signed or Written a Document Section 65
1. Introduction
Section 65 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the rule regarding the proof of signature and handwriting when a document is alleged to have been signed or written, wholly or partially, by a particular person. The section embodies the fundamental evidentiary principle that authorship of a document must be established before its contents can be relied upon by the Court.

2. Statutory Rule under Section 65
According to Section 65:

• Where a document is alleged to be signed or written by any person,
• The signature or handwriting attributed to that person must be proved to be genuinely his.

Thus, mere production of a document is not sufficient. The party relying on the document must establish that the signature or handwriting appearing on it is that of the person concerned.

3. Scope and Application of the Section
This section primarily applies to documents not required by law to be attested. In such cases:

• The execution of the document can be proved by any competent witness who saw the person signing or writing the document.
• This may include the scribe, an attesting witness, or any other literate person who was present at the time of execution.

Importantly, Section 65 does not prescribe a single rigid method for proving handwriting or signatures. Instead, it allows flexibility, permitting any legally acceptable method of proof, provided it does not violate the best evidence rule.

4. Modes of Proving Handwriting and Signature
The handwriting or signature of a person may be proved through several recognized methods, including:

1. Direct evidence of the writer himself, where the person admits authorship.
2. Expert evidence, by comparing the disputed handwriting or signature with admitted or proved samples (Section 39).
3. Evidence of a person acquainted with the handwriting of the alleged writer, such as a colleague or family member (Section 41).
4. Testimony of a person who saw the document being written or signed, such as the scribe or a witness present at execution.
5. Comparison by the Court itself of the disputed writing or signature with admitted or proved samples under Section 72.

These modes are alternative and cumulative, and the law does not mandate the adoption of any one particular method.

5. Proof of Authorship of Different Types of Documents

• In the case of letters, it must be proved who wrote and signed the letter.
• For diaries, notebooks, or private records, authorship must be established by showing that the document belongs to and was written by the alleged person.
• Mere possession of such documents is insufficient without proof of authorship.

6. Marking of Documents as Exhibits and Its Legal Effect
Judicial decisions have clarified that marking a document as an exhibit does not amount to proof of its contents.

• In Narbada Devi Gupta v. Varender Kumar Jaiswal, the Supreme Court held that merely exhibiting a document does not dispense with the requirement of proving its execution and contents.
• Similarly, in LIC of India v. Ram Pal Singh Bisen, it was held that admission of a document only amounts to admission of its existence, not the truth of its contents.

Therefore, a document must be proved either by primary evidence or admissible secondary evidence, in accordance with law.

7. Objections as to Admissibility and Mode of Proof
​In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami Temple, the Supreme Court clarified that:

• An objection relating to the admissibility of a document can be raised at any stage of the proceedings, even after it has been marked as an exhibit.
• However, objections regarding the mode of proof must be raised at the time the document is tendered in evidence. Failure to do so may result in waiver of such objection.

8. Conclusion
Section 65 reinforces the principle that documents do not prove themselves. When a document is alleged to have been signed or written by a particular person, its authenticity must be established through legally recognized modes of proof. Mere production or exhibition of a document is insufficient. The provision ensures reliability, prevents fabrication, and upholds the integrity of documentary evidence in judicial proceedings.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof as to Electronic Signature Section 66
1. IntroductionWith the recognition of electronic records and electronic signatures under Indian law, it became essential to prescribe rules for proving the authenticity of electronic signatures. Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 specifically deals with the manner in which an electronic signature is to be proved when its genuineness is disputed before a Court.

2. Statutory Provision under Section 66
Section 66 provides that:

• Where an electronic signature is alleged to have been affixed by a subscriber to an electronic record,
• The party relying upon such electronic record must prove that the electronic signature belongs to that subscriber.

Thus, the burden lies on the party asserting the validity of the electronic signature to establish that it was affixed by the person to whom it is attributed.

3. Meaning of “Subscriber”
A subscriber refers to a person who:

• Has obtained an Electronic Signature Certificate (ESC) from a Certifying Authority, and
• Is authorised and certified under the provisions of the Information Technology Act, 2000 to affix an electronic signature.

The certifying authority verifies the identity of the subscriber and issues the certificate, which forms the foundation for proving the electronic signature.

4. Nature and Extent of Proof Required
To prove an electronic signature under Section 66, it must be shown that:

• The electronic signature was affixed using a valid Electronic Signature Certificate,
• The certificate was issued in the name of the alleged subscriber, and
• The subscriber had control over the electronic signature at the relevant time.

This proof may be furnished through technical evidence, certification records, or testimony of the Certifying Authority, depending on the facts of the case.

5. Exception: Secure Electronic Signature
An important exception is carved out under this section:

• No proof is required where the electronic signature in question is a secure electronic signature.

A secure electronic signature enjoys a statutory presumption of authenticity under the Adhiniyam read with the Information Technology Act. In such cases, the Court presumes that the signature is genuine unless the contrary is proved.

6. Illustration
Example:
A affixes his electronic signature to an electronic document. During judicial proceedings, a dispute arises as to whether the electronic signature truly belongs to A. In such a case, it must be proved that:

• A is the subscriber of that electronic signature, and
• The signature was affixed using his valid Electronic Signature Certificate.

However, if the electronic signature is a secure electronic signature, separate proof of authenticity is not required.

7. Object and Rationale
The purpose of Section 66 is to:

• Prevent misuse or impersonation in electronic transactions,
• Ensure reliability and trust in electronic records, and
• Maintain parity between proof of handwritten signatures and electronic signatures.

By mandating proof of authorship while also recognising secure electronic signatures, the provision balances technological efficiency with evidentiary safeguards.

8. Conclusion
Section 66 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a clear rule that electronic signatures do not automatically prove themselves. Where an electronic signature is disputed, its attribution to the subscriber must be proved, except in the case of secure electronic signatures. This provision reinforces confidence in electronic evidence while ensuring accountability and authenticity in digital transactions.