Section 90 Bharatiya Sakshya Adhiniyam, 2023: Presumption as to electronic messages

Section 90 of Bharatiya Sakshya Adhiniyam, 2023: Presumption as to electronic messages

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Document Sec 2(1)(b) Proved Sec 2(1)(f)

Legal Commentary & Landmark Judgments: Section 90

Section 90 establishes that the Court may presume that an electronic message forwarded by the originator through an electronic mail or messaging server corresponds with the message as fed into his device, but creates NO presumption as to the person by whom the message was sent.

Transmission Fidelity Presumption: Presumes that the message transmitted through the telecommunications network corresponds with what was fed into the computer system.
Crucial Absence of Sender Presumption: Statutory carve-out: the court does NOT presume the identity of the sender; sender identity must be proved independently.
Cyber Fraud Protection: Protects against spoofed emails, unauthorized smartphone access, and hacked accounts by demanding proof of sender agency.

Key Landmark Precedents:

State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600: The Supreme Court noted that while electronic transmission accuracy can be presumed, the attribution of an email or message to a specific accused requires independent corroboration.
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1: Reaffirmed that electronic records require verified source authentication and Section 63 BSA compliance.

Courtroom Practice & Strategic Litigation Guidance:

In commercial fraud or defamation cases involving emails or WhatsApp messages, do not rely merely on showing that an email came from a particular address. Lead independent evidence (IP logs, device seizure, testimony) proving that the accused actually drafted and dispatched it.