Investigation of Cybercrime under BNSS and Proof of Digital Evidence under BSA: A Critical Analysis

Abstract The unprecedented growth of information and communication technology has fundamentally transformed both the nature of crime and the methods employed for its investigation. Cybercrime is no longer confined to conventional computer-related offences but extends to online financial fraud, identity theft, unauthorized access, cyberstalking, data theft, ransomware, social-media offences, digital forgery and technology-facilitated organized criminal activity. Investigation of such offences presents distinctive legal and technical challenges because the crime scene may exist in virtual space, the offender and victim may be situated in different jurisdictions, and crucial evidence may be stored on mobile devices, remote servers, cloud platforms or other digital systems. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on 1st July 2024, seek to respond to these developments by integrating technology into investigation and by expressly recognizing electronic and digital records within the law of evidence. The BNSS facilitates electronic reporting of cognizable offences, mandates audio-video recording of specified investigative processes, strengthens forensic investigation and recognizes electronic modes throughout criminal proceedings. Of particular significance to cybercrime investigation is the statutory emphasis on preservation, seizure, forensic examination and documentation of electronic devices. The BSA, on the other hand, substantially reorganizes the evidentiary framework relating to electronic records. Sections 57 to 63 deal with primary and secondary evidence and the proof and admissibility of electronic records, while section 39 recognizes expert opinion concerning information transmitted or stored in computer resources and other electronic or digital forms. The new framework must, however, be understood against the historical development of electronic evidence under the Indian Evidence Act, 1872 following the Information Technology Act, 2000 and the judicial evolution from State (NCT of Delhi) v. Navjot Sandhu to Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. This article critically examines the investigation of cybercrime under the BNSS and the proof of digital evidence under the BSA with particular emphasis on collection, preservation, authenticity, chain of custody and admissibility of electronic evidence. It analyses the historical evolution of Indian electronic-evidence law and examines significant decisions of the Supreme Court and High Courts.