Clarification on Section 65B… Who should sign the Certificate?

Section 65B of Indian Evidence Act (IEA)is one of the hot topics discussed in Techno Legal Circles today. Though Naavi has clarified his view on the section many times on this site and in workshops and conferences, there are continued questions that linger on because some of the legal professionals hold some different point of view in respect of some of the finer points of the discussion.

One such doubt often raised is “Who should provide the Section 65B certification?”.

The supplementary questions that arise in this context is …

“Is it that the Admin of a server in which an electronic document is present the person who has to provide the certification?”

For example,

is it not the admin of Airtel who has to provide the Sec 65B certificate for the call data records?

Is it not the admin of flipkart who has to give certificate in respect of an electronic document pertaining to a sale on its site?.. “

“Now that Section 79A acrredited Digitl Evidence Examiners are being appointed, should all future Section 65B certificates signed by one fo them?”…. and so on

I wish to clarify my point of view once again in this respect so that there is clarity in all stake holders in this regard.

I must add here that I have been in the forefront of Cyber Laws since 1998 and has been encountering  Section 65B-IEA since a long time. The very first instance (2004) when a Section 65B-IEA was successfully invoked was the historically important case of The State of Tamil Nadu Vs Suhas Katti in which conviction happened for the first time in India under ITA 2000. In this case, I had presented the critical evidence of crime which was an electronic document present on the Yahoo server based on which the trial was conducted, offence recognized and accused convicted. I was also examined as an “Expert Witness” and cross examined in the case before the Court accepted the evidence. Since then, documents certified by me have been produced in many Court proceedings and must have been used in many civil proceedings. The service www.ceac.in specializes in this aspect of rendering electronic documents as evidences in an “Admissible” form in a Court. In a few cases, I have been asked to personally be present to identify the documents and in other cases, this has not been found necessary.

In the light of all the past experiences I would like to clarify on the point of “Who has to Certify under Section 65B”.

The first point we need to understand is that Section 65B indicates the manner in which electronic documents can be converted into “Computer Outputs” such that the “Computer Outputs” will be admissible as per the special provisions under Section 65A of IEA applicable to “Statement contained in Electronic Form”  defined in Section 17 of IEA.

The “Computer Output” referred to in the Section 65B can be in two forms namely “Printed on Paper” or “Copy on a Media”. If printed on paper it is to be signed. If rendered as an electronic copy, it has to be digitally signed.

To understand  “Who has to sign”? one needs to understand that what Section 65B refers to is to the process of creating the “Computer Output” and not the process of “Creating the Electronic Document which is the subject matter of the computer output”.

The “Original”  “Electronic Document” is a “Binary” document which human beings are unable to understand and can be seen or heard or seen with the assistance of a combination of tools such as the Application and the Operating System running on a hardware of a computer. Hence the “Electronic Document” needs to be appreciated by a Court only in a form which is the end result of many of the processes such as conversion of binary document to a humanly perceivable form on a computer device. However, such a “Humanly perceivable form” sits on a computer and cannot be always brought into the Court room. Even if it is brought, the Judge has to view it and form his opinion and if he incorporates his observation on the document, he will be a witness himself.  (The hard disk in which a binary document resides is only a container and not the electronic document itself and has to be connected to a computer device to know what it contains).

The presence of Section 65B enables the Judge to avoid being a witness himself by introducing a role to the Section 65B Certifier who brings the binary electronic document to an “Admissible” form by creating a “Computer Output” as envisaged in the Section. Even after this, if there is a dispute, then it is open to the Court to call a Section 79A recognized “Digital Evidence Examiner” to assist it in resolving the disputed electronic document.

If as some professionals suggest, it is necessary for the “Admin of a Server in which the document is contained” to provide the Section 65B certificate, then a situation would arise where if there are 1 lakh transactions that pass through Flipkart each day, any dispute arising out of these 1 lakh transactions involving multiple electronic documents will all have to be certified only by the admin if required for evidence. Obviously this is neither feasible nor is the intention of Section 65B.

While the admin who can view the electronic document on the server or any other hardware or software to which he has an access may provide the certified copies, it is not always necessary.

The purpose of Section 65B is to enable “Any Contractually Capable person who knows how to view (or hear) an electronic document to present a copy (printed or on an electronic media) which can be admitted in the Court as also a “document” “without further proof or production of the original”. It is that person who prepares the Section 65 statement in which he says “I viewed this document and converted it into a computer output and I certify …..”.

Hence  a “Third Party” can provide a “Section 65B Certified Copy” for admission.

In practice, the person who provides the certificate should be a “Trusted Third Party” who may be cross examined by the defense which may state that the person is unreliable, is either not capable of understanding what he is certifying and is dishonest and produced a false certificate etc.” The Section 65B certificate incorporates a declaration as to the “Procedure adopted for producing the computer output” which should indicate the manner in which any other person following similar process should be able to reproduce the same “Computer Output” except in circumstances where the original binary document has been removed.

The credentials of the person producing the Section 65B certificate becomes critical to the acceptance of the certified copy by the Court.

In the case of “Forensic Experts”, the experts use certain tools and are able to see information which are visible only on use of such tools. Hence their certificate needs to indicate the tools used which to the extent possible be “Standard Tools” capable of being used by other “Forensic Experts”. It is when there is a propritory  technique is used that the need for the Court to call in another expert who is accredited under Section 79A arises.

We need to reiterate in this context that it is not necessary that all Section 65B certificates are to be issued only by the Section 79A certified agencies. Section 65B certificate is issued for “Admissibility” while the Section 79A certified agency is called in by the Court on special circumstances only. It is like the case of a “Handwiring expert” who is called in from time to time to examine the signatures on documents presented in the Court but not mandatorily for all handwritten/signed documents.

I hope professionals in the field appreciate this point of view and if they agree should adopt it in their practice. In case they have any counter views, I welcome the feedback so that this view can be refined as required.

Naavi

Also Read: Other articles on Naavi.org

P.S: Add on following another request for clarification: Please see comments section

 

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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36 Responses to Clarification on Section 65B… Who should sign the Certificate?

  1. Nitish Chandan says:

    I think your opinion is apt and a logical one. Although I would like to question that don’t you think the provision in itself is a little loosely worded? Like the missing standard tools declaration within the section. Also Could you shed some light on “lawful control” here. Who can certify this point?

    • I agree that it could have been better drafted. But.. presently we need to work with what we have.
      As regards the “lawful control”, it refers to the person who produces the “Computer Output”. i.e: the person who views the document and prints it out. The process he is certifying is that “This is a faithful reproduction of what I saw. I have not made any modifications intentionally or otherwise. My computer has not done any mischeif. My printer or the network has not made any mistake etc..”
      If we recognize that the entire certification is refering to the “Computer Output” and not to the production of the “Original Electronic Document” which might have been collated over a period of time by different persons, then most of the confusion would vanish.
      We will take an example of a web page with dynamic content pooled from different sources. They are contributed by persons in lawful control of different servers. If there is a bank statement, it has been collated over a period by different persons. What we are now viewing is a collation and that alone can be certified by the person who is viewing. No single person has the locus-standi to confirm the activities of different servers feeding the content or routers which pass the data.
      The person who views is the person who certifies and he is in lawful control of his computer in which he viewed and the system which printed it out.

  2. L R Rao says:

    A witness has produced documents printed on paper and submitted the same under the certificate of 65B

    During the admission of cross examination the witness accepted that the document was printed by another person and the same was shared to him

    The document does not have anybody’s signature of either witness nor did person print the document

    The person who printed the document has not submitted the affidavit but the witness has submitted the affidavit

    During the admission of Cross it was admitted few information’s were false

    Can this document can be accepted evidence – I am the first party fighting the case I am not an advocate need your input and advice

    • In my opinion, the document cannot be admitted since Section 65B certificate is not given by the person who has created the “Computer Output”.

      If the evidence was presented by you, then if the content is still available on the web, you can seek the permission of the Court to present the properly certified copy now. If it has been removed, then the evidence may be lost.

      If the Court is prepared to accept a oral deposition of the witness describing what he saw, without the production of the electronic document, the Court may consider the oral deposition and proceed. You will have to request the Court and also seek the excuse of the Court for producing the evidence without proper certification stating that it was done out of ignorance and not to mis-represent and present a false evidence.

      Some Courts may not agree to accept such oral deposition of what was purported to have been contained in an electronic document which is today not in existence and has been deleted.

      But if properly represented, I suppose Court can exercise its discretion in the matter and accept the oral deposition subject to the credibility of the witness in the eyes of the Court.

  3. manoj says:

    Hi Sir,

    I have some audio recording in my mobile, mobile is owned by me , who will provide certificate, can I do or someone else , please let us know.

    regards,
    manoj

  4. Shivam says:

    Sir, what happens when I am proving a digitally signed document in court? Since a copy of a digitally signed document is also digitally signed, does that mean I can just provide a copy of a digitally signed document without any certificate under 65B?

    • Section 65B certification requires certain statements to be made. These have to be appended to the electronic document to be certified before digital signing like a covering letter. The digital signature covers both the certificate and the document

  5. N Anantha says:

    Is there any format of the certificate u/s 65B? and should such certificate be by way of a notarised affidavit or not?

    • The format has to be created with reference to the requirements of the section. No there is no need for notarized affidavit as per the current law. If you want anything can be notarized and anything can be submitted with an affidavit.

  6. R .KUMAR says:

    Dear Sir i have some phone call recordings and few text messages about 3 years old ,and both are safe in the same handset from that time now i need it for court evidence .kindly advise the concern person’s address or mob nos for next legally process as you discuss in above chapter.iam living in delhi.

    eagerly waiting for your reply.

    thankyou very much

  7. Firdaus Lalkaka says:

    If one reads the conditions of Sec 65B(2), only the person who owns and uses the computer or device on which the electronic evidence resides can state that he is having “Lawful control” over such electronic device which is owned by him and that the said electronic evidence was produced by such electronic device and that it was in good working condition and in use over that period.

    How can a third party certificate meet with these conditions ???

    A clarification would be highly appreciated.

    • Abhilash Madhavan says:

      Sir.
      Whether the argument note as per order 18 of cpc in video submitted in a court in pen drive as per section 4 of the IT ACT needs certificate as per section 65 B of evidence act?

      • 98410spice says:

        If the submission is from the author himself then Sec 65B certificate is not required. But digital signature may be required.

  8. Firdaus Lalkaka says:

    A “third Party” expert certifier can at best listen/see the audio/video evidence and make a transcript and state that to the best of his knowledge this is what he heard or saw in the audio/video evidence.

    Hence, for such third party expert to state that all conditions of Sec 65B(2) stand fulfilled, I wonder on what basis he can certify that without being the Owner of the computer/device, without knowing whether it was in working condition over that period of time, etc.

    • In Section 65B(2) you should look at the word “in respect of a computer output”. The certificate is that the Computer output was produced in a particular manner and it was observed by the person certifying, that the Computer output is a faithful reproduction of what he himself saw.

      Imagine a web document.

      Is there a single server/computer from which the page is delivered?. Is the web page (as an electronic document/evidence), a single document lying in any one computer?. The page may be a dynamic real time collation in the computer screen of the observer with individual electronic documents served from many servers across the globe coming in through many many routers.

      The entire section therefore talks of and has to be interpreted as referring to the “Computer Output” of the “binary document” lying some where in some computer in a consolidated form or in different data elements.

      The “binary document” is what some may like to call the “Original Evidence” which cannot be seen even in the place where it resides without the assistance of a certain combination of hardware and software. In case of web documents or data base served documents, the individual elements are served from multiple computer sources under different ownership and each can only certify a part of the document. The entire output as seen and felt by a human being is what creates a “Computer Output” in the computer of the observer. If this observer is confident that as a owner of the device which he is using for the time being, he is confident that there is no virus or malware that makes it behave in a non standard format, it is fine.

      There are web pages (eg: advertisements) which will check the location of the user and serve different documents to different people at different times. Hence what Mr A in Australia sees in http://www.xyzsite.com may be different from what Mr B sees in India. The things may appear different if different browsers are used or different default configuration is used. All these uncertainties are absorbed by the certifier who says -when he observed it under the stated conditions, he saw what he has reproduced as the “Computer Output”.

      Beyond this, it is for the defense to challenge the admitted evidence with appropriate forensic evidence using a Section 79A accredited Digital Evidence Examiner.

      In certain cases where the litigant himself produces the document, it may not be strictly outside the provisions of the section 65B but since it is being produced by the litigant himself there could be a certain allegation of bias. A trusted third party therefore is slightly more reliable from the point of view of the Court.

      This is my opinion… Any other interpretation that “Only the owner of the computer where the original binary expression which constitutes the evidence” should provide Sec 65B certificate will not be practically usable.

      Also, “What is ownership”?… Is it necessary for the certifier to show the purchase invoice?. Who is the owner of a company resource? Is it the operator or the Company?. What if the equipment is leased?..Is the lessor the owner? or the lessee the owner?… All these uncertainties are removed when we are talking of a person who has control over the operations of the computer that is producing the computer output…collating the document in an application such as the browser or word or Adobe PDF reader and then giving a print command to the connected printer and producing the print out (or a copy on another media).

      I suppose that my interpretation is therefore a “Practically feasible interpretation” of the Section 65B.

      Do you agree?

      • Firdaus Lalkaka says:

        If the original device on which the audio/video recording is done is “intact” and available in good working condition, would the requirement of 65B Certificate be still required ?

        If there are 20-25 such recordings, what would be the cost of obtaining the 65B Certificates in respect of each such recording (electronic evidence”) from a third party expert like you ?

        Further, how does one go about obtaining a 65B Certificate of a TV Interview given by the accused to a TV Channel ? Unless the Court asks for it, I doubt whether the TV Channel will entertain a request from the complainant of a criminal case.

        • I have replied through e-mail separately. For general information, my view is that even when the original container of the electronic document is submitted, section 65B certificate is required for admissibility of the evidence document. If the Court requires, it can use the container (i.e. the device) can be sent to a Digital Evidence Examiner for further verification of the genuinity.

  9. D.V. RANGA REDDY says:

    Sir,
    I browsed data from official web site through my own personal computer and sent the browsed information directly to the printer without my intervention. so please advise how I can give a certificate in order that the printed output is admissible in a court of law under 65 B of Evidence Act. Kindly reply at the earliest to my email address.

    • karanaram says:

      IF I.O. HAS CREATED A C.D. FROM DIGITAL VOICE RECORDER ON 06.08.2016 AND DELETE ORIGINAL CONVERSATION FROM DVR ON THAT DAY . HE HAS ISSUED 65B CERTIFICATE FOR THAT C.D. ON 27. 10. 2016 . IS 65B CERTIFICATE IS ACCEPTALE IN COURT AS PER LAW .

      • karanaram says:

        IF I.O. HAS CREATED C.D. FROM DIGITAL VOICE RECORDER ON 06.08.2016 AND DELETED ORIGINAL CONVERSATION FROM D.V.R . ON THAT DAY . HE HAS ISSUED 65B CERTIFICATE FOR THAT C.D. ON
        27. 10. 2016 . IS THAT 65B CERTIFICATE FOR THAT C.D. IS ACCEPTABLE IN COURT AS PER LAW .

        Reply

  10. karanaram says:

    IF I.O. HAS CREATED C.D. FROM DIGITAL VOICE RECORDER ON 06.08.2016 AND
    DELETED ORIGINAL CONVERSATION FROM D.V.R . ON THAT DAY . HE HAS ISSUED 65B CERTIFICATE FOR THAT C.D. ON 27. 10. 2016 . IS THAT 65B CERTIFICATE FOR THAT C.D. IS ACCEPTALE IN COURT AS PER LAW .

    • 98410spice says:

      Should be acceptable subject to him defending his action of deletion as done in good faith. His credibility would be questioned in a cross examination.

  11. HEMANT KUMAR SHARMA says:

    sir I have call recordings in my phone and whatsapp chats and even whatsapp chat between my wife and her friend I have screenshot of them .I have transcripted all recording .i want to file 65 b in 498a ,482 and crpc 125 please send me detail procedure .

  12. Pankaj says:

    Sir,
    I am plaintiff in civil suit. Suit is for mandatory injunction. I have appointed a photographer to take photos of the disputed land/area, road and to produce in court as evidence. My photographer takes some photos in his digital camera and print it out from photo laboratory of other person by giving his camera’s memory card. In such case whose certificate will required under section 65B of IEA.
    And if any authority on this point please share it.
    Regards,

  13. G C Tolwani says:

    A memory card without DVR is submitted as Evidence in a case of section 7 of PC Act without section 65 B certificate. Furthermore, The make ,serial number model of memory card and DVR is not mentioned in Panchnama submitted along with Final Investigation Report.
    Is the memory card without DVR acceptable as Electronic Evidence in the above situation .Kindly provide case laws pertaining to above subject.

  14. MRINALINI SHARMA says:

    Respected Sir,

    Namaskar.

    1. If one wants to submit E-mail received by him from another person in the Court / Departmental Proceedings , then who will issue and sign the 65 B Certificate ??
    The person who received the E-mail
    OR
    The person who sent the mail

    2. If one wants to submit the mobile call (audio) recordings stored in his OWN MOBILE PHONE which he wants to submit in the Court / Departmental Proceedings , then who will issue and sign the 65 B Certificate ?

    Sir, kindly send your expert advice on my e-mail id. It will be a blessing to me.

    Regards

    • In my considered opinion, Section 65B certificate is better produced by a trusted third party who observes the content. If you are getting the mails visible in your email box certified, you can invite a trusted third party to view and certify. If you produce the certificate, it may not be legally incorrect but would be easily challenged as false and fabricated. Judge will find it difficult to reject the challenge. In case of third party certification, Judge will take into account the credibility of the third party and take a view if the defense challenges that it is a false report.

      Same argument also applies to the mobile content.

  15. Priyanka says:

    Dear Sir,
    I have submitted some video recordings during my evidence in a matrimonial case in a CD and pendrive. The court initially didn’t say anything and other evidences were done. Now, at the time of closure of evidence, the court has asked to submit a certificate for th CDs and Pendrive. The original phone on which the recording was done is still with me.
    The CD is filed with 7 or 8 recordings(there are other recordings in the phone but are irrelevant to the case)
    I wish to know,
    Do I need to request the court by an application to send the CD submitted to court to a trusted third party examiner or do I need to ask the court to provide a copy of the CD submitted in the court so that we can get a certificate from a third party independently?
    Do I need to recall that CD and file a fresh CD with certificate Or the certificate can be filed as supplementary?

    Waiting for your kind reply.
    Priyanka Mishra

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