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?”
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.
Also Read: Other articles on Naavi.org
P.S: Add on following another request for clarification: Please see comments section
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.
Dear Sir, thank you for the prompt response. I follow what you’re saying and it makes sense. Thanks again
Please give me a proper certificate of 65 b evidence act and sent it on email@example.com
In my opinion every Sec 65B certificate is different and there is no single copy.
Very well said .
Very well said .explained that the ” original data” could have been gathered over a long period of time , by a number of people , and therefore the certificate should be provided by the person who produces the output of the original data from the computer .
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.
Sir can you cite any case law saying that only a person who has created the “compter output” has to give the evidence u/s 65B.
can a lawyer file such certificate on behalf of his client?
The lawyer then becomes a witness!
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.
It is better to get it certified by a trusted third party. Please check my article for clarity.
Now This 3rd party who could it be , any shop wala who deals with mobile computers who does video editing IT etc , who could extract data from electronic device , but I don’t think any shop wala will be ready to give a certificate to be used in the court of law.
The person who provides certificate should be credible as a witness and should be capable of standing a cross examination.
Now This 3rd party who could it be , any shop wala who deals with mobile computers who does video editing IT etc , who could extract data from electronic device , but I don’t think any shop wala will be ready to give a certificate to be used in the court of law…
The person who provides certificate should be credible as a witness and should be capable of standing a cross examination.
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
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.
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
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.
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?
If the submission is from the author himself then Sec 65B certificate is not required. But digital signature may be required.
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?
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.
are there any case laws supporting your view that for original evidence like memory card, 65b certificate is required.
Your question is important and I am making a separate post on it. For the time being I say that this is my considered opinion.
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.
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 .
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 .
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 .
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.
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 .
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.
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.
It is not admissible in present state. But Court can permit resubmission with certificate.
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
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.
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.
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.
In my opinion, you need to provide a fresh certified copy of files extracted from the mobile.
Query on who should sign 65B Certificate:
(1) Audio & video recording was done on following devices :
(a) iPhone 4s (owned by me). Was purchased from Canada by my brother (who resides in Canada) and gifted to me.
(b) iPhone 4s (owned by me). Was gifted to me by my nephew who resides in Canada when he bought a new phone for himself.
(c) iPod (owned by my wife). Was gifted to her by her school friend.
(d) iPad (owned by me). Was purchased from Canada by my brother (who resides in Canada) and gifted to me.
(e) Samsung phone (owned by my wife). Purchased by her.
(f) Two Spy-Pens (owned by me). Purchased by me.
(2) After recording audio & video on the above devices, I have copied all files to my desktop computer.
And then from my computer, copied all these files on a CD and Pen-Drive and submitted to the Hon’ble Court.
Now my query is :
(a) Who should sign the 65B Certificate ?
(b) Has separate 65B Certificate to be issued in respect of each device or can a consolidated 65B Certificate be issued by the respective owners of these devices (i.e. by me and my wife – as all these devices are owned by us and in our possession) ?
(c) For the electronic evidence to be accepted by Courts, is it MANDATORY to deposit the original devices or will submission of such evidence on CD/PenDrive along with a 65B Certificate suffice ?
(d) Would be the acceptability of an electronic evidence by Courts be denied in case the original recording is erased from the device but a copy is available on my computer by virtue of having synced my iPhone to transfer the recordings?
Pls reply urgently as Court has now passed orders for submission of 65B Certificate within 10 days.
Electronic document has a life cycle in which it changes from one device to another starting from the first device which was originally captured. Each process has to be certified by the person who has done the process. This is what one Court has called “Contemporaneous” certificate.
Certificate can be provided by the person who has the authority to view the electronic document in a given device. It can be the owner or some body authorized by the owner.
Self certification or certification of a close relative can be admissible but the Court or the defense may call it a self serving evidence and give a low vale. It is better to provide a trusted third party certificate.
Deposit of original device is not mandatory. It actually defeats the very purpose of the certification.
If original evidence is o longer available, it does not invalidate the certificate given in a following process. But it provides a ground for objection which cannot be easily countered particularly if the erasure is done by the litigant producing the evidence.
There is one audio evidence which did in fact get accidentally erased while using my finger to move the cursor back and forth when making the transcript.
But, I do retain a copy of this audio on my computer with which I had synced my iPhone earlier.
I had also thereafter sent my iPhone for recovery of the deleted voice memo to a Proffessional data recovery company but they returned my iPhone back expressing their inability to recover it. I have email correspondence to prove this.
CALL DETAILS REPORT FILED BEFORE THE COURT BY NODAL OFFICER OF IDEA CELLULAR FOR KERALA STATE . HE ISSUED CERTIFICATE AS PROVIDED IN THE EVIDENCE ACT.IS IT ADMISSIBLE IN EVIDENCE AS DATA STORED IN THE CENTRAL PROCESSOR AT A DIFFERENT STATE AND PLACE?
Yes it would be admissible. What Section 65B expects is that a person who has an access to an electronic document can certify that he saw a specific electronic document and is producing a computer output which is certified and therefore admissible as evidence without the production of the original. All Courts to which Indian Evidence Act is applicable should accept it and there is no jurisdictional issue. The key is how did the certifier access and view the document? ..Was he authorized?….has he captured the process used?…etc.
I agree to a certain extent.But the thing is that all call records are recorded originally in the central or master server situated in a different state which is under the control of a system manger who alone knows the password to open the server.Upon request he is collecting data from server and forwarding to the concerned state officer.The Systems manager in the concerned State gives headers and footers to such received data and producing before court as if the calls originally recorded at his system. SO MY VIEW IS THAT THE REQUIREMENTS FOR CERTIFICATE UNDER 65 B(2) AND STATEMENT UNDER 65 B(4) ARE ABSENT. NODAL OFFICERS CAN GIVE A CERTIFICATE IN RESPECT OF HIS OWN OFFICE COMPUTER AND NOT IN CONNECTION WITH MASTER SERVER
In the circumstances you have stated, the Certificate in the first place should be given by the person who has the authority to view it on the server. You say the regional head may not have the authority and he only receives a copy. You have also stated that he adds some headers and footers.
In such a situation, it is preferable if the certificate as given by the server manager is used for the legal course. If not he should forward a digitally signed copy through e-mail and the other executive can provide a certified copy from out of his e-mail box as an electronic document present in his e-mail.
My query is what if the original device (laptop) from which the electronic record was taken in a mobile phone is no longer in use. A certificate cannot be attached stating that the laptop is working properly or it is under lawful authority or others. What is the remedy now?
How an electronic record can be given in the court as an evidence ?
Kindly understand that Sec 65B is for Computer output and not for the original electronic document. So production of certificate is not an issue. Court may have to be satisfied about why the original device is not available.
What If the original recording has been deleted from the mobile phone ?
But before deletion, it has been transferred to another device.
Section 65B certificate is for the electronic document as is available to be presented as evidence. In the instance you mentioned the defence may challenge that the document and it is for the Court to be satisfied if your version that no other document exists is acceptable
sir, if facebook provide us any record. then in that case of facebook record who will issue and sign the 65b certificate ? facebook or that one person who will receive the facebook record?
Any person who observes the electronic document can provide a certificate that he saw the document in his computer and prepare the computer output. We should not confuse the “Computer Output” to the “Original Binary Document” that lies in the Facebook server. Section 65B is for the Computer output. If I see a document in http://www.facebook.com/abc, I give my certificate on what I saw. If the defence wants, it can bring the FaceBook admin and get a certificate from the FaceBook server to which he may have access from his internal network. If he is also viewing it on a web browser, my certified electronic document is as good as what he is certifying. If he can view it differently, it will be another Section 65 B copy obtained through a different process and hopefully the material content on both would be same.
sir if facebook provides me an account user ip address then ip address has been analyzed by me and now I have a particular person id. that gives to io by me ..then in this case what will be the 65b certificate performa which will be issued by me.
sorry for the English … I am not so much good in this language if any grammatical error kindly ignore that…
The content on facebook is one electronic document and the IP address resolution is another.
Sir,i am taking vidoe in my mobile phone and i copied to pen drive in court with plaint.at the time of trial i can produce my mobile original.65b certificate must or not and onr more thing who can give 65b certificate. Me or nodal officer.because phone is my own thing ?
Section 65B certificate is provided when an electronic document is rendered as a “Computer output” (Print or soft copy) and produced in a Court by a person who produces such a computer output. The computer output may be from any original electronic document as the source. If data from your pen drive was to be placed as evidence, the certificate refers to the conversion of pen drive data to the print/soft copy. If data is from a mobile and the pen drive is the soft copy version of the computer output, who ever copies the file from the mobile to pen drive may give the certificate. The integrity of the data before it came into the source from which the certificate was given is not part of the certificate and can be disputed by the defense. However, it would be the onus of the defense to convince the court that the source data for which the certificate was given was not genuine or was tampered by producing any forensic evidence. This burden of proof is not on the person who produces the evidence with section 65B certificate. However, if the defense can establish that the source data was tampered with, the Certified and admitted evidence may later be rejected by the Court during the trial. If the Certifier was aware of this tampering and gave a certificate as a matter of routine, then there could be an issue of deliberate falsification of evidence.
The certificate can be produced by any person who is viewing the source document and need not necessarily be the “Owner” of the device as long as he had access to the data in the normal course.
In my case, I am defending the accused in a criminal case. In defense witness, I seek the permission of the court to allow me an an opportunity to defend the accused by producing the Google Timeline Map History of a particular period in which my client was login with his email id. My client is in judicial custody/ and court allowed the accused and permission granted to accused to access the computer/laptop with internet to access the data of his timeline history of google map linked to his email. He retrieved the data in the presence of court. Can accuse in the case can give certificate under 65-B of Evidence Act. In this case who will issue the certificate i.e. accused/his lawyer or any third party but the computer was accessed by the accused for a particular period in the cour.
When the email was accessed in the court itself, the court could have asked a party other than the accused and you to give the certificate.
Ideally the process has to be repeated by a trusted third party.
What about whatsapp messages? In rakesh kumar singla vs union of india , Punjab and Haryana high court have said whatsapp messages will have no evidentiary value without certificate under 65 B of Indian evidence act . Who certifies whats app messages obtained from mobile phone of the accused ? Will accused be forced to certify himself ? Or is it the police? Whatsapp doesnot store messages on its servers !
Police may get the messages certified by a trusted third party. The certifier is presented the mobile which is legally seized. Police may use the services of the independent Forensic labs.
Also sir one follow up question can police present the mobile of accused directly as original evidence itself ? Then no certificate will be required right ?
The mobile is a container which contains the original evidence. Police can present it. But the Court has to view the content and accept it as evidence. It has to be done by an assistant of the Court who has to affix Section 65B certificate. If the Judge does not take assistance, he is himself responsible for the use of appropriate technology. For example, let us say there is a file which is rendered in chinese. You try to read it in a word processing software set to read Kannada. You will obviously see gibberish. The viewer may come to a conclusion that the electronic document contains gibberish and does not contain data relevant to the case. To avoid this, the Judge should appoint a person to issue the Section 65B human readable document. This was done by the Chennai AMM Dr Arulraj in one of the cases where I was invited by the judge to view a CD already with the Court to give a Section 65B certificate. This was in 2004. The case did not conclude since the complainant who was a celebrity withdrew the complaint and I suppose the FIR was closed..
Sir, I have used an epaper to file a private defamation complaint and filed 65B certificate of the Complainant himself. Is it right thing? Can the complainant issue 65B certificate or is it to be issued by only the owner of the e-paper?
Whoever has access to an Electronic document can certify to its existence in the form of a Section 65B Certificate. It is better if it si given by a trusted third party instead of the litigant himslef so that the weightage of the evidence becomes higher particularly of the evidence is subsequently removed.
Sir, thank you for the response
Certificate 65B has to be given by the complainant to IO in police station at the time of statement or it has to be submit in the court? In a recent incident, the IO insisted the complainant to submit evidence certificate along with electronic evidence on CD/Pen drive.
Interesting question. Evidence is to be gathered and presented to the Court by the investigator. Complainant in a criminal case can assist the investigating officer but the primary responsibility is with the IO. The complaint can therefore provide the certified evidence but I don’t think that the police should mandate the complainant to provide the evidence in a certified form. If he submits the prima facie evidence for the continuation of the investigation to file a charge sheet, it should be sufficient.
Thank you so much for your reply and clarification.
I m an advocate & have a case of manhandling,assault & abusing filthy languages with my client.The vediography coverage is done by his relative & latter on send the same on his WhatsApp.Being a lawyer,I can certify through 65b certification.
Until the body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence under section 79A of CHAPTER XIIA of the Information Technology Act, 2000 is functioning for the purposes of providing expert opinion on electronic form evidence before any court, some of us will lose and some of us will win.
The following link may help
Notification of Forensic labs as ‘Examiner of Electronic Evidence’ under Section 79A of the Information Technology Act 2000
Cyber Forensic Division, State Forensics Science Laboratory, Thiruvananthapuram, Kerala[PDF]1.28 MB
Cyber Forensic Laboratory, Air Force Cyber Group, New Delhi[PDF]1.17 MB
Notification of Cyber Forensic Lab, CERT-In as ‘Examiner of Electronic Evidence’ under section 79A of IT Act 2000[PDF]862.54 KB
Notification of Regional Forensic Science laboratory, Northern Range,Dharamshala, Himanchal Pradesh as ‘Examiner of Electronics Evidence’ as per the provision of section 79 A of IT Act 2000[PDF]220.48 KB
Cyber Forensic Laboratory, Army Cyber Group, DGMO, Signals Enclave, New Delhi[PDF]1.64 MB
State Forensic Science Laboratory, Madiwala , Bangalure [PDF]1.62 MB
Central Forensic Science Laboratory(CFSL), Hyderabad[PDF]1.65 MB
Directorate of Forensic Science, Gandhi Nagar Gujarat[PDF]1.65 MB
Computer Forensic and Data Mining Laboratory (CFDML), Serious Fraud Investigation Office (SFIO), Delhi[PDF]1.65 MB
Notification of Forensic Science Laboratory Govt of NCT, Rohini New Delhi[PDF]1.67 MB
The digital evidence examiner may be called by the Court when it requires assistance. Litigants can produce their evidence initially with a section 65B certificate and thereafter present their own experts. Section 79A does not bar evidence being presented through others. It can however be disputed and Court takes a decision to either accept the evidence as presented or call for assistance from the Digital evidence examiner. In Criminal cases, the police may directly take the assistance of these labs.