In the High Court of Madhya Pradesh at Jabalpur, (S.Tiwari Vs Arjun Ajay Singh) in an order dated 17th January 2017, regarding E.P. no 01/2014, an important confirmation of a process has been added to the Cyber Jurisprudence of Section 65B of Indian Evidence Act.
In this case, there was a video shot by sub contractors of Election commission during an election campaign which was handed over to the election commission. After the election, one of the parties has raised an election petition in which he has produced a copy of the CD obtained from the Election Commission as a “Certified Copy” and produced it in the Court. Initially, it was not having Section 65B certificate and the petitioner again approached the Election Commission, obtained another set and presented it to the Court.
However, the Court observed that the original document in this case was contained in the memory card (Ed: or the tape) of the Camera and this was first transferred to a CD when it was handed over to the Election commission and then this was again transferred by the Election Commission onto another CD and handed over to the petitioner.
The Court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”. In this case the video grapher should have given the first certificate to EC and EC should have given the second certificate to the petitioner. Since this was not properly done, the Court refused to entertain the evidence.
The contention of the Court is on the right lines even though it may surprise many. The undersigned has been advocating it to some where necessary.
It is good that Courts have been deliberating on the issue of Section 65B certification in great detail and this will be discussed again and again in the days to come.
What would be the position if the original device on which the recording was done resides in the internal memory of an iPhone of the complainant and the same has been synced with the computer owned by the complainant and then a copy is made from such computer on to a CD or a Pen Drive and submitted in Court ?
In above case, would a certificate u/s 65B provided by the complainant meet with the requirements of Sec 65B ?
Sec 65B certificate can be provided for whatever electronic evidence is accessible to the certifier. Whether it is reliable or not will be discussed at the trial with reference to how the electronic evidence came into existence. If at present the evidence in iPhone has been deleted then the only available evidence can be extracted from the computer. Whether this is same as what was inside the mobile etc needs to be established. If the complainant himself has destroyed the first instance and is presenting the second instance, then there would be questions raised about whether it was deliberately erased in the iPhone. You need to defend the challenge.
Would submission of the “original” device (on which recording is done) in Court still have to be backed by a certificate u/s65B ?
Yes. The original device is the “Container” of electronic documents. Electronic documents are inside the container. If no body views it and provides a certified copy, the Judge has to himself view and he would be the eye witness of the electronic document. He would be responsible for the rendering of the electronic document in binary form on the computer device in whatever form it comes out including the conditionalities included in the Section 65B.