Section 65B of Indian Evidence Act on Electronic Evidence Explained

 

Of late, Section 65B of Indian Evidence Act is under focus in the Judicial and Law Enforcement circles. In this context, Naavi has put across his views on the section and how it needs to be understood in the above video available on You Tube.

The main points that Naavi makes here are

a) Section 65B (as well as 65A) of Indian Evidence Act refer to the special provisions of the Act in respect of Electronic Documents. Though Section 65 is referring to “Secondary” documents in paper form, there is no such distinction made as to the electronic document.

b) There is no need to distinguish Primary and Secondary and all documents need to be interpreted by a human being which takes the form of a Section 65B certificate.

c) A “Hard disk” which may contain an electronic document also cannot be considered the “Primary Document” since it is only a “Container” and the real Electronic document is an expression in binary language which cannot be read by a human being and needs to be interpreted with the assistance of a binary reading device (Computer + operating system +Application)

d) Section 65B explains the conditions under which an electronic document can be considered as “Admissible” in a Court as a “Document” and it needs to be suitably confirmed for the Court to accept the document, which is often termed as “Section 65B certificate or Statement”

e) Section 65B refers to a process of producing a “Computer Output” of the electronic document which is the evidence to be admitted and such computer output can be either in the form of a “Print Out” or a “Copy”.

f) There is a “Process” by which the electronic document becomes the “Computer output” and Section 65B identifies this as the subject activity which needs to be conducted by a person having lawful control over the computer producing such output and that during the period of such production, the Computer should be working properly etc.

g) The focus of Section 65B is the activity of conversion of the electronic document residing inside a system which can be seen by an observer into a “Computer Output”.

h) The other clarifications contained in the Section 65B such as that the the Computer Output could be produced by a combination of computers, acting in succession etc as relating to dynamic creation of an electronic document from a data base and routing it through multiple devices onto a final visible form in the computer of the observer and thereafter its porting into a Printer.

i) Considering these interpretations, the Section 65B certification is a “matter of fact” certification to the effect that “What I saw is what I reproduced as a computer output faithfully” and this can be done by any person who is observing an electronic document in his computer and wants it to be produced as an evidence. It is not necessary that a document from yahoo website has to be certified only by a Yahoo server administrator. Similarly, a statement of account downloaded from an ICICI bank website need not be certified only by the ICICI Bank manager but by any person who can lawfully access the document in electronic form.

j) There is also an important distinction that “Content Owner” is different from “Content Viewer” and Section 65B is meant to be produced by a content viewer. On the other hand the content owner in respect of say a Bank statement is the official Bank manager and he can provide a print out as the owner of the content who understands the content and is considered as an “Expert” in the domain. Any body else who views the document provides a Section 65B certificate that  the print out (or a soft copy) is a faithful reproduction.

It is very important that the legal fraternity and the Judiciary interprets the section properly. Any interpretation that only a “Server Administrator” can provide a certificate under Section 65B is considered incorrect. The server administrator can however provide the certificate but it is not mandatory. The Section 65B certifier is like a photographer who captures a photograph of an event and confirms the process of taking the photograph though he may not be aware of who is there in the picture and what they are doing. It is left to other “Experts” to interpret the “Content” and impute meaning as only a subject matter expert can do.

The undersigned has been running the Cyber Evidence Archival Center (www.ceac.in) since 2002 and has produced evidence under Section 65B certification in many legal proceedings. The first case in which an accused was convicted under the provisions of ITA2000 namely the State of Tamil Nadu Vs Suhas Katti happened in 2004 and in that case, the undersigned had produced a print copy of an electronic document which was then present in yahoo server with the appropriate certification. It was accepted and the accused was convicted.

In that case, the undersigned was also examined an “Expert” since as a part of the certification, he had also interpreted the IP address visible in the document as belonging to a specific ISP in Mumbai etc.

The current interest in the Section 65B has come because of the Supreme Court making a mention recently about the need for such certification whenever an electronic document is produced as evidence.

It is however felt that it is necessary for all the Courts to have proper understanding of the Section since otherwise mistakes can occur in acceptance or rejection of electronic documents in Courts.

The embedded video in YouTube contains the above discussion.

I welcome any counter views for debate.

Naavi

(For a Copy of Section 65B of Indian Evidence Act, s or Browse through Schedule 2 (in the left menu) of ITA 2000 available here: 

 

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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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11 Responses to Section 65B of Indian Evidence Act on Electronic Evidence Explained

  1. chandni says:

    i need a ceritificate filed in court under section 65-B Indian Evidence Act

  2. Rajinder says:

    A very clear idea of 65B of Indian Evidence Act. A must read for every law expert.

    The method should be applied with taking care of every aspect of 65B as described in this article.

    Thanks for this meticulous article

  3. Pradeep says:

    Dear Sir/Madam,

    Is it necessary/Mandatory to provide 65B Certificate under Indian Evidence Act, even after the person who alleged of being sending faul messages/uploading photos in Facebook, had admitted the same during the cross examination.

    waiting for your precious reply.

    Thanking you.

    • I suppose, Once an evidence is admitted, Court can proceed to interpret it unless there is any special circumstance to believe that the person is trying to shield another offender. Sec 65B certification is more a “Procedure” and perhaps it may not be critical after the “admission by the accused”. However, I leave it to other experts to give their views on this question.

  4. s.v.ramani says:

    Sir

    I need for a case in family court listing of sms messages. I have original mobile instrument with all messages and had used a downloaded software to print out for the relevant period and the down load is also in the soft ware in my system.

    I can bring the original mobile for the expert for the contents to be downloaded in both soft and hard form for expert certification.

    Same way I have received i my gmail account the emails which I had down loaded from the email account in pdf form with Gmail’s M symbol. In coming messages down loaded from the gmail server directly in pdf forms with M symbol are encripted.

    I have these pdf prints but court may not understand this so these pdf emain incoming can be either be down loaded or cross checked with email account in box by the expert and certified.

    ram

  5. RAIVIJAY KUMAR says:

    sir this is vijay kumar i want a suggestion on behalf of chit fund company i know if any format is they can u please be forwarded to my email id vijay2213mamu@gmail.com i reply that the said document. It has been printed from the computer.

  6. Maneesh says:

    In case of sending emails certificate of computer under 65b should contain ip address ? And what other things required ? Can this certificate can be filed at the stage of arguments ?

  7. Rishabh says:

    what is the difference between an oath affidavit and certificate u/S 65-b we produce in the court whilst evidence by way of affidavit or any other affidavit along with the documents?

    how the affidavits for electronic records in commercial courts are different than certificate u/S 65-b after the amendments in order XI rule 6 CPC?

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