On 14th June 2020, we had a well attended webinar organized by the Cyber Society of India, on Section 65B of Indian Evidence Act. During the webinar, I made a brief presentation on the Techno Legal perspective of Electronic Evidence and Section 65B. It was followed by the talks from some other experts also.
During the discussions several questions had been raised by the participants. Some of them were answered by other experts during the webinar. However, I have collated the questions and provide my view for each of them .
Watch this video first:
| Sl No | Question | Response |
| 1 |
Being a forensic examiner of a particular digital material, whether it need to be produced a 65b certificate? |
Yes |
| 2 |
How a person giving 65B certificate for the data which is not his own property, will verify the veracity of the digital data and it becomes the evidence in the Court. |
The Certificate is for what the certifier has seen in his computer. If your eye can see a a car was passing by in the street, you can give evidence that the car was passing by in the street. It need not be your property |
| 3 |
For physical/manual documents produced in the court as Documentary Evidence, no Certificate is insisted upon for relevancy and admissibility, but for electronic documents, why it is insisted notwithstanding it’s genuineness .What is the distinguishing feature in this? |
An electronic document is a rendition of the devices. The real original electronic document is the binary stream. Hence the certificate is essential. |
| 4 | Can we interpret the Screen shots from mobile as an admissible evidences be it primary or secondary?? |
The screen shots are electronic documents that can be produced as evidence. The question of “Primary” and “Secondary” is redundant. The original is the binary stream stored in the memory card or the hardware memory of the device. It is not presentable as evidence since it is not humanly readable. |
| 5 | Whether 65b certificate demands a third party or persons involvement in between the client and the Court? | The Certificate is provided at the request of one of the litigants to the litigant. The litigant presents it in the court may be under an affidavit. The certifier need not always be called in by the Court unless there is doubt whether a certificate has at all been issued by the said certifier or not. When present the certifier can only confirm his signature and the fact that he has given that certificate. Any other deposition on the content orally is not admissible under Section 22A of the IEA. An expert under Section 45A of IEA may however interpret any of the contents and give his opinion. An ordinary certifier cannot. |
| 6 | Who can give 65B Certificate: The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. | Section 65B certificate is given for the production of the “Computer Output” as defined in Section 65B(1). ..not for the original capture or creation of the electronic document. Everytime an electronic document is produced as evidence, Section 65B certificate has to be produced. |
| 7 | Now days everything is an out put of electronic device whether all those require 65B (4) certificate is mandate | Yes |
| 8 | It seems this section needs a lot of interpretation in view of the individuals/advocates/Judges, this itself indicated that the section should be redefined in a simple way, | Technology law is always complicated if we donot understand technology and try to interpret it with our past knowledge. We must forget your current interpretation of Primary and Secondary documents and look at Section 65B without the coloured glasses of our current interpretation. |
| 9 | At what stage the certificate has to been give?? during Chargesheet or while tendering the evidence? | Preferably when the electronic document is first presented. With the permission of the Court any time thereafter |
| 10 | Just we can assume, if this zoom meeting should be made it as an electronic evidence, who will give a certificate, whether Zoom service provider? or the authority of Cyber society? | Whoever is viewing the zoom session in his computer can provide a certificate from his perspective of what he saw by capturing the electronic document. You can use a screenshot or recording if you can record. Recording has to be supplemented with hashvalue. |
| 11 | PV Anwar has completely taken away the provision of 63/65 from Electronic Record, which Shafi mohamad brings back. | Shafhi Mohamad is a two member bench and cannot bring back what the three member bench of PV Anvar has interpreted. The law as there since 17th October 2000 and PV Anvar has only give the recent realization. |
| 12 | Can a person can self certify when she/he producing a document of phone recording with the transcript that it was received in their own smartphone and that is always in their own possession . | Yes… but the quality of the evidence would be low as it can be considered as a self serving evidence |
| 13 | Whoever is giving medical or some Certificate they can give their digital signature (encrypted document)..no body can hack it.. | Yes if the document is issued in electronic form |
| 14 | A print out from LinkedIn regarding profession and salary of an individual, should a certificate be given by the person taking printout or, from the LinkedIn office? | Person taking the printout |
| 15 | What is the necessity of electronic or digital signatures | For authentication of an electronic document |
| 16 | If the CCTV footage is in the custody of the accused… if he wants to produce the electronic evidence… who should produce the certificate | He can get the cctv footage viewed by a trusted third party who can give the certificate that the electronic document was present in the given form. The defence can argue that the document was in the custody of the accused and hence could have been tampered with. This does not affect what the certifier saw and certified. Court can resolve this through a digital evidence examiner and forensic report |
| 17 | We are giving Footage as an evidence for any crime occurs… | Yes… should be given with Section 65B certificate |
| 18 | Is 65(B) IEA certificate mandatory for the records received from Facebook through email? | Yes |
| 19 | All form of evidences are verified and cloned or duplicated prior to investigation to ensure the integrity of the evidence. Computer Forensic evidence plays a crucial role in the threat management life cycle, from incidence response to high stake corporate litigation. | Contemporaneous certifications are required whenever the document is re-saved |
| 20 | India Post established electronic post for quick and fast transmission. It is also comes under the electronic evidence. Here the documents transmits from one terminal to other terminal by way of sending by the sender and the receiver receives the same.. |
In this case the document can be digitally signed by the postal authorities. Section 65B certificate can also be given for producing the evidence of even the digitally signed electronic document |
If you have more questions, please send it by e-mail.
Naavi
Dear Vijyashankar Sir,
Greetings of the day.
To clarify some doubts about 65-B in regard to my ongoing matter I was checking info on Internet, and I came across your blog posts. I must say that this is such a vast ocean of worthy knowledge that you have shared here.
Lately as a litigant I faced an issue with my service provider for ‘Cyber Forensic Extraction’ . It is a decently well known private cyber forensic company in my city. I had requested for and paid for professional extraction of data of webpages of website and social media posts of the opponent, to ensure that I am able to preserve the evidence of unauthorised usage of my trademark in source code of website. The work was done and:
– The data was provided to me in Compact Disc along with extraction report that mentioned the names of pages, Serial number values.
– No date of extraction, method, software, computer used were mentioned.
– I submitted the report and cd as it is in court and also to Police with complaint for Trademark infringement.
– Police during preliminary query vaguely mentioned that they would need 65-B from the expert who gave these CD.
– I connected with the Cyber expert. He responded ” We cant issue 65B cert, as the electronic records we are dealing with, originate from 3rd party platforms such as websites & social media that are not owned operated or controlled by us, so, we are not competent to issue 65B, as we lack lawful access and control over the original electronic source”
In such scenario (and now that the infringing marks from backend are taken down by the opponent) i am left with questions:
1. Firstly, is it perfectly legal to extract the public facing webpages , via private cyber firms, to submit as evidence in court and police, to show the usage of trademark in source code of website. ( One cyber expert had told me you can use data of Social media posts , but if u extract webpages even for evidence, the other party may claim its illegal as u still have to click on ‘View source’) . So that’s my first doubt after the refusal of 65B.
2. Second doubt is that – is the cyber forensic service provider right when he says what he said above or is he not fully informed?
3. In present scenario, if he does not agree to issue a 65 B certificate, can i simply submit as replacement the screenshots/ prints of opponents’ website and social media i had earlier taken from my own computer independently, and printed them out, ( with a 65 B certificate signed by me)
4. It would be great, if you could give me a small pointer that I can tell the cyber expert, so that he is convinced that he is right person to certify..as he has given the Computer Output (As what I made out from your blogs… probably its not about who owns the data source originally..)
I feel like i am taking full fledged consultation from you here, but i couldn’t find your email Id to discuss this in detail, if the need be.
Thanks once again for your detailed sharing through wonderful blogs on naavi.org its a wonderful resource on Cyber security.
Thanks in advance
Varsha
PS: excuse my layman’s language, i m just a litigant looking for the right bit of knowledge.
More information is also available on ceac.in and videos in youtube.com/naavi9. My email is naavi 9 at g mail dot com
Answers
1. Firstly, is it perfectly legal to extract the public facing webpages , via private cyber firms, to submit as evidence in court and police, to show the usage of trademark in source code of website. ( One cyber expert had told me you can use data of Social media posts , but if u extract webpages even for evidence, the other party may claim its illegal as u still have to click on ‘View source’) . So that’s my first doubt after the refusal of 65B.
YES
2. Second doubt is that – is the cyber forensic service provider right when he says what he said above or is he not fully informed?
No
3. In present scenario, if he does not agree to issue a 65 B certificate, can i simply submit as replacement the screenshots/ prints of opponents’ website and social media i had earlier taken from my own computer independently, and printed them out, ( with a 65 B certificate signed by me)
It will have a low evidentiary value since you have a vested interest. You can however do it and then summon the certifier to confirm his report in the Court.
4. It would be great, if you could give me a small pointer that I can tell the cyber expert, so that he is convinced that he is right person to certify..as he has given the Computer Output (As what I made out from your blogs… probably its not about who owns the data source originally..)
You should ask him to peruse through the various articles here including https://www.naavi.org/wp/clarification-section-65b-sign-certificate/ He is referring to Shafi Ahmed case which was an erroneous judgement of the Supreme court subsequently over turned.