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International Commission of Jurists, Bangalore had organized a lecture on Digital Evidence and Section 65B of Indian Evidence Act at the Karnataka High Court on 8th December 2017.

Speaking on the occasion, Naavi highlighted the evolution of Section 65B as a law since 17th October 2000 when the ITA 2000 was notified till date. He also explained the nuances of Section 65B and why it is a very innovative legal provision that has added great strength to Indian Cyber Law.

In the process, Naavi recalled that the first “Section 65B certified evidence” was produced in a Court of law in the historic case of State of Tamil Nadu Vs  Suhas Katti in AMM, Egmore, Chennai in 2004. This case has been recognized as the first case of conviction in India under ITA 2000. However Naavi pointed out that this case was also historic from the point of view of Section 65B since the evidence presented in the case was a Section 65B certificate submitted by Naavi  dated  18th February 2004 in which content which was present as an electronic document on Yahoo Groups server was brought to the evidence and admitted. This was the critical evidence which evidenced the commission of the crime on which the accused was convicted under Section 67 of ITA 2000 besides Sections 469 and 509 of IPC.

Subsequently, it was only on 18th September 2014 that in the P.V.Anvar Vs P.K.Basheer case in the Supreme Court that the eminent judges led by Justice Kurien Joseph stated that Electronic Documents can be admitted as evidence only if they are accompanied by Section 65B Certificate. In the process, Supreme Court over ruled the earlier judgement in the Afsan Guru case which on 4th august 2005 had held that in certain circumstances electronic documents can be accepted without Section 65B certificate.

While it took 14 years for the larger community of Judges to highlight the importance of Section 65B, it should be recognized that Justice Arul Raj had created history by appreciating such an evidence and accepting it for the trial. At that time it required courage of conviction to accept a piece of paper submitted by a private person in Chennai as convincing evidence that a defamatory electronic document existed in the server of Yahoo in US.

The acceptance of Section 65B evidence was not the only point made out in this case. The defense raised a query if a private person like Vijayashankar could submit the Section 65B certificate and whether it was not necessary for a Government appointed person to submit it. Mr Arul Raj again came to the right conclusion that the section 65B does not restrict the submission of Section 65B certificate only to a Government authority.

The decision of Arul Raj in the Suhas Katti case was not just a flash in the pan or a decision prompted by the circumstances. Some time later in the same year, Mr Arul Raj took another decision related to Section 65B which again was a point that was touched upon by the Basheer case and requires to be highlighted now.

In this case, a case of defamation had been filed by actor Trisha on a Tamil publication which had published some photographs extracted from a video which was in circulation in the internet at that time. A series of screen shots had been printed in the magazine. Police had raided the office of the publication, seized a CD containing the video and filed the charge sheet stating that the content of the CD was printed in the magazine and hence the CD was a prime evidence for the case.

Justice Arul Raj at that time invited the undersigned to the Court and asked me to view the contents of the CD on the computer in the chamber and provide a Section 65B certified print out so that he could proceed with the trial on the basis of Section 65B certified copy.

The logic behind this decision to invite an external consultant to convert the contents of CD which was already on hand with the Court and which many could say was the “Primary” evidence, into a Section 65B certified print out, which many would say is the “Secondary” evidence was a master stroke of understanding of the principle of Section 65B.

I personally feel that Mr Arul Raj should be honoured specially for displaying a vision that though the “Primary” evidence is with the court, it cannot be appreciated by the Court without the assistance of a “Section 65B certified document”.

In the Basheer case a reference has been made that if the original CD in which the recording which formed the evidence for the case had been seized by the Police and presented, it could have perhaps constituted a  “Primary” evidence and non availability of Section 65B could have been condoned.

In many other cases also, we some times see that Courts ask the “Mobiles” containing the evidence to be presented as “Primary Evidence”. Hard disks are often presented as “Primary Evidence” for documents in a Computer.

Even assuming that the original binary impressions which first generated the electronic document which is the evidence in question is in the possession of the Court embedded within the container called the hard disk or a mobile, the Court cannot simply view the content itself and admit the evidence in to the proceedings. If any Judge proceeds to admit the evidence because he himself saw or heard the electronic document, then he is himself taking the responsibility to confirm that the electronic document which he saw or heard based on the computer, the operating system,the application and its configurations etc which all combined to render the binary data of the electronic document into a human intelligible experience was working properly etc., as envisaged in Section 65B.

It is therefore essential for the Court to involve an external person to produce a Section 65B Certificate before accepting the evidence into the proceedings.

Mr Arul Raj had realized this way back in 2004 and that is what I call as a visionary understanding of the challenges involved in appreciating digital evidence presented to a Court in its “Primary” form.

During the last several years, the undersigned has assumed credit for having been the person who first presented a Section 65B certificate in a Court. The Police officer who was involved in the case as an IO, namely Mr Balu Swaminathan (who was the ACP in charge of the Cyber Crime cell in Chennai at that time) has also been commended and recognized for being the first IO to get a conviction under ITA 2000.

But I feel that the magistrate Justice D Arul Raj has not perhaps been properly recognized for displaying his vision beyond the normal call of duty which brought in the conviction as well as the appreciation of electronic evidence in proper form.

Today, we are not aware where is Justice Arul Raj. But Naavi as a person and Naavi.org/ceac.in considers it our duty to record the contribution of D Arul Raj in the development of Cyber Jurisprudence in India and honour him with this article.

We wish that appropriate persons in Tamil Nadu, locate Mr Arul Raj and provide him the due honour that he deserves.

We urge my friends in Cyber Society of India and Prime Point Foundation in Chennai to take the lead in this regard.

Naavi

More on Section 65B..from Madhya Pradesh..election petition

Posted by Vijayashankar Na on November 17, 2017
Posted in Cyber Law  | Tagged With: , , , | 4 Comments

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.

Naavi