When Should Section 65B Certificate be produced?

Section 65B certificate has been discussed in detail in this website as well as the book by Naavi.  Now some queries have been raised on the recent Supreme Court judgement of 1st May 2019 in the case of “State of Karnataka Lokayukta Police Station, Bengaluru vs R.Hiremath”.

Without any prejudice to the other merits of the case, I would like to make a comment here only on the Section 65B aspect. 

This is a judgement from a bench of Justice D Y ChandraChud and  Hemant Gupta where Section 65B came for discussion.

In this case, the Police had filed a Chargesheet and at that time had produced some electronic documents such as CDs without a Section 65B certificate. The CDs contained some video recording from a “Spy Camera”. The spy camera was handed over by the Lokayukta to the the complainant for recording a meeting in which bribe was asked for. .

A Single Judge of the Karnataka High Court had rejected the charge sheet and one of the grounds was that the electronic document produced as evidence was not accompanied by a Section 65B certificate and this defect is not curable by a subsequent certification which the Police must have offered to provide.

The recording pertained to 12th and 13th November 2012 and the High Court took a decision to reject the evidence in its order of 27th April 2017.  if the Certificate is to be produced, it is to be produced today after a lapse of 7 years

The question was whether this omission to produce Section 65B Certificate at the time of filing of charge sheet could be corrected subsequently.

The defence argued that the production of Section 65B now will be like an “After thought” and hence should not be allowed. 

The Supreme Court held that the omission was not fatal and could be corrected. In the process it stated that Section 65B Certificate can be produced any time during the trial.

If the only principle under question is whether an electronic evidence first produced without a Section 65B evidence can be re-produced with another copy with Section 65B certificate, it is not possible to disagree with the Supreme Court since the objective of the evidence is to produce truth and it should be allowed until the time the evidence is not closed and even later subject to the Court’s discretion.

However, certain other aspects of the judgement need to be analyzed from the academic perspective. We will also not go into the aspect of “Privacy” etc since it has already been established through other judgements that the means of obtaining the evidence does not adversely affect the relevance of the evidence. (Though if the means of getting the evidence was illegal, it may constitute a separate counter offence that the collector of the information has to contend with if challenged).

The Hiremath judgement repeatedly mentions “Secondary Evidence”. It is necessary that the Courts correctly interpret the concept of “Secondary Evidence” in the case of Electronic Documents. We have explained this in great detail in the book on Section 65B. (check the E Book section for the link).

In the case of electronic document, the “Section 65B certified copy of the computer output” is also a “Document” and is admissible without the production of the original. It is therefore futile to discuss “Primary” and “Secondary”. In the instant case, the “Primary” document is the binary recordings in the spy camera. Every other copy has to be Section 65B certificate by the respective persons who copied it from one state to another. The chain of contemporaneous certificates has to be maintained for the  final evidence to be admitted.

The problem with taking the Hiremath decision too far is that it would introduce a sense of complacency with the producers of electronic evidence  who may postpone the certification to a later day for several reasons. But it must be remembered that the electronic evidence may later vanish from the place from which the first document used as evidence either at the investigation time or later. 

There will be a tendency to take the print out produced at one point of time say the 2012 print out in this case and one officer putting a seal and writing “I Certify …..” and call it a Section 65B certificate.

This would be a gross abuse of how the Section 65B certificate has to be produced.

A Section 65B certificate is issued by a person who converts the computer visible electronic document into a “Computer Output” which could be a print out or a soft copy. In this certificate the process of capture has to be part of the certificate. The devices used have to be identified. Hence if a document has been marked by the Court in 2012 and later it allows some body to certify it in 2017, then the device used and the process with which the observer created the first copy may no longer be relevant.  Hence it has to be observed once again and a new Certified copy has to be produced.

This is fine as long as the document from which the computer out put is produced is still in existence. But the Court may have to allow the new documents to be marked either as “Additional exhibits” or as “Replacement of earlier marked exhibits”. Then some body may have to further certify that the two marked exhibits donot have any material difference.

It is therefore advised that it is better to produce the Certified copy at the earliest time to avoid practical problems of re-creating the computer outputs. At the time of pre-FIR investigation, perhaps police may have to act urgently with whatever evidence is on hand and hence certification may not be insisted when a private complainant makes the complaint. But the Police should be careful to keep a certified copy before the original vanishes.

Naavi