65B Certificate under the Evidence Act for presenting Electronic Evidence in Court in India

What is a 65B Certificate? How can I submit Electronic Evidence in courts in India?

A 65B Certificate is a Certificate submitted to a Court in India for the purpose of producing Electronic or Digital Evidence in certain cases.

It is called 65B Certificate because the Certificate is prescribed under section 65B of the Indian Evidence Act, 1872. It is a requirement for submitting Secondary Evidence in Electronic Form in any Court in India.

A 65B Certificate is a Certificate submitted to a Court in India for the purpose of producing Electronic or Digital Evidence in certain cases.

It is called 65B Certificate because the Certificate is prescribed under section 65B of the Indian Evidence Act, 1872. It is a requirement for submitting Secondary Evidence in Electronic Form in any Court in India.

What is section 65B of the Indian Evidence Act?

Section 65B of the Indian Evidence Act deals with the admissibility of electronic evidence.

65B. Admissibility of electronic records. ––

Section 65B of the Indian Evidence Act deals with the admissibility of electronic evidence.

65B. Admissibility of electronic records. ––

(1) Notwithstanding anything contained in this Act,any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: ––
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether––
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section,a certificate doing any of the following things, that is to say, ––
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section, ––
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.––For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

When is a 65B certificate required?

Various types of Electronic Evidence which require a certificate under section 65B:

• Memory cards and Compact Discs (CD) being ‘document’ in terms of S. 65-B shall be admissible as electronic evidence. (Para12)
  AIR 2017 JAMMU AND KASHMIR 9
• Submission of still images or video from a CCTV System or CCTV Cameras

Case Law:

Photographs which are taken by a digital camera or a filmless camera or by a mobile phone, without negatives or without the electronic source i.e. Primary Evidence, then that party must comply with S. 65 B AIR 2019 BOMBAY 290 ::AIROnline 2019 BOM 845

Video footage from a Handicam / Camcorder requires a 65B certificate if the Handicam / Camcorder itself is not produced.
2021 CRI. L. J. 3682

Contents of memory-card/pen-drive would be a ‘matter’ and memory card itself would be a ‘substance’- Hence, contents of memory-card would be a ‘document’.
AIR 2020 SUPREME COURT 1

When is a 65B Certificate not required?

Instances in which it was held by the courts that a certificate under section 65B was not required:

• CCTV footage stored directly on hard drive of computer, being self generated without human intervention, cannot be secondary evidence. It would be Primary Evidence. But if that same footage was further copied or reproduced onto a pen drive or CD, it would be Secondary Evidence and would require a Certificate under 65B.
  2016 (3) ADR 495, Relied on. 2017 (5) ADR 596
• An investigating officer tapped a phone conversation of 2 accused and their plan to demand ransom money and dispose of a dead body. The Phone conversation between the accused lead to unearthing of the case was treated as primary evidence.
  AIR 2015 SC 180, Rel. on. 2018 (4) ALJ 258 ::2018 (7) ADJ 53 NOC
• A husband sought to produce video clippings of his wife’s extra marital affair through a spy camera / pin hole camera. The wife claimed that the videos were privileged communications between husband and wife. the Family Court held that the clipping from the Hard Disk of the spy / pin hole camera was primary evidence and therefore compliance of S. 65B of Evidence Act was not necessary.
  AIR 2016 RAJASTHAN 153 ::(2016) 161 AllIndCas 25 (RAJ)
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Who must issue the 65B Certificate?

Any person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities may issue the Certificate.

Examples of persons who maybe competent to issue a 65B Certificate in different cases:

• A computer operator or device operator of the device from which the electronic evidence was generated.
• The department manager or Head of the Department in which the computer or device was being used
• The Director of the Company or CEO of a company in which the computer or device was being used
• Security Officer in-charge of a DVR or CCTV Camera System
• Owner or user of a mobile phone from which a photograph or video was taken as evidence.
• Officer of a mobile phone company providing Call Detail Records or IP Detail Records to the government or to the police.
• Accountant or Accounts Manager who generates a ledger or account statement in electronic form and submits a printout for purposes of evidence.

Case Law:
A certificate under s. 65B which was signed by person who was not in a responsible official position in relation to operation of computer of the complainant and was not author of log sheets or invoices and even had no free access to computer or computerized record of complainant could not issue the 65B certificate (Para 19) 2015 CRI. L. J. (NOC) 483 (BOM.) (GOA BENCH) ::2016 ACD 151 (BOM)

Can 65B Certificate requirement be relaxed by the court?

Yes. The requirement of a 65B Certificate can be relaxed by the court.

Requirement of certificate under S. 65B(4) of Evidence Act is mandatory for production of electronic evidence however it is unnecessary when the document itself is produced. (Para 72) AIROnline 2020 SC 641 Supreme Court Of India Hon’ble Judge(s): R. F. Nariman, S. Ravindra Bhat, V. Ramasubramanian , JJ

A party desiring to prove an electronic record who has done everything possible to obtain necessary certificate given by third party over which he has no control – Must be relieved by mandatory obligation u/S. 65-B of Evidence Act.

When electronic record is produced by a party who is not in possession of device from which document is produced, such party cannot be required to produce certificate under S. 65 B(4) of Act – Applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies. AIROnline 2018 SC 437

Requirement of certificate – Can be relaxed by court in interest of justice – Suit for recovery by Bank against borrower – Statement of account being document proved under Banker’s Books Evidence Act – There was no need to go into issue of defects in Certificate u/S. 65-B of Evidence Act to dismiss suit. (Para 6 7) 2018 (5) ADR 528