Determining Whether the Victim or a Technical Custodian Must Issue the Section 65B Certificate

In the modern era of litigation, electronic evidence—ranging from Call Data Records (CDRs) and emails to CCTV footage and WhatsApp chats—has become the backbone of many criminal and civil trials. However, the transition from physical to digital proof introduces a significant legal hurdle: admissibility. Under the Indian legal system, electronic records cannot be admitted as evidence simply by producing a printout or a disc; they must satisfy the rigorous requirements of the Indian Evidence Act, 1872.

A frequent point of contention in trial courts is the question of who is legally qualified to certify this evidence. Specifically, litigants often ask: if a Section 65b Certificate Not Made by Victim, does this render the evidence inadmissible? The legal answer is a definitive no. In fact, the law typically requires the certificate to be issued by someone other than the victim.

Understanding the Mandatory Nature of Section 65B

Section 65B of the Indian Evidence Act, 1872, governs the admissibility of electronic records. It stipulates that any information contained in an electronic record which is printed on a piece of paper or stored in optical or magnetic media shall be deemed to be a document. However, for such a document to be admissible, it must be accompanied by a certificate as prescribed under Section 65B(4).

The primary purpose of this certification is to ensure the integrity of the digital evidence. The law requires the certificate to be signed by a person occupying a responsible official position in relation to the operation of the relevant device 2005 5 Supreme 414. This ensures that the person certifying the record has the technical knowledge to verify that the device was operating properly and that the data was produced in the ordinary course of business.

Why the Victim Cannot Issue the Certificate

The distinction between a victim and a custodian is critical. A victim or complainant may be the owner of the phone or the person who received the email, but they are rarely the responsible official managing the system that generated the record. For example, while a victim can testify that they received a threatening SMS, they cannot certify the technical accuracy of the telecom company's server that generated the CDR.

If a victim attempted to certify the technical process of a service provider, it would be legally flawed because they lack the administrative control over the infrastructure. As a result, it is not issued by the victim 2005 5 Supreme 414. Instead, the certification must come from the technical custodian. Common examples include:* Telecom Records: The Nodal Officer of the telecom company 2005 5 Supreme 414 and 2023 0 Supreme(Ker) 32.* CCTV Footage: The administrator or custodian of the surveillance system.* Corporate Emails: The IT administrator or server manager.* Forensic Data: A forensic expert who extracted the data from a device.

Judicial Interpretations and Landmark Precedents

The Indian judiciary has consistently clarified that the role of the victim is limited to identification and testimony, not technical certification.

In the high-profile Mohd. Afzal vs. State (the Parliament attack case), the Supreme Court dealt with the admissibility of call details. The court noted that for certain electronic records, such as those stored on massive servers that are immovable, the non-filing of the 65B(4) certificate does not bar secondary evidence under Sections 63 and 65 2005 5 Supreme 414. The court emphasized that the certificate is from the service provider, not victims or investigators 2005 5 Supreme 414.

Similarly, in the Nirbhaya gang-rape case (Mukesh & Anr. vs. State), electronic evidence like CCTV footage was admitted based on certifications provided by forensic experts and custodians, not the victims 2017 3 Supreme 385. This reinforces the principle that an electronic record satisfying conditions u/s 65-B is admissible, provided the certifier is the appropriate official 2017 3 Supreme 385.

Is a Missing Certificate Fatal to the Case?

While Section 65B is a condition precedent to the admissibility of evidence by way of electronic record, as held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal2023 0 Supreme(Mad) 3059, the courts have adopted a pragmatic approach toward procedural lapses.

1. The Concept of Curable Defects

Recent jurisprudence suggests that the absence of a certificate is often treated as a curable defect rather than a fatal blow to the prosecution or plaintiff. In several instances, courts have held that the absence of a Section 65-B certificate for electronic evidence is a curable defect and does not invalidate the trial 2024 0 Supreme(Kar) 397.

2. Remedying the Absence of Certification

If a certificate is missing or defective, the court may exercise its discretion to allow the production of the certificate at a later stage. This can be achieved through:* Section 91 of the CrPC: To summon the Nodal Officer or custodian to produce the required certificate 2023 0 Supreme(Ker) 32.* Section 311 of the CrPC: To recall witnesses for further examination to provide the necessary certification 2023 0 Supreme(Cal) 1371 and 2024 0 Supreme(Kar) 397.

However, this flexibility is not absolute. If a party fails to make a genuine effort to obtain the certificate, the evidence may be excluded. For instance, in some murder trials, uncertified pen drives and CDs have been dismissed because the statutory requirements were ignored 2024 0 Supreme(Pat) 825.

Primary vs. Secondary Electronic Evidence

It is important to distinguish between primary and secondary evidence. A certificate under Section 65B is required when a copy (secondary evidence) of an electronic record is produced. For example, a printout of an email is secondary evidence.

However, a certificate under Section 65B of the Act is not required if electronic record is used as a primary evidence 2024 0 Supreme(Kar) 397. If the original device itself (e.g., the original hard drive or the original CD/DVD) is produced in court, the strict requirements of the 65B certificate may not apply in the same way 2016 8 Supreme 270.

Summary of Requirements for Admissibility

To ensure electronic evidence is not thrown out, the following framework is typically followed:

| Evidence Type | Required Certificate? | Proper Issuer || :--- | :--- | :--- || Call Data Records (CDRs) | Yes | Nodal Officer of Telecom Company 2005 5 Supreme 414 || CCTV Footage | Yes | Device Custodian / System Admin || Server-stored Emails | Yes | IT/Server Administrator || Extracted Phone Data | Yes | Forensic Expert/Extractor |

Key Takeaways

• The victim is not the issuer: The Section 65B certificate must be signed by a person in a responsible official position regarding the device's operation 2005 5 Supreme 414.
• Technical accuracy is paramount: The certificate validates the mechanical process and the regularity of the device's use.
• Non-compliance may be curable: Missing certificates can often be rectified by summoning the correct official under Section 91 or 311 of the CrPC 2023 0 Supreme(Ker) 32 and 2023 0 Supreme(Cal) 1371.
• Admissibility is strict: Without a valid certificate or a legal exception (like primary evidence), electronic records are generally inadmissible 2017 0 Supreme(All) 994

  Dilip Sariwan VS State of Chhattisgarh

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While these principles provide a general framework based on judicial precedents, legal outcomes depend heavily on the specific facts of a case; therefore, professional legal counsel should be sought for case-specific strategies.