Searching Case Laws & Precedent on Legal Query.....!
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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Section 65B Certificate for Electronic Evidence - The certificate must address conditions under Section 65B(2) of the Evidence Act, including details about the electronic record, the manner of production, and particulars of the device involved. It must be signed by a responsible official related to the operation of the device ["Balbir Singh vs Shiromani Panth Akali Budha Dal Panjwan Takhat - Punjab and Haryana"], ["State of Tripura v. Dipankar Majumder and Others - Gauhati"], ["K. Loganathan VS A. Elango - Current Civil Cases"].
Mandatory Nature of the Certificate - The absence of a Section 65B certificate typically results in the inadmissibility of electronic records, such as CDs or DVDs, unless the original device or media is produced in court. However, this requirement can be waived if the original device is produced, making the certificate unnecessary ["State of Tripura v. Dipankar Majumder and Others - Gauhati"], ["CHATTRAPAL SINGH LODHA & ORS. vs STATE OF NCT - Delhi"].
Procedure When Certificate Is Not Produced - If a certificate is missing or defective, courts are generally required to summon responsible persons under Section 65B(4) to produce the certificate. The defect is considered curable, and the certificate can be produced before the conclusion of the trial ["K. Loganathan VS A. Elango - Current Civil Cases"], ["Gopal Santra VS State of West Bengal - Calcutta"], ["Meena Kumari Sinha VS Maruti Suzuki India Ltd. New Delhi - Jharkhand"].
Control of Device and Party Responsibilities - The procedural requirement under Section 65B(4) applies when the electronic evidence is produced by a person in control of the device. When evidence is produced by a party not in possession of the device, the certificate may not be mandatory ["DHRUBEN GURALDAS BALANI vs STATE OF GUJARAT - Gujarat"], ["Mamata Bhowmik VS Union of India - Gauhati"], ["SOCIETE DES PRODUCTS NESTLE S. A. VS ESSAR INDUSTRIES - Delhi"], ["R. Subramanian VS ICICI Bank Ltd - Madras"].
Legal Clarifications and Judicial Discretion - Courts have clarified that the certificate is not always mandatory, especially if the original device or media is produced. The procedural requirement can be relaxed to serve the interests of justice, and the certificate must be signed by a responsible official ["DHRUBEN GURALDAS BALANI vs STATE OF GUJARAT - Gujarat"], ["DHRUBEN GURALDAS BALANI VS STATE OF GUJARAT - 2022 0 Supreme(Guj) 5"], ["SHAFHI MOHAMMAD vs THE STATE OF HIMACHAL PRADESH - Supreme Court"].
Lost or Misplaced Certificates and Evidence - If the original electronic device or certificate is lost or misplaced, courts have held that the certificate can be filed later, and its absence at the time of evidence presentation does not necessarily render the evidence inadmissible. The focus is on the production of the device or proper certification ["K. Loganathan VS A. Elango - Current Civil Cases"], ["SOCIETE DES PRODUCTS NESTLE S. A. VS ESSAR INDUSTRIES - Delhi"], ["Meena Kumari Sinha VS Maruti Suzuki India Ltd. New Delhi - Jharkhand"].
Analysis and Conclusion:The core requirement for admissibility of electronic evidence under Section 65B is the production of a certificate that satisfies specific conditions, primarily when the evidence is secondary and not the original device or media. While the certificate must typically be signed by a responsible official and detail the production process, courts recognize exceptions—such as when the original device or media is produced in court. The absence of a certificate is curable, and courts may exercise discretion to admit evidence to ensure justice, especially when the electronic record is produced directly from the original device or media. Ultimately, the control over the device and the responsible party's role influence the mandatory nature of the certificate ["Balbir Singh vs Shiromani Panth Akali Budha Dal Panjwan Takhat - Punjab and Haryana"], ["State of Tripura v. Dipankar Majumder and Others - Gauhati"], ["DHRUBEN GURALDAS BALANI vs STATE OF GUJARAT - Gujarat"].
In today's digital age, electronic records like emails, call detail records (CDRs), CCTV footage, and WhatsApp chats form the backbone of many legal cases. But what happens when the original device storing this crucial evidence is lost, stolen, or destroyed? A common query arises: 65B certificate of a device which is lost – can such evidence still be admitted in court under Section 65B of the Indian Evidence Act, 1872?
This blog post breaks down the legal framework, drawing from landmark Supreme Court judgments and other key rulings. We'll explore when a Section 65B(4) certificate is mandatory, its role in cases of device loss, and practical steps to ensure admissibility. Note: This is general information based on judicial precedents and not specific legal advice. Consult a qualified lawyer for your case.
Section 65B addresses the admissibility of electronic records as evidence. It treats such records as documents but imposes special conditions due to their susceptibility to tampering.
Key provisions:- Section 65B(1): Electronic records are admissible if produced in a manner specified.- Section 65B(2): Lists conditions like the device's proper functioning and no tampering.- Section 65B(4): Mandates a certificate from a responsible person, identifying the record, describing its production, detailing the device, and confirming compliance with Section 65B(2). This certificate is signed by someone in a responsible official position related to the device's operation. Ravinder Singh @ Kaku VS State of Punjab - 2022 5 Supreme 76
The certificate acts as a safeguard, proving authenticity when the original cannot be directly verified.
If the original device (e.g., phone, computer, or server) can be produced in court, it serves as primary evidence. The owner or controller can testify to authenticate it, potentially dispensing with the Section 65B(4) certificate.
The Supreme Court has clarified: if the original electronic record can be produced from the original device, the certificate under Section 65B(4) may be unnecessary. This is because the original device itself serves as primary evidence. Ravinder Singh @ Kaku VS State of Punjab - 2022 5 Supreme 76DHRUBEN GURALDAS BALANI VS STATE OF GUJARAT - 2022 0 Supreme(Guj) 5
For instance, in cases involving computer systems or networks where physical production is feasible, the device itself suffices. State of Maharashtra VS Sagar Vishwanath Borkar - 2021 Supreme(Bom) 331
Device loss is common – phones get misplaced, hard drives fail, or evidence is seized/destroyed. Here, secondary evidence (printouts, copies, extracted data) becomes necessary, but admissibility hinges on the Section 65B(4) certificate.
The admissibility of electronic evidence derived from a device that has been lost or is no longer available hinges on whether the original electronic record can be produced and proved by the person in control of the device. If unavailable, secondary evidence can be admitted if it is accompanied by a proper certificate from a responsible person in control of the device at the time of recording. Ravinder Singh @ Kaku VS State of Punjab - 2022 5 Supreme 76
The certificate must be from someone who controlled the device when the record was created, not later possessors. Mere later control doesn't suffice. Ravinder Singh @ Kaku VS State of Punjab - 2022 5 Supreme 76
In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court held: the certificate under Section 65B(4) is a mandatory precondition for the admissibility of electronic evidence when the original device is not available. It must identify the electronic record, describe how it was produced, and furnish details of the device involved, signed by a responsible official in control. Ravinder Singh @ Kaku VS State of Punjab - 2022 5 Supreme 76
Courts have refined this in various contexts:
Curable Defect: Non-production of the certificate is often a curable procedural lapse. In one case involving CDRs, the court noted: the production of a Section 65B certificate... is mandatory... However, it also clarified that the non-production of the certificate is a curable defect and can be produced at any time before completion of the trial. K. Loganathan VS A. Elango - 2023 Supreme(Mad) 3112
Trial Judge's Discretion: For emails without an initial certificate, courts may allow reopening to produce it. The court found that the certificate under Section 65B(4)... is a condition precedent... It clarified that the discretion to permit or reject the production of the certificate subsequent to the production of electronic evidence lies with the trial Judge. Vikram Jesudasen & Advocate VS Suresh Kumar - 2023 Supreme(Mad) 3059
Control and Possession: The requirement applies primarily to the party in control. The procedural requirement under Section 65B(4) is to be applied only when electronic evidence is produced by a person, who is in control of the said device, and in a position to produce such a certificate. A party who is not in possession of the device from which the document is produced... cannot be required to produce certificate under section 65B(4). MAMATA BHOWMIK vs THE UNION OF INDIA AND 5 ORSVismay Amitbhai Shah VS State of Gujarat - 2020 Supreme(Guj) 272
Exceptions in Justice's Interest: Courts may relax if evidence is trustworthy via testimony or corroboration. The Court also said that wherever the interest of justice so justifies, applicability of requirement of certificate being procedural can be relaxed. Vismay Amitbhai Shah VS State of Gujarat - 2020 Supreme(Guj) 272Pawan Kumar Rajak, Son of Shri Vishnu Rajak VS Union of India through CBI Bihar - 2024 0 Supreme(Pat) 1072
In POCSO and murder cases, absence of certificate led to rejection where originals weren't produced. State of Maharashtra VS Sagar Vishwanath Borkar - 2021 Supreme(Bom) 331Shamsudheen @ Bapputty, S/o. Ummer VS State of Kerala, represented by Public Prosecutor, High Court of Kerala - 2021 Supreme(Ker) 202
Facing a lost device? Here's how to proceed:- Secure Certificate Early: Obtain from the person controlling the device at record creation. It should cover: device details, production manner, no tampering, and signatory's position. AJAY JAGDISHCHANDRA SHARMA V/s LARSEN AND TOURBO LTD. - 2018 Supreme(Online)(Guj) 506- Document Chain of Custody: Maintain records proving control and integrity.- Seek Court Permission: File for leave to produce certificate later if overlooked. Trial judges have discretion. Vikram Jesudasen & Advocate VS Suresh Kumar - 2023 Supreme(Mad) 3059- Alternatives: If not in control, invoke Sections 63/65 for secondary evidence, but 65B remains key for electronics.
Courts urge: Parties should maintain proper documentation and certification procedures to ensure admissibility of electronic evidence in case of device loss.
In summary, while a lost device complicates matters, Section 65B provides a clear pathway via certification. Rulings like Arjun Panditrao emphasize procedural compliance without being overly rigid. Stay proactive with digital evidence management.
This post references judicial decisions for educational purposes. Legal outcomes depend on facts; seek professional advice.
#Section65B #ElectronicEvidence #LostDevice
; (d) The certificate must deal with the applicable conditions mentioned u/s 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. ... Section 65B of the Evidence Act deals with admissibility of electronic records. Section 65B(4) deals with furnishing of a certificate when a statement in evidence by virtue of the provisions of Section 65B#H....
This Court has gone through the impugned order as well as the provisions of S.65B(4) of the Evidence Act, which reads as follows : ... '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, - ... An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under S.65B are satisfied. ... S.63 and S.65 have no application in the case of secondary evidence by way of electronic record; the....
together with the requisite certificate Under Section 65B(4). ... But the Non-Production of 65B certificate is a curable defect and it can be produced at any time before completion of trial. Hence, the order of the Trial Court in dismissing the application under Order VII rule 14(3) for non production of 65B certificate is not justifiable. ... (b) The clarification referred to above is that the required certificate Under Section 65B(4) is unnecessary....
The said compact disc was not certified under Section 65B of the Evidence Act. Under such circumstances the trial judge ought to have obtained the requisite certificate from appropriate person/persons for including the electronic device (compact disc) in evidence. 12. Mr. ... Bare perusal of the above observations clearly suggests that it is the duty of the Judge conducting trial to summon the person or persons referred to in Section 65B (4) of the Evidence Act where either defective certificate is give....
together with the requisite certificate Under Section 65B(4). ... (b) The clarification referred to above is that the required certificate Under Section 65B(4) is unnecessary if the original document itself is produced. ... However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B....
The plaintiffs sought for permission to reopen the case to examine the 6th defendant as there was also a need to produce the certificate under Section 65B of the Act as the E-mails were submitted without the certificate provided under Section 65B of the Act. ... When the decision in Shafhi Mohammed case being overturned, the appellant's request to submit the certificate under Section 65B of the Act cannot be rejected merely for the reason that such certificate was not....
Balasubramaniam Murli, and have been lost/misplaced subsequently. ... P-6 colly.) and the updated electronic data under sub-section 1 of Section 65b after complying with the provisions of Sub-section 4 by filing affidavit of Ms. Venita Gabriel accompanied by the requisite certificate. ... Sub-clause 2 of Section 65b lays down the conditions required to be satisfies for admissibility of the electronic record and reads as follows:-"65b (2 ). ... ... ( 15 ) THE Apex Court in State Versus Navjot Sandhu (20....
(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. ... under Section 65B(4). ... In other words, if the certificate required under Section 65B(4) of the Evidence Act of 1872 is issued by an authorized service provider under the Assam Information Technology (Electronic Service Delivery) Rules, 2017....
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 ... Thus, requirement of certificate under Section 65B(4) is not always mandatory." 12. ... under Section 65B(4). ... In other words, if the certificate....
of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.” ... a certificate which identifies the electronic record containing the statement; (b) The certificate must describe the manner in which the electronic record was produced; (c) The certificate mus....
Held (per V.Ramasubramanian, J., supplementing), what is laid down in Section 65B as a precondition for the admission of an electronic record, resembles what is provided in the second part of Section 136 of the Evidence Act, and going by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant, but such a fact is admissible only upon proof of some other fact, namely, that it was extracted from a computer used regularly, etc.” The former being primary evidence, and the latter being secondary evidence. The required certificat....
However, if the person is not in possession of the device, Sections 63 and 65 cannot be excluded. The State of Himachal Pradesh, reported in (2018) 2 SCC 801, the Supreme Court held that the requirement of producing a certificate under Section 65B(4) is procedural and not always mandatory. The Court was of the view that the procedural requirement under Section 65B(4) is to be applied only when electronic evidence is produced by a person, who is in control of the said device, and in a position to produce such a certificate. A party who is not in possession of the device from which t....
In case where the device happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of proving information contained therein can be, as specified above is, “in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).” Similarly, in cases where the device happens to be a part of a “computer system” or “computer network”, such system or network or server can be produced before the Court, if it is possible.
We too do not intend to place any reliance on the visuals displayed from pen-drive to which it was copied, since the Certificate under S.65B is absent. The trial Judge accepted the objection of the accused regarding the admissibility of the video footage copied, rightly so, since the hard disc was not produced and there could be allegation raised of tampering. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantval [ (2020) 7 SCC 1] held that the original device on which the information is stored, if produced in Court there was no necessity for a Certificate under S.65B of the Evide....
The Court also said that wherever the interest of justice so justifies, applicability of requirement of certificate being procedural can be relaxed. The Court clarified the legal position on the subject of admissibility of evidence especially by a party, which is not in possession of the device from which the document is produced, such party cannot be required to produce certificate under section 65B(4). The Court held that as per the requirement of certificate under section 65B(4), to make an electronic evidence admissible is not mandatory wherever the interest of justice ....
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