Section 65B of Indian Evidence Act requires a certificate to be produced with any Electronic Document submitted as evidence in a Court of law, at the admission stage.
The mandatory requirement of Section 65B certificate came into effect on 17th October 2000 when ITA 2000 (Information Technology Act 2000) was notified. However it was the undersigned who produced first such certificate in a Court. It was in 2004 in the State of Tamil Nadu Vs Suhaskatti case for criminal prosecution under Section 67, in the Egmore AMM Court, Chennai. Based on the certified evidence the Court went on to proceed with the trial and convict the accused. The conviction sustained even in the appeal at the Session Court upholding the validity of the evidence. Since then the Section 65B certificates produced by the undersigned have been produced in other courts from time to time.
However it was not until the Supreme Court judgement in the P A Anvar Vs P.K Basheer that the litigation market players realized that electronic evidence without Section 65B certificate would not be admissible in the Courts. Even the Police have started adding in their CrPc notices calling for information which may be in electronic form to be provided with Section 65B certificate.
Naturally, there is a scramble now on understanding how the certificate has to be given. Though Naavi.org and ceac.in have put out clear information on how Section 65B certificate is to be produced, there are a few legal practitioners who may hold some different viewpoints on some of the finer points of certification. Such differences will persist for some time and will be resolved over a period of time as long as we try to understand the purpose of the section and its use case scenarios.
What is however necessary for Companies in particular from the ITA 2008 compliance angle and ordinary citizens relying on such evidences to fight cases in the Courts is to understand that if the evidence is not properly produced, they may be rejected by the Court at the admission stage itself.
On the other hand, we also need to warn companies and individuals that some times there is a tendency to produce evidence which is deliberately falsified with the hope that no body would find out.
I recently came across such an incident where a large Telecom company had filed an apparently falsified electronic evidence to support its case against one of their employees. The electronic documents were supported by Section 65B certificate and also an affidavit in the Court.
It is possible that the defense may submit suitable arguments to throw this evidence out but what we need to remember is that production of falsified evidence is clearly an offence under Section 193 of IPC which is a cognizable offence carrying 7 years of imprisonment.
The person who produced a falsified Section 65B certificate and an affidavit in respect of the certificate would be liable for punishment under Section 193.
Such an Act will also be an offence under Section 43/66 of ITA 2000/8. Some of these incidents would also be offences under Section 65 and Section 67C of the Act as well.
When such person is an employee of a company and the interest of the Company is involved, the Company would also be guilty of the offence and it would extend to the “Officers in charge of Business” and “Directors” under acts such as the Companies Act and ITA 2000/8.
While the offence under Section 193 of IPC carries 7 years imprisonment the ITA 2000/8 offences carry 3 years imprisonment.
I therefore advise those who donot know how to produce Section 65B evidence should not take the risk of producing falsified evidence as it may boomerang on them during the course of the trial when it is proved to have been falsified.
In Civil cases when such falsification comes to the knowledge of the Court it would be possible for the Judge to order that criminal action should be initiated by the prosecution separately either under IPC or ITA 2000/8. Perhaps it may be possible for the Court to initiate Contempt of Court proceedings for misleading the Court through falsified evidence.
Even in cases where an electronic evidence was present at one point of time but the litigant has failed to get Section 65B certificate for an evidence and subsequently it is no longer available, instead of trying to falsify the evidence with a compromised Section 65B certificate, it is better to forego the presentation of the documentary evidence in the form of electronic documents and try to proceed with other evidence on hand including oral evidence and witnesses.