Two member SC bench issues an SLP order contradicting a three member bench order in Basheer case on Sec 65B

On September 18, 2014, the famous P.V.Anvar Vs P.K Basheer judgement was delivered by the three member Supreme Court bench consisting of the then CJI, Kurien Joseph along with Justices R.M. Lodha and Rohinton Fali Nariman in which it was unambiguously declared as follows:

“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.”

“The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:”

“Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.”

“The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.”

“the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so.”

The judgement in the Basheer case clarified the law as it existed since 17th October 2000 and was not a new law. It was unfortunate that though Thiru D. Arul Raj a magistrate of the Chennai AMM court had correctly interpreted Section 65B way back in 2004, other judges of even higher Courts including in the case of Navjot Sandhu (alias Afsan Guru), were unable to understand and interpret the Section 65B of Indian Evidence Act properly. Basheer case judgement was therefore a milestone in the interpretation of Section 65B as it stands today.

It is therefore surprising that in the case Shafhi Mohammad vs State of Himachal Pradesh SLP (Crl) no 9431/2011 and SLP (crl) No (S) 9631-9634/2012, the Supreme Court bench of two judges namely Justices Adarsh Kumar Goel and Uday Umesh Lalit has passed an order date January 30, 2018 which apparently not in agreement with the Basheer Judgement.

Earlier there was another judgement Sonu@Amar Vs State of Haryana which was instantly interpreted as rejecting the Basheer judgement. But actually this was a very measured judgement in which the Judge had acknowledged that it was a special circumstance in which he was rejecting the appeal which sought relief on the ground that an earlier completed trial and conviction should be reviewed because the electronic evidence was not certified under Section 65B. He stated in no unclear terms that Basheer judgement is effective as on the date but it would not be practical to review all completed judgements and hence would not agree for the review.

Shahfi Mohammad order

The current case of Shahfi Mohammad should be also looked at in the context of how the two judge bench justifies a rejection of an earlier three member bench and whether there are any “Exceptional circumstances” for the same. Otherwise, it is difficult to see how a smaller bench is over ruling the larger bench.

Let’s however analyze what the Court has stated in this case.

Para 12 of the order states:

“Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

We must first note that this is an observation on a SLP and does not constitute a law overturning the Basheer judgement. Hence the position as stated in the Basheer judgement remains as the precedent as of date.

Being an order on an SLP, the order should be considered as an observation applicable for the specific context and is not a precedent set.

In this case the question that arose was whether the videography of the scene of crime captured during investigation as a part of Standard operating Procedure could be used as evidence. In the process there was a misunderstanding about how the admissibility has to be proved and who has to issue a Section 65B certificate.

My views on “Who can provide a Section 65B Certificate” been explained earlier and going through the explanation given earlier, it is clear that  the reference in this case itself was misplaced and the order could have been disposed off differently if the Court had rightly recognized the essence of the section which it did not.

The Court has worked under the premise that it would be procedurally difficult if the person who did the videography, (which would be the law enforcement person in the case of body cameras) is to be considered as the person who has to provide the Section 65B certificate. If this view is taken, then there would certainly be operational issues. In order to avoid this, the Court went ahead and declared that the Basheer case judgement was to be ignored and Afsan Guru case judgement has to be recognized.

It went ahead to state

“If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(4). ” 

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. “

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.

In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded.”

The reason given out by the bench that we should not make it difficult for law enforcement to produce the electronic evidence captured with the body cameras by procedurally putting them in a spot that only the person who is the lawful owner of the body camera should provide the certificate is acceptable.

But we disagree with the Court’s resolution of the problem by invoking Sections 63 and 65 and bringing in the discussion of the primary and secondary evidence.

This was not necessary since Section 65B does not place the restrictions which the Court believed that existed.

Section 65B clearly stats that it is not necessary to produce the “Original” electronic document that is the “Evidence”, to be admissible. It is sufficient to produce the “Computer Output” in its place.

The “Original” document is a “Stream of binary data” when it was first created in a device used for creating the “Original” electronic document that is the subject matter of admissibility as evidence.

It is always the “Secondary rendition” of an electronic document that is made available to the Court as evidence in the form of “Computer Output” as defined in Section 65B. The “Computer Output” is produced by the person who views the “Original Stream of Binary Data” and makes a copy either on another media or as a print out. (In the instant case since the document is a video, it is more appropriate to consider an electronic copy).

The person who makes this electronic copy as  a “Computer Output” is the person who has to provide a Section 65B certificate stating where he saw the original version of the document, what device he used to view it and how he converted it into a copy as produced.

This person could be the video operator back in the Police control room to whom the video recordings are deposited by the field personnel and not necessarily the field personnel himself.

If we accept this interpretation of Section 65B being a certification of the computer output and not certification of the original binary stream, the Court would have realized that the apparent issue referred to it was not a matter of concern at all in developing a standard operating procedure.

The field personnel may deposit the first container of the electronic document (which contains is the Original stream of data) like depositing any hardware or article collected from the crime scene with a certificate. At best each day when they submit the “Memory Card or  Tape”, they may record the “hash value” of the document.

The deposit letter may state, “I deposit herewith a tape marked ……. with hash value under SHA-256 alogorithm of ……” and carry his signature.

If the person who is depositing an electronic document does not want to deposit the whole container but only a document which is part of the data contained there in, then he has to make a copy of the document into another media device with a  hash which needs to carry a Sec 65B certificate. This process can be automated so that as soon as the field operative returns to the lab, he connects his equipment to a storage device which downloads the data, calculates the hash value and incorporates the Section 65B clauses and obtains the digital signature of the person before archiving the deposit.

Most disk cloning hardware has this facility of making a copy along with a hash and a certificate slip that can be signed.

Any subsequent retrieval of the deposit can be made by the back room person who can provide his Section 65B certificate starting from what he saw in the archival computer. (As suggested by the concept of contemporaneous certification by the  High Court of Madhya Pradesh at Jabalpur, S.Tiwari Vs Arjun Ajay Singh in an order dated 17th January 2017, regarding E.P. no 01/2014).

I therefore consider that the objective of the order on SLP was fine but the order itself was incorrect.

I am sure that many who think that the Court can do no wrong may object to my view and say irrespective of what is my opinion, it is the opinion of the Supreme Court which matters. I agree. But any order even from the Supreme Court is valid only until it is over turned by a superior court or the bench.

The subject order is an order on an SLP from a 2 member bench against an earlier judgement by a three member bench. Hence its validity is restricted to the specific context and I urge everybody including the Supreme Court to re consider the order because it is likely to be mis-interpreted by many other lower courts in future.

Further, when an electronic document is in the custody of either the respondent or with an intermediary, there is provision for demanding presentation of the document and hence the question of a required electronic evidence being contained in a device not under the control of the presenter does not arise unless the person who is in possession of the original recording refuses to cooperate with the Court.

Since the procedure for allowing the electronic document to be lead in evidence is simple and only requires an access to be provided to the document for certification to an independent trusted party, there should be no objection by the holder of the evidence to provide the evidence.

In some cases because the Police try to demand that the entire hard disk or the computer has to be seized instead of simply capturing the piece of document that is an evidence, the holder of the document may hesitate to deposit the device or participate in the process of providing the evidence.

If the Standard operating procedure recognizes that for provision of an electronic document (which is a stream of binary data), it is not necessary to seize and produce the entire hard disk, then the procedure for getting such documents from the person who is holding it would be easy.

If however the document does not exist as claimed one party, nothing can be done to produce it. In such cases, the presenter of the document cannot be allowed to present any copy that he claims to be the correct electronic copy to the Court and claim that he is not under an obligation to provide a section 65B certified copy as per the SLP order, it will enable fraudulent electronic documents to be produced in the Court.

The bench which has given this order has not recognised this risk and hence the order should be rescinded at the earliest.

P.S: 

My view above is contrary to what the head line of a corresponding article in livelaw.in suggests. The article is titled “Party Not In Possession Of Device From Which Electronic Document Is Produced Need Not Produce Sec. 65B Certificate: SC [Read Order]…”

I request the readers to consider the view point mentioned here before jumping into any conclusions.

I welcome comments and would be happy to elaborate further if required.

Naavi

Also Refer:

Special Leave Petition in Indian Judicial System

HCs can hear petition even after an SLP is dismissed

Posted in Uncategorized | Leave a comment

Essence of Section 65B explained through Indian Philosophy

I recently received a query about whether there is any case law which supports my view that even when a original memory card or CD is presented to the Court, a section 65B certificate is required.

I would like to elaborate on this query and submit my views.

Case Law and its limitations in an emerging area of technology

I understand that most practicing advocates consider that  “Law Becomes a Law only when a Judge says so”. Hence the arguments in most cases except when it reaches the higher courts, is always on the case laws and not on interpretation of the law.

The Judicial interpretations are important in assigning meaning to the words contained in the written law but it can always be re-interpreted. A lower court’s interpretation can be re-interpreted by a higher court and a smaller bench interpretation can be re-interpreted by a larger bench.

Hence when we base our legal view only on the strength of some case law, we are on a temporary time period when a particular judgement is considered as a precedent.

True Experts on the other hand will/should ignore interpretations based solely on case law and will/should always argue with a fundamental interpretation with relation to the legislative intent and what is necessary to meet the objectives of the legislation.

Yes, this would be an “opinion” of a ” Deemed Expert” who may be not anybody who is  “Certified by any government or judicial authority” or by passing an “Examination” in a University. But nevertheless, it cannot be ignored as our experience in the past under Sec 65B interpretation has proved.

It takes years for the Courts at higher levels to consider a legal issue, mull it over under different circumstances and contexts, hearing arguments of all hue and description and arrive at a near consensus view on a matter of legal interpretation of a law text, when it can be considered as a “Case Law”. In the meantime we should not curb our creative interpretation of the law and fail to challenge the decisions of the Court even if it comes from the highest Court.

In the domain of Information Technology Act 2000 as amended to the current date, which includes the Section 65B of Indian Evidence Act , I have always followed this principle that we need to dig up the truth from the current law until it is changed and all of us including the Courts at the highest level are in the process of understanding the law and interpreting them.

Some may consider it as not respecting the tradition where the arguments of practicing advocates start and end with

” In so and so vs so and so, the honourable Supreme Court said so and so and there rests my case, my lord”.

Fortunately, not being a practicing advocate gives me the creative freedom to think differently and let the Judges accept my view if they can hear me out fully and with an open mind. No disrespect is meant here for any judicial authority nor any arrogance is intended.

It is a belief that “God sees the Truth but waits”.

I consider that Cyber Jurisprudence in Information Technology Law and Section 65B is still developing and hence what I say is an input which needs to be considered as a “School of Thought”. I may differ in certain respects with other seemingly logical views of other practicing advocates more vocal than me and more active in the Judicial Academies or Legal seminars. But I would not budge from my considered view.

My Considered view in respect of

“whether a Section 65B certification is required for an electronic document when a original memory card or hard disk is presented before the Court”

is an emphatic yes. 

In such cases, the Court has to invite a person of its choice and ask him to view the electronic document and produce a Section 65B copy for the Court to appreciate.

Indian Philosophy shows us the way

The key to appreciate the above point is that an “Electronic Document that is a piece of evidence is not the memory card per se but the stream of binary data, the zeros and ones that are some where inside the memory card in the form of electric charge positive or negative”.

The memory card is the container or a box that contains the zeros and ones that when viewed in a special looking glass called a computer with appropriate hardware and software, provides some human experience such as a text, a sound or a video.

The process of conversion of the stream of zeros and ones which is the “Original” evidence into a readable document or a hearable sound or a viewable video is dependent on a hardware-software combination such as a card reader, computer, operating system, monitor, speaker, audio processor, video processor, besides the header information that precedes the binary representation of the evidentiary content.

Only when all these function properly in tandem the stream of zeros and ones become a humanly appreciable electronic document which the Judge considers as “Evidence”.

Therefore, while the original evidence such as a memory card can be presented as a physical artefact that is an “evidence” and also admitted as an artefact, the question of who will view the binary content in that and say that it contains a letter written by X to Y or a photograph or an audio etc., remains to be sorted out.

If the Judge himself views the electronic document which is dependent on the system used, software used etc, then he becomes the person responsible under Section 65B to state that the computer which rendered the binary stream contained in the memory card rendered in a particular manner and will do so in future also in similar circumstances.

We can then say that the onus of providing the Section 65B certificate shifts from the person producing the memory card to the Court itself.

The fact that an electronic document residing in Yahoo Group server could be accepted as evidence based on a certificate produced locally by a private person like me was established in the Suhas Katti case in 2004 itself. There was no need for the “hard disk of yahoo group” to be produced in the Court. I suppose this is a universally accepted fact as of now that where there is a Section 65B certificate of a computer output, there is no need for the production of the original electronic document.

In the Basheer case one part that I did not agree with was a reference to the CD in which the offending speech or song was contained as a “Original”. This term has to be correctly defined.

The terminology that should have been used here was the “First Container of the stream of electronic data elements that constitute the evidence in question” instead of the “Original CD”.

We should refrain from confusing between the “Stream of zeros and ones” which are “Binary impulses recorded for future reference and interpretation” in some form, and the container in which these are held together for the time being.

Imagine the situation where a laser computer screen is created in front of your eyes in free space where you see the information that you normally see on a computer monitor. The words are now floating in the air and there is no surface on which they seem to lie. But no such surface actually exist. This clearly establishes the fact that “binary stream” can exist and actually does exist independent of the “Container”.

Another easy way to understand this is in the concept of the “Soul” and the “Body” in Indian philosophy. Does soul exist independent of the body?.. Indian philosophy agrees that Soul exists independent of the body and that when a person dies, the soul leaves the body and ultimately finds another body in which its past life memories are in tact and if there is a right environment, the erased and reformatted memory of the soul in the past life can be rendered in the new body.  (Hypnotic age regression). The soul perhaps exists in this transitory state until it merges itself with the “Paramatma” which we call “Attaining Moksha” in some forms of philosophy.

Without going deeper into philosophy, we should conclude that

a) “Electronic Document means a stream of binary data arranged in such a manner that under appropriate rendition of the stream through a computer device, it produces the human experience of a readable document or an audio or a video.”

b) A memory card or a hard disk is a device which  holds the stream of binary data and makes it available to be used as a hardware which becomes part of the larger computer system that renders the human experience of a stream of binary data.

In an earlier article, I have referred to the Trisha Defamation Case in Chennai AMM Court where I was invited by the Magistrate in a similar circumstance when the CD was already in his hands and there was no need for an external party to certify it in ordinary prudence.

I appreciate the vision of the magistrate D. Arul Raj who correctly interpreted the law that he should not take the responsibility of writing in the judgement,

“I viewed the contents of the CD which contained so and so information… which contravenes such and such law…etc”.

He decided that he requires a third party to certify it and provide him a Section 65B certificate. In this case, I was the person called upon to do so.

Unfortunately This did not go into a judgement (as I understand) since the complainant later withdrew the complaint.

In my opinion, Cyber Jurisprudence does develop not only from the Judgements, but also from the views that emanate from the experts.

Remember that after Afsan Guru judgement in 2005,  many were quoting that I was not correct in maintaining that Section 65B certificate was mandatory for admissibility. But it took 9 more years of erroneous reading of the law to be upturned by the Basheer judgement in 2014.

In between I continued to hold my view and also argued with experts particularly in the National Police Academy who were listening to me on the one hand and also looking at the Afsan Guru judgement and spotted the discrepancy. Most other experts had not even observed this discrepancy and hence not raised the issue in any forum for a larger debate until the Basheer judgement reflected what I was saying all along.

Similarly, any of the views that I have expressed here may not be today the popular view or a view that is necessarily supported by a judgement. But I am confident that judgements will eventually follow what I have stated here.

May be there will be occasions when I will revise my view or the law itself may change. But presently my view is that

“Even when the original binary stream is presented in the container to the Court, the container has to be opened and the binary stream has to be interpreted with the assistance of hardware and software and hence it is necessary for the Judge to take the assistance of a Section 65B Certifier reliable to it. Such a certifier can be a Section 79A certified agency if available or other persons on whom the Court reposes confidence.”

Naavi

Posted in Uncategorized | Leave a comment

Suspected Fake Goods Sold through E Commerce Websites may be reported here

Today, CNN IBN News carried a report on sale of fake goods on E Commerce platforms at heavy discounts. E Commerce platforms such as Flipkart, Amazon, Snapdeal and ShopClues were highlighted as platforms in which fake sellers are selling sports goods such as Footballs. The presentation of the program was clearly to blame the online platforms as instruments of violation of intellectual property rights.

The program was led by one of the “Brand Protecting service” companies. During the program, it was stated that many test purchases were made and fake footballs in a well known brand name were recovered by conducting raids on stockists at Meerut.

There was one firm voice in the panel of speakers which was from the CEO of mouthshut.com which was drowned by the anchor who was not interested in any view other than what she had set to hear. She was one of the new breed of inexperienced but arrogant journalists who invite specialists as guests but think that the anchor knows more than anybody else.

What this CEO was trying to make out was that the problem of “Fake Goods” was a problem which also applies to offline market places and the program should not appear to project online market places as the villains. I do agree with this view which was not properly projected by the anchor.

At the same time, I also agree that the online market places should exercise better due diligence in selection of merchants and also keep advising the prospective buyers to look out for fake buyers and report it to them.

Most online market places offer “Return” options with no questions asked and hence dissatisfied customers have a remedy to tackle “Quality” issues. Some online market places run “Rating of Dealers” and “Product Reviews” which try to provide information to the buyers.

Finally, coming to the legal issues,

I believe that the present laws under Section 79 of ITA 2000/8 are good enough to bring “Negligent” market places to book and make them responsible for selling of spurious goods. But the argument and suggestions should be on the basis of “What Due Diligence” is required and whether Flipkart of Amazon are following the best practices. There is certainly no reason for new laws to be framed just to tackle E Commerce issues. 

The marketing platforms should look at their systems on how to ensure that bad dealers are identified and eliminated without discouraging small traders without an offline brand image also using the online platforms as instruments of marketing their products.

There are many success stories of unknown individuals harnessing the global marketing opportunities provided by the Flipkarts and Amazons and this should not be discouraged.

I feel that some of the products sold by small traders are as good as branded items and the brand owners may be making unfair trading profit which should be discouraged.

For this purpose, every online platform should offer their small unknown dealers to sell goods under “Unbranded” category and where possible under a “Verified” tag where the platform takes some responsibility to set quality parameters and test the products before they tag them. There could be different rating systems that can be tagged along so that the buyer knows from whom the product is being delivered and serviced before making the buying decision.

Since there are lakhs of products being sold, it may not be practical for the market place to provide such verification tag to all the products but an attempt can be done in this direction with the help of consumers and consumer organizations. There are many individuals who voluntarily test products and put out YouTube videos. The online platforms can tag the product reviews to such online reviews and incetivize feedback on products from genuine customers.

In fact, mouthshut.com itself is a platform which many online buyers check before making a purchase. May be there could be more of such online review posting mechanisms so that they provide unbiased views on a product sold by a market place and donot become platforms that can be compromised by the product sellers.

The effort therefore should be to have more “Consumer Awareness” and “Consumer Empowerment options” supplemented by a robust grievance redressal mechanism.

The Consumer awareness option will work if used before a purchase. In case the buyer has  problems after the purchase, there should be a proper grievance redressal mechanisms other than the “Free Return” option if required. Such options should be only by ODR mechanism (Online dispute resolution mechanism). The Consumers who really have a problem that has to be resolved  beyond the “Return” option need to ensure that there is proper “Evidence” of what they bought in. It is in this context that they need to explore the use of services like “CEAC-EDB”. (Evidence Drop Box Service of CEAC.IN)

Unfortunately the program on CNN IBN did not have a single word on what can be done by the online market places to improve the consumer interest.

The Government of India as I understand has issued some instructions on product presentation which will come into effect in the next few months which include guidance on what information needs to be presented as a product label.

Additionally, all “Branded Product Suppliers” who are concerned about the online market places being misused should provide an online reporting system where consumers can report “Suspected Fake Product” sold on any platform so that they can respond quickly and stop the sales quickly.

In a bid to promote this culture, a free,  single window service would be provided from CEAC-EDB that if any consumer reports a “Suspected Fake Product sold on an E Commerce Website”,  CEAC will forward the report to the concerned Brand owner…

-provided the brand owner registers his interest to receive such reports from consumers.

(I invite the brand owners to first send an designated e-mail through which CEAC can deposit the Suspected Fake Product Report. If they donot respond and provide a contact e-mail, it will be difficult for CEAC-EDB to continue this offer.)

Once a report on a suspected fake product report is received by CEAC from a consumer, the consumer would be asked to provide supporting information before it is registered and action initiated. Full process for this would be developed in due course and would be posted on CEAC website and also informed to the complainant through e-mail.

The fact that a “Suspected Fake Product Report” was sent to the brand owner would be kept on record and if the brand owner does not reply and take counter action, it may be deemed as “Lack of Due Diligence” by the brand owner and demonstration of “Forbearance” in any trade mark related disputes that may follow.

May be more is required to be done in this direction rather than media simply projecting that the E Commerce websites are the villains who engage in “Fake Product Marketing”.

If the online platform adopts meaningful due diligence and the consumer is properly empowered with pre-sale information and post sale service, then E Commerce the problem of fake goods sale can be effectively tackled.

Naavi

Posted in Uncategorized | Leave a comment

New Clarifications on Section 65B from Naavi: Should the Certifier be a witness by mandate?

Recently, I was posed a question as follows:

Quote:

Mr A who produced the CDR from SERVER with Sec. 65B certificate which was filed in the court by IO. However, since Mr. A was not produced as witness, both the CDR as well as Sec. 65B certificate issued by Mr. A were not proved in court. The prosecution produced Mr. B in the court as witness to prove the CDR. Mr. B brought a fresh printout of the CDR from the computer where Mr. A had saved it, before leaving the MSP. The fresh printout of the CDR and the earlier one, both are exactly identical and both carry the same date on which the first person (Mr. A) had produced the CDR from SERVER. Mr. B also brought a fresh Sec. 65B certificate, signed by him. He also stated that in his testimony that the CDR had been transferred from SERVER to the computer by Mr. A, and now he (Mr. B) has brought a printout of the same. In this scenario, when the original Sec. 65B certificate issued by Mr. A has not been proved, although on record, how the court will hold the subsequent Sec. 65B certificate issued by Mr. B valid in law.

Unquote:

P.S: My views on the above query are given below. –

Under Section 65B it is not mandatory that the certifier has to be a “Witness”. Even if this is so, the only requirement is to identify the person who has signed the report and to confirm to the Court that the report itself is not forged. If however, there are means for the Court to establish that a given report is not forged, then there is no need for the person to be also produced as a witness.

In fact, “Oral Evidence” with respect to an “Electronic Document” is not acceptable. When the signatory of a Section 65 B certificate stands as a Witness, he cannot therefore provide any information other than what is already written down in the certificate.

He can only  say “This is my signature. This report does not appear to have been tampered with”.

If he starts saying anything outside the written report, it could either be considered as “Irrelevant” or “An Opinion for which the witness has to be considered as an Expert Witness under Section 45A of IEA”.

The structure of Section 65B Certificate, if submitted in the correct format, is such that it would indicate the process by which the “Computer Output produced for Evidence” was produced and if any other person of ordinary prudence under similar circumstances repeat the process, he should get similar results.  The exception would be when the evidence in the original binary form has been erased by some body in which case it would be a section 65 and Section 67C offences under ITA 2000/8. Then the Court has to admit or reject the computer output based on the establishment of the fact whether the witness is reliable or considered unreliable. If considered unreliable, the witness could be charged for perjury and hence Court has to be reasonably convinced that the witness is falsifying the document before rejecting the certificate or atleast qualify the rejection suitably so as not to endanger an honest witness who has produced the certificate in good faith.

In the instant case, it was not necessary for A to be produced as a “Witness” and hence the contention that because he was not available as a witness, the document is not proved is in my opinion incorrect, though it may be an age old practice in respect of paper based documents.

We are here not discussing evidence which is “Oral” or “Documentary” but another category of evidence which under Section 17 of IEA is classified as a document “contained in electronic form” (Electronic Document).

Rules for admission of an “Electronic Document” is based only on Section 65B and other sections and prior practices are irrelevant.

Prosecution may therefore argue that the rejection of the first certificate was itself not correct, though I am not aware if it was produced and presented as per the standards which I recommend under Cyber Evidence Archival Center. (Naavi: Other experts are open to disagree that the standards set by CEAC need not be accepted and reject my views if they so desire. ).

Additionally, B has two options. Since he is an authorized person to log in to the server and view the CDR once again, he can do so and produce another Section 65B certified Computer Output which should be admissible in the proceedings. He can testify his signature to the report and that the report has not been tampered with by personal deposition and the Court would be comfortable.

Alternatively, his certificate can create a new Computer Output which may say, ” I observed a document in xxx computer, which contained a document named……….. which has been produced here under the process described……..” etc.

The defence may after admission, question the genuinity of the  original binary document on the basis of which B’s certificate was produced. If the Court has reasons to accept the objection as reasonable and relevant, it can then call another expert under Section 45A to enable the Court to take a final decision. Court in my opinion need not reject B’s certificate for admission but accept the defence plea to call in another expert to assist the Court in examining the genuinity of the document.

This will naturally rise another question whether such an “Expert” should necessarily be a Section 79A accredited Government agency. Since no such entity exists as of now and also that Section 79A does not necessarily say that any evidence given by any other expert is null and void, it is open to the Court to call an expert on whom they can rely on and satisfy itself about the genuinity of B’s certificate.

I hope this satisfies the query.

(Kindly note that this is only the opinion of the undersigned as a person who has a demonstrated experience in the field related to Cyber Evidence and has submitted over 105 Section 65B Certificates since 18th February 2004 when the first certificate was produced and I was examined as an “Expert” in the Court on a subsequent date.

I am aware that some professionals who may not agree entirely with what is stated here. I am also aware that some Courts have accepted certificates under Section 65B under circumstances that are contrary to my view also.

However, I consider that we are still in the process of crystallising the Cyber Jurisprudence regarding submission of Section 65B certificates and some differences of opinion are natural and are also welcome.

We must not forget that even the honourable Supreme Court in 2005 made a mistake in the Afsan Guru case which was corrected in the Basheer case on 18th September 2014.  In 2004 itself honourable judge of AMM Egmore Court, Chennai in the Suhas Katti case and Trisha defamation case had established certain principles consistent with the views held by me since 17th October 2000 till date. Some experts argued that after the Afsan Guru judgement, my views were incorrect at least partially. But they had to accept the views after the Basheer judgement.

Similarly, what I am stating here could be disagreed with by some advocates and even by some Courts. Even in such a circumstance, I expect that these views will prevail in due course…. Naavi

)

Naavi

 

Posted in Uncategorized | Tagged , , , | Leave a comment

Mr D Arul Raj, was a Magistrate with a vision…recalling the decision of 2004

 

International Commission of Jurists, Bangalore had organized a lecture on Digital Evidence and Section 65B of Indian Evidence Act at the Karnataka High Court on 8th December 2017.

Speaking on the occasion, Naavi highlighted the evolution of Section 65B as a law since 17th October 2000 when the ITA 2000 was notified till date. He also explained the nuances of Section 65B and why it is a very innovative legal provision that has added great strength to Indian Cyber Law.

In the process, Naavi recalled that the first Section “65B certified evidence” was produced in a Court of law in the historic case of State of Tamil Nadu Vs  Suhas Katti in AMM, Egmore, Chennai in 2004. This case has been recognized as the first case of conviction in India under ITA 2000. However Naavi pointed out that this case was also historic from the point of view of Section 65B since the evidence presented in the case was a Section 65B certificate submitted by Naavi  dated  18th February 2004 in which content which was present as an electronic document on Yahoo Groups server was brought to the evidence and admitted. This was the critical evidence which evidenced the commission of the crime on which the accused was convicted under Section 67 of ITA 2000 besides Sections 469 and 509 of IPC.

Subsequently, it was only on 18th September 2014 that in the P.V.Anvar Vs P.K.Basheer case in the Supreme Court that the eminent judges led by Justice Kurien Joseph stated that Electronic Documents can be admitted as evidence only if they are accompanied by Section 65B Certificate. In the process, Supreme Court over ruled the earlier judgement in the Afsan Guru case which on 4th august 2005 had held that in certain circumstances electronic documents can be accepted without Section 65B certificate.

While it took 14 years for the larger community of Judges to highlight the importance of Section 65B, it should be recognized that Justice Arul Raj had created history by appreciating such an evidence and accepting it for the trial. At that time it required courage of conviction to accept a piece of paper submitted by a private person in Chennai as convincing evidence that a defamatory electronic document existed in the server of Yahoo in US.

The acceptance of Section 65B evidence was not the only point made out in this case. The defense raised a query if a private person like Vijayashankar could submit the Section 65B certificate and whether it was not necessary for a Government appointed person to submit it. Mr Arul Raj again came to the right conclusion that the section 65B does not restrict the submission of Section 65B certificate only to a Government authority.

The decision of Arul Raj in the Suhas Katti case was not just a flash in the pan or a decision prompted by the circumstances. Some time later in the same year, Mr Arul Raj took another decision related to Section 65B which again was a point that was touched upon by the Basheer case and requires to be highlighted now.

In this case, a case of defamation had been filed by actor Trisha on a Tamil publication which had published some photographs extracted from a video which was in circulation in the internet at that time. A series of screen shots had been printed in the magazine. Police had raided the office of the publication, seized a CD containing the video and filed the charge sheet stating that the content of the CD was printed in the magazine and hence the CD was a prime evidence for the case.

Justice Arul Raj at that time invited the undersigned to the Court and asked me to view the contents of the CD on the computer in the chamber and provide a Section 65B certified print out so that he could proceed with the trial on the basis of Section 65B certified copy.

The logic behind this decision to invite an external consultant to convert the contents of CD which was already on hand with the Court and which many could say was the “Primary” evidence, into a Section 65B certified print out, which many would say is the “Secondary” evidence was a master stroke of understanding of the principle of Section 65B.

I personally feel that Mr Arul Raj should be honoured specially for displaying a vision that though the “Primary” evidence is with the court, it cannot be appreciated by the Court without the assistance of a “Section 65B certified document”.

In the Basheer case a reference has been made that if the original CD in which the recording which formed the evidence for the case had been seized by the Police and presented, it could have perhaps constituted a  “Primary” evidence and non availability of Section 65B could have been condoned.

In many other cases also, we some times see that Courts ask the “Mobiles” containing the evidence to be presented as “Primary Evidence”. Hard disks are often presented as “Primary Evidence” for documents in a Computer.

Even assuming that the original binary impressions which first generated the electronic document which is the evidence in question is in the possession of the Court embedded within the container called the hard disk or a mobile, the Court cannot simply view the content itself and admit the evidence in to the proceedings. If any Judge proceeds to admit the evidence because he himself saw or heard the electronic document, then he is himself taking the responsibility to confirm that the electronic document which he saw or heard based on the computer, the operating system,the application and its configurations etc which all combined to render the binary data of the electronic document into a human intelligible experience was working properly etc., as envisaged in Section 65B.

It is therefore essential for the Court to involve an external person to produce a Section 65B Certificate before accepting the evidence into the proceedings.

Mr Arul Raj had realized this way back in 2004 and that is what I call as a visionary understanding of the challenges involved in appreciating digital evidence presented to a Court in its “Primary” form.

During the last several years, the undersigned has assumed credit for having been the person who first presented a Section 65B certificate in a Court. The Police officer who was involved in the case as an IO, namely Mr Balu Swaminathan (who was the ACP in charge of the Cyber Crime cell in Chennai at that time) has also been commended and recognized for being the first IO to get a conviction under ITA 2000.

But I feel that the magistrate Justice D Arul Raj has not perhaps been properly recognized for displaying his vision beyond the normal call of duty which brought in the conviction as well as the appreciation of electronic evidence in proper form.

Today, we are not aware where is Justice Arul Raj. But Naavi as a person and Naavi.org/ceac.in considers it our duty to record the contribution of D Arul Raj in the development of Cyber Jurisprudence in India and honour him with this article.

We wish that appropriate persons in Tamil Nadu, locate Mr Arul Raj and provide him the due honour that he deserves.

We urge my friends in Cyber Society of India and Prime Point Foundation in Chennai to take the lead in this regard.

Naavi

Posted in Uncategorized | Tagged , , , | 1 Comment

Contemporaneous Certification required under Section 65B

In the High Court of Madhya Pradesh at Jabalpur, in an order dated 17th January 2017, regarding E.P. no 01/2014, (S.Tiwari Vs Arjun Ajay Singh) an important confirmation of a process has been added to the Cyber Jurisprudence of Section 65B of Indian Evidence Act.

In this case, there was a video shot by sub contractors of Election commission during an election campaign which was handed over to the election commission. After the election, one of the parties has raised an election petition in which he has produced a copy of the CD obtained from the Election Commission as a “Certified Copy” and produced it in the Court. Initially, it was not having Section 65B certificate and the petitioner again approached the Election Commission, obtained another set and presented it to the Court.

However, the Court observed that the original document in this case was contained in the memory card (Ed: or the tape) of the Camera and this was first transferred to a CD when it was handed over to the Election commission and then this was again transferred by the Election Commission onto another CD and handed over to the petitioner.

The Court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”. In this case the video grapher should have given the first certificate to EC and EC should have given the second certificate to the petitioner. Since this was not properly done, the Court refused to entertain the evidence.

The contention of the Court is on the right lines even though it may surprise many. The undersigned has been advocating it to some where necessary.

It is good that Courts have been deliberating on the issue of Section 65B certification in great detail and this will be discussed again and again in the days to come.

Naavi

Posted in Uncategorized | Leave a comment

Evidence Drop Box and Shapoorji Pallonji E Tender Case

We continue our academic debate on the recent case of Shapoorji Pallonji Vs MHADA  in which the company challenged the e-tender bidding process followed for the award of a major Rs 11000 contract  for reconstruction of BDD Chawls and successfully obtained a ruling that they should be allowed to participate in the bid, though there was a dispute as to whether the bid process was properly concluded or not.

We have already discussed the details in the earlier articles and from the available information it is reported that NIC had created the e-tender system which involved a process of uploading tender documents encrypted with the public key of the tender authority into the server and then clicking a button “Freeze Bid”. The petitioner in this case contended that they were able to successfully upload the document and they got “Successfully Uploaded” message on the screen. However, there after they logged out and the requirement of clicking the “Freeze Bid” button was not displayed. NIC confirmed that the freezing of the bid was not logged in the server and hence the process was not complete.

The reason that the button was not displayed could be due to any number of technical reasons either at the server end or at the user end or at the intermediary network services level. This was considered as a “Technical Glitch” and the Court agreed with the contention that technical glitches should not be allowed to prevent an otherwise valid bid to be taken into consideration.

At this time, I am not going into further debate on this issue and as I have mentioned several times, I donot have any specific vested interest in Ms Shapoorji Pallonji getting an entry into the bid or finally winning it etc. Hence the legal team of Shapoorji Pallonji which consists of some of my friends, need not get upset about what I am objecting to. I am only debating the possibility that if we admit that any unsuccessful e-commerce contracting party can raise non fulfillment of an online process due to claimed technical glitches as a defence to void the contractual requirements, it would create a bad precedent and makes life difficult for all e-commerce entities. I therefore feel if there was any other “Public Good” reasons which required the petition to have been allowed, it should have been allowed under those grounds rather than under the “Technical Glitches” reason.

However, I need to answer one of the points raised by a friend stating

” If you insist the onus of having clicked the freeze button should be on the end point  you are effectively saying all individuals must now have cameras behind them recording their actions. That is just not going to work. “

This is the Shapoorji Pallonji dilemma which is not unique to this case but to any transaction in which electronic documents are relied upon and transaction is considered evidentially important.

We must appreciate that at present, according to Indian law, “Click Wrap Contract” is not considered as a valid “Signed Contract”. Unless a contract is digitally signed by both the offeror and the acceptor, a valid digital contract like a written and signed contract cannot be completed.

The Income Tax department and MCA authorities have therefore adopted a process where at the stage of submitting a return, the entire document is captured in toto and a Digital Signature or e-Sign is applied on the web form and then sent to the receiver.

However, what most E Commerce parties are doing is to adopt the US practice of providing a button at the bottom of a contractual document saying “I Accept” or some other similar words. Some people add an affirmative action such as ticking the check box or having a captcha. Others ignore even this precaution.

In such cases, we consider the contract as a “Deemed Contract” where the contract is implied by circumstances evidenced by the meta data of the transactions but detailed terms of contract is considered as open to dispute as per the usual considerations of an “Unconscionable Contract” and “Standard Form Contract” for which several Supreme Court judgement have set the standards. All practicing advocates should know these cases and there is no need for me to repeat a reference here. I have used the references successfully in the adjudication case of S.Umashankar Vs ICICI Bank which is too old for many to remember, except for its historical importance.

It appears that the NIC tender process has also adopted this “Deemed Contract” principle at least to the process of submission of the tender documents….such as Log in with your registered log in ID and password, upload the documents, click the “Freeze Bid” button etc.

There is a dispute that NIC did not give proper instructions in this regard which is outside the  scope of my knowledge and I leave it to the NIC to confirm or deny beyond what they have already done in the affidavit before the Court which has been rejected.

Whether the process of tendering was completed or not is a “Sub Contract” to the tender process and it has to be analyzed in the “Deemed Contract Status”.

In a deemed contract, either party can dispute on the details and that is what has happened in this case. I suppose the Court has considered all angles and come to a proper decision and if not,  it is for the parties concerned to challenge it in a higher Court.

However, can this process of “Uncertain Deemed Contracts” driving e-commerce transactions and the high value e-tendering systems be allowed to prevail? or should we have a solution? is a matter of concern for “Non Practicing Blog Writers” who are more concerned about the “System” rather than an individual litigant. Practicing advocates argue for one party today and another party the other day while “Non Practicing Blog Writers” have to be accountable for their views to the public and justify change of opinion with reasoning if required.

The Undersigned has anticipated this type of problems several years ago when he launched the services of ceac.in (Those who are unaware, can go through it once again).

Under CEAC service “Certification of a Web Page” now also upgraded as “CEAC-Evidence Drop Box”, it has been suggested that whenever people take critical decisions based on a web document, it is prudent to record the document and get it certified under Section 65B of IEA.

I have submitted many such documents in the case of web based copyright infringements, defamation, matrimonial cases etc. Very recently, there was a demand from a customer who had lost all his accounting records stored on a server in USA which was attacked by a ransomware to show case the evidence that his records were destroyed by the ransomware and the same was provided by CEAC.

Unfortunately many may not  know the existence of such services and I donot have the habit of advertising the same as often as I should perhaps do. Hence people may not know either that such trusted third party services have been available since 2002 nor that the requirements can be fulfilled if not with CEAC, with others.

The CEAC-EDB service is specially designed for requirements which Shapoorji Pallonji persons encountered when they were preparing to submit their documents for a huge contract in the last minutes where there was no time left for alternate submission if the technology had failed.

The idea here is that since there is no time to invite an expert Section 65B certifier to record the process in his presence, and also that it has to be done from the premises of the user and in his computer, the user foregoes the need to involve a trusted third party for recording the observation but does the next best thing of “Archiving” the process with a trusted third party at a time no dispute has arisen so that it can be produced as evidence that the process was completed in a certain manner and there was a technical glitch which appeared as a “Error Statement on the screen” or simply by “Nothing appearing on the screen”.

I am sure that some of the informed readers will suddenly jump to other debate of Section 65B certification but we can keep that discussion for a different time.

I recently submitted one Section 65B certified statement of “Certified E Mail Delivery” to a respondent at the instance of a petitioner so that the Court could proceed with the hearing ex-parte since the respondent was not cooperating in the litigation. Similarly, the “Archival of a user end electronic activity” would be certified as to the “Archival”. It is open to the defendant to raise any argument that the archived document itself was fabricated and the archival cannot save the defense. But the onus of proof will be on the defendant that the document is in fact fabricated. The “Archival” will prove the good faith of the user in recording a process before he was aware that it could land in a dispute and Courts may consider it as better than trying to approach the m without any documentary evidence.

In the Shapoorji Pallonji case, a screen shot was reportedly produced but I am not sure if it was Section 65B certified. Also the point of dispute is more on what happenned after the screen showed “Successfully Uploaded”. Did it go blank? Or was the system shut off immediately without waiting for the next screen to appear? etc. This was not clearly established except through the statement of the petitioner. Had they properly recorded the entire process including a few seconds after the uploading of the documents, a better evidence would have been available. The dispute arose only after the bid was rejected by the committee and had the documents been archived earlier with  a trusted third party, the evidence would have been stronger.

I agree that in this case,  Court was not that strict but if objection had been raised by other bidders, or MHADA had not agreed to accommodate the estranged bidder, Court would have been perhaps stricter. It is better for parties engaged in high value bidding not to take the risk that Court will be always considerate to them to accept the “Technical Glitch” excuse and condone any failure of the tendering process.

Hope this clarifies what I think about “Should we always carry a Camera..”?

Naavi

Also See: 

The e-tendering issues in Maharashtra.. “Uploading” is not the same as “submitting” the tender  

The Pandora’s box of Technical Glitches opened……2: MHDA and NIC need to take not

 The Pandora’s box of Technical Glitches opened….The e-tender judgement in Maharashtra…1






Posted in Uncategorized | 1 Comment

Why there cannot be a standard format for Section 65B Certificate

The system of Section 65B (IEA)  Certification was born along with Information Technology Act 2000 and has been in place  with effect from 17th October 2000. However, it was only in 2015, after the P.K.Basheer judgement of the Supreme Court stating that Section 65B certificate is mandatory for all electronic documents, that there was a realization by the legal community. Now in many of the lower Courts, judges are asking for electronic documents to be certified under Section 65B.

As a result, there is now a scramble for finding out  the format in which the certificate is required to be provided. Many are trying to find out a “Standard” format that can be used in all certificates.

One such standard format which is being floated around is an “Affidavit” format since “Affidavit” is the most familiar document in our legal system.

Every body in the legal fraternity has respect for the document when it is called “Affidavit” and wants to file an affidavit as a ritual for any statement to be made to the Court. Courts also look at it as a procedural requirement rather than a committed declaration.

There are not many instances where a person giving a false affidavit is punished for perjury though every body knows that when the petitioner and the respondent both present affidavits swearing some thing exactly opposite, only one is swearing on a truthful statement and the other is making a false statement under oath.

Technically there could be a case where both the petitioner and the respondent may believe that their statement is true and are therefore not making the statements in bad faith. But such cases are few where some interpretation or inference is involved and not facts. Most are cases where on a matter of fact two diametrically opposing affidavits will be filed in a Court as if it is a matter of right to lie before the Court in self interest. Courts are also lenient in such cases and are not punishing people who deliberately file false affidavits to mislead the Court.

We must first agree that just because a statement is made under the title of an “Affidavit” and on a stamped paper, it does not acquire sanctity. What is stated there in and whether the person has the knowledge that the statement is true is important.

In the case of the Section 65B affidavits, the statement may only say that the document filed as a print out “identical to the electronic document” which is available in the computer or mobile. But this is not sufficient for the document to be accepted under Section 65B.

In our previous article “An Affidavit will not be a proper format for Section 65B Certificate”, we had indicated why the Affidavit format used by some is not the correct format. Many have since asked me to clarify why I think so, particularly when some courts have accepted the affidavits.

Without meaning any disrespect to any Court, I would like to say that from 17th October 2000 till date many Courts have been accepting electronic documents without any certificate, let alone in the correct format in which Section 65B certificate is required. This does not make such submissions as acceptable under law.

During all these years, CEAC has been producing certificates in the “CEAC Format” which according to our humble opinion was what is envisaged under Section 65B and Courts have accepted this without any problem.

However, if some body asks me to publish a “Standard” format which others can also use, it is not possible. I am not saying this because the format is a “Trade Secret” but because each certificate is unique and distinct to the type of document and the manner in which it was observed and recorded.

In this respect I consider that a Section 65B Certificate is like the “Digital Signature”.

A Digital Signature is a combination of a representation of the person signing an electronic document and the content of the electronic document. Hence if the person is different or the document is different, the digital signature file is different.

Similarly, a Section 65B Certificate is uniquely tied to the content of the electronic document which is the subject of certification and the process in which they were experienced by the person who is providing the certificate. Hence there is no single format fit for all cases.

In the first ever case (State of Tamil Nadu Vs Suhas Katti, AMM Court Egmore, Chennai) in which CEAC filed a certificate signed by Naavi, the subject document was in a server of Yahoo Inc and was accessible within a “Group”. The document was certified in support of the Prosecution and I was also examined as an “Expert Witness” and cross examined. What the Court thought of the process was also briefly reflected in the judgement (Copy available on www.ceac.in).

Immediately there after, the same Court invited me to observe a “CD seized from a crime scene” and certify the contents there in. I did it for the Court.

Subsequently, I have certified a variety of documents such as “Web Pages”, “Documents in a Corporate Network computer”, “Mails received or sent by a person visible in his/her email server”, SMS or WhatsApp messages on a mobile, Blackberry encrypted files saved on a computer, CCTV footage, Audio visual files etc.

As one can guess, each of these instances are unique and my observations run in some cases to hundreds of pages and the Certified copies submitted have even run to around 1700+ pages in one case.

Most of the times the electronic documents are on an “As is where is” basis. In some cases, the report may view further documents with a forensic tool which also is certified under Section 65B.

I suppose people will now appreciate why a Section 65B Certificate cannot be put on a standard format atleast when CEAC is involved with its own reputation to maintain.

I also make it clear that CEAC Certification like any Section 65B Certificate is for admissibility of the electronic document and subsequently Court may invite a Section 79A registered “Digital Evidence Examiner” (Government Agency registered for the purpose…none has been registered so far) and subject the electronic document to any further forensic examination.

In some cases, I am being asked if the Section 65B Certificate can be given by the plaintiff or the respondent himself or his lawyers. I have maintained that this will be considered “Self Serving” and reduce the value. Further the advocate giving a certificate may not be advisable since he becomes a witness to his own case.

A “Trusted Third party” is always preferred.

CEAC may be one such choice but need not be the only choice. If the trusted third party is credible, it would make the work of the Judge easier and he may avoid the need for every electronic document to be submitted to a Section 79A certified Government agency for verification.

If the certification agency is credible as per the Judge, there may also be no need to examine the Certifier as a witness also. Further, the Certificate given by the Certifier to the person at whose instance it is provided, may be submitted by him to the Court under his affidavit stating that this is the document submitted by the Certifier and this should be sufficient for the Court to admit the electronic document.

There could be some minor disagreements as to the procedure involved in submission which each Court may try to decide on its own but this would get standardized over a period of time.

While on the subject, I will also have to mention another issue that confronts CEAC from time to time which arises from the lack of understanding the Section 65B certification process and format.

Many times the users are unable to understand the effort required in extracting the electronic documents and provide the certificate and often are disappointed that even me known for free service most of the time quote a minimum of Rs 5000/- for the service. On the average the actual cost could be even higher and those who are accustomed to paying Rs 1000 for a lawyer to send a notice find it difficult to appreciate the value. Similarly, some ask for certification of a print out taken by them which I refuse. I have however done many “Remote Observation and Certification” where the user is not right in front of me but sitting say in USA.

In one recent case, a software professional engaged in a matrimonial dispute used the services for CEAC certified E Mail Delivery to the respondent which was critical to the case. But even he was unable to appreciate the value of the service. Many times, when we approach a company for a software and they quote a few lakhs of rupees, we wonder why a software should cost so much. Similarly those who donot understand the service  are unable to also understand the value of the service and the cost involved.

It is only when the see that the CEAC certification under Section 65B is not a simple affidavit will they realize that the costs are not only reasonable but down right a steal.

I have elaborated this process for the reason that some of the persons asked me specifically to explain why the affidavit format is not favoured by me and I could sense that some of them may be having doubts as to whether I am rejecting a simple and cost effective requirement with some thing more complicated and expensive for personal vested interests.

I hope I have made things clear at least now.

Naavi





Posted in Uncategorized | 1 Comment

Affidavit is not the correct format of Section 65B Certificate

As we all know though the first Sec 65B certificate was produced to a Court way back in 2004, it was only after the P.K.Basheer case that the world of law enforcement has taken note of the law as was framed with effect from 17th October 2000. Subsequently, there is a rush to find out the correct form in which the certificate may be given.

I am aware that just as electronic documents were admitted and trials completed before Basheer judgement without Sec 65B certificate, now after the judgement, certificates not in the correct format are being accepted by Courts and trials are going on.

When I tried to quickly look around to see what is the format being used, I find that most advocates simply want to file an “Affidavit” stating that the “hard copies of documents presented are identical to the electronic document” etc.

Two samples of such affidavits one by the party in litigation and the other by the advocate are given below for reference.

 

Without meaning any disrespect to anybody who may be using such affidavits, I would like to state that this is not the correct form of producing the certificate.

I am sure I have explained in detail the Section 65B certification in many of the earlier articles all of which have been also collated in the articles link at www.ceac.in.

It is necessary for me to make just one additional point here on what I think will be the impact of the advocate submitting the certificate. As in the case of the certificate submitted by the litigant, this will also be a self serving evidence which will start on the back foot from the credibility point of view.

Apart from this, if an advocate stands in the shoes of the certifier, I think  he would be a deemed witness in his own case.

The reason is that the object of the Sec 65B certification is to assist the Court in viewing the binary document readable by a computer device in a more human readable format and to freeze the document as was present at a point of time. Though at the admission stage, the certifier need not necessarily be also a witness on stand, if the certificate is challenged, he may have to stand as a witness and subject himself to a cross examination. At least in the case of the litigant he takes the stand as a plaintiff or a defendant and his views become part of the submission to  the Court. But in the case of the advocate it would be an anomoly.

It is preferable therefore that a trusted third party submits the certificate and his credibility becomes part of the weightage given to the evidence.

Further by design, the above formats of affidavits can be used on an existing print out. But stamping an existing print out  as “Section 65B certified” is not what is envisaged in the section.

I hope these teething troubles will be sorted out in time. However, in all sensitive cases where the evidence is critical, I strongly suggest that litigants and advocates donot take the risk of producing such “Affidavitized Section 65B Certificates” which may be challenged by the opposing parties either immediately during the trial or if necessary again on appeal.

Naavi

P.S: Response to some queries on suggested format, I would like to state as follows:

One standard format fitting all requirements is not possible for Section 65B IEA. It depends on the type of electronic document to be certified.
The first document I certified was in 2004 in the case of Suhas Katti which was a Yahoo e-group message. There could be web pages, face book postings, e-mails, server logs, computer documents, WhatsApp Messages, encrypted blackberry messages, and even audio and video recordings, including CCTV footages. Each requires a different process to be converted into “Computer Output” under section 65B. Just like a Digital Signature, which includes both the person signign and the content he is signing, a Sec 65B certificate includes both the process and the assurances given by the certifier and hence it will be different on a case to case basis except perhaps one paragraph.
Hence kindly donot look for a standard format that can be used in all cases… naavi 

Posted in Uncategorized | 2 Comments