Information Technology Act 2000 (ITA 2000) came into effect on 17th October 2000. Subsequently, the substantially amended version of the Act viz ITA 2008 came into effect on 27th October 2009. Despite the long elapse of time since these versions have been in practice, certain key aspects of the Act continue to be under debate as the related Jurisprudence is slowly building up.
In a domain of special knowledge such as “Cyber Laws” (Laws applicable to Electronic Documents), Jurisprudence develops first through the interpretation and opinion of experts and later gets polished with Judicial pronouncements creating a precedences.
The Judicial pronouncements also gets reviewed and modified over a period of time when the counsels participating in cases bring forth essential points for discussion before an erudite and open minded judge.
We are presently in this state of development of Cyber Jurisprudence where every judgement may be disagreed with and debated. In such a state of development, it is not uncommon for one Court to disagree with another Court. It is also not uncommon for a lower Court to disregard an earlier judgement of another higher Court if the facts and circumstances brought before it appear to be different from the facts and circumstances underwhich the earlier higher Court had pronounced its views.
It is fascinating to observe how such jurisprudence develops over a period of time.
Naavi has been in the forefront of contributing to the building the Cyber Jurisprudence in India through his incessant contributions since 1998 and the mission continues now onto certain aspects of interpretation of Section 65B of Indian Evidence Act.
At present, the Judgement delivered on September 18, 2014 in the case of Anvar P.V. Vs P.K.Basheer and others (Supreme Court of India Appeal No 4228 of 2012) in which a three member bench consisting of Justices R.M.Lodha, Kurian Joseph and Rohinton Fali Nariman delivered its Judgement, has become a subject of hot debates on how digital evidence has to be produced in a Court of law.
Though this case actually related to an election issue, it has become an important judgment that has laid down several cardinal principles related to Digital Evidence which will be considered as a significant contribution to the Cyber Jurisprudence in India.
Naavi has been providing his views on the interpretation of Section 65B from time to time and was the first person to provide Section 65B certified print outs of Web and CD documents to a Court way back in 2004 as part of his activities under Cyber Evidence Arhival Center (CEAC). Now with his years of experience in this field it is time to record his views on this judgment.
The last article on this topic at Naavi.org did provide a detailed explanation on the section which is being further clarified in this article in comparison to what the Basheer Judgment says.
This post may require multiple readings and also a thoughtful, analytical reading. I suppose the time you spend on this article will be useful. Don’t forget to let me have your feedback.
Problem of Oral Evidence
The first challenge in interpreting Section 65B is to unlearn our earlier concepts of how we looked at presentation of evidence all these days. For those who have interpreted evidence only from the point of view of “Oral” evidence and “Documentary” evidence for years, the advent of the new category of documents called “Electronic Documents” presents a new dimension not easy to interpret.
Is an electronic document consisting of a recording of spoken words (eg: an intercepted telephonic conversation) to be considered as an “Oral Evidence”? or is it a “Documentary Evidence”? What is a Web Page? Is it a documentary evidence? are dilemmas that confront us when we encounter electronic documents.
It is interesting to note that in the digital world, every Document is a binary expression and hence even a recording of an audio or video is actually a document written/expressed in “Zero”s and “Ones”. Hence the distinction of “Oral” and “Documentary” has no relevance when it comes to electronic documents. There is simply no”Oral Electronic Document”.
However there can be a discussion on “Oral Evidence as to the contents of an Electronic Document” which is different from an “Oral Electronic Evidence”. In an Oral Evidence as to the contents of an Electronic Document, a person may orally state under oath that a certain electronic document contains or contained such and such things as different from presenting a print out to say “this is what the electronic document contains” and certifies it under Section 65B.
In the Afsan Guru Case [State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005], oral evidence about the contents of an electronic document had been accepted without Section 65B certificate.
This decision to accept the electronic documents even though it was not certified under Section 65B has now been over-ruled in the Basheer case, where it was stated that Section 65B certificate would be mandatory when the contents of an electronic document are to be admitted in a Court.
However, it may be noted that if the genuineness of the Section 65B certified evidence statement is questioned, then it may be appropriate and necessary for examining oral evidence relevant to the objection.
First Principle enunciated by Basheer Judgment
The Basheer Judgment throws light on the fundamental principle of evidence presentation stating,
“Evidence is constructed by the Plaintiff and challenged by the defendant. Construction is through pleadings and proof is through evidence by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the Court only after the stage of relevancy and admissibility”.
Thus the judgment recognizes that there are two stages in which an evidence is seen by the Court one at the time of admission and then when when its veracity is challenged.
This distinction provides clarification on when a “Oral Admission” may be relevant as well as the application of Section 45A the role of a Digital Evidence Examiner referred to under Section 79A of ITA 2000/8
The Judgment referred to Section 22A of IEA which stated “Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”
Judgment also referred to Section 45A according to which the opinion of Digital Evidence Examiner (under Section 79A-When appointed) is relevant only when the genuineness of an already admitted electronic evidence is in question.
Second Principle enunciated by Basheer Judgment
According to the amendment to Section 17 of Indian Evidence Act (IEA) introduced by ITA 2000, evidence consists of three types namely
c) Electronic Document
This amendment has introduced the “Third Category of Evidentiary Statement” called “Electronic Documents” to the two other known type of documents and this was pointed out by the judgment.
The judgment did use the word “Documentary” in the following statement, namely,
“Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872.” (IEA),
This use of a seemingly contradictory term may need to be explained further to understand that there are two kinds of documents one which is equivalent to written documents and the other which is an “Electronic Record”, though both appear similar at first glance.
We shall now look back at Section 3 of IEA for more clarification.
This section as amended by ITA 2000 states:
“Evidence” means and includes…all document including electronic records produced for the inspection of the Court, ..such statements are called documentary evidence;”…(P.S: Here again the term documentary evidence for want of a better term but this is not the same as the category 2 document used in section 17)
Section 3 also states that “Documents” means 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.”
Under Section 17 of the IEA, it states
An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
Section 17 clearly expands on Section 3 by listing a statement contained in electronic form as a third category of statements different from oral and documentary.
This aspect of Section 17 has been reiterated by the Court in its judgment.
When we recognize that “Contents of an Electronic Record” is a “Statement” which is neither “Oral” nor “Documentary” but is a separate class of “Document”, not withstanding the overlapping use of the words “Document” and “Documentary”, it is clear that the Law expects “Electronic Documents” to be considered as a different type of statement for the purpose of evidence act.
Hidden Principle under ITA 2000/8
We must also recognize the fact that the ITA 2000/8 defines “Electronic Document” and “Document in Electronic Form” which includes what is apparently a “Document” (as a term used in the paper world). Unless we look at things with discerning eyes, we may mis-interpret both ITA 2000 and IEA.
According to ITA 2000,
a document which is being prepared or having been prepared or have been prepared in a formalized manner and intended to be processed or being processed or has been processed in a computer system.. and in any form will be considered as an “Electronic Record/Document”.
In view of the above, a “Computer Print out” which for all ordinary eyes looks like a “Document” (category 2 of section 17 of IEA), is to the discerning eyes, actually a “Document in Electronic Form” (category 3 of Section 17 of IEA).
This fine distinction points to an important aspect of Section 65B and relates to which of the computer print -outs require section 65B certification and which don’t.
My considered opinion is that
When the person signing the print out is the person who is the owner of the content of the print out, he may simply affix his signature to the document without a Section 65B certificate similar to a case where we use a Computer as a Type writer.
Hence, if a Bank Manager is signing a statement of account of a customer, he will simply sign without Section 65B certificate since he is authorized by the Bank to take responsibility for the transactions represented by the statement.
If however a document is viewed by a person other than the person who owns the content, and he has to provide a print out of the document, then he needs to provide a Section 65B certification.
Hence a kiosk operator of a e-Governance system who can view the land records in the computer can provide a certified copy as a print out though he is not the Tahasildar or the Village accountant provided he appends certificates as required under Section 65B.
The above distinction should clarify the existence of two types of computer print outs one which requires section 65B certification and the other which may not.
We may however state that Section 65B certification is more relevant when it is required to be admitted in a Court where as in other cases, it may only be considered as a “Standard”.
Naavi has adopted the Section 65B standard for all activities of Cyber Evidence Archival Center (www.ceac.in) as well as activities under odrglobal.in so that CEAC-certified of electronic documents can be used both for production to a Court in India or otherwise.
Third Principle Enunciated by Basheer Judgment
The next principle that the Basheer Judgment has enunciated is regarding the Oral Admission and the earlier decision in the Afsan Guru case.
The Basheer judgment referred to Section 59 (amended) of IEA which states
Proof of facts by oral evidence.—All facts, except the contents of documents or electronic records, may be proved by oral evidence.
Reference was also made to Section 65A of IEA which states
Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B.
Reading the above two sections together, the Judgment held
“…in view of Sections 59 and 65A, an electronic document can be proved only in accordance with the procedure prescribed under Section 65B.”
(We shall discuss Section 65B separately below)
Fourth Principle enunciated by Basheer Judgment
The judgment clarified that
“Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. 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.”
It categorically mentioned that “Being a special law, the general law under Sections 63 and 65 has to yield.”
It was under this principle that the Afsan Guru judgment on Section 65B certification was overturned. It is the same thought process which should also clarify on the debate over Primary and Secondary documents with reference to the electronic documents.
The Primary vs Secondary Document debate
While we agree fully on the principles that the contents of an electronic document at the admission stage has to be presented only with Section 65B certification, (detailed procedure for which is discussed subsequently below) we have to point out that the Judgment was not able to fully keep itself free from the concept of “Primary” and “Secondary” Documents in respect of Electronic records though an apparently reasonable argument was used for describing the difference.
The judgment held that
“An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.”
It continued to state
“… in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible”
It also stated,
“The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification.
It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.”
The part of the judgemental statements made above are significant since it makes a distinction of “Primary” and “Secondary” documents holding CDs used in the commission of offence is “Primary” evidence and “CDs produced in copies” is “Secondary”. It also provided the option that Primary evidence could have been proved without Section 65B certification.
I would like to note a point of difference on the above though it may not alter the effect of the Basheer judgment on the Section 65B certification per-se.
In my opinion, it is not necessary and perhaps it is futile to make a distinction between “Primary Electronic Record” and “Secondary Electronic Record”. In practice electronic evidence presented in a Court is always “Secondary”.
When a CD played during an offence (Primary Evidence) is presented in a Court, what is presented is a “Container” of electronic document and not the “Electronic Document” itself.
The electronic document is present inside the container in the form of “Binary Expressions”.
These binary expressions contain both “Meta Data” and “Data”. The “Meta Data” is contained in the header information of the file which indicates what is the type of the file and what is its dependency on an application and operating system.
When this CD is inserted in a computer device, the device first reads the header information and understands say that “this is a mp3 file” and “I need to use an appropriate application” and “Send the instructions to the speaker”. Then the speaker will play the voice/music. If it is an mp4 file, the computer will understand ” I have to send the audio stream to the speakers and the video stream to the screen using appropriate applications”.
If the computer does not use the appropriate applications riding on appropriate operating systems, the output would not be intelligible and even if attempted, the Judges cannot hear or experience the electronic document. It would be similar to an encrypted text file which has no meaning until it is decrypted.
To make things more clear, I give below what is the original electronic file and what is the file which human beings can read after the multiple processing that it undergoes in the computer.
|Primary Document in Binary form||What a Judge can see after
|01010111 01101000 01100001 01110100 00100000 01100001 00100000 01001010 01110101 01100100 01100111 01100101 00100000 01100011 01100001 01101110 00100000 01110011
|What the Judge can
What you see on the left is the original binary expression (P.S: We have added padding in between bytes just to make the stream look better without which it will run as a single steam) of a sentence that reads “What the Judge can see” .
What the Judge will see on a computer is on the right column which is a product of several processes that the computer has already completed before displaying it on the screen in a human readable form. Is this then a “Primary” document? or a “Secondary” document? is the question that arises.
The question of “Judge seeing” (or hearing) an electronic document as a “Original” document if they had been seized and played in the Court therefore does not arise.
If a person who has heard the contents when it was originally played, can depose, it will be a oral evidence of the event. Similarly, if the Judge takes cognizance of what he hears then he himself becomes the witness as to the content if he can record it so.
The summary of this is that in the case of electronic documents, it is preferable if we donot discuss the “Primary” and “Secondary” versions of an electronic record. It may be possible to bring the container which has the “Primary Document” but it is like an “intangible” object which cannot be touched, or heard or seen except when rendered in secondary form.
Every electronic record is therefore to be considered as “Secondary” document only.
Hence when it is required to prove an electronic record, what is relevant is
a) Direct evidence when the owner of the content deposes orally in which case he can produce the computer output as a rendition from the computer used as a typrewriter
b) Indirect evidence when a third party produces a print out or a digital copy of another electronic record and certifies it under Section 65B.
If we accept this principle, there is no need to completely overrule the Afsan Guru judgment since (if my information is correct), in that case the persons who had produced the electronic documents without the Section 65B certificate had actually deposed as witnesses.
Having recorded our agreements and a minor disagreement with the Basheer judgment, to complete the record let’s go onto explain the process of Section 65B.
I have already discussed this in earlier articles but I would like to reiterate it here for the sake of completeness.
The Process of Certification under Section 65B
The section contains five subsections followed by an explanation.
The title of the section is “65B. Admissibility of electronic records”.
This indicates that this is a section independent of Section 65 and concerns with the “Admissibility”.
Section 65A confirms that what we are dealing here are “Special Provisions” as to evidence relating to electronic record and 65B represents the provisions according to which contents of electronic records may be proved.
The subsection (1) states as follows:
(1) Notwithstanding anything contained in this Act,
-any information contained in an electronic record
which is printed on a paper,stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output
shall be deemed to be also a document,
if the conditions mentioned in this section are satisfied in relation to the information and computer in question and
shall be admissible in any proceedings, without further proof or production of the original,
as evidence of any contents of the original or of any fact stated therein or which direct evidence would be admissible
This sub section explains the entire purpose of the section and refers to a “Computer Output” which shall be admissible in any proceedings without further proof or production of the original.
The “Computer Output” is the Print out of the contents of an electronic record or a copy rendered in a media such as a CD.
The sub-section makes a reference to the “Conditions” under which the Computer output shall be admissible which is available later in the section.
It is critical to notice that the entire section refers to conversion of the contents of an electronic document into an admissible form of a computer output and nothing else.
If we fail to notice that the section is entirely on rendition of an electronic record into an admissible form of computer output, we are likely to make mistakes in interpreting further aspects of this section in the subsequent sub-sections. Read the sub section (1) again if necessary before going further.
Please note that Section 65B also makes a clear statement in this regard that a computer output produced with Section 65B certificate is to be considered as “also a document” and does not state it is a primary or secondary document. It only states that this computer output is also deemed to be a document acceptable without the production of the “original” and does not specifically state that it is a “acceptable secondary document”
Sub-section (2) states as under:
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely :-
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities
This sub-section introduces certain aspects of practical significance which require jurisprudential interpretation.
If we accept the interpretation of the Sub-Section (1), sub section (2) should be applied to the process of rendering the computer output for the purpose of admissibility. This “Printing Out” or “Copying” of the original content into the “Computer Output” is done mostly by one operator who controls the computer in which the electronic content is being seen and there is a printer (or a CD writer or a USb Drive) attached to such a computer.
When an electronic document which lies in a web server is seen by a user, the copy of the electronic document in the web server has already been transmitted into the user’s computer and the print out when taken is from that computer.
In an earlier paragraph, we explained that when a computer plays a video file which we humans see and hear, it uses one or more applications and one or more output devices.
Similarly, when we see a web document on a computer, the “Original” binary file lies inside the web server and is broken into TCP/IP data packets and sent across multiple routers in multiple directions, some times multiple times and ultimately the browser in the user’s computer recognizes these packets with reference to the meta data contained in them and assembles them into a contiguous form and then pushes them onto the output devices connected to the computer to provide the experience of the web document. Some times a single page on a website may be constructed dynamically in the user’s computer with components coming from different web servers situated in different places.
Some people try to interpret the “Said period”, “Computer”, “Lawful controller” used in the sub-section as to
a) The period in which the content was compiled
b) The web server
c) Administrator of the web server
Such people expect the Section 65B certificate to be issued by the administrator of the web host.
In my opinion this interpretation is incorrect and infeasible.
If we are looking at a content which is compiled over a time such as a Bank account statement of an account for the period 1.4.2015 to 31.3.2016, the document is a compilation of activities over a one year period. The section 65B(2) does not refer to this period of one year.
If we are looking at the computer of the bank where the statement of account is compiled, it may involve multiple computers from which different data base elements are dynamically drawn to compile a viewable document. Also there could be multiple owners of such computers including the owners of internet routers through which the data passes through.
It is therefore not possible to expect the administrators of all these computers to certify the document.
We therefore consider it necessary to apply this section entirely to the process of generating the computer output which is being produced to a Court for admission. This process starts when the user of a computer sees the fully compiled user viewable document on his computer and gives a CTRL+P command to print the page he is viewing or CTRL+C and CTRL+V to copy the contents into another device. It is also possible that he may use a mouse command to print or copy or even use other automated processes.
Forensic people may also use some special tools of their own to see what others without the tools may not see and print out or copy such content which can be seen only with the use of special tools.
It is therefore critical for us to accept that the Section 65B certification is like a photographer who takes a photograph and says that this is the photograph I have taken on such and such a day at such and such place and I have not tampered with it.
The expertise required by such a person is to the extent of using the tools required to view and print/copy the said computer output. Of course he should be contractually capable since he is providing a certification as part of Court documentation.
The subsection (3) states as follows:
(3) Where over any period, the functions of storing or processing information for the purposes of any activities of any regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computer, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
This sub section is self-explanatory and does not require much elaboration. It however confirms that if the viewer has been using a networked device either to view or to print or to copy, all the connected devices will be considered as a single device for which he is providing the certification.
Sub Section (4)
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and
purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and
for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
This sub section indicates the contents that are required to be included in the Section 65B certificate. The Section 65B certificate will be a statement which should identify the electronic record (Computer Output) which the subject matter of certification. It should also reasonably describe the devices involved in the production of the Computer Output and should be “Signed”. If it is a printed report, it should carry a physical signature and if it is another electronic copy, it should carry a digital signature.
“Occupying a responsible official position” may be relevant when the certificate is produced by an organization where multiple persons may be involved in operating the device or set of devices.
This also clarifies that in the case of an organization, the signature is provided in the name of a in the “Official capacity”. This could mean that when a subsequent deposition in a Court is required, it should be possible to depute an “Official substitute” without insisting on the same person who has signed to be present.
The sub section also provides that the certificate may state “to the best of the knowledge and belief” of the person providing the certificate. This also is extremely important since the certificate is being provided in good faith of what the person sees under specific circumstances which may change.
An example could be that a website might have configured certain content to be customized to the viewer say for example advertisements or language. When I view the page from Bangalore, I may view certain ads and content which another person who views from Mumbai may not view. Hence there could be a difference between what two different witnesses may say while viewing the content which is assembled on a dynamic rule and controlled on the basis of cookies or IP address or recorded behavioural analytics etc.
The “best of my knowledge and belief” is therefore a necessary disclaimer that the Court should accept rather than considering that the statement is vague because of this provision.
Sub Section (5)
(5) For the purposes of this section,-
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
This sub-section provides accommodation for the activities of collection, processing and storing of information through automated devices and processes without human intervention.
The explanation to the section states :
Explanation.- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process
The explanation is meant to remove any ambiguity as to the processes that may be involved in rendering the computer output which may include the reading of the header information, collation of different data packets etc.
The Basheer Judgment vindicates what Naavi has been holding out as the interpretation of Section 65B that any person who can view an electronic document, can provide a certified copy in the form of a print out.
It was under this principle that the first Section 65B certified copy of a document was presented in a Court in India. It was the CEAC certified copy of a document lying on yahoo group server presented by Naavi to the AMM court in Egmore, Chennai in 2004 in the case of State of Tamil Nadu Vs Suhas Katti. At that time while accepting the evidence and examining the undersigned as an expert witness, the defense in its plea raised an objection that Naavi was not a “Government Appointed Person”. The Court rejected the objection and said that no such condition is imposed under law.
P.S: This position has not changed even now after Section 45A was added to IEA, since the Digital Evidence Examiner (as and when appointed) will be assisting the Court in establishing the genuineness of the Section 65B certified evidence and not at the admission stage. If a 65B certified copy of an electronic document presented by say Naavi is questioned for genuineness, it is open to the Court to invite a Digital Evidence Examiner designated under Section 79 to examine and provide an opinion to the Court.
Subsequently, Naavi was also invited by the same AMM Court in Egmore, Chennai, to view some CDs captured from a scene of crime (termed as the Original evidence in the Basheer case) and asked to provide a certified print copy (termed as secondary evidence in the Basheer case) with Section 65B certificate. In this case the CDs were observed by Naavi and printouts were provided. Though the Judge himself could have viewed the documents, he rightly sought the assistance of an external person since he could not himself be a witness to the document. (As suggestively indicated by the Basheer judgement which I do not agree to).
After this, over the years, I have submitted several CEAC certified documents that involved web pages, e-mails mobile content, etc in some cases involving use of simple forensic tools. In all such cases the report has explained the process used in getting an electronic document on the computer screen of the observer (in this case, Naavi) and then printing it out either directly through an attached printer or copied onto other electronic devices and then printed out.
The Basheer judgment fully vindicates the procedure followed by Naavi in Cyber Evidence Archival Center (CEAC) though standardization of process has been difficult. There are cases involving documents on computer or mobile or CCTV captures or company’s internal servers etc. Each time it has become necessary to design a process to capture the documents and render the “Computer Output” in a manner in which it satisfies Section 65B of Indian Evidence Act.
Hopefully, after this detailed explanation of the section, whatever doubts were there in the minds of advocates and some trial judges would be cleared and they would be prepared to accept Section 65B certified evidences in proper form and reject those in improper form so that the evidentiary value of the digital evidence taken up for examination in Courts remain high.
I am open to questions being raised on what I have stated above and willing to provide my clarifications. Even if readers do not have any objections and accept what is written above, I will be glad to receive their views in positive confirmation.
So, Whether you agree or disagree, donot fail to send me an e-mail.
Link to Afsan Guru Judgement is available here:
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