Section 65B of Indian Evidence Act (IEA)is one of the hot topics discussed in Techno Legal Circles today. Though Naavi has clarified his view on the section many times on this site and in workshops and conferences, there are continued questions that linger on because some of the legal professionals hold some different point of view in respect of some of the finer points of the discussion.
One such doubt often raised is “Who should provide the Section 65B certification?”.
The supplementary questions that arise in this context is …
“Is it that the Admin of a server in which an electronic document is present the person who has to provide the certification?”
is it not the admin of Airtel who has to provide the Sec 65B certificate for the call data records?
Is it not the admin of flipkart who has to give certificate in respect of an electronic document pertaining to a sale on its site?.. “
“Now that Section 79A acrredited Digitl Evidence Examiners are being appointed, should all future Section 65B certificates signed by one fo them?”…. and so on
I wish to clarify my point of view once again in this respect so that there is clarity in all stake holders in this regard.
I must add here that I have been in the forefront of Cyber Laws since 1998 and has been encountering Section 65B-IEA since a long time. The very first instance (2004) when a Section 65B-IEA was successfully invoked was the historically important case of The State of Tamil Nadu Vs Suhas Katti in which conviction happened for the first time in India under ITA 2000. In this case, I had presented the critical evidence of crime which was an electronic document present on the Yahoo server based on which the trial was conducted, offence recognized and accused convicted. I was also examined as an “Expert Witness” and cross examined in the case before the Court accepted the evidence. Since then, documents certified by me have been produced in many Court proceedings and must have been used in many civil proceedings. The service www.ceac.in specializes in this aspect of rendering electronic documents as evidences in an “Admissible” form in a Court. In a few cases, I have been asked to personally be present to identify the documents and in other cases, this has not been found necessary.
In the light of all the past experiences I would like to clarify on the point of “Who has to Certify under Section 65B”.
The first point we need to understand is that Section 65B indicates the manner in which electronic documents can be converted into “Computer Outputs” such that the “Computer Outputs” will be admissible as per the special provisions under Section 65A of IEA applicable to “Statement contained in Electronic Form” defined in Section 17 of IEA.
The “Computer Output” referred to in the Section 65B can be in two forms namely “Printed on Paper” or “Copy on a Media”. If printed on paper it is to be signed. If rendered as an electronic copy, it has to be digitally signed.
To understand “Who has to sign”? one needs to understand that what Section 65B refers to is to the process of creating the “Computer Output” and not the process of “Creating the Electronic Document which is the subject matter of the computer output”.
The “Original” “Electronic Document” is a “Binary” document which human beings are unable to understand and can be seen or heard or seen with the assistance of a combination of tools such as the Application and the Operating System running on a hardware of a computer. Hence the “Electronic Document” needs to be appreciated by a Court only in a form which is the end result of many of the processes such as conversion of binary document to a humanly perceivable form on a computer device. However, such a “Humanly perceivable form” sits on a computer and cannot be always brought into the Court room. Even if it is brought, the Judge has to view it and form his opinion and if he incorporates his observation on the document, he will be a witness himself. (The hard disk in which a binary document resides is only a container and not the electronic document itself and has to be connected to a computer device to know what it contains).
The presence of Section 65B enables the Judge to avoid being a witness himself by introducing a role to the Section 65B Certifier who brings the binary electronic document to an “Admissible” form by creating a “Computer Output” as envisaged in the Section. Even after this, if there is a dispute, then it is open to the Court to call a Section 79A recognized “Digital Evidence Examiner” to assist it in resolving the disputed electronic document.
If as some professionals suggest, it is necessary for the “Admin of a Server in which the document is contained” to provide the Section 65B certificate, then a situation would arise where if there are 1 lakh transactions that pass through Flipkart each day, any dispute arising out of these 1 lakh transactions involving multiple electronic documents will all have to be certified only by the admin if required for evidence. Obviously this is neither feasible nor is the intention of Section 65B.
While the admin who can view the electronic document on the server or any other hardware or software to which he has an access may provide the certified copies, it is not always necessary.
The purpose of Section 65B is to enable “Any Contractually Capable person who knows how to view (or hear) an electronic document to present a copy (printed or on an electronic media) which can be admitted in the Court as also a “document” “without further proof or production of the original”. It is that person who prepares the Section 65 statement in which he says “I viewed this document and converted it into a computer output and I certify …..”.
Hence a “Third Party” can provide a “Section 65B Certified Copy” for admission.
In practice, the person who provides the certificate should be a “Trusted Third Party” who may be cross examined by the defense which may state that the person is unreliable, is either not capable of understanding what he is certifying and is dishonest and produced a false certificate etc.” The Section 65B certificate incorporates a declaration as to the “Procedure adopted for producing the computer output” which should indicate the manner in which any other person following similar process should be able to reproduce the same “Computer Output” except in circumstances where the original binary document has been removed.
The credentials of the person producing the Section 65B certificate becomes critical to the acceptance of the certified copy by the Court.
In the case of “Forensic Experts”, the experts use certain tools and are able to see information which are visible only on use of such tools. Hence their certificate needs to indicate the tools used which to the extent possible be “Standard Tools” capable of being used by other “Forensic Experts”. It is when there is a propritory technique is used that the need for the Court to call in another expert who is accredited under Section 79A arises.
We need to reiterate in this context that it is not necessary that all Section 65B certificates are to be issued only by the Section 79A certified agencies. Section 65B certificate is issued for “Admissibility” while the Section 79A certified agency is called in by the Court on special circumstances only. It is like the case of a “Handwiring expert” who is called in from time to time to examine the signatures on documents presented in the Court but not mandatorily for all handwritten/signed documents.
I hope professionals in the field appreciate this point of view and if they agree should adopt it in their practice. In case they have any counter views, I welcome the feedback so that this view can be refined as required.
Also Read: Other articles on Naavi.org
A reply to a comment received on naavi.org for the same article:
In Section 65B(2) you should look at the word “in respect of a computer output”. The certificate is that the Computer output was produced in a particular manner and it was observed by the person certifying, that the Computer output is a faithful reproduction of what he himself saw.
Imagine a web document.
Is there a single server/computer from which the page is delivered?. Is the web page (as an electronic document/evidence), a single document lying in any one computer?. The page may be a dynamic real time collation in the computer screen of the observer with individual electronic documents served from many servers across the globe coming in through many many routers.
The entire section therefore talks of and has to be interpreted as referring to the “Computer Output” of the “binary document” lying some where in some computer in a consolidated form or in different data elements.
The “binary document” is what some may like to call the “Original Evidence” which cannot be seen even in the place where it resides without the assistance of a certain combination of hardware and software. In case of web documents or data base served documents, the individual elements are served from multiple computer sources under different ownership and each can only certify a part of the document. The entire output as seen and felt by a human being is what creates a “Computer Output” in the computer of the observer. If this observer is confident that as a owner of the device which he is using for the time being, he is confident that there is no virus or malware that makes it behave in a non standard format, it is fine.
There are web pages (eg: advertisements) which will check the location of the user and serve different documents to different people at different times. Hence what Mr A in Australia sees in http://www.xyzsite.com may be different from what Mr B sees in India. The things may appear different if different browsers are used or different default configuration is used. All these uncertainties are absorbed by the certifier who says -when he observed it under the stated conditions, he saw what he has reproduced as the “Computer Output”.
Beyond this, it is for the defense to challenge the admitted evidence with appropriate forensic evidence using a Section 79A accredited Digital Evidence Examiner.
In certain cases where the litigant himself produces the document, it may not be strictly outside the provisions of the section 65B but since it is being produced by the litigant himself there could be a certain allegation of bias. A trusted third party therefore is slightly more reliable from the point of view of the Court.
This is my opinion… Any other interpretation that “Only the owner of the computer where the original binary expression which constitutes the evidence” should provide Sec 65B certificate will not be practically usable.
Also, “What is ownership”?… Is it necessary for the certifier to show the purchase invoice?. Who is the owner of a company resource? Is it the operator or the Company?. What if the equipment is leased?..Is the lessor the owner? or the lessee the owner?… All these uncertainties are removed when we are talking of a person who has control over the operations of the computer that is producing the computer output…collating the document in an application such as the browser or word or Adobe PDF reader and then giving a print command to the connected printer and producing the print out (or a copy on another media).
I suppose that my interpretation is therefore a “Practically feasible interpretation” of the Section 65B.