CySi in Chennai again debates Section 65B

Cyber Society of India, Chennai conducted a seminar  in Chennai  on 20th May 2023 to  discuss Section 65B of Indian Evidence Act . The seminar held at the Anna University Centenary Library was attended by over 120 participants. Many legal luminaries attended the seminar and also participated in the Panel Discussion lead by the senior Advocate Thyagarajan, and assisted by Advocate Karthikeyan, Balu Swaminathan, Retired DySP, and Technology experts like Vijaykumar.

(The details of the seminar with videos will be available on CySi website later).

I am adding this article here to answer some of the queries that were raised during the seminar particularly citing the Arjun Panditrao judgement.

This section came into effect  in India on 17th October 2000, when ITA 2000 was notified. It was an insertion into the  Indian Evidence Act consequent to the passage of ITA 2000 and is a procedural code on admissibility of t Electronic Document in a Court  of law in India.

Essentially Section 65B creates a condition precedent  before admission of any electronic  record as  a  statement  in a  Court that a human being has to provide a certificate as per Section 65B.

Unfortunately even after 23 years of the existence of the law, the legal community and the judicial community is not clear about why this certificate is required, who has to provide the certificate etc.

Naavi presented the  first Section 65B certificate in the case of Suhas Katti in the year 2004.  The Court admitted the evidence and  proceeded to hand  out the historical first judgement  in India under ITA 2000 convicting Suhas Katti for a message posted  on Yahoo group.

Subsequently the Afzaml Guru case  in the Supreme Court in 2005 diluted the  requirement of Section 65B Certificate and  it  was only in 2014 during the Anvar Vs  Basheer judgement that the mandatory nature of Section 65B certificate was reiterated.

Since then there have been a consistent effort from different  sources  to  nullify this judgement. First  a two member bench of the supreme court (Shafi  Mohammad case) tried to provide a  “Clarification” to the Anvar  judgement which was a  three member judgement. Then another three member bench in the case of Arjun Pandit  Rao categorically stated  that the Shafi  Mohammad  judgement  was wrong.

However the three  member Arjun Pandit Rao judgement introduced one more element of doubt  in the minds of the  community by stating that “the  required certificate  under Section 65B(4) is unnecessary if the original document itself is  produced.” (Para 32 of the judgement).

There were one section of the legal community which was perturbed with the insistence of Section 65B certificate  in the  trial proceedings and wanted  the section to be removed because of  the difficulties  it is creating  in the trial process.

I would like to  re-iterate that “Electronic Documents” can be easily manipulated and  fake evidence created to fix  any innocent person. Hence the  Section 65B  Control which requires one  human to take the responsibility for the document is  essential and  for this purpose, the mandatory nature of  the requirement should not be  tampered with.

The confusion regarding Arjun Pandit Rao judgement about the “Original” document  arises  because we often confuse the container  of  an electronic document  with the  electronic document and considers  the  hard disk as  a “Original”.

Even assuming that the hard disk is the “First Electronic Imprint of  an  evidentiary sequence of binaries which constitutes an evidence” and it is  available to the Court and  therefore  we can say that the “Original”  lies inside the hard  disk, the Judge cannot take it as an evidence unless he connects the hard disk to a processor and a monitor with key board, speaker etc running  on an operating system, Bios and  an  application. All these hardware and  software usage is  influencing the evidence  as being read by the Judge and the choice of what software and  hardware to use becomes his choice.  Hence  the Judge would be creating an expression of evidence by his own decisions.

Hence the reading of the evidence by the Judge from the “Original” hard disk will be unacceptable as evidence. If however a third party renders a Section 65B certified “Computer Output” where  he provides the details of how he read the document , then the Judge can accept it as evidence and proceed. This is the essence of “Admissibility” which Section 65B provides.

As Anvar vs  Basheeer judgement has clarified, the “Genuinity” can  still be disputed with counter evidence by the defence and the Court can come to its own decision. The Court has the ultimate power to either accept the Section 65B certificate provided by the presenter or the challenger without holding any of them as “Malicious” or “Fake” but only because the perspectives  of the two certifiers were different.

There will be occasions when a letter draft is stored by a person on a computer and is printed out and thereafter  the letter is physically signed. This refers to a case where the letter content is owned by the signer and  in such a case there is no need  for Section 65B certificate because the evidence is the printed letter and not the electronic document.

Section 65B  certificate becomes relevant when a person who is not the owner of the content certifies that such content exists  in electronic form on a computer and he  took a copy of the same and certified it under Section 65B  procedure so  that it can be admitted as evidence  without production of the original.

This should provide clarity to  the doubt created by Arjun Pandit Rao judgement.

For rest of clarifications, kindly go through the videos or articles already present in this website.



[P.S: Kindly check for a detailed analysis of Section 65B in this previous article at as also this  article on ShafiMohammad]

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