With the notification of the Bharatiya Sakshya Adhiniyam 2023 as the new Indian Evidence Act (NIEA), time has come to take a fresh look at Section 65B Certification and the operations of Cyber Evidence Archival Center (CEAC) of which Naavi was the pioneer. The act will be effective from 1st July 2024.
It is well known that the first ever Section 65B certificate to be produced in the Court was the one presented by Naavi at the AMM Court in Egmore Chennai in the case of State of Tamil Nadu Vs Suhas Katti.
This case involved a message posted on an Yahoo group which was accused of being “Obscene” under the then Section 67 of ITA 2000. The copy of the content was produced by Naavi with a Section 65B certificate as an observation on the Internet and based on the same the Court convicted the accused. The decision was upheld by the Session Court and the accused completed the 9 months of imprisonment that the Session Court imposed though the trial court had imposed a 2 year imprisonment under Section 67 of ITA 2000.
During the trial questions had been raised about whether a private person can provide the Certificate. Subsequently the same Court had further validated the system in another case where some material on CD seized by the police need to be taken up for trial.
After this 2004 incident, there was the 2005 Supreme Court trial of Afzal Guru in which the Supreme Court took oral evidence as a substitute of a Section 65B evidence. This was over ruled and a complete ratio was indicated in the Basheer judgement. Subsequently came the contradictory judgement of Shafi Mohammed followed and later over turned in the Arjun Pandit Rao judgement.
Naavi has been the person who has contributed to the development of Cyber Jurisprudence in this regard.
Now with the passage of the Bharatiya Sakshya Adhiniyam, the old Indian Evidence Act with Section 65B has been replaced with the new Act with Section 63 which states as under.
63.(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (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 or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(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 or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
- (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 or communication device in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer or communication device 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 or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
- (a) in standalone mode; or
- (b) on a computer system; or
- (c) on a computer network; or
- (d) on a computer resource enabling information creation or providing information processing and storage; or
- (e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the
- (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 or a communication device referred to in clauses (a)to (e) of sub-section (3);
- (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 in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes 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 in the certificate specified in the Schedule.
(5) For the purposes of this section,—
- (a) information shall be taken to be supplied to a computer or communication device 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) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).
Additionally, a Schedule has been added with the format of a Certificate to be issued under section 63(4)(c).
The narrative on Section 65B has therefore changed to some extent. Watch out for a new E Book on this topic.
The new Certifications that Naavi would be providing under the new section will henceforth be called “Section 63 BSA Certificate”.
The Cyber Evidence Archival Center (CEAC) is presently restricting its operations to certificates being issued through franchisees. Naavi personally has stopped issuing such certificates to restrict the attendant Court appearances.
However, consequent to the introduction of DPDPA 2023, one of the services of CEAC namely the CEAC-EDB is being modified as a service for DPDPA 2023 compliance details of which will be provided separately.
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