Section 65B of Indian Evidence Act on Electronic Evidence Explained

Of late, Section 65B of Indian Evidence Act is under focus in the Judicial and Law Enforcement circles. In this context, Naavi has put across his views on the section and how it needs to be understood in the above video available on You Tube.

The main points that Naavi makes here are

a) Section 65B (as well as 65A) of Indian Evidence Act refer to the special provisions of the Act in respect of Electronic Documents. Though Section 65 is referring to “Secondary” documents in paper form, there is no such distinction made as to the electronic document.

b) There is no need to distinguish Primary and Secondary and all documents need to be interpreted by a human being which takes the form of a Section 65B certificate.

c) A “Hard disk” which may contain an electronic document also cannot be considered the “Primary Document” since it is only a “Container” and the real Electronic document is an expression in binary language which cannot be read by a human being and needs to be interpreted with the assistance of a binary reading device (Computer + operating system +Application)

d) Section 65B explains the conditions under which an electronic document can be considered as “Admissible” in a Court as a “Document” and it needs to be suitably confirmed for the Court to accept the document, which is often termed as “Section 65B certificate or Statement”

e) Section 65B refers to a process of producing a “Computer Output” of the electronic document which is the evidence to be admitted and such computer output can be either in the form of a “Print Out” or a “Copy”.

f) There is a “Process” by which the electronic document becomes the “Computer output” and Section 65B identifies this as the subject activity which needs to be conducted by a person having lawful control over the computer producing such output and that during the period of such production, the Computer should be working properly etc.

g) The focus of Section 65B is the activity of conversion of the electronic document residing inside a system which can be seen by an observer into a “Computer Output”.

h) The other clarifications contained in the Section 65B such as that the the Computer Output could be produced by a combination of computers, acting in succession etc are relating to dynamic creation of an electronic document from a data base and routing it through multiple devices onto a final visible form in the computer of the observer and thereafter its porting into a Printer.

i) Considering these interpretations, the Section 65B certification is a “matter of fact” certification to the effect that “What I saw is what I reproduced as a computer output faithfully” and this can be done by any person who is observing an electronic document in his computer and wants it to be produced as an evidence. It is not necessary that a document from yahoo website has to be certified only by a Yahoo server administrator. Similarly, a statement of account downloaded from an ICICI bank website need not be certified only by the ICICI Bank manager but by any person who can lawfully access the document in electronic form.

j) There is also an important distinction that “Content Owner” is different from “Content Viewer” and Section 65B is meant to be produced by a content viewer. On the other hand the content owner in respect of say a Bank statement is the official Bank manager and he can provide a print out as the owner of the content who understands the content and is considered as an “Expert” in the domain. Any body else who views the document provides a Section 65B certificate that  the print out (or a soft copy) is a faithful reproduction.

It is very important that the legal fraternity and the Judiciary interprets the section properly. Any interpretation that only a “Server Administrator” can provide a certificate under Section 65B is considered incorrect. The server administrator can however provide the certificate but it is not mandatory. The Section 65B certifier is like a photographer who captures a photograph of an event and confirms the process of taking the photograph though he may not be aware of who is there in the picture and what they are doing. It is left to other “Experts” to interpret the “Content” and impute meaning as only a subject matter expert can do.

The undersigned has been running the Cyber Evidence Archival Center (www.ceac.in) since 2002 and has produced evidence under Section 65B certification in many legal proceedings. The first case in which an accused was convicted under the provisions of ITA2000 namely the State of Tamil Nadu Vs Suhas Katti happened in 2004 and in that case, the undersigned had produced a print copy of an electronic document which was then present in yahoo server with the appropriate certification. It was accepted and the accused was convicted.

In that case, the undersigned was also examined an “Expert” since as a part of the certification, he had also interpreted the IP address visible in the document as belonging to a specific ISP in Mumbai etc.

The current interest in the Section 65B has come because of the Supreme Court making a mention recently about the need for such certification whenever an electronic document is produced as evidence.

It is however felt that it is necessary for all the Courts to have proper understanding of the Section since otherwise mistakes can occur in acceptance or rejection of electronic documents in Courts.

The embedded video in YouTube contains the above discussion.

I welcome any counter views for debate.

Naavi

(For a Copy of Section 65B of Indian Evidence Act, s or Browse through Schedule 2 (in the left menu) of ITA 2000 available here: