Section 65B Evidence Act / Section 63 BSA — Admissibility of Electronic Records

Section Text

Section 65B of the Indian Evidence Act, 1872 (now Section 63 of the Bharatiya Sakshya Adhiniyam, 2023) provides that notwithstanding anything contained in the Act, any information contained in an electronic record which is printed on paper, stored, recorded, or copied in optical or magnetic media produced by a computer shall be deemed to be a document and shall be admissible as evidence of the contents of the original electronic record, without further proof or production of the original, subject to the conditions specified in the section.

The conditions include that the computer output must be produced during the period when the computer was in regular use, the information was fed into the computer in the ordinary course of activities, the computer was operating properly, and the output is a reproduction of the original information. A certificate identifying the electronic record and describing the manner in which it was produced must be provided.

Plain Language Explanation

In the digital age, a vast amount of evidence exists in electronic form — emails, WhatsApp messages, CCTV footage, digital photographs, computer printouts, website content, social media posts, electronic contracts, and database records. Section 65B provides the legal framework for admitting such electronic evidence in Indian courts.

In simple terms, Section 65B says that electronic records can be used as evidence in court, but only if certain conditions are met. The most important condition is the production of a certificate (commonly known as a "65B certificate") from a person who is responsible for the computer or electronic device that produced the record. This certificate must identify the electronic record, describe how it was produced, and certify that certain technical conditions were satisfied.

The rationale behind these requirements is the inherent nature of electronic data — it can be easily manipulated, altered, or fabricated. Unlike physical documents, digital records can be modified without leaving obvious traces. The certification requirement provides a chain of authenticity and ensures that the electronic evidence produced before the court is a reliable reproduction of the original data.

Under the BSA (Bharatiya Sakshya Adhiniyam, 2023), Section 63 carries forward the same framework with minor modifications to align with the new evidentiary statute. The core requirements remain the same.

Key Elements

**1. What Is an Electronic Record?**

An electronic record, as defined in Section 2(1)(t) of the Information Technology Act, 2000, means data, record, or data generated, image or sound stored, received, or sent in an electronic form or micro film or computer-generated micro fiche. This covers a vast range of digital content — emails, text messages, digital images, audio and video recordings, computer databases, spreadsheets, website content, social media posts, and more.

**2. Four Conditions for Admissibility — Section 65B(2)**

The electronic record is admissible if:

- **(a)** The computer output was produced during the period when the computer was regularly used to store or process information for the purposes of any regularly conducted activity;

- **(b)** During that period, the information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of those activities;

- **(c)** Throughout the material part of the period, the computer was operating properly, or if not, the malfunction did not affect the accuracy of the electronic record; and

- **(d)** The information reproduced is a reproduction or derivation of information fed into the computer in the ordinary course of the stated activities.

**3. Certificate Requirement — Section 65B(4)**

A certificate must be produced that:

- Identifies the electronic record containing the statement and describes the manner in which it was produced;

- Gives particulars of the device involved in the production of the electronic record;

- Deals with any of the matters mentioned in sub-section (2) to which the certificate relates; and

- Is 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.

**4. Multiple Computers**

Section 65B(3) provides that where the electronic record is produced by a combination of computers operating over a period, all the computers shall be treated as constituting a single computer. This accommodates modern networked systems where data may be processed and stored across multiple servers and devices.

**5. Mandatory Nature of the Certificate**

The Supreme Court in *Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal* (2020) held that the Section 65B(4) certificate is a condition precedent for admissibility and is mandatory in all cases where the original electronic record is not produced. Without the certificate, the electronic evidence is inadmissible.

Practical Application

**Producing Electronic Evidence**: Any party seeking to rely on electronic evidence must: (a) identify the electronic record, (b) produce the electronic record (printout, copy on optical/magnetic media), (c) obtain and produce a Section 65B(4) certificate from the person responsible for the computer or device, and (d) comply with the conditions of Section 65B(2).

**Who Issues the Certificate**: The certificate must be signed by a person occupying a responsible official position in relation to the operation of the device or the management of the relevant activities. For a company's email records, this could be the IT administrator. For CCTV footage, it could be the security manager. For mobile phone records, it could be a representative of the telecom service provider.

**WhatsApp and Social Media**: WhatsApp messages, Facebook posts, Instagram content, and other social media evidence must comply with Section 65B. The party must produce a printout or electronic copy along with a certificate. Screenshots alone, without a proper certificate, may be challenged for admissibility.

**CCTV Footage**: CCTV footage is a common form of electronic evidence. The prosecution or party relying on it must produce the footage along with a certificate from the person responsible for the CCTV system, certifying the conditions of Section 65B.

**When Certificate Is Not Needed**: If the original electronic device or computer that produced the electronic record is itself produced before the court, the certificate may not be required. The certificate is needed when secondary evidence of the electronic record (printouts, copies) is produced instead of the original device.

Important Judgments

**1. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1**

A three-judge bench of the Supreme Court settled the controversy over the mandatory nature of the Section 65B(4) certificate. The Court held that the certificate is mandatory whenever electronic evidence is produced as secondary evidence. Without the certificate, the evidence is inadmissible. The Court overruled the contrary view taken in Shafhi Mohammad v. State of Himachal Pradesh (2018) and restored the position laid down in Anvar P.V. v. P.K. Basheer (2014).

**2. Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473**

The Supreme Court held that electronic records can be proved only in accordance with Section 65B. The certificate under Section 65B(4) is a precondition for admissibility. The Court clarified that Sections 63 and 65 of the Evidence Act (dealing with secondary evidence of documents) do not apply to electronic records — Section 65B is a self-contained code for electronic evidence.

**3. Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801**

A two-judge bench held that if the electronic record was produced by a party who was not in possession of the original device (such as a bystander who recorded a video on their phone), the certificate requirement could be relaxed. This was subsequently overruled by the three-judge bench in Arjun Panditrao Khotkar (2020).

**4. Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178**

The Supreme Court held that electronic evidence in the form of call records, CCTV footage, and email communications can be admitted if it satisfies the conditions of Section 65B, including the certificate requirement. The Court emphasised the importance of maintaining the chain of custody of electronic evidence.

**5. State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600**

In the Parliament attack case, the Supreme Court discussed the admissibility of electronic evidence, including call records and mobile phone data. The Court held that electronic records are admissible under Section 65B read with Section 65 of the Evidence Act, though this aspect was later clarified by Anvar P.V. v. P.K. Basheer.

Frequently Asked Questions

What is a Section 65B certificate and who must sign it?

A Section 65B(4) certificate is a document that authenticates electronic evidence produced before a court. It must identify the electronic record, describe how it was produced, confirm that the conditions of Section 65B(2) are satisfied (regular use, proper functioning, faithful reproduction), and give particulars of the device involved. The certificate must be signed by a person occupying a responsible official position in relation to the operation of the device or the management of the activities for which the computer was used. This could be an IT administrator, a system administrator, a network manager, or any other person with actual knowledge of the device and its operations.

Can WhatsApp messages be used as evidence in court?

Yes, WhatsApp messages can be used as evidence, but they must comply with Section 65B of the Evidence Act (Section 63 BSA). The party seeking to rely on WhatsApp messages must produce printouts or electronic copies along with a Section 65B(4) certificate. The certificate should be issued by a person responsible for the device from which the messages are extracted. In practice, this can be the owner of the phone who takes screenshots and provides a certificate. Additionally, the authenticity of the messages may need to be established through other corroborating evidence to counter claims of fabrication or tampering.

Is the Section 65B certificate always required?

The certificate is required whenever electronic evidence is produced as secondary evidence — that is, when printouts, copies, or reproductions of the original electronic record are produced. If the original electronic device itself (such as the computer or hard drive that contains the original data) is produced before the court, the certificate may not be required. However, in the vast majority of cases, it is the secondary evidence (printouts, copied files) that is produced, making the certificate mandatory. The Supreme Court in Arjun Panditrao Khotkar (2020) made this position clear.

What happens if electronic evidence is produced without a Section 65B certificate?

Electronic evidence produced without a Section 65B(4) certificate is inadmissible. The court cannot consider it as evidence. However, the Supreme Court in Arjun Panditrao Khotkar observed that if the deficiency is pointed out, the party may be given an opportunity to produce the certificate at a later stage, subject to the discretion of the court and the stage of the proceedings. The court may also permit production of the certificate at the appellate stage in appropriate cases. But the safest course is to ensure the certificate is produced at the earliest opportunity.

---

*This content is for educational and informational purposes only and does not constitute legal advice. For guidance on specific situations, consulting a qualified legal professional is recommended.*