Section 65-B of the Indian Evidence Act — Evolution, Strictures, and Contemporary Challenges

Section 65-B of the Indian Evidence Act — Evolution, Strictures, and Contemporary Challenges

Introduction

The digitalisation of communications, banking, commerce, and governance has generated vast volumes of electronic data. Indian courts, accordingly, confront the twin imperatives of reliability and expeditious adjudication when electronic records are tendered in evidence. Section 65-B of the Indian Evidence Act, 1872 (“Evidence Act”)—inserted by the Information Technology Act, 2000—constitutes the statutory gateway for the admissibility of such records. Over two decades, judicial interpretation of this provision has oscillated from flexible admissibility to rigorous formalism, before coalescing—most recently—in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) (“Arjun Khotkar”). This article critically analyses the statutory text, jurisprudential trajectory, procedural dilemmas, and prospective reforms relating to Section 65-B, drawing upon the leading authorities supplied in the reference materials.

Statutory Framework

Section 65-A declares that electronic records “may be proved in accordance with the provisions of section 65-B”. Section 65-B, in turn, envisages:

  • a legal fiction deeming computer outputs (print-outs, copies, optical or magnetic media) to be documents (sub-s. (1));
  • four foundational conditions concerning regular use, ordinary feeding, proper operation, and integrity of source data (sub-s. (2));
  • an exemption from proving the original computer (sub-s. (1) proviso); and
  • a mandatory certificate (sub-s. (4)) identifying the record, device particulars, and compliance with the conditions, signed by a person in a “responsible official position”.

The provision commences with an overriding clause—“Notwithstanding anything contained in the Act”—thereby eclipsing Sections 63 & 65 (secondary evidence) and Section 62 (primary evidence) where its pre-conditions apply.[1]

Jurisprudential Trajectory

1. The Pre-Anvar Era: Flexibility and Judicial Discretion

In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) the Supreme Court admitted call-records on the basis of oral testimony under Sections 63 & 65, holding that Section 65-B offered only “an alternative method”.[2] Although pragmatic in combating terrorism, this stance diluted the textual command of the non-obstante clause.

2. Anvar P.V. v. P.K. Basheer (2014): The Paradigm Shift

A three-judge Bench overruled Navjot Sandhu, pronouncing Section 65-B a sui generis code for electronic evidence; non-production of the certificate rendered the CDs inadmissible.[3] The judgment resurrected statutory formalism, insisting that “substantial compliance” was insufficient.

3. Post-Anvar Divergence

  • Tomaso Bruno v. State of U.P. (2015) invoked pragmatic considerations, seemingly employing Section 63 when CCTV footage was not produced, thus creating doctrinal tension.[4]
  • Sonu @ Amar v. State of Haryana (2017) reaffirmed the necessity of Section 65-B certificates but treated objections as waivable if not raised at trial, invoking the doctrine of prospective overruling.[5]
  • Shafhi Mohammad v. State of H.P. (2018) carved an equitable exception where the party lacked device-control, holding the certificate not mandatory.[6]

4. Restatement in Arjun Khotkar (2020)

A co-ordinate three-judge Bench overruled Shafhi Mohammad and clarified that:

  1. Section 65-B is a compulsory statutory pre-condition for all secondary electronic records;[7]
  2. However, where the device-holder is unwilling or unavailable, courts may summon the certificate or exercise powers under the Evidence Act & CrPC, applying the maxims lex non cogit ad impossibilia and impotentia excusat legem;[8]
  3. The ruling operates prospectively from 14.07.2005 (date of Navjot Sandhu), rescuing convictions based on bona fide reliance on the earlier position.[7]

5. Procedural Nuances: Timing of Certificate

In State by Karnataka Lokayukta v. M.R. Hiremath (2019) the Court held that the certificate need not accompany the charge-sheet; it suffices if produced “when the electronic record is tendered in evidence at trial”.[9] This aligns with Section 173 CrPC (police report) which concerns materials relied upon but does not dictate evidentiary admissibility thresholds.

Substantive Rationale Behind the Certificate

The certificate serves four inter-locking objectives:

  1. Authenticity – verifying the source device and unaltered extraction;
  2. Reliability – confirming proper functioning during the period of data capture;
  3. Chain of Custody – supplying meta-data to map the record’s journey;
  4. Judicial Economy – obviating the need to summon and examine complex hardware.[10]

Doctrinal Critique

While Arjun Khotkar restores textual fidelity, critics underscore practical impediments:

  • Third-party Control: Social-media platforms, telecom operators, and CCTV vendors may be foreign entities or reluctant actors.
  • Forensic Fluidity: Rapid technological obsolescence complicates demonstrating “regular use” and “proper operation”.
  • Investigative Delay: Obtaining certificates post-seizure can stall investigations, clashing with speedy-trial mandates under Article 21 of the Constitution.

High Courts have witnessed suppression of probative materials solely on technical non-compliance (e.g., Kundan Singh v. State, 2015 Del HC; Balbir Singh v. Shiromani Panth Akali Budha Dal, 2025 P&H HC). Such outcomes invite inquiry whether procedural rigor disproportionally impedes substantive justice.

Accommodation Mechanisms Post-Arjun Khotkar

1. Judicial Directions

Trial courts may invoke Sections 91 & 165 CrPC, Section 165 Evidence Act, and their inherent powers to:

  • Summon the device-holder or nodal officer for certificate issuance;
  • Permit additional evidence under Section 311 CrPC to cure defects (Sonu @ Amar principle of “curable defect”).

2. Standard Operating Procedures (SOPs)

Pursuant to Shafhi Mohammad, the Ministry of Home Affairs’ Committee of Experts (2018) published Model SOPs for videography, prescribing contemporaneous certificate generation and secure hash values to detect tampering.

3. Legislative Re-examination

The concurring opinion of V. Ramasubramanian J. in Arjun Khotkar exhorted Parliament to “relook at Section 65-B … which has created a huge judicial turmoil”.[11] Possible reforms include:

  1. Inserting a deeming presumption for records sourced from certified government portals;
  2. Authorising self-authenticating hash-value affidavits akin to Rule 902 of the US Federal Rules of Evidence;
  3. Creating graded compliance where low-stake civil disputes tolerate substantial compliance, while terrorism/NDPS prosecutions retain strictness.

Interface with Substantive Criminal Law

The trajectory of electronic-evidence admissibility directly shapes outcomes in substantive offences:

  • Terrorism – Call-detail records in Navjot Sandhu were pivotal for conspiracy findings under Section 121 IPC and POTA.
  • Corruption – Spy-cam footage in M.R. Hiremath influenced the reinstatement of trial for offences under the Prevention of Corruption Act.
  • Election Petitions – Video recordings of nomination filings were determinative in Arjun Khotkar, leading to voiding of a legislative seat under the Representation of the People Act.

Comparative Jurisprudence

The English Criminal Justice Act 2003 permits electronic records subject to “best evidence” safeguards without insisting on a certificate; Canadian law (s. 31.3, Canada Evidence Act 1985) incorporates business-records exceptions with party-neutral reliability factors.[12] Indian insistence on a certificate is therefore unique in its rigidity, though the introduction of lex non cogit ad impossibilia exceptions moderates the harshness.

Conclusion

Section 65-B represents Parliament’s attempt to calibrate evidentiary authenticity amidst the digital revolution. Judicial construction has now settled upon a strict-but-workable model: (i) insistence on the statutory certificate for secondary electronic records, (ii) curative judicial powers where production is impossible despite diligence, and (iii) prospective balance to prevent miscarriages of justice. Yet, operational bottlenecks persist. A focused legislative amendment, harmonising technological realities with evidentiary safeguards, is imperative to forestall further “judicial turmoil” and to uphold the constitutional mandate of fair, speedy, and effective trials in the information age.

Footnotes

  1. Section 65-B(1), Evidence Act, 1872.
  2. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600.
  3. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
  4. Tomaso Bruno v. State of U.P., (2015) 7 SCC 178.
  5. Sonu @ Amar v. State of Haryana, (2017) 8 SCC 570.
  6. Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801.
  7. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, paras 53–72.
  8. Id., paras 62–63 (invoking lex non cogit ad impossibilia).
  9. State by Karnataka Lokayukta v. M.R. Hiremath, (2019) 7 SCC 515.
  10. Statement of Objects and Reasons, Information Technology Bill 1999; see also K. Ramajayam v. Inspector of Police, 2016 Mad HC.
  11. Arjun Khotkar, concurring opinion of V. Ramasubramanian J., paras 120–121.
  12. Comparative analysis in Arjun Khotkar, paras 112–119.