Section 65-B of the Indian Evidence Act: Admissibility of Electronic Evidence in Indian Jurisprudence

Section 65-B of the Indian Evidence Act: Admissibility of Electronic Evidence in Indian Jurisprudence

Abstract

Section 65-B of the Indian Evidence Act, 1872 epitomises the Indian judiciary’s struggle to reconcile classical evidentiary doctrine with the realities of a digital society. This article critically examines the evolution of judicial interpretation of Section 65-B, charts the oscillation between permissive and stringent approaches, and evaluates the present doctrinal position following the Supreme Court’s decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020). Drawing on seminal authorities—Navjot Sandhu, Anvar P.V., Sonu alias Amar, Shafhi Mohammad, and allied High Court jurisprudence—the article argues that while the current law favours strict compliance, limited equitable exceptions safeguard against evidentiary impossibility. Policy lacunae relating to data retention, certification logistics, and technological neutrality are also identified.

1. Introduction

The insertion of Sections 65-A and 65-B through the Information Technology Act, 2000 signified Parliament’s intention to treat electronic records as documents subject to sui generis safeguards. Yet, two decades later, litigants and courts continue to grapple with the scope, rigour, and procedural nuance of Section 65-B. A coherent understanding is critical because electronic evidence—ranging from CCTV footage and call detail records (CDRs) to social-media metadata—frequently constitutes the best or only proof in modern litigation.

2. Legislative Framework

Section 65-B(1) contains a non-obstante clause rendering an authenticated “computer output” admissible “without further proof or production of the original”. Sub-section (2) prescribes four foundational conditions relating to regular use, ordinary course feeding, proper operation of the computer, and faithful reproduction. Sub-section (4) mandates a certificate identifying the electronic record, describing the manner of production, and bearing the signature of a person occupying a “responsible official position”. Read conjunctively with Sections 59, 62, 63, 65 and 65-A, the provision erects a two-tier scheme: (i) primary electronic evidence (original media) under Section 62 does not require certification, whereas (ii) secondary electronic evidence is inadmissible absent a Section 65-B(4) certificate.

3. Evolution of Judicial Interpretation

3.1 The Permissive Phase: State (NCT of Delhi) v. Navjot Sandhu (2005)

In the prosecution arising from the 2001 Parliament attack, the Supreme Court admitted uncertified CDRs on the testimony of service-provider officials, holding that Section 65-B did not “rule out” secondary evidence under Sections 63 and 65.[1] This pragmatic stance, though expedient, diluted the statutory safeguards and created doctrinal ambiguity for nearly a decade.

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

Overruling Navjot Sandhu, a three-judge bench held that Section 65-B is a “complete code” for electronic records; secondary electronic evidence is inadmissible without strict compliance.[2] The judgment emphasised textual fidelity to the non-obstante clause and rejected “substantial compliance” arguments.

3.3 Transitional Cases: Sonu alias Amar v. State of Haryana (2017)

While upholding convictions based on uncertified CDRs, the Court reasoned that objections to mode of proof must be raised at trial; failure to object results in waiver, unless the document is inherently inadmissible.[3] The verdict underscored procedural discipline but did not undermine Anvar’s substantive holding.

3.4 Doctrinal Dilution: Shafhi Mohammad v. State of Himachal Pradesh (2018)

A two-judge bench, invoking lex non cogit ad impossibilia, held that certification is unnecessary when the party is not in possession of the device.[4] The decision introduced an expedient but textually tenuous exception, rekindling uncertainty.

3.5 Consolidation: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

Resolving the conflict, a co-equal bench reaffirmed Anvar, overruled Shafhi Mohammad and the Madras High Court ruling in K. Ramajayam, and declared Section 65-B(4) mandatory.[5] However, it preserved an equitable window: if obtaining a certificate is impossible despite due diligence, courts may order its production under the Code of Civil/Criminal Procedure, or admit the evidence if the impossibility persists.

3.6 Subsequent Reaffirmations

Decisions such as Chandrabhan Sudam Sanap v. State of Maharashtra (2025)[6] and numerous High Court rulings (e.g., Balbir Singh, P&H 2025; Sadam Prasad Thakur, Chhattisgarh 2022) have faithfully applied Arjun Khotkar, signalling judicial consolidation.

4. Core Doctrinal Elements of Section 65-B

4.1 Mandatory Certification

The combined reading of Anvar and Arjun Khotkar leaves little doubt that a Section 65-B(4) certificate is a condition precedent to admissibility of secondary electronic evidence. Oral testimony cannot cure the defect because “to hold otherwise would render Section 65-B(4) otiose”.[5]

4.2 Primary v. Secondary Electronic Evidence

Where the original medium (e.g., DVR, server, mobile phone) is produced, the evidence is primary and admission is governed by Section 62, not Section 65-B.[7] This distinction explains High Court outcomes such as Kishan Tripathi v. State (Delhi 2016) where CCTV footage on the original hard drive was admitted sans certificate.

4.3 Equitable Exceptions: Impossibility Doctrine

Arjun Khotkar reconciles strict compliance with practical realities by invoking impotentia excusat legem. When the device is controlled by a third party (e.g., telecom provider) that refuses to issue a certificate, courts may compel production under procedural law or treat the requirement as fulfilled if compliance is impossible. This prevents the statute from “stultifying itself”.[5]

4.4 Waiver and Prospective Overruling

Sonu alias Amar held that failure to object at trial may waive evidentiary objections, but did not adopt prospective overruling of Anvar. Thus, while certification is mandatory, litigants must raise timely objections; appellate courts will rarely disturb concurrent findings based on waived objections.

4.5 Relationship with Expert Testimony

Section 45A (inserted 2020) permits reliance on a digital evidence examiner, yet such expert opinion cannot substitute the statutory certificate; it operates post-admission to establish integrity or detect tampering.

5. Comparative Analysis of Reference Materials

5.1 Navjot Sandhu: Telephonic Evidence in Terrorism Trials

The Court’s readiness to accept uncertified CDRs stemmed from security exigencies under POTA. However, Anvar’s overruling reaffirms that national-security concerns cannot override clear statutory text, ensuring due-process parity even in terrorism prosecutions.

5.2 Tomaso Bruno v. State of U.P. (2015)

Although primarily about circumstantial evidence, Tomaso Bruno lamented investigative failure to collect CCTV footage, illustrating the probative superiority of electronic evidence and underscoring the need for robust admissibility standards.[8]

5.3 High Court Practice Post-Anvar

  • Kundan Singh v. State (Del 2015) espoused strict certification, treating Section 65-B as a procedural innovation enabling secondary evidence without producing servers.
  • Preeti Jain v. Kunal Jain (Raj 2016) excluded uncertified pin-hole camera recordings, reaffirming marital-privilege objections under Section 122 alongside Section 65-B.
  • State of Maharashtra v. Ramesh Darandale (Bom 2019) scrutinised nodal-officer certificates, demonstrating the judiciary’s insistence on qualitative compliance.

6. Interplay with Procedural and Substantive Law

Electronic evidence often intersects with special statutes (e.g., POTA, Prevention of Corruption Act, Information Technology Act). While these laws may create substantive offences, the modus probandi for digital material remains tethered to Section 65-B, unless the special statute expressly overrides it. Investigative agencies must, therefore, synchronise seizure, hash-value preservation, and certification protocols with CrPC provisions (Sections 91, 92, 165) to secure admissibility.

7. Unresolved Issues and Policy Considerations

  • Retention Periods: Telecom licences require retention of CDRs for only one year. Delayed investigation may render certification impossible, necessitating statutory extension or archival obligations.
  • Standard-Form Certificates: No unified template exists, causing inconsistency. The Bureau of Police Research and Development’s draft SOP remains advisory; legislative codification could enhance uniformity.
  • Technological Neutrality: Section 65-B was conceived in an era of optical and magnetic media. Blockchain, cloud computing, and IoT devices challenge its vocabulary (“computer”, “output”), urging interpretive elasticity or legislative refresh.
  • Privacy and Authenticity: Certification ensures authenticity but not legality of acquisition. Parallel compliance with privacy jurisprudence (Puttaswamy) and interception regulations under the Telegraph and IT Acts remains imperative.

8. Conclusion

The jurisprudence of Section 65-B has travelled from permissive pragmatism (Navjot Sandhu) to textual rigidity (Anvar), flirted with flexibility (Shafhi Mohammad), and finally settled into principled strictness tempered by equitable exception (Arjun Khotkar). The current doctrine demands meticulous compliance, yet accommodates genuine impossibility, thus balancing evidentiary integrity with substantive justice. Going forward, legislative fine-tuning—standardised certification formats, extended retention mandates, and technology-neutral terminology—will help stabilise the law and cement Section 65-B’s role as the gatekeeper of digital truth in Indian courts.

Footnotes

  1. State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600.
  2. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.
  3. Sonu alias Amar v. State of Haryana, (2017) 8 SCC 570.
  4. Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801.
  5. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.
  6. Chandrabhan Sudam Sanap v. State of Maharashtra, (2025) SCC OnLine SC —.
  7. Kishan Tripathi v. State, 2016 SCC OnLine Del 1136.
  8. Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178.