Almost every dispute today carries a digital trail. WhatsApp screenshots. CCTV footage. Email exchanges. Call records. Bank statements pulled from net banking. Yet many of these documents fail in court, not because they are false, but because the party producing them ignored a small but rigid provision: Section 65B of the Indian Evidence Act, 1872 (now reproduced as Section 63 of the Bharatiya Sakshya Adhiniyam, 2023).

This guide unpacks the law on admissibility of electronic evidence in India, the Section 65B certificate, the two landmark Supreme Court rulings that shaped it, and the practical lessons for litigators and citizens.

Why Section 65B Exists

Electronic records are easy to manipulate. A few clicks can edit a date, delete a sentence, or fabricate a message. Indian law responded by treating computer outputs not as primary evidence but as secondary evidence, admissible only under specific safeguards.

Section 65A of the Evidence Act introduced the special regime. Section 65B set out the conditions. Together, they form a self-contained code on electronic evidence. Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, carries forward the same framework, with added requirements like re-certification at every fresh production.

What the Section Requires

Section 65B(1) treats a computer output (a printout, a CD, a USB copy) as a document admissible in court, provided four conditions in Section 65B(2) are met:

• The computer was used regularly during the relevant period by a person having lawful control over its use
• The information was regularly fed into the computer in the ordinary course of activity
• The computer was operating properly throughout the period (or any malfunction did not affect the accuracy)
• The information in the output is derived from the information fed into the computer

Section 65B(4) adds the critical procedural lock: a certificate must accompany the electronic record. The certificate must identify the electronic record, describe the manner of its production, give particulars of the device that produced it, and be signed by a person occupying a responsible official position in relation to the device.

The Section 65B Certificate Format

A typical 65B certificate covers:

• Description of the electronic record (WhatsApp chat, CCTV clip, email, bank statement)
• Source device: make, model, serial number, IMEI for phones
• Software used
• Hash value, where practicable
• Period during which the computer was operating
• Statement that the device was functioning properly
• Statement that the data is an accurate reproduction
• Designation, address, and signature of the certifying person

A weak certificate sinks otherwise strong evidence. A missing certificate is fatal in most situations. This is why electronic evidence sits at the heart of any conversation about admissibility of electronic evidence today.

FIRAC: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

Facts: An election dispute in Kerala turned on recorded speeches alleged to be defamatory. The petitioner produced audio CDs and a USB drive containing copies of the original recordings. No Section 65B certificate accompanied them.

Issue: Can secondary electronic evidence be admitted without a Section 65B(4) certificate?

Rule: Sections 65A and 65B of the Indian Evidence Act.

Application: The Court held that Sections 65A and 65B form a complete code for electronic evidence. Sections 63 and 65 of the Act, which deal with general secondary evidence, have no application to electronic records. A certificate under Section 65B(4) is mandatory for secondary copies. Original records produced by the owner of the computer may not need a certificate.

Conclusion: Secondary electronic evidence without a 65B certificate is inadmissible. The earlier decision in State (NCT of Delhi) v. Navjot Sandhu, which had allowed flexible admission, was overruled.

FIRAC: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1

Facts: A returning officer in an election dispute relied on video CDs and electronic records. The party producing them failed to obtain a complete Section 65B(4) certificate. The losing party challenged admissibility.

Issue: Is the Section 65B(4) certificate strictly mandatory? What if the certifier refuses to issue one?

Rule: Section 65B of the Indian Evidence Act, 1872.

Application: A three-judge Bench reaffirmed Anvar and clarified the position. The certificate is mandatory for secondary electronic evidence. Where the certifier refuses, the party can move the court for a summons under Section 65B(5) or invoke Section 165 of the Evidence Act to direct production. Courts must take a pragmatic approach but cannot waive the certificate.

Conclusion: The 65B certificate is mandatory. The party producing the evidence carries the responsibility of obtaining it through proper channels.

The Bharatiya Sakshya Adhiniyam, 2023

The new statute, effective from 1 July 2024, replaces the Evidence Act. Section 63 of the BSA largely tracks Section 65B, with a few important additions: the certificate has a prescribed format under the Schedule, re-certification is needed each time the same electronic record is produced in a different proceeding, and the certificate must clearly identify hash values where used. The shift modernises the law without diluting the underlying gatekeeping function.

When You Do Not Need a Section 65B Certificate

A certificate is not needed where the original electronic record is produced. For example, a person carrying their own smartphone to court and showing a message on it, with the court directly inspecting the device. Or the owner of the email account deposing about the content while logged in. In practice, courts rarely accept this. Most cases involve printouts, screenshots, or copies on external storage, all of which are secondary copies. A certificate becomes essential.

Practical Lessons for Litigators

• Treat the certificate as a routine attachment to every digital document filed
• Get the certificate at the time of collection, not after the trial begins
• Have the person who actually controls the device sign, not a lawyer or junior employee
• Capture hash values for clips and screenshots
• Save the source device until trial; courts may direct inspection

Common Mistakes

• Filing screenshots from WhatsApp without a certificate and the original device available
• Using a colleague’s certificate for someone else’s data
• Treating the certificate as a one-time event, when the Bharatiya Sakshya Adhiniyam now requires re-certification
• Forgetting to include the period during which the device was working properly

Other Pieces of the Evidence Puzzle

Section 65B sits inside a larger evidence framework. A confession to police remains inadmissible under Section 25 of the Evidence Act (Section 23 BSA). A dying declaration has its own exception under Section 32. Circumstantial evidence requires a complete chain. The burden of proof in civil matters rests on the plaintiff, while in criminal matters, the prosecution must establish guilt beyond reasonable doubt. Section 106 evidence act places the burden of proving a fact specially within someone’s knowledge on that person. A hostile witness can be cross-examined by the party that called them, with the court’s permission. The same care that goes into a 65B certificate should go into all of these. But Section 65B is the threshold issue for any electronic evidence to even enter the courtroom.

Closing Thought

In our practice, more cases turn on documentary fitness than on factual merits. A well-prepared litigant who walks into court with the right certificates, hash values, and source devices is already half the way home. The law on electronic evidence in India is strict for a reason. Trust in digital records can only exist if the courtroom imposes a discipline that mirrors how courts have always treated paper trails. Section 65B does exactly that.

References

• Indian Evidence Act, 1872, Sections 65A and 65B
• Bharatiya Sakshya Adhiniyam, 2023, Section 63
• Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473
• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1
• State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 (overruled in relevant part)
• Cyril Amarchand Blogs, “Section 65B of the Indian Evidence Act, 1872”
• Lexology, “Judicial Interpretation of Section 65B Over the Years”