Electronic evidence has become unavoidable in modern litigation. Messages, emails, and call records are now crucial in cases. CCTV footage and social media posts are also vital. Additionally, transaction logs and server data form the backbone of both civil and criminal cases. However, digital convenience does not mean legal admissibility. Electronic evidence is governed by strict statutory requirements, primarily under Section 65B of the Indian Evidence Act, 1872.
If Section 65B is not complied with, electronic evidence is legally non-existent, no matter how genuine or damning it appears.
Meaning of Electronic Evidence
Electronic evidence refers to any information stored, recorded, or transmitted in electronic form. This includes data generated by computers, mobile phones, servers, cameras, and digital networks.
Unlike traditional documents, electronic records are intangible, easily alterable, and dependent on machines. This inherent vulnerability is the reason the law treats electronic evidence differently and more strictly.
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Legislative Background of Section 65B
Section 65B was inserted by the Information Technology Act, 2000 to address admissibility of electronic records. It creates a special legal regime for digital evidence, overriding general rules relating to documentary evidence.
The provision recognises that courts cannot directly rely on electronic data unless its integrity, authenticity, and source are properly established.
What Section 65B Actually Does
Section 65B allows electronic records to be admitted in evidence in the form of computer output, such as printouts, CDs, DVDs, pen drives, or other storage media.
However, this admissibility is conditional. Electronic evidence is admissible only if the statutory conditions under Section 65B are satisfied.
This is not a procedural formality. It is a substantive legal requirement.
Conditions for Admissibility under Section 65B
For an electronic record to be admissible, the following conditions must be fulfilled:
The computer from which the output is produced must have been used regularly to store or process information during the relevant period.
The information must have been fed into the computer in the ordinary course of activities.
The computer must have been operating properly during the relevant period, or any malfunction must not have affected the accuracy of the record.
The information in the electronic record must be a reproduction of the original data.
Failure to satisfy even one condition makes the electronic evidence inadmissible.
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Section 65B Certificate
The most critical requirement under Section 65B is the certificate under Section 65B(4).
This certificate must:
- Identify the electronic record
- Describe the manner in which it was produced
- Give particulars of the device involved
- Certify compliance with Section 65B conditions
The certificate must be signed by a person occupying a responsible official position in relation to the operation of the device or management of the relevant activities.
Without this certificate, electronic evidence cannot be read in evidence, regardless of relevance or probative value.
Mandatory Nature of the Certificate
Courts have made it clear that the Section 65B certificate is mandatory, not optional.
Oral evidence cannot substitute the certificate.
Expert opinion cannot replace it.
Judicial discretion cannot waive it.
If the certificate is missing, the evidence is inadmissible. Period.
Electronic Evidence vs Primary Evidence
A common misconception is treating electronic records as primary evidence. In law, electronic evidence is deemed documentary but governed by special rules.
Even original electronic data stored in a device cannot be admitted without compliance with Section 65B unless the original device itself is produced and examined in court, which is rarely practical.
Therefore, Section 65B acts as the legal gateway for digital evidence.
Timing of the Certificate
The certificate does not have to be filed at the time of filing the suit or chargesheet. However, it must be produced at the time the electronic evidence is tendered in evidence.
Late production may be permitted in limited circumstances, but this is discretionary and risky. Practically, relying on post-facto curing is bad litigation strategy.
Practical Importance in Litigation
Most cases involving:
- WhatsApp chats
- Call Detail Records (CDRs)
- CCTV footage
- Emails
- Social media posts
- Digital transactions
fail not because the data is false, but because Section 65B compliance is ignored.
Lawyers who overlook this provision sabotage otherwise strong cases.
Criticism and Challenges
Section 65B has been criticised for being rigid, especially when access to the original device or certifying authority is impossible. However, the rigidity is intentional.
Digital evidence is easy to manipulate. The law prioritises reliability over convenience.
Until legislative reform occurs, courts are bound by the statutory mandate.
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Section 65B is the gatekeeper of electronic evidence. It does not ask whether the evidence is relevant or convincing. It asks whether the evidence is legally trustworthy.
No certificate, no evidence.
No compliance, no consideration.
In the digital age, knowing how to collect evidence is useless unless you know how to prove it in court. Section 65B is not optional literacy for lawyers—it is survival knowledge.
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