Format of a Section 65B Certificate: Affidavit is not the way to go

Recently, I have come across many recommendations on the format in which Section 65B Certificates are to be provided. The popular recommendation is to suggest that we just give an affidavit stating 'I affirm that the enclosed print outs are a replica of the electronic document…etc'.

In some cases it is suggested that the certificate is given by the litigant and in some cases by the advocate.

As a person who produced the first Section 65B certificate in India in the historic Suhas Katti case in 2004, I am a little uncomfortable with a wrong procedure getting into the submission of such certificates. If this continues, soon there will be confusion in some lower courts on how to proceed.

We have already seen one appeal where a convicted person appealed against the verdict for the reason that his conviction was based on electronic documents not certified under Section 65B. We will see more such challenges in future if a wrong method is patronized. After all though the Section 65B certification requirement was there since 17th October 2000, until one bench of Supreme Court realised the lacuna in the P.K. Basheer case, the entire system went merrily along ignoring the provision.

Now suddenly there is a rush to find out the correct form in which the certificate may be given and several incorrect suggestions are making rounds. Without intending any disrespect to anybody who may be using the Affidavit format of the Certificate, I would like to place my considered view on the matter so that I will not contribute to the proliferation of an incorrect methodology crystalizing by remaining silent.

Section 65B Certificate is a method suggested in law to assist the Court to appreciate an electronic evidence which is in binary form and dependent on the hardware and software spread across different locations, with a 'Certified Document' where the certifier tells the Court, 'Kindly accept this  computer output which I have produced after perusing the electronic document required by you as evidence. In good faith I confirm that this is a faithful reproduction of a matter of fact'.

I have provided a more detailed explanation in ceac.in about the different reasons why the Certificate can be produced by 'Any person who can experience the electronic document' and not necessarily the Administrator of an ISP etc.

At this point of time, I want to make just one additional point here on what I think will be the impact of an advocate submitting the certificate.

As in the case of the certificate submitted by the litigant, a certificate submitted by an advocate will also be a self serving evidence which will start on the back foot from the credibility point of view.

Apart from this, if an advocate stands in the shoes of the certifier, I think  he would be a deemed witness in his own case.

Though at the admission stage, the certifier need not necessarily be also a witness on stand, if the certificate is challenged, he may have to stand as a witness and subject himself to a cross examination.

At least in the case of the litigant he takes the stand as a plaintiff or a defendant and his views become part of the submission to  the Court. Hence his certified copy is as weak or as strong as his complaint itself.

But in the case of the advocate it would be an anomaly since he becomes his own witness. If the defendant challenges the document, the Certifier has to stand in the witness box and face cross examination. If the certificate is produced by the advocate of the litigant, there will be no option for the opposing lawyer but to put the litigant’s advocate to embarrassment asking him to be cross examined.

In many instances the root electronic document on which a section 65B certificate has been produced might not be available for verification at the time of the trial and hence the Certified copy is all that the Court has to believe the submission of the plaintiff or the defendant who has produced the electronic document.

It is preferable therefore that a trusted third party submits the certificate. His credibility becomes part of the weightage given to the evidence.

I hope these teething troubles will be sorted out in time. However, in all sensitive cases where the evidence is critical, I strongly suggest that litigants and advocates donot take the risk of producing such 'Affidavitized Section 65B Certificates' which may be challenged by the opposing parties either immediately during the trial or if necessary again on appeal.