A Cross-Domain Treatise on Electronic Evidence in Tax, Criminal, Matrimonial, and Commercial Litigation
Section 65B of the Indian Evidence Act, 1872 (now substantially—but not identically—replicated as Section 63 of the Bharatiya Sakshya Adhiniyam, 2023) is the statutory gateway that makes electronic records admissible as evidence in Indian courts across every domain of practice: tax assessments, criminal prosecutions, search-and-seizure proceedings, matrimonial disputes, and commercial litigation.
For practitioners, compliance with Section 65B/Section 63 is not a technicality. It determines whether call detail records, WhatsApp chats, emails, digital contracts, CCTV footage, and cloud-stored documents can be relied upon when rights, liabilities, and liberty are at stake. This treatise sets out the statutory framework, the four conditions, the certificate requirement, and the binding case law that governs evidence strategy in tax, criminal, matrimonial, and commercial matters.
1. Statutory Framework: From the Evidence Act to the Bharatiya Sakshya Adhiniyam
1.1 Section 65B, Indian Evidence Act, 1872
Section 65B was inserted by the Information Technology Act, 2000, to provide a special mechanism for admitting electronic records as documentary evidence. Under Section 65B(1), information contained in an electronic record—printed on paper or stored/recorded/copied in optical, magnetic, or semiconductor memory and produced by a computer—is deemed a document and is admissible without further proof of the original, provided the four conditions in Section 65B(2) are satisfied.
1.2 Bharatiya Sakshya Adhiniyam, 2023 (BSA) — What Actually Changed
The Indian Evidence Act, 1872, was replaced by the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024. Section 63 of the BSA replaces Section 65B and carries forward the four conditions for admissibility and the certificate requirement. Practitioners commonly describe Section 63 as “substantially replicating” Section 65B—that is true of the four-condition test, but it is not the whole picture, and the difference should be understood.
Section 63(4) BSA moves from a single-signatory certificate to a dual-signatory requirement—the certificate must now generally be signed both by the person occupying a responsible official position in relation to the device and by an expert, where an expert examination has been undertaken.
Section 63(4) also requires the certificate to disclose the hash value of the electronic record, a requirement absent from Section 65B(4) of the 1872 Act.
Section 63 carries a schedule prescribing a draft certificate form, giving the provision a more standardized procedural architecture than its predecessor.
For proceedings initiated before 1 July 2024, Section 65B of the 1872 Act continues to govern; for those initiated on or after that date, Section 63 BSA applies. Practitioners drafting or challenging certificates after that date should check the certificate against the dual-signatory and hash-value requirements specifically—a certificate that would have satisfied Section 65B(4) may not, on its face, satisfy Section 63(4).
2. The Four Conditions for Admissibility
Section 65B(2) (and Section 63(2) BSA) lays down four cumulative conditions that must be satisfied for an electronic record to be admissible as a document:
- Regular use: the computer/device must have been used regularly during the relevant period to store or process information for the activities of the person having lawful control over it.
- Regular feeding: information of the kind contained in the record must have been regularly fed into the computer in the ordinary course of the relevant activities.
- Proper operation: the computer must have been operating properly throughout, or any malfunction must not have affected the record or its accuracy.
- Ordinary-course derivation: the information in the record must reproduce or be derived from information fed into the computer in the ordinary course of those activities.
These conditions ensure the electronic record originates from a reliable system used in the normal course of business or personal activity, not from a process created for litigation.
3. The Certificate Requirement
3.1 Mandatory Nature
Section 65B(4) requires that a certificate accompany the electronic record wherever it is desired to give a statement in evidence under the section. The certificate must identify the record, describe the manner of its production, give particulars of the device, address the four statutory conditions, and be signed by a person in a responsible official position.
The person seeking to produce a certificate can procure the same before trial, or at the stage the electronic evidence is produced before the Court, and there is no bar on producing the certificate at the appellate stage as well, if the same could not, for reasons beyond the control of the person concerned, be procured before the trial court.
— Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1
3.2 When the Certificate Is Not Required
Both Anvar P.V. and Arjun Panditrao confirm that the certificate is required only for secondary electronic evidence—copies, printouts, CDs, screenshots, and extracted data. Where the original electronic device itself (the mobile phone, hard disk, memory card, or server) is produced before the court, no Section 65B/63 certificate is necessary, because the device is then primary evidence under Section 62 of the Evidence Act.
3.3 Timing and Compulsion
The certificate can be obtained and produced at any stage, including at trial; it need not be contemporaneous with seizure or creation of the record.
If the person controlling the record refuses to issue the certificate, the court can direct its production, including through an application under Section 91 CrPC/equivalent provisions of the Bharatiya Nagarik Suraksha Sanhita.
Arjun Panditrao expressly overruled Shafhi Mohammad v. State of H.P. (2018), which had suggested discretion to admit electronic evidence without a certificate in some cases.
4. Key Precedents
4.1 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473
This Constitution Bench judgment (Lodha, C.J.I., Kurian Joseph and Nariman, JJ., decided 18 September 2014) arose from an election petition alleging corrupt practices through CDs of campaign material. It held that Sections 65A and 65B form a complete code for the admissibility of electronic records, that secondary electronic evidence must comply with Section 65B(4)’s certificate requirement, and it overruled State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, on the point that secondary electronic evidence could be proved through oral evidence or Sections 63/65 without Section 65B compliance.
4.2 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1
This three-judge bench (Nariman, J.), decided 14 July 2020 on a reference arising from another election dispute, is now the definitive authority on Section 65B procedure. It reinforced Anvar, clarified that the certificate can be furnished at trial and need not be contemporaneous with seizure, held that courts can compel production of the certificate where the custodian refuses, confirmed no certificate is needed where the original device is produced, and overruled Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801.
4.3 Recent Applications: CDRs and CCTV in Criminal Cases
Two 2025 Supreme Court decisions illustrate how strictly the certificate requirement continues to be applied where electronic evidence is central to the prosecution’s case and should replace any reliance on unverifiable citations for this proposition.
In Rahil & Anr. v. State (Govt. of NCT of Delhi), 2025 INSC 858, a bench of Mehta and Bagchi, JJ. held that call detail records are computer-generated secondary evidence and are inadmissible without a Section 65B(4) certificate. The defense had raised objections at trial, putting the prosecution on notice, but no certificate was produced—the court applied the Anvar/Arjun Panditrao ratio and excluded the CDR exhibits.
In Chandrabhan Sudam Sanap v. State of Maharashtra, 2025 INSC 116, a capital case built substantially on CCTV footage and call data records, the Supreme Court’s scrutiny of Section 65B(4) compliance formed part of the broader finding of gaps in the chain of circumstantial evidence—underscoring that certificate defects carry consequence even where the underlying charge is grave.
5. Domain-Specific Applications
5.1 Tax Matters
Books of account, digital ledgers, emails evidencing transactions or benami arrangements, downloaded bank statements, and GST portal data routinely form the backbone of assessments.
For the Revenue to rely on printouts or extracted data as secondary evidence, a Section 65B/Section 63 certificate from the assessee’s IT officer, CFO, or system administrator is ordinarily required. Assessors may equally object to the Revenue’s own electronic material where certificates are absent or defective.
5.2 Criminal Matters and Search & Seizure
Call detail records in conspiracy or organised-crime cases, WhatsApp and email chats in cheating or blackmail matters, CCTV footage, and seized devices under the CrPC/BNSS, NDPS, or PMLA all engage the Section 65B/63 framework.
Where the original device is seized and produced, no certificate is needed. Where the prosecution relies on printouts or extractions, a certificate from the telecom operator, forensic examiner, or investigating officer is mandatory, as Rahil (2025 INSC 858) reaffirms.
5.3 Matrimonial and Divorce Proceedings
Electronic evidence—WhatsApp and SMS messages, emails, call records, photographs—is increasingly decisive in cruelty, adultery, and desertion allegations under the Hindu Marriage Act and allied statutes.
The Madhya Pradesh High Court, in a 2025 ruling reported as Smt. Anjali Sharma v. Raman Upadhyay (W.P. No. 3395 of 2023), permitted inter-spousal WhatsApp chats to be exhibited, reading Section 14 of the Family Courts Act, 1984 against the marital-communication privilege in Section 122 of the Evidence Act.
Conversely, a Patna High Court ruling reported in early August 2026 held that WhatsApp messages produced without a Section 65B certificate could not be relied upon to establish cruelty and set aside a divorce decree on that basis.
5.4 Commercial and Contractual Disputes
Digital contracts, e-signature audit trails, email negotiations, board resolutions stored electronically, and arbitration communications conducted over email or messaging platforms all require Section 65B/63 compliance when produced as secondary evidence, on the same principles applied in Anvar and Arjun Panditrao.
6. Practical Checklist for Legal Practitioners
Legal practitioners dealing with electronic evidence should consider the following practical steps:
- Identify the nature of the electronic evidence: primary (original device) or secondary (printout, extraction, screenshot).
- Map the source and custodian: telecom operator, bank, employer, spouse, assessee, or accused.
- Secure the certificate early: obtain it during discovery/notice stages in civil and tax matters; ensure the IO or forensic lab includes it with the charge sheet in criminal matters.
- Draft precise certificates: address all four conditions, describe the device/system, and—for proceedings governed by the BSA—ensure dual signatories and the hash value are included.
- Challenge defective evidence: file objections where certificates are absent, vague, single-signed post-BSA, or signed by an unauthorized person.
- Preserve original devices where possible, to avoid the certificate requirement altogether.
- Confirm which regime governs: Section 65B IEA for proceedings initiated before 1 July 2024; Section 63 BSA thereafter.
7. Conclusion
Section 65B of the Indian Evidence Act, and its successor Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, remain the critical bridge between raw electronic data and admissible evidence in Indian courts.
Anvar and Arjun Panditrao continue to govern the field, reaffirmed as recently as 2025 in Rahil and Chandrabhan Sudam Sanap, while Section 63 BSA introduces a materially stricter certificate architecture that practitioners must build into evidence strategy for any proceeding initiated on or after 1 July 2024.
This applies whether defending a tax assessment, prosecuting a criminal conspiracy, proving matrimonial cruelty, or enforcing a digital contract.
Citation Table
| Case | Key Details and Legal Principle |
|---|---|
| Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 | Constitution Bench (Lodha, C.J.I., Kurian Joseph & Nariman, JJ.), 18.09.2014. Held Ss. 65A/65B a complete code; overruled Navjot Sandhu on this point. |
| State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 | Overruled by Anvar P.V. on the point that secondary electronic evidence could be proved without an S.65B certificate. |
| Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 | Two-judge bench view that S.65B(4) certificate may be dispensed with in certain cases—expressly overruled by Arjun Panditrao. |
| Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 [2020 SCC OnLine SC 571] | Three-judge bench (Nariman, J.), 14.07.2020. Certificate is mandatory for secondary evidence; can be furnished at trial; court may compel production; not needed if original device is produced. |
| Rahil & Anr. v. State (Govt. of NCT of Delhi), 2025 INSC 858 | Mehta & Bagchi, JJ. CDRs held computer-generated secondary evidence, inadmissible absent S.65B(4) certificate despite opportunity to cure. Applies the Anvar/Arjun Panditrao ratio. |
| Chandrabhan Sudam Sanap v. State of Maharashtra, 2025 INSC 116 | Capital case; conviction resting on CCTV footage and CDRs unsettled in part by non-compliance with S.65B(4); illustrates the stakes of certificate defects. |
| Smt. Anjali Sharma v. Raman Upadhyay, MP HC, MISC. PETITION No. 3395 of 2023; date of decision: 16 June, 2025 | The MP High Court permitted inter-spousal WhatsApp chats as exhibits in HMA proceedings, construing S.14, Family Courts Act, 1984, against S.122, Evidence Act. |
| Jyoti Rani v. Nishant Kumar—Miscellaneous Appeal No. 32 of 2024, delivered on 06.08.2026 | Patna High Court. Bench of Justice Bibek Chaudhuri and Justice Rana Vikram Singh JJ. WhatsApp messages without an S.65B certificate held insufficient to prove cruelty. |
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
