Can a CD be evidence without a certificate? Supreme Court says no

A CD with crucial data was offered as evidence. The Supreme Court said: not without a special certificate. But then it made an exception.

In the appeal between Anwar P.V. and P.K. Basheer and Others, a CD in its plastic case was produced as secondary electronic evidence. On it, one side claimed, was evidence that could decide the entire case. The other side objected: no certificate, no admission. The courtroom fell silent as the objection was raised. The law was clear — or was it? For years, courts across India had been split on this very question, with conflicting judgments and practices. Now the Supreme Court would have to settle it once and for all.

The question was simple but devastating: Could a piece of electronic evidence — a CD, a DVD, a pen drive — be thrown out of court simply because it lacked a procedural certificate, even if the data on it was genuine? The answer would affect every trial, every appeal, every lawyer who ever touched a digital file.

When the CD arrived in court

The case began as an appeal between Anwar P.V. and P.K. Basheer and Others. One side produced a CD containing electronic data — secondary electronic evidence (a copy of original digital information, not the original device itself). The other side objected. The certificate required under Section 65B(4) of the Evidence Act (a sworn written statement from the person who created the copy, confirming it was made accurately from the original) was missing.

The trial court had to decide: admit the CD or reject it? The answer depended on how the court read Section 65B — a provision that had been the source of confusion for years. High Courts in different states had given conflicting rulings. Some said the certificate was mandatory. Others said it could be bypassed if other evidence proved the data was genuine. The Supreme Court stepped in to end the chaos.

Why the law treated electronic evidence differently

The Court began by looking at how the Evidence Act handles electronic evidence. Sections 63 and 65 deal with secondary evidence in general — copies of documents, photographs, and the like. But Section 65B, the Court noted, was a special provision. It was a "not obstante clause" (a provision that overrides other laws on the same subject). This meant that for electronic evidence, Section 65B was the only route — Sections 63 and 65 did not apply.

The Court's reasoning was rooted in a simple reality: electronic data is fragile. The source narrative states that such devices are "highly susceptible to tampering." Unlike a signed paper document, a digital file leaves no fingerprint. The law, therefore, demanded a higher standard of proof. The certificate under Section 65B(4) was that safeguard — a sworn statement from the person who made the copy, confirming that the process was accurate and the data was unaltered.

The old precedent that had to fall

Until this judgment, many courts had relied on an earlier Supreme Court decision in the Navjot Sandhu case. In that ruling, the Court had allowed electronic evidence to be admitted without the Section 65B certificate, using oral testimony or expert opinion under Section 45A (evidence from a computer expert) instead. The Anwar P.V. Court looked at that precedent and decided it was wrong.

The Court held that Section 65B was a complete code for secondary electronic evidence. You could not bypass it by calling a witness to say "yes, this CD contains the original data." You could not bring an expert to testify that the file was genuine. The certificate was the only key. Without it, the CD stayed out. The Court overruled Navjot Sandhu to the extent it contradicted this position.

The practical problem no one had solved

The Anwar P.V. ruling was strict. It was also, in many cases, impossible to follow. Imagine this: a person receives a CD from a government office, or from a hospital, or from a bank. The person who created that CD is a stranger — an employee who has since left, or a technician whose signature is missing from the file. The person who wants to use the CD in court has no control over the device that generated it. How can they produce a certificate from the person who made the copy?

That exact problem reached the Supreme Court in Shafi Mohammad v. State of Himachal Pradesh. The case highlighted a specific argument: requiring a party who is not in possession of the device to produce the certificate would lead to a denial of justice if that party possesses otherwise authentic evidence. The prosecution held a CD from a government hospital — the technician who made it had left the job, and no certificate existed. The defence argued: under Anwar P.V., this evidence is inadmissible. The prosecution argued: we cannot produce a certificate from someone we don't control. If the evidence is genuine, it should be admitted. The Court had to weigh the strictness of the law against the risk of shutting out reliable evidence — and the risk of a denial of justice if a party, through no fault of its own, could not produce the certificate.

The Court also noted that the person producing the CD was not in custody of the device that generated the data. The hospital's computer, the recording equipment — these were not in the prosecution's control. To demand a certificate from the person who operated that device would be to demand the impossible. The Court recognised that forcing a party to produce a certificate for a device they don't control is impractical and unjust. The specific contention was clear: if the law required the certificate in every case, regardless of who held the device, then a party with authentic evidence could lose a case on a technicality it could never have satisfied.

When the Court carved out the exception

The Supreme Court in Shafi Mohammad looked at the problem and found a middle path. The Court observed that Sections 65A and 65B are "clarificatory and procedural" — they explain how to prove electronic evidence, but they are not a complete code that excludes all other methods. The key question, the Court said, is whether the person producing the evidence is in a position to give the certificate.

If the person who holds the CD also owns or controls the original device — say, a company that recorded its own CCTV footage — then they must produce the certificate. But if the person is a third party who received the data from someone else, and has no control over the original device, then the certificate requirement is not mandatory. In such cases, the court can admit the evidence if it is satisfied of its authenticity through other means — including the general rules of secondary evidence under Sections 63 and 65.

The Court held: "The requirement of furnishing a certificate under Section 65B(4) is only applicable when the person producing the evidence is in a position to produce such a certificate, being in control of the said device and not of the opposite party." This was the exception that saved countless cases from collapsing on a technicality. The Court concluded that the requirement of the certificate under Section 65B is not always mandatory, particularly when the producing party is not in possession of the device.

What this means for every lawyer and litigant

The two judgments together create a clear rule: If you control the original device, get the certificate. If you don't, the court can still admit the evidence if it is satisfied it is genuine. The burden of proving authenticity shifts to the party producing the evidence, but the door is not slammed shut.

THE PLAY: Always obtain the Section 65B(4) certificate at the time of copying electronic data if you control the original device; if you don't, preserve all records showing how you received the data and be prepared to prove its authenticity through other evidence.

The CD was admitted. But only after the Court drew a line between what the law demands and what justice requires.