Can't get the certificate? Court says: Justice over procedure

The prosecution had a video of the crime. But the phone that recorded it? Not theirs.

In a Himachal Pradesh courtroom, the State held a digital recording that could prove its case. The phone that captured the footage belonged to someone else—a party not in control of the originating device. The prosecution could not secure the required certificate under Section 65B(4) of the Evidence Act. Without that certificate, the State faced a brutal choice: drop the video, or watch the court throw it out. The courtroom fell silent as the video was cued, the screen dark, the judge's pen paused over a notepad.

When the certificate became a wall

The case of Shafhi Mohammad v. State of Himachal Pradesh arrived at the Supreme Court carrying a question that sounds technical but lands on something far more basic: what happens when the law demands a document you simply cannot produce?

Section 65B of the Indian Evidence Act governs how electronic records—videos, emails, WhatsApp messages, call logs—are admitted in court. Sub-section (4) requires a certificate signed by a person who controls the originating device. That certificate must state that the device was in regular use, that the data was produced in the ordinary course, and that no tampering occurred. The certificate itself—a single sheet of paper, signed and dated—can decide whether a case stands or falls.

The prosecution had the video. But the phone that recorded it was in the hands of a third party—someone the police could not compel to cooperate, someone who had vanished or refused. The State could not get the certificate. The defence argued: no certificate, no evidence. The law is mandatory. The video must stay out. The courtroom smelled of old files and dust, the weight of the case file thin in the prosecutor's hands.

What the court heard from both sides

The prosecution told the Supreme Court that the evidence was authentic. The video existed. It was relevant. But requiring a certificate from a device the State never controlled was procedurally impossible.

"We cannot produce what we do not possess," the State argued. "Should the truth be kept from the court because of a formality?" The defence held the line. Section 65B(4) was mandatory, they said. The Supreme Court had already ruled in PV Anvar v. State of Kerala that electronic evidence without the certificate was inadmissible. No exceptions. No shortcuts. If the prosecution could not produce the certificate, the video could not come in—even if it meant the case collapsed.

The court had to decide: was the certificate an absolute gate, or could the gate open when the party holding the key did not own the lock? The judges leaned forward, the pages of the Evidence Act rustling under the chamber's still air.

Why the court created an exception

The Supreme Court observed that "the applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party."

Translation: if you control the phone, you must give the certificate. If you don't control the phone, the rule does not apply to you.

The court's logic was blunt: "If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in the absence of certificate under Section 65-B(4) of the Evidence Act, which party producing cannot possibly secure." The court held that when the producing party cannot get the certificate, the older provisions—Sections 63 and 65 of the Evidence Act (which govern secondary evidence generally)—could still apply. The procedural requirement was not always mandatory. It could be relaxed by the court wherever the interest of justice justified it.

The verdict in Shafhi Mohammad established that the requirement of the certificate under Section 65B(4) "is not always mandatory". The Court clarified the legal position on admissibility, stating that a party not in possession of the originating device cannot be required to produce the certificate, and the applicability of the requirement, being procedural, "can be relaxed by the court wherever interest of justice so justifies". The judge's handwritten note on the order sheet captured the tension: procedure yields to justice when procedure becomes impossible.

The larger bench that changed the game

But the story did not end there. The interpretation of Section 65B was referred to a larger bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal. A four-judge bench of the Supreme Court overruled Shafhi Mohammad broadly on the reading of Section 65B. The court re-emphasised that the certificate under Section 65B(4) is mandatory for secondary electronic evidence—copies of original digital records. The strict rule from PV Anvar was restored.

But here is the crucial detail: the larger bench did not erase the exception. It specifically upheld and affirmed the principle that the certificate requirement applies only when the party producing the evidence is in a position to secure it. The court held: "The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party." The court also affirmed that the requirement, being procedural, "can be relaxed by the court wherever interest of justice so justifies." The silence in the courtroom when the judgment was read was thick—the law had bent, but not broken.

What this means for your next case

The impact of Arjun Panditrao Khotkar is two-fold. First, it re-emphasises that Section 65B compliance is the rule for secondary electronic evidence. You cannot bypass the certificate just because it is inconvenient. Second, it cements the exception: procedural compliance must yield when securing the certificate is practically impossible for the party tendering the evidence. The ultimate logic affirmed the principle of judicial discretion: the requirement, being procedural, can be relaxed by the court wherever the interest of justice so justifies.

If you are the prosecution and the phone belongs to a witness who has fled, or if you are a plaintiff and the laptop is in the hands of a hostile third party, you are not locked out. You can still argue that the certificate requirement does not apply—and the court has the discretion to let the evidence in. The file on the judge's desk, thin as it may be, still holds the power of that discretion.

THE PLAY: When you cannot get the Section 65B(4) certificate because the originating device is not in your control, argue that the procedural requirement does not apply—and ask the court to exercise its discretion in the interest of justice.

The court ended where it began: with a video that could prove a crime, and a phone that belonged to someone else. The screen remained dark, but the door to justice stayed open.