Can't get the certificate? Supreme Court says you can still use electronic evidence

You have a video that proves your case, but the phone it was recorded on belongs to someone else. The Supreme Court just made that evidence usable—without a certificate.

The man stood in court holding a memory card. On it was footage that could decide the entire dispute—but the phone that had recorded it was gone, sold months ago by a stranger. The other side objected: no certificate under Section 65B(4) of the Evidence Act (a signed declaration from the person in control of the device, confirming the electronic record is authentic), they said, and the evidence is dead on arrival. The question that landed before a four-judge bench of the Supreme Court was deceptively simple: what happens when the person holding the proof never held the device?

The memory card that came with no phone

Arjun Panditrao Khotkar had electronic evidence he needed to present in a civil case. The problem was fundamental: the video or document he wanted to rely on had been generated on a device—a mobile phone, a laptop, a CCTV recorder—that he did not own, control, or even have access to. The person who did own it was not a party to the case and had no interest in helping either side.

Under the law as it stood after the landmark judgment in Anvar P V v. P K Basheer (2014), any electronic record being offered as evidence had to be accompanied by a certificate under Section 65B(4). That certificate had to be signed by a person who could certify that the device was working properly and that the electronic record was an accurate reproduction. In practice, that person was almost always the owner or custodian of the device.

Khotkar could not get that certificate. The device was gone. The person who could have signed it was untraceable. His evidence—potentially the only proof he had—was about to be thrown out on a technicality.

The certificate trap

Section 65B of the Evidence Act was inserted in 2000 to deal with the unique problem of electronic evidence. Unlike a paper document, an electronic record can be copied infinitely without any visible difference between the original and the copy. The law needed a way to ensure that what was being shown in court was authentic—not tampered with, not fabricated, not a deep fake before its time.

The solution Parliament chose was the Section 65B(4) certificate. It must state: that the device was working properly, that the electronic record was produced by the device in the ordinary course of its operation, and that the copy being produced is a true reproduction. Without this certificate, the Anvar P V judgment had ruled, electronic evidence was simply inadmissible—no exceptions.

That strict rule worked well when the person producing the evidence was the same person who owned the phone, the laptop, or the CCTV system. But it created an impossible situation for anyone who had obtained electronic evidence from a third party—a bystander's video of an accident, a screenshot from a public Facebook page, a recording from a neighbour's security camera.

When the rule broke

Consider a real scenario: a woman is harassed by her in-laws. A neighbour's CCTV camera captures an incident. The neighbour refuses to get involved, or has moved away, or the footage was automatically deleted after 30 days. The woman has a copy of the footage. She has the truth. But she cannot produce the certificate because she never controlled the CCTV system. Under Anvar P V, that footage would be excluded. The perpetrator walks free because of a procedural gap.

That was the problem the Supreme Court confronted in Arjun Panditrao Khotkar v. Kailsh Kushanrao Goraytyal. The four-judge bench had to decide whether the law really intended to shut the courthouse door on a person holding authentic electronic evidence but lacking control over the originating device.

Procedure cannot defeat justice

The bench drew a crucial distinction. The requirement of the Section 65B(4) certificate, it held, is procedural—not substantive. And procedural requirements, the court said, can be relaxed by the court wherever the interests of justice so justify. The certificate is mandatory only when the person producing the electronic evidence is in a position to obtain it—meaning, when they control the device.

Where the producing party does not control the device, the certificate requirement falls away. In such cases, the court ruled, the electronic evidence can still be admitted through the older, alternative route provided by Sections 63 and 65 of the Evidence Act (provisions that allow secondary evidence—copies or reproductions of original documents—to be admitted when the original cannot be produced for reasons beyond the party's control).

The logic was practical: a person who never possessed the device cannot possibly secure the certificate. To exclude their evidence for that failure would be to deny justice, not to serve it. The procedural rule exists to ensure reliability, not to become a weapon for excluding reliable evidence.

What the court kept and what it killed

The Khotkar judgment expressly overruled an earlier decision in Shafhi Mohammad (2018), which had created confusion by suggesting that the certificate requirement could be bypassed more broadly. The court restored the authority of Anvar P V as the correct statement of the law—but with this critical clarification: the certificate is mandatory only for those who can produce it.

This is not a relaxation of the rule. It is a recognition of the rule's limits. The certificate exists to authenticate electronic evidence when authentication is possible. When it is not—because the device is out of reach—the court can fall back on other methods of proving that the electronic record is what it claims to be.

What this means for your case

If you hold the phone, the laptop, or the CCTV system that generated the electronic evidence, you must still produce the Section 65B(4) certificate. There is no shortcut. But if the evidence came from a device you never controlled—a stranger's phone, a public server, a deleted account—you are not required to produce a certificate you cannot obtain. You can lead secondary evidence under Sections 63 and 65, and the court will assess its reliability on its own terms.

THE PLAY: When filing electronic evidence from a device you do not control, state on affidavit that the device was never in your possession and that the certificate under Section 65B(4) could not be obtained despite reasonable efforts—then lead the evidence under Sections 63 and 65 of the Evidence Act.

The court ended where the problem began: with a person holding proof, and a device that was never theirs.