No certificate at trial. Conviction upheld. Here's why.

When the certificate arrives too late — and the case hangs in the balance

In a criminal trial in Haryana, the prosecution had built its case around Call Detail Records — phone logs that placed the accused at the scene. The trial court convicted. On appeal, the defence raised a new objection: the CDRs had been admitted without the mandatory certificate under Section 65B(4) of the Evidence Act. No certificate meant no admissible evidence. The conviction, they argued, rested on nothing.

The appellate court had to choose between two competing principles — allow the prosecution to now produce the certificate, keeping the conviction intact, or shut the door on late filings and protect the finality of the trial record.

The answer, as the Supreme Court and multiple High Courts have now made clear, depends on one thing: when the objection was raised.

The objection that arrived one appeal too late

In Sonu v State of Haryana, the defence had sat silent through the trial. The CDRs were marked, exhibited, and relied upon. No one objected. Only on appeal did the argument emerge: the Section 65B certificate was missing, so the electronic evidence was inadmissible.

The Supreme Court shut it down. The objection, the Court held, went to the "mode or method of proof" — not to the inherent admissibility of the evidence. That distinction matters. If the defect is procedural, it can be cured at the stage when the document is first tendered. But if the opposing party waits until appeal, the party that produced the evidence loses the opportunity to fix the deficiency.

The Court applied what it called the "crucial test": could the defect have been cured at the trial stage? If yes, and no objection was raised then, the objection is waived. The verdict in Sonu was clear — the evidence stayed in. The impact for practitioners: failure to object to the mode of proof at trial constitutes acquiescence. You cannot hold the objection in your pocket and play it on appeal.

The certificate that arrived mid-trial — and the court that let it in

But what if the certificate was never filed at all — not even at trial — and the prosecution seeks to produce it during the proceedings? That was the question in Paras Jain v State of Rajasthan.

The charge-sheet had been filed without the Section 65B certificate. The electronic record was there, but the foundational document was missing. The defence argued that the certificate should have accompanied the charge-sheet; its absence made the evidence inadmissible from the start.

The Rajasthan High Court disagreed. The Court observed that the general legal position permits the production of additional evidence — oral or documentary — during the course of a trial if, "in the opinion of the Court, production of it is essential for the proper disposal of the case." The omission of the certificate, the Court reasoned, was "only an irregularity not going to the root of the matter and is curable."

The verdict allowed the prosecution to file the certificate mid-trial. The impact: procedural technicalities around the timing of the certificate are curable defects. The court's priority is the proper disposal of the case — not procedural perfection at the charge-sheet stage.

The civil side — where flexibility meets a trap

The same principle extends to civil trials, but with a crucial warning. In Eli Lilly and Co v Maiden Pharmaceuticals Ltd, the Delhi High Court addressed whether a Section 65B certificate could be filed belatedly in a civil suit.

The Court acknowledged the diverging opinions but concluded that the principles allowing subsequent filing applied to civil trials as well. Then came the caveat.

Subsequent filing is permitted, the Court held, "but only if the party wanting to file the same makes out a case for reception thereof, as for late filing of documents beyond the prescribed time." If the party fails to satisfy the Court regarding the reasons for the delay, they "may run the risk of the certificate/affidavit being not permitted to be filed."

And even if the delayed filing is permitted, the party faces a deeper risk: the authorised person "may not be subsequently available," or the certificate "may not withstand the cross-examination by the opposing counsel on the said facts." The Court made it explicit — the proof required for a belated certificate is "much more stringent."

This is the balancing mechanism. Flexibility is real, but it comes with a high price. The party seeking late admission must justify the delay, and then must prove the certificate's contents under intense scrutiny — often years after the events, when witnesses have moved on and memories have faded.

Three questions that decide whether the certificate gets in

For any lawyer facing this issue — whether at trial or on appeal — the outcome turns on three questions:

1. When was the objection raised? If the objection to the missing certificate was raised at the trial stage, the court can allow the deficiency to be cured. If it was raised for the first time on appeal, the objection is likely barred by waiver — unless the defect goes to inherent admissibility, not just mode of proof.
2. Can the party justify the delay? In civil cases especially, the court will examine why the certificate was not filed earlier. A weak explanation — or no explanation — can result in the certificate being rejected, even if the underlying electronic record is otherwise reliable.
3. Is the certifier still available and competent? The person who signs the certificate must occupy a responsible official position in relation to the relevant device or management of activities. If that person is no longer available, or if their competence can be challenged, the belated certificate may fail to prove the electronic record — even if it is admitted.

THE PLAY: If you are the party seeking to admit electronic evidence, file the Section 65B certificate at the earliest possible stage — ideally with the charge-sheet or plaint — and if you must file it late, prepare a detailed affidavit explaining the delay and ensure the certifier is available for cross-examination.

What this means for the appellate forum

The appellate court's balancing act is now well-defined. The non-filing of a Section 65B certificate is treated as a curable irregularity — not an inherent defect that makes the evidence ab initio inadmissible. The defect pertains to the mode or method of proof, and can be cured under powers like Section 391 of the CrPC (for criminal appeals) or Order 41 Rule 27 of the CPC (for civil appeals).

But the flexibility is sharply curtailed by the necessity of maintaining evidentiary integrity. The Supreme Court established in Anvar PV v PK Basheer that secondary electronic evidence "shall not be admitted in evidence unless the requirements under Section 65-B are satisfied." Late filing is allowed — but late admissibility is conditional upon proving the mandatory prerequisites.

The appellate forum must therefore impose rigorous safeguards. The belatedly procured certificate is subject to heightened scrutiny. The court must examine whether the delay has compromised the integrity of the electronic record — whether the data could have been tampered with in the interim, whether the certifier's memory of the relevant facts is reliable, and whether the opposing party has been prejudiced by the delay.

For the CFO and founder — what this means for your case

If you are a corporate litigant — whether as plaintiff or defendant — the lesson is straightforward. Electronic evidence is now central to most commercial disputes. Emails, WhatsApp messages, server logs, bank statements — all of it requires a Section 65B certificate to be admissible.

If your legal team files the certificate late, the court may still allow it. But the risk is real: the certifier may not be available years later, the certificate may be subjected to destructive cross-examination, and the judge may view the delay as a sign of procedural laxity.

If you are the opposing party, the strategy is equally clear. Object to the missing certificate at the earliest opportunity — ideally when the document is first tendered. If you wait until appeal, you may lose the objection entirely. And if the court allows belated filing, focus your cross-examination on the integrity of the electronic record and the availability and competence of the certifier.

The bottom line

Appellate forums will bend procedural rules to allow a Section 65B certificate to be filed late — but only if the objection was raised at the right time, the delay is justified, and the certificate can withstand scrutiny. The flexibility exists to prevent justice from being defeated by technicalities. But the finality of the trial process is protected by a simple rule: if you had the chance to object at trial and didn't, you cannot resurrect that objection on appeal. The certificate may arrive late — but the door closes when the trial ends.