The Importance of Electronic Evidence
In today's digital world, electronic evidence plays a crucial role in both civil and criminal cases. Emails, WhatsApp messages, call records, CCTV footage, bank statements, and social media posts are frequently relied upon as evidence. Section 65B of the Indian Evidence Act, 1872 governs the admissibility of electronic records. Understanding these requirements is essential for lawyers, litigants, and anyone involved in legal proceedings.
What Does Section 65B Say?
Section 65B provides that electronic records are admissible as evidence if certain conditions are satisfied. The person who owns or manages the computer system must certify that: the computer was operating properly during the relevant period; the information was regularly fed into the computer in the ordinary course of activities; the output was produced by the computer; and the information reproduced is accurate and complete.
The Section 65B Certificate
For electronic evidence to be admissible, a certificate under Section 65B(4) must be filed along with the electronic record. This certificate must: identify the electronic record; describe how it was produced; provide details of the computer system; and be signed by a person holding a responsible position in relation to the computer system. Without this certificate, the electronic record is not admissible as evidence.
Landmark Supreme Court Judgment
In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court held that electronic evidence cannot be admitted without a Section 65B certificate. The court clarified that Section 65B is a complete code for admissibility of electronic evidence and that secondary evidence of electronic records is not permissible through other provisions. However, in Shafhi Mohammad v. State of Himachal Pradesh (2018), a subsequent bench diluted this requirement, leading to confusion. The matter was settled by a larger bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which reaffirmed the Anvar P.V. position.
WhatsApp Messages as Evidence
WhatsApp messages are electronic records. To use them as evidence, you need: the original messages on the phone (primary evidence) or a printout with Section 65B certificate (secondary evidence). Screenshots alone without certificate may not be admissible. The Supreme Court has held that WhatsApp messages can be used as evidence if properly authenticated.
Practical Tips
If you need to present electronic evidence, ensure: you preserve the original device; create a certificate under Section 65B(4) before submitting the evidence; the certificate is signed by the appropriate person (not the lawyer); and the electronic record is not edited or tampered with. Consult a lawyer to ensure proper compliance.
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