Criminal Defence
Bail in NDPS Cases in Uttar Pradesh
Bail in NDPS cases: how Section 37 raises the bar for commercial-quantity offences, how the Sessions Court applies it, and what Section 50 means for defence.
Are WhatsApp Messages Valid Evidence in Indian Courts?
WhatsApp messages and other electronic records are admissible in Indian courts under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 — which replaced Section 65B of the Indian Evidence Act on 1 July 2024. To produce a printout or digital copy as secondary evidence, a certificate signed by a person in a responsible official position on the device is required. Without that certificate, the court cannot act on the document.
What counts as an electronic record?
The Bharatiya Sakshya Adhiniyam, 2023 adopts the definition of “electronic record” from the Information Technology Act, 2000 [Section 2(1)(t)]. It covers any data, record, or data generated, image, or sound stored, received, or sent in an electronic form or microfilm or computer generated microfiche. In everyday terms this includes:
- Messages sent via WhatsApp, SMS, email, or any messaging application
- Photographs and videos stored on a device or in cloud storage
- Call recordings
- Documents in digital form — PDFs, spreadsheets, voice notes
- CCTV and surveillance footage
- Digital payment records, bank statements downloaded as PDFs
The question is not whether a WhatsApp message is an electronic record — it is. The issue is how it can be proved in court.
What is the Section 63 BSA certificate?
When an electronic record is produced in secondary form — a printout, a screenshot saved to PDF, or a file copied from one device to another — it is secondary evidence. Section 63 of the Bharatiya Sakshya Adhiniyam requires that a certificate accompany it before the court may act on it.
Section 63 BSA is the successor to Section 65B of the Indian Evidence Act, 1872, which governed the same territory until 1 July 2024. Practitioners whose cases predate that date, and older case law, will refer to the 65B certificate; the underlying requirement is carried over into BSA.
The mandatory character of the certificate was settled by the Supreme Court in two landmark decisions:
- Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 — electronic records in secondary form require the Section 65B certificate; oral evidence cannot substitute for it.
- Arjun Panditrao Khotkar v. Kailash Kushanrao Goratyal (2021) 3 SCC 135 — overruling an intervening decision that had relaxed the requirement, the Supreme Court reaffirmed that the certificate is mandatory and must be furnished at the time of tendering, not later.
These decisions were rendered under the Indian Evidence Act. The BSA carries forward the same structure, and the legal position in Arjun Panditrao is expected to apply equally to Section 63 BSA.
What must the certificate state?
| Requirement | What it means in practice |
|---|---|
| Identify the device | Name the computer, phone, or server from which the record was produced |
| Record produced by that device | State that the electronic record was produced by that device in the ordinary course of activities |
| Device operating properly | Confirm the device was operating correctly at the relevant time — or that if it was not, the fault did not affect the record |
| Information regularly fed in | State that the information contained in the record was fed into the device in the ordinary course of relevant activities |
| Signature | Signed by a person in a responsible official position in relation to the device or those activities |
The certificate does not require a technical expert. It requires someone who has authority over and knowledge of the device and can attest the above on their own responsibility.
Who can issue the certificate?
For a personal mobile phone — the owner of the phone, or the person who operates the relevant account. The person who received the messages on their device can certify what appeared on that device; the sender’s certificate is not required. The certificate covers what the certifying person knows: that their device was functioning, that the records shown are what appeared on it.
For messages on another person’s device — their cooperation is needed, or a court direction to produce the device and records. There is no mechanism to compel a private party to supply a certificate on their own, absent a court order.
For business systems or email servers — the responsible officer of the organisation operating the server would certify. Companies are not obligated to cooperate with private parties in litigation, but where the investigation is through a court or police, a direction may be obtained.
What happens if the certificate is not produced?
The court cannot act on the electronic record. This is the holding in Arjun Panditrao, and it is not a defect that can be repaired after the fact.
Where a party attempts to tender a printout without the certificate, the opposing side should object at the moment of tendering. An objection not raised at that stage may be treated as waived — though the document remains technically inadmissible without the certificate.
The consequence is real: evidence that could be decisive gets excluded, not because it is unreliable, but because the procedural step was missed. This is why the certificate should be prepared early, before the matter comes up for hearing.
Does producing the original phone change things?
Production of the original device is primary evidence under Section 61 BSA. The Section 63 certificate requirement applies to secondary evidence — copies, printouts, or transferred files. If the original device is produced and handed to the court, the certificate is not technically required.
In practice, however:
- The court must be satisfied the device has not been tampered with.
- The authenticity of the specific messages claimed may still be challenged.
- Handing over a personal phone to a court for inspection raises its own complications.
Obtaining a Section 63 certificate even when the original device is produced is therefore prudent — it documents the conditions under which the records exist and pre-empts an authenticity challenge.
Practical steps if you hold important messages
- Do not delete or modify the messages or thread. Tampering creates problems far larger than anything the messages themselves contain.
- Preserve the device and the account. The phone, the SIM, and the application account should remain accessible and unchanged.
- Prepare a certificate early. Work with a lawyer to frame a Section 63 BSA certificate correctly. For a personal device this is straightforward; the certificate links the messages to the device and attests the conditions.
- Screenshot methodically if there is a risk of deletion. Capture the full thread, showing the contact name and timestamp, and note the date the screenshots were taken.
- Act before the hearing date. Tendering the certificate at the last moment is exactly what Arjun Panditrao cautions against.
Related
Frequently asked questions
Can WhatsApp screenshots be used in court without a certificate?
No. The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Goratyal (2021) made clear that the Section 65B certificate — now the Section 63 BSA certificate — is mandatory before a court can rely on secondary electronic evidence. Printouts or screenshots produced without the certificate cannot be acted upon by the court.
Does the 65B certificate still apply, or has BSA changed the requirement?
The provision is now Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024. The certificate requirement and its contents are carried over substantially from Section 65B of the Indian Evidence Act. Cases registered before 1 July 2024 continue under the Indian Evidence Act; BSA governs proceedings on or after that date.
Who should sign the Section 63 BSA certificate?
The certificate must be signed by a person occupying a responsible official position in relation to the device or the activities from which the record was produced. For a personal mobile phone, that is ordinarily the phone's owner or account holder. For records held on a company's server or system, a responsible officer of that organisation would sign.
Can call recordings be produced as evidence in court?
Call recordings are electronic records and fall under the same Section 63 BSA framework — a certificate is required to produce them in secondary form. There is an additional question about whether a recording made without the other party's knowledge is admissible at all. The courts have taken varying positions on this; it depends on the specific facts and the purpose for which the recording is offered. Take advice before relying on a call recording.
Does producing the original phone remove the need for a certificate?
Production of the original device is treated as primary evidence, and the Section 63 BSA certificate requirement applies specifically to secondary evidence — copies, printouts, and saved files. If the original device is produced, the certificate is not technically required, though the court will still expect the device to be shown as authentic and unmodified. In practice, obtaining the certificate regardless is prudent.
When must the certificate be obtained?
As early as possible, and certainly before the electronic evidence is tendered. In Arjun Panditrao, the Supreme Court held that the certificate must be furnished at the time the evidence is tendered — not produced later as an afterthought. An application to supply the certificate after the evidence has been relied upon has been rejected by courts.