The Conundrum of Electronic Evidence

Criminal Law | Evidence
March 27, 2021

Abhishek Ranjan

He is a second year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His area of interest encases Constitutional Law and Human RightsLaw.

The nation is abuzz with the leaked WhatsApp conversations between Republic TV anchor Arnab Goswami and former BARC (Broadcast Audience Research Council) CEO Partho Das Gupta. The 500-page long WhatsApp conversations between Goswami and Das Gupta found their way into social media after the Mumbai police filed a supplementary charge sheet in Television Rating Points (TRP) scam probe.

However, are WhatsApp chats admissible in evidence?  If admissible, what are the  requirements?


In almost all parts of the world during the 21st century, there was an augmentation in the technological revolution, leaving India no exception. Nowadays, technology is no longer confined to organizations or institutions, but is now available to every individual, at the swipe of a finger. This proliferation of computers and the impact of information technology together with the ability to store and collect digital information has resulted in the incorporation of provisions related to digital evidence in Indian law.  The admissibility of electronic records is covered in Section 65B[1] of the Indian Evidence Act, 1872. This section has created a lot of uncertainty regarding admissibility of an electronic record. A lot of confusion has also been added through the judgments that were delivered to clarify or explain this section. Section 65B(4) requires the presentation of a certificate to confirm the electronic record, which contains a statement on how it is produced, and specifies the details of the device involved in the production of the electronic record made by the computer, or by a person in public office or by someone involved in the operation of the record.


Last month, on 16th January 2021, the Punjab and Haryana High Court, in the  Rakesh Kumar Singla v. Union of India[2], ruled that WhatsApp messages may be relied upon by investigating agencies during a crime investigation, but would be of no evidentiary value without a Section 65B certificate. The Court was hearing a plea for the grant of regular bail in a case registered under Narcotics Drugs and Psychotropic Substances Act, 1987[3] in front of a single-judge Bench of Justice Jaishree Thakur. 

Last year, a three-judge bench consisting of Justice R.F Nariman, Justice V. Ramasubramanium and Justice S. Ravindra Bhat, in the case of Arjun Panditrao Khotkar vs Kailas Khusanrao Gorantyal and Ors.[4] (hereinafter Arjun Panditrao), held that the provision of a certificate under Section 65B(4) of the Indian Evidence Act, 1872, is a “necessary precursor” for the admissibility of secondary data of the contents of an electronic record, and that oral evidence itself is insufficient. This judgement resulted from a reference made by a two-judge bench of the Supreme Court when the issue of interpretation of Section 65B(4) of the Evidence Act, 1872;  came before the bench. There has been a lot of contrary views due to the court’s previous two judgments i.e., Anvar P.V. vs. P.K. Basheer [5] (hereinafter Anvar P.V.) and Shafhi Mohammad vs. State of Himachal Pradesh[6]  (hereinafter Shafhi Mohammad).

Despite the fact that the Anvar P.V. judgment was dictated in 2014, the Shafhi Mohammad decision was delivered in 2018 and with an ostensibly opposing ruling. Anvar P.V rendered the provision of a certificate for admissibility of electronic evidence, but the court did so without taking into account the difficulties that people might face in producing the certificate. This made it difficult for the parties because lady law became genuinely blind and gave authorities more power to ask for the production of certificates and reject allegations failing to provide evidence. Anvar P.V., in a sense, locked the door completely for admissibility of electronic admission with the certificate under 65B(4) being the only key.

Shafhi Mohammad, on the other hand, acknowledged the difficulty and allowed for electronic admission. The only concern was that the scope was too broad, as the court ruled that the certification requirement was not “always mandatory.” In addition, the court did not define whether it was meant to be non-mandatory. The Arjun Panditrao judgment came at an appropriate time and went on to find a middle ground between the two decisions, as it upheld the Anvar P.V. judgment. providing a solution when the certificate was difficult to produce. As a result, the court not only allowed the parties that had electronic evidence with certificates but also helped those who were unable to produce it.


Shri Arjun Panditrao, the appellant, referring to these two cases questioned the High Court’s previous rulings. In his appeal, he argued that by relying on the Shafhi Mohammad (supra) case, which is a two-judge bench judgement of  Bombay High Court had. The court acted improperly and misconstrued the law mentioned under Section 65B(4) of the Evidence Act, 1872. Furthermore, the appellant argued that for electronic evidence to be admissible, a certificate under Section 65B(4) is compulsory. The same was held in an earlier judgement of P.V. (supra) case. After hearing the appellant’s appeal, the Supreme Court’s two-judge bench decided to refer the issue to a larger bench for clarification. They brought up the issue of whether a certificate issued under Section 65(B)(4) of the Indian Evidence Act, 1872 was necessary for the admission of electronic evidence in court proceedings, or whether it could be waived under certain circumstances.


The Supreme Court did an in-depth review of the electronic record laws in India and the United Kingdom, wherefrom Section 65B bears its roots:

  • The court overruled its earlier judgement in the Shafhi Mohammad (supra) case and held that the certificate required under Section 65B(4) is a mandatory requirement for the admissibility of proof by way of an electronic record.
  • Section 65B(1)[7] specifies that the admissibility and evidence of information found in an electronic record must meet Section 65B.
  • Various legislative provisions can resolve the difficulty of obtaining a document: (a) Section 165[8]  of the Act stipulates a Judge to order the production of any document or object in order to identify or gather information of the relevant facts; (b) Order XVI[9] of the Code of Civil Procedure, 1908, i.e. ‘Summoning and Attendance of Witnesses’, which permits the court to issue orders for the production of documents; (c) Sections 91[10]  and 349[11]  of the Code of Criminal Procedure, 1973; allows a police officer or a court to issue an order for the production of a document if required for investigation purposes.
  • In a situation, where a certificate has been sought and the person or authority has not complied with the request, the parties can approach the court. The court can compel the individual to produce the certificate. If the certificate cannot be obtained, even if it complies with the orders of the court, then the purported violation of the law can be excused.
  • General directions were also laid down for cellular operators and service providers to maintain call detail records (CDRs) and other related information as per law. It was also ordered that in the pursuit of Information Technology Act, 2000[12]; suitable laws and regulations should be framed.


Through the Arjun Panditrao (supra) the court has tried to resolve the much-conflicted dispute of interpretation of Section 65B. However, it may appear that the court has interpreted the provision strictly, which can affect litigants, especially when the party is dependent on “electronic evidence” and it’s impossible for them to procure the certificate. This decision also affirms that if despite all efforts, and available options, the party is unable to produce the certificate before the court, then the court may excuse that requirement. In order to ensure timely justice, it is extremely important for the Indian Parliament to review the existing provisions and create simpler laws related to reliance on digital evidence.

Preferred Citation: Abhishek Ranjan, “The Conundrum of Electronic Evidence”, The Law Culture (2021)

[1] The Indian Evidence Act, 1872, s 65B.

[2] Rakesh Kumar Singla v. Union of India, [CRM-M No.23220 of 2020 (O&M)].

[3] The Narcotics Drugs and Psychotropic Substances Act, 1987.

[4] Arjun Panditrao Khotkar v Kailas Khusanrao Gorantyal and Ors.,(Civil Appeal Nos. 20825-26 of 2017).

[5] P.V. Anvar v P.K. Basheer, (2014) 10 SCC 473.

[6] Shafhi Mohammad v State of H.P., (2018) 2 SCC 801.

[7] The Indian Evidence Act 1872, s 65B (1).

[8] The Indian Evidence Act 1872, s 165.

[9] The Civil Procedure Code, 1908, Order XVI.

[10] The Code of Criminal Procedure 1973, s 91.

[11] The Code of Criminal Procedure 1973, s 349.

[12] The Information Technology Act, 2000.


Abhishek Ranjan

He is a second year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. His area of interest encases Constitutional Law and Human RightsLaw.

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