Digital Evidence and WhatsApp Chats: Analysis from White Collar Crime Perspective

By- Jagatpal Choudhary, Student; Gujarat National Law University, Gandhinagar

Abstract

In the contemporary landscape of white-collar crime investigations, digital communications, particularly WhatsApp messages and electronic records, have emerged as pivotal sources of evidence. This paper examines the legal framework governing the admissibility of such digital evidence under Indian law, with particular focus on Section 65B of the Indian Evidence Act, 1872, and its successor provision, Section 63 of the Bharatiya SakshyaAdhiniyam[BSA, 2023]. The paper analyses the mandatory certification regime established by the Hon’ble Supreme Court through landmark judgments in Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which together affirm that a Section 65B certificate is a condition precedent to the admissibility of secondary electronic evidence. It further explores the practical procedures for obtaining such certificates, the identity of competent certifying authorities, and the narrow exceptions available when original devices are produced as primary evidence. The paper also addresses the refinements introduced by the BSA, 2023, including the dual-certificate mechanism and the prescribed template requiring hash values and detailed device particulars. By synthesising judicial precedent and statutory development, the paper offers practitioners and researchers a comprehensive understanding of how digital evidence must be gathered, authenticated, and presented in white-collar crime proceedings to withstand legal scrutiny.

     I.         Understanding the Evidentiary Landscape

Digital chats (such as WhatsApp messages) and other electronic records play a crucial role in white-collar crime investigations (e.g., corporate fraud, bribery, and money laundering). Under Indian law, these are considered “electronic records” [Section 2(1)(t) of the Information Technology Act] and fall within Sections 65A and 65B of the Indian Evidence Act, 1872. In particular, any digital message or chat transcript submitted as secondary evidence (print-out, screenshot, device copy) must meet Section 65B’s strict requirements to be admissible in court.

   II.         Section 65B of the Evidence Act: The Mandatory Certification Regime

Section 65B of the Indian Evidence Act, 1872, forms the cornerstone of the legal framework governing the admissibility of electronic records as evidence.

The section is structured to create a ‘complete code’ for the admissibility of electronic records. Section 65B(1) makes clear that any information contained in an electronic record, whether stored, recorded, or copied as computer output, shall be deemed a “document” and is admissible as evidence without further proof of the original, provided the conditions specified in the section are satisfied. However, this admissibility is conditional upon compliance with the requirements set out in Sections 65B (2) and 65B(4).

Section 65B(2) prescribes four conditions that must be satisfied for an electronic record to be admissible. First, the electronic record must have been produced by a computer during the period over which the computer was regularly. Second, over that period, the information contained in the record must have been regularly fed into the computer in the ordinary course of those activities. Third, the computer throughout the material time was operating properly, or if it was not, then in any respect in which it was not operating properly, or was out of operation during that period, the fact is shown. Fourth, the information contained in the record is accurately reproduced in the document.

The most significant requirement, however, is contained in Section 65B(4), which mandates that a certificate must accompany the electronic record when it is produced as secondary evidence. This certificate must identify the electronic record and describe the manner in which the electronic record was produced. It must furnish the particulars of the device involved in the production of that record. Critically, the certificate must address each of the four conditions set out in Section 65B(2). Finally, the certificate must be signed by a person occupying an official position in relation to the operation of the relevant device or a person in charge of the relevant activities from which the information was derived. The certificate is required to state that the signatory is satisfied, to the best of their knowledge and belief, that the conditions specified in Section 65B(2) have been complied with.

The Hon’ble Apex Court in the landmark case of Anvar P.V. v. P.K. Basheer[1],held that Sections 65A and 65B form a ‘complete code’ for the admissibility of electronic records. It was clarified that when electronic records are produced as secondary evidence (such as printouts or copies), they cannot be admitted under the general provisions of Sections 63 and 65. Instead, they must strictly comply with the requirements of Section 65B, including the requirement to produce a certificate under Section 65B(4). The judgment emphasized that oral evidence cannot substitute for the certificate, and that if the person in possession of the device refuses to provide the certificate, the party seeking to introduce the evidence can apply to the court for an order directing the production of the certificate.

Furthermore, again, the Hon’ble Apex Court in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[2],held unambiguously that the requirement of a certificate under Section 65B(4) is a condition precedent to the admissibility of secondary electronic evidence. The judgment left no room for doubt: unless the original electronic device is produced in court and authenticated by the person who operates or controls it, secondary copies of electronic records cannot be admitted without a valid Section 65B certificate. The court further held that the certificate must be issued by the person who was occupying the relevant device, meaning the person on whose device the original electronic record was first created or recorded.

This principle was again reinforced in the case of Shwetabh Singhal v. J.K. & Sons.[3], when the Hon’ble Rajasthan High Court clarified that a Section 65B certificate cannot validly be issued by aperson to whose device the recording was merely transferred; it must come from the person on whose device the original recording was made.[4]

The Hon’ble Apex Court’s stance has been reinforced recently in the case of Chandrabhan Sudam Sanap v. State of Maharashtra[5], where it was noted that no amount of substantive evidence content can compensate for procedural non-compliance in the realm of electronic evidence.

The Hon’ble Apex Court in the case of State of Karnataka v. T. Naseer[6], has held that if an electronic record is used as primary evidence, it is admissible without the need for a certificate.

III.         Who Issues the Certificate and How to Obtain It: Practical Procedures

1. The certificate must be signed by a person occupying an official position in relation to the operation of the relevant device, or a person in charge of the relevant activities from which the information was produced. In practical terms, this typically means:

v  Owner or Operator of the Device: If WhatsApp messages are extracted from a mobile phone seized during a raid or investigation, the person who issued the certificate should ideally be the phone’s owner. However, if the owner is the accused or unwilling to cooperate, the law provides remedies. The owner can be summoned as a witness to testify about the authenticity of the messages and the device's functioning.

v  Person in Charge of Relevant Activities: In cases involving organizational white-collar crime, such as corporate fraud or embezzlement, the certificate might be issued by the head of the IT department, the Finance Officer, or the person in charge of the computer system from which the records are extracted.

v  Official Custodian of Records: When electronic records are maintained by government agencies or service providers, the certificate must come from the official custodian. In income tax investigations, the certificate might be issued by an Income Tax Officer or an authorized representative of the Income Tax Department. In telecommunications cases, the certificate should come from an authorized officer of the Telecom Service Provider. In a significant case involving income tax investigations, the Rajasthan High Court validated WhatsApp messages as evidence in income tax proceedings, noting that while a Section 65B certificate is essential for final adjudication in trial, the threshold for initiating proceedings under the Income Tax Act is lower, requiring only credible material corroborated by other evidence.

With the coming into force of the Bharatiya SakshyaAdhiniyam (BSA), 2023, the certificate requirements have been refined. Section 63 of the BSA has replaced Section 65B of the old Evidence Act. The BSA now specifies two types of certificates: one issued by the party producing the evidence (with details about the device, specifications, and hash values) and one issued by an expert (with technical authentication of the digital record). The BSA’s schedule provides a detailed template for the certificate, requiring the signatory to state specific details such as the name and details of the device, the manner of production, the date and time of production, the hash value of the electronic record, and a declaration that the record is an accurate representation of the original. This has added another layer of specificity to the certification requirement, while also providing clarity on exactly what must be included in the certificate.

 IV.         Exceptions to the Mandatory Section 65B Requirement

The main exception to Section 65B’s mandate is primary evidence – the original source of the information. If the actual electronic device (or original recording on it) is produced and examined in court, Section 65B does not apply. The Hon’ble Apex Court explicitly held that an electronic record used “as such” (i.e. through the device) is admissible without the certificate. For instance, if during trial a witness plays a WhatsApp conversation directly from their phone (which is on the record), the content is admitted as primary evidence. Analogously, the Hon’ble Gujarat H.C. treated a tape-recording as primary evidence requiring no certificate. In such cases, courts still require the usual safeguards (voice identification, chain of custody, etc.), but the 65B technicality is excused.

Another practical “exception” arises when parties consent or fail to contest authenticity. Some judges have indicated that if a defendant expressly admits the chats are genuine, the certificate formality is less critical (though best practice is to obtain it nonetheless). There is no blanket waiver rule, but courts recognize that Section 65B(4) is a condition precedent for secondary evidence. If, however, the accused has the device and declines to contest the record, the court may proceed as if it were primary evidence. Importantly, these are narrow pathways; absent clear consent, the safe course is always to provide the certificate.

Section 63 of the BSA replaces Section 65B of the old Evidence Act. The new provision maintains the mandatory certification requirement but introduces important refinements:

v  Two Types of Certificates: The BSA recognizes two types of certificates. The first is a certificate issued by the party producing the evidence, detailing the device specifications, the manner of production, and confirming the accuracy of the reproduction. The second is a certificate issued by an expert who provides technical authentication of the digital record. This dual certificate approach allows both parties and experts to vouch for the digital evidence, depending on their respective positions of authority.

v  Detailed Template: The Schedule to the BSA provides a detailed template for the certificate, specifying that the certificate must include information such as the name and details of the device, the date of production, the manner of production, the hash value of the electronic record, and a declaration that the record is an accurate and complete representation of the original. This template clarifies exactly what must be included in the certificate, reducing disputes over the adequacy of certification.

    V.         Conclusion

The admissibility of digital evidence in white-collar crime proceedings has evolved into a highly technical and procedurally exacting domain of Indian evidentiary law. The jurisprudence developed by the Hon’ble Supreme Court, from Anvar P.V. to Arjun Panditrao Khotkar and beyond, has unequivocally established that compliance with the certification requirements of Section 65B of the Indian Evidence Act, now mirrored in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, is not a mere formality but a jurisdictional prerequisite for the admissibility of secondary electronic evidence. No degree of substantive probative value can cure the absence of a valid certificate.

For practitioners engaged in white-collar crime litigation, the practical imperatives are clear. Certificates must be obtained from the correct person, the operator or owner of the originating device, and must address each condition specified in the applicable statutory provision. The introduction of the BSA’s dual-certificate mechanism and mandatory hash-value declaration represents a welcome step toward greater technical rigour and reduced evidentiary disputes. However, these enhancements also demand greater digital literacy from lawyers, investigators, and judges alike. As digital communications continue to occupy a central role in financial crime, the legal system’s ability to adapt its evidentiary standards to technological realities will be critical to ensuring both effective prosecution and the protection of fair trial rights.

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

[2] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

[3]Shwetabh Singhal v. J.K. & Sons, 2025 SCC OnLine Raj 4870.

[4]https://www.scconline.com/blog/post/2025/09/26/rajasthan-high-court-section-65-b-certificate-evidence-act-original-device-holder/.

[5] Chandrabhan Sudam Sanap v. State of Maharashtra, (2025) 7 SCC 401.

[6] State of Karnataka v. T. Naseer, (2024) 16 SCC 729.

Note - The information contained in this blog is for general informational purposes only. We endeavour to keep all content accurate, updated, and free from any form of misinformation or objectionable material. However, we shall not be responsible for any claims arising out of copyright infringement, plagiarism, or related issues; such responsibility lies solely with the respective authors.

If you find any misinformation or objectionable content on this website, please report it to us at: editors.ilw@gmail.com