All About 65b Indian Evidence Act

Introduction

Section 65B is part of the Indian Evidence Act, 1872 & lays out details concerning the creation of evidence in electronic format. Section 65B – Evidence Act specifies the requirements for the admissibility of electronic records such as eSignatures & digital documents as evidence in legal proceedings.

This section of the Indian Evidence Act & the IT- eSign Act permits the use of electronic signatures admissible as evidence before a court of law.

Proving WhatsApp chats, Facebook posts, and website information in Indian courts

1. How can WhatsApp chats be used as evidence in court?

To prove WhatsApp chats, you need to follow these steps:

• Preserve the Chats: Ensure that the original chats are preserved without tampering.

• Section 65B Certificate: A certificate under Section 65B of the Indian Evidence Act must accompany the chats. This certificate ensures that the evidence has been obtained through lawful means and that the electronic system producing the chats was functioning properly.

• Authentication: Include details like the phone number, the messaging app used, the time stamps of the messages, and the integrity of the chat history.

• Printout/Softcopy of Chats: A printout of the chat or a softcopy on a CD/pen drive should be submitted to the court with the Section 65B certificate.

2. What is the procedure for proving Facebook posts as evidence?

To admit Facebook posts in court, the following steps are required:

• Take Screenshots: Capture clear screenshots of the Facebook post, ensuring it includes the date, time, and any other identifying information (profile name, URL, etc.).

• Section 65B Certificate: You must submit a certificate under Section 65B certifying that the screenshot or digital copy of the post is a genuine reproduction of the original post.

• Submit Original URL: Provide the court with the URL of the Facebook post, which will help in verifying the source of the content.

• Metadata/Details: Information such as the creation date of the post, associated IP addresses, and user details should be provided if available.

3. How do I prove information obtained from a website?

For website information, you need to take the following steps:

• Capture the Website Information: Take a screenshot or download the web page, ensuring the URL and date of access are visible.

• Section 65B Certificate: As with other forms of electronic evidence, you must provide a Section 65B certificate. This ensures that the data was retrieved from a properly functioning computer and is a genuine reproduction of the website content.

• Independent Witness: If possible, use a witness who can verify that they visited the website and viewed the same information, although this may not always be required if the Section 65B certificate is sufficient.

• Internet Archive: If the website content has been removed or altered, you may be able to retrieve the content from web archiving services like the "Wayback Machine," which can provide a timestamped archive of the page.

4. What is a Section 65B certificate and why is it required?

A Section 65B certificate is a legal document that certifies the authenticity of electronic evidence. It is required to:

• Verify Integrity: Confirm that the electronic record was produced by a properly functioning computer.

• Confirm No Alteration: Ensure the evidence has not been tampered with or altered in any way.

• Establish Reliability: Allow electronic evidence like chats, posts, or website information to be admitted in court without needing the physical presence of the electronic device (e.g., phone or computer).

5. Can email communication be used as evidence in court?

Yes, emails can be used as evidence under the Indian Evidence Act. The procedure involves:

• Preserving the Email Chain: Keep the entire email thread intact to maintain context.

• Section 65B Certificate: You need to provide a Section 65B certificate to show that the email was generated and stored on a functioning computer system and that it has not been tampered with.

• Metadata: Information like sender and receiver email addresses, the date and time stamps, and headers should be included in the submission.

6. Can the court reject electronic evidence if there is no Section 65B certificate?

Yes, electronic evidence is not admissible in court unless accompanied by a Section 65B certificate. The absence of this certificate can result in the rejection of the electronic evidence, as laid down by the Supreme Court of India in Anvar P.V. vs P.K. Basheer (2014).

7. How do courts verify the authenticity of electronic records?

Courts can verify electronic records through:

• Forensic Examination: In some cases, courts may order a forensic examination of the electronic record to check for tampering or alterations.

• Metadata Verification: Metadata associated with electronic records (like date of creation, sender, receiver information, and more) can help verify authenticity.

• Expert Testimony: Technical experts may be called to testify about the integrity of the electronic evidence.

8. What happens if the original device used for creating the electronic record is not available?

Even if the original device (e.g., a phone or computer) is not available, the evidence can still be admissible, provided a valid Section 65B certificate is submitted. The certificate acts as proof of the integrity of the evidence.

9. Can audio or video recordings from WhatsApp, Facebook, or other social media be used as evidence?

Yes, audio or video recordings from social media platforms can be admitted as evidence under Sections 65A and 65B of the Indian Evidence Act. The process includes:

• Preserving the Original Recording: Keep the original recording intact, ensuring no edits or alterations.

• Section 65B Certificate: Provide a Section 65B certificate verifying the authenticity of the recording.

• Transcription: Courts may ask for a transcription of the recording, which can be cross-verified with the original evidence.

10. Are there any limitations or challenges in proving electronic evidence like WhatsApp chats or social media posts?

Yes, there are challenges, including:

• Tampering Risks: Electronic records can be easily tampered with, so their authenticity must be rigorously proved.

• Storage Duration: Chats or posts may be deleted or become inaccessible over time, making it difficult to retrieve original evidence.

• Forensic Expertise: In some cases, proving the authenticity of the evidence may require forensic examination or technical experts.

These steps are crucial to ensure that electronic records, whether they are WhatsApp chats, Facebook posts, or website data, are admissible in Indian courts.

How courts in India have dealt with copies of emails, WhatsApp chats, Facebook posts, and other forms of electronic evidence, along with the contentions raised and observations of the courts:

In India, courts have considered various forms of electronic evidence such as copies of emails, WhatsApp chats, Facebook posts, and other digital records under the provisions of the Indian Evidence Act, 1872, particularly Section 65B. Here are some notable cases along with the type of evidence presented, the contention of the parties, and the court’s observations:

1. Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473

• Court: Supreme Court of India

• Type of Evidence: CD containing digital records (including electronic documents like emails)

• Contention: The petitioner sought to submit digital evidence without complying with Section 65B.

• Observation of Court:

  • The court held that any electronic record must be accompanied by a certificate under Section 65B to be admissible in court.

  • Without the Section 65B certificate, electronic evidence would not be admissible unless the original electronic source was produced in court.

  • This case firmly established the requirement of a Section 65B certificate for all electronic evidence.
    

2. Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801

• Court: Supreme Court of India

• Type of Evidence: Video footage (electronic evidence)

• Contention: The petitioner argued that the production of a Section 65B certificate was not possible in all cases, especially if the person producing the evidence did not control the device.

• Observation of Court:

  • The court relaxed the requirement of producing a Section 65B certificate in certain situations where it was not possible for a party to produce the certificate.

  • The court held that if the party seeking to introduce electronic evidence does not have possession of the device that produced it, secondary evidence in the form of printouts or soft copies may be allowed under certain conditions.

  • This decision allowed some flexibility for parties unable to get the certificate due to external control over the electronic record.

3. Vikas Agarwal v. State of Haryana (P&H High Court, 2021)

• Court: Punjab & Haryana High Court

• Type of Evidence: WhatsApp chats

• Contention: The petitioner argued that WhatsApp chats between the parties should be admitted as evidence.

• Observation of Court:

  • The court observed that WhatsApp chats, if accompanied by the Section 65B certificate, can be considered as valid evidence.

  • The court emphasized the importance of demonstrating the integrity of the chats by submitting proper metadata and ensuring no tampering.

  • WhatsApp chats were admitted in the case because they were authenticated with the required certificate and presented in their original form.

Kishan Tripathi v. The State of Rajasthan (Rajasthan High Court, 2016)

• Court: Rajasthan High Court

• Type of Evidence: Facebook posts

• Contention: The respondent argued that a Facebook post was defamatory and should be admitted as evidence to support their claim.

• Observation of Court:

  • The court admitted the Facebook post as valid evidence as it was duly certified under Section 65B of the Indian Evidence Act.

  • It was observed that social media posts could be admitted as evidence if they meet the criteria for authenticity and are corroborated with supporting evidence.

  • The court cautioned that social media evidence must be carefully scrutinized, especially considering the possibility of manipulation or fake accounts.

Tomaso Bruno & Anr. v. State of Uttar Pradesh (2015) 7 SCC 178

• Court: Supreme Court of India

• Type of Evidence: CCTV footage, Email records

• Contention: The petitioner sought to admit CCTV footage and emails as evidence.

• Observation of Court:

  • The court observed that electronic records, including CCTV footage and emails, are admissible provided they meet the requirements of Section 65B.

  • The Section 65B certificate must affirm that the system producing the electronic record was in proper working condition and that the data was retrieved correctly.

  • The court also highlighted the importance of digital forensics to verify the authenticity of electronic evidence.

State of Karnataka v. M. R. Hiremath (2019) 7 SCC 515

• Court : Supreme Court of India

• Type of Evidence: Emails and other digital correspondence

• Contention: The petitioner presented email communications as part of the evidence.

• Observation of Court:

  • The court reiterated the importance of a Section 65B certificate for the admissibility of emails.

  • It noted that email printouts, without such a certificate, are not admissible as evidence.

  • The judgment stressed that electronic evidence without the necessary certification may be rejected, regardless of its relevance.

Summary of Court's Approach:

• Section 65B Certificate: The courts have consistently emphasized the necessity of a Section 65B certificate for the admissibility of electronic evidence, whether it is WhatsApp chats, emails, or social media posts.

• Metadata and Originality: Courts look for metadata and proof that the electronic evidence is original and untampered. They often consider forensic examination if there is a doubt regarding the authenticity.

• Flexibility: In certain cases (like Shafhi Mohammad), the courts have allowed flexibility when obtaining a certificate is not possible, but this is an exception and not the rule.
  

By ensuring that these electronic records are certified and verifiable, you can improve the likelihood of their admissibility in Indian courts.