Electronic evidence wins and loses cases every day, and the difference is almost always procedural rather than substantive.
The rule
Under the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024, an electronic record is admissible, but where it is produced other than by the original device, it must be accompanied by a certificate under Section 63, which carries forward Section 65B of the Indian Evidence Act. The certificate identifies the electronic record, describes the manner of production, gives particulars of the device, and must meet Section 63(4), including signature by the person in charge of the device or relevant activities and an expert, in the prescribed form. The savings provision must be checked for older pending proceedings.
The leading authority
In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) a three-judge bench held that the certificate is a mandatory pre-condition to admissibility of secondary electronic evidence, resolving earlier conflicting decisions. The Court also held that where a party is unable to obtain the certificate because the device is in the possession of someone else, they may apply to the court for a direction to produce it. So the requirement is strict, but it is not a trap without an exit.
The single commonest failure is a party who forwarded a chat to themselves several times, changed phones, and no longer has the original handset. Do not delete the chat, do not reset the device, and do not rely on a photograph of a screen. Where the matter is serious, take advice about having the device imaged forensically before anything changes.
| Decision | Year | Effect |
|---|---|---|
| Anvar P.V. v. P.K. Basheer | 2014 | Certificate held mandatory for electronic records |
| Shafhi Mohammad v. State of Himachal Pradesh | 2018 | Diluted the requirement where the party did not control the device |
| Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal | 2020 | Restored Anvar, overruled Shafhi. The certificate is mandatory. |
What strengthens electronic evidence
- The complete thread with dates and times, not selected messages. Edited extracts invite the argument that context was removed
- Export the chat through the application's own export function, which preserves metadata
- Corroboration: bank entries, delivery records, call detail records obtained through the court
- Where authenticity is genuinely disputed, an examiner of electronic evidence report
What the certificate must now contain, and who has to sign it
This is the part being got wrong. The certificate under Section 63(4) must identify the electronic record, describe the manner in which it was produced, give particulars of the device, and deal with the statutory conditions about the regular use and proper functioning of that device. The Adhiniyam prescribes a format in its Schedule, so it is a form to complete rather than a paragraph to compose.
Two features catch people out. First, the certificate must be signed by a person in charge of the computer or communication device, or of the management of the relevant activities, and by an expert. That dual signature is a departure from the old practice under Section 65B, where the person in control alone could certify, and a certificate carrying only the party's signature is now open to objection. Second, the certificate must be submitted along with the electronic record at each instance where it is submitted for admission. One certificate filed years ago with a different application does not carry forward. File it with the document, every time.
The surrounding provisions are permissive: the Adhiniyam expressly says admissibility cannot be denied merely because the record is electronic. It is the certificate that is the gate.
Getting hold of material you do not have
Most of the useful record sits with somebody else: the other side's handset, a bank, a telecom operator, a platform. Apply early rather than at trial. Call detail records are retained by operators only for a limited period fixed by their licence conditions, so a summons issued eighteen months into a case frequently returns nothing. Where the material is on the opposite party's device, the route is an application to the court for a direction to produce it, which is exactly what the Supreme Court preserved for a party unable to obtain the certificate itself.
Where authenticity will genuinely be fought, do it properly at the start: have the device imaged forensically, record hash values so the copy can later be shown to be unaltered, and keep a chain of custody. An opinion from an examiner of electronic evidence notified under the Information Technology Act, 2000 carries weight a printout does not.
Getting it lawfully, which is a separate question
Admissible and lawfully obtained are not the same thing, and in family and employment matters the gap between them is where cases are lost. Recording a spouse's calls, accessing another person's account, or installing tracking software raises privacy questions in its own right, and a court may admit the material and still take a dim view of how it was obtained, particularly on costs and on credibility. Our notes on recording calls without consent and on what courts allow as evidence in divorce cases deal with that line directly.
Where the conduct itself is an offence, such as impersonation, hacking, obscene messaging or online harassment, the evidence-gathering exercise runs alongside a complaint rather than instead of it. Our guide on how to report cyber crime in India sets out the portal, the helpline and what the police will ask you to preserve.
- The device itself, preserved and not wiped, reset or handed on
- The message thread complete and unedited, not a cropped screenshot of the convenient part
- The Section 63 certificate in the prescribed form, signed by the person in charge of the device or relevant activities and by an expert
- Sender and recipient numbers, with dates and timestamps visible
- Where the record sits with a third party, an application to the court to summon it rather than self-help
- A hash value or forensic image where the authenticity of the record is likely to be disputed
Two limits worth knowing
First, admissibility is not the same as weight. A court may admit a message and still give it little value if authorship is doubtful. Second, courts have observed that a message being delivered or displaying blue ticks does not by itself prove that a particular person read and understood it, so do not overstate what a screenshot establishes.
Add a practical third. A number is not a person. Handsets are shared, accounts are recovered, and disappearing messages leave nothing behind. Corroborate the authorship, not just the message, and be careful of a chat forwarded through two devices before it reached you.