Section 65B Certificate by an Investigating Officer, Hash Value and the Missing Authorship
In Sessions Trial No. 112 of 2023 before the Additional Sessions Judge, Gurugram, the prosecution alleges that the accused, a branch manager, induced the complainant to transfer Rs 12,40,000 to three accounts on the strength of WhatsApp messages sent from a mobile number ending 4471. The complainant produced screenshots of the chats taken from his own phone. During investigation the police seized the accused's handset under a Section 100 CrPC memo, but the memo records no hash value, the handset lay in the malkhana without a Faraday bag for eleven days, and the chat was never exported from the device in the presence of witnesses. The FSL report confirms that the exhibits contained the disputed chats but states expressly that authorship could not be determined. The prosecution proposes to prove the chats through a certificate under Section 65B(4) of the Evidence Act signed by the investigating officer, describing himself as an officer 'having control over the computer resource'. The defence objects when the document is tendered. Trial began on 4 March 2024 and the certificate was filed on 2 April 2024.
1. Is the Section 65B(4) certificate valid? Who may issue it, and what should the court do at the stage of marking?
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1. The requirement. Electronic records are admissible as documents only through Section 65B: sub-section (1) deems the printout or copy to be a document, sub-section (2) lays down the conditions about the computer's proper operation and the ordinary course of activities, and sub-section (4) requires a certificate identifying the record, describing the manner of its production and dealing with the sub-section (2) particulars.
2. Who may certify. The certificate must come from a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The investigating officer who merely seized the handset does not answer that description; his self-serving recital does not make him a person in control of the computer resource (Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1).
3. The original-device exception. Arjun Panditrao clarifies that the certificate is unnecessary where the original device is produced and the person who owned or operated it steps into the box. If the handset is produced and the FSL examiner speaks to the extraction, the record can be proved without the defective certificate.
4. Objection and cure. The requirement is a condition of admissibility, not a mere rule of procedure, but the court is not bound to reject outright. The proper course is to allow the prosecution to file a fresh certificate from the competent person, or to summon that person, and to permit the FSL examiner to be examined; a defect capable of cure should not be converted into an acquittal. The belated objection is a factor on weight, not a bar (Sonu v. State of Haryana, (2017) 8 SCC 570), though it does not dispense with the statutory condition.
2. What is the evidentiary consequence of the absence of a hash value and eleven days in the malkhana without a Faraday bag?
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1. Admissibility versus weight. Section 65B(2) speaks of the computer being used regularly, of information being fed in the ordinary course, and of the computer operating properly. Neither the Act nor Section 65B(4) mandates the recording of a hash value; the hash is a forensic best practice that proves integrity, not a statutory condition of admissibility. Its absence therefore affects weight and not admissibility.
2. Chain of custody. Eleven days in an unsealed malkhana without a Faraday bag creates a real possibility of remote access, deletion or alteration. The prosecution must explain the custody from seizure to FSL examination. If the malkhana register is produced and the seals are intact, the objection loses force; if there is a gap, the court may draw an adverse inference under Section 114(g) of the Evidence Act (Section 119 BSA).
3. What the FSL report proves. The report proves that the chats existed on the device as extracted; it does not prove that the accused sent them. Authorship must be established by independent material - the seizure of the handset from the accused, the subscriber record and CDR of the number ending 4471, the tower location, the accused's control of the three accounts, and the money trail. The absence of authorship evidence is the real weakness, not the missing hash.
4. Practical course. The court should admit the record subject to proof, note the objections in the order, and decide at judgment whether the integrity of the record is sufficiently established to be relied on. The safest approach is to summon the FSL examiner and the malkhana moharrir for cross-examination.
3. Can the complainant prove the screenshots taken from his own phone, and what use can the court make of them?
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1. The complainant's screenshots. A screenshot taken from the complainant's own handset is, in relation to his device, a printout of an electronic record generated by the device. He is the owner and operator of that device, and can prove its contents by stepping into the witness box; where the original device is produced, Arjun Panditrao holds the Section 65B(4) certificate unnecessary. He may also speak to what he saw and received, which is direct evidence of the communication as it reached him.
2. Limits. His evidence proves that messages were received on his phone from a number; it does not by itself prove that the accused was the sender. That link needs the subscriber record, the seizure of the handset, the CDR and the money trail. The screenshots are secondary in the sense that they are reproductions of what appeared on the screen, but they are admissible once properly proved.
3. The FSL report. A report that is silent on authorship is neutral, not exculpatory. It establishes the presence of the chats on the exhibits; it simply does not assist on identity.
4. Weighing. The court should test the screenshots for internal consistency (dates, timestamps, continuity of the conversation), compare them with the bank statements showing transfers of Rs 12,40,000 to the three accounts, and see whether the accused's response to the Section 313 question accounts for them. If the money trail and the number converge on the accused, the screenshots can be relied on as corroboration; if the link rests only on the complainant's word, the benefit of doubt must go to the accused on that limb.