Electronic Evidence: Missing Certificate, WhatsApp Printouts and Section 27 Recovery
Charges were framed on 21 October 2024 before the Additional Sessions Judge, Hisar, against Manoj for cheating and criminal breach of trust. The prosecution's case rests on three items. First, CCTV footage from the complainant's shop: the DVR was seized on 14 August 2023 and the investigating officer copied the relevant clip onto a pen drive the same day; the hard disk was never seized, nothing was sent to the Forensic Science Laboratory, Madhuban, and no certificate accompanied the pen drive. Second, printouts of WhatsApp messages exchanged between the complainant and the accused, downloaded from the complainant's phone, which has not been produced; the printouts were marked through the complainant, who identified the accused's photograph as the profile picture. Third, a mobile phone recovered on 22 August 2023 from a shop counter pursuant to a disclosure statement made by Manoj while in police custody; the seizure memo bears only the signatures of the investigating officer and a constable, and the IMEI was not noted. The prosecution also relies on the phone's call detail records, obtained from the service provider without any certificate. At final arguments the defence objects that these items are inadmissible; the prosecutor replies that the objection is belated.
1. Is the pen drive containing the CCTV clip admissible without a certificate, and can the objection be entertained at the stage of final arguments?
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The requirement. Section 65B(1) of the Evidence Act (now Section 63 of the Bharatiya Sakshya Adhiniyam) makes a computer output admissible as a document without proof of the original, but sub-section (4) requires a certificate identifying the electronic record, describing the manner of its production and dealing with the particulars in clauses (a) to (c), signed by a person occupying a responsible official position in relation to the device. Under the BSA the certificate must be in the form in the Schedule and, notably, must be signed both by the person in charge of the computer or communication device and by an expert. Here the pen drive is a copy: the DVR's hard disk, which was the original, was neither seized nor produced, so the copy is secondary and no certificate accompanied it.
Timing of the objection. The objection is not a mere objection to the mode of proof of a document already admitted (the Sonu v. State of Haryana (2017) 8 SCC 570 principle, which requires objection when the document is tendered). The absence of the certificate is a condition of admissibility and goes to the root, and may therefore be raised at any stage. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 the Supreme Court held the certificate to be mandatory, overruled Shafhi Mohammad, and also held that it may be produced at any stage before the trial concludes, the court being empowered to summon the certifying authority.
Application. Since judgment has not been pronounced, the court should not shut out the evidence mechanically. It should give the prosecution one short, peremptory opportunity to produce the certificate from the person in charge of the DVR and from the expert, with notice to the defence, and to prove the integrity and custody of the copy. If no certificate is produced, the pen drive must be excluded and the CCTV evidence ignored, however plausible the clip may look.
2. Are the WhatsApp printouts proved, and what more is needed before they can be used against the accused?
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Proof of contents. The printouts are computer output and accordingly fall under Section 63 BSA/Section 65B. Unless the complainant's phone itself is produced and exhibited, so that the court can see the messages on the device (in which case the device is the primary record and, on Arjun Panditrao, no certificate is needed), the printouts are secondary evidence and require a certificate. Neither course was followed: the phone was withheld and no certificate was filed.
Authenticity of the sender. A certificate proves the process by which the output was produced; it does not prove who sent the messages. The prosecution must connect the number or profile to the accused through independent material - the service provider's subscriber details, the device recovered from him, or his own admission. Identifying a photograph on a profile is weak, since profile pictures are not authenticated data.
Relevance and hearsay. Even if proved, only the accused's own messages are admissible against him as admissions under Section 21 of the Evidence Act (Section 19 BSA); the complainant's own messages are not evidence in his favour. A chat record that is not shown to be a continuous, unaltered thread, or whose context is not established, carries little weight.
Conclusion. Merely marking the printouts through the complainant does not prove them. Unless the device is produced or a certificate is furnished and the sender is identified, the printouts remain unproved and cannot be used as substantive evidence; at highest they may be used to corroborate or contradict the complainant under Sections 157 and 145 of the Evidence Act, and even that sparingly.
3. What is the evidentiary value of the mobile phone recovered on the accused's disclosure, and of the call detail records tendered without a certificate?
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Section 27 (Section 23 BSA). So much of the information given by a person in custody as relates distinctly to the fact thereby discovered is admissible; the rest of the disclosure is hit by the prohibitions in Sections 25 and 26 (BSA Sections 22 and 23). The prosecution must prove that the accused was in custody, the exact words used, and that the recovery followed in consequence of that information - a recovery of something the police already knew is not a discovery at all. A statement that the phone was 'with a shopkeeper' would be admissible only to the extent of leading to its recovery.
Value of the recovery. Recovering a phone establishes possession at best; it does not establish that the phone was used in the offence. The seizure memo here is signed only by police personnel, no independent witness was joined, the IMEI was not recorded, and no test identification or forensic examination was done. That weakens the link considerably.
The CDRs. Call detail records are secondary electronic records generated by the service provider's servers. They require a certificate under Section 65B(4)/Section 63 BSA from the nodal officer or other responsible official, together with the evidence of the person who prepared the records; Sonu v. State of Haryana (2017) 8 SCC 570 is directly on the point. Tendered without a certificate and without the custodian's evidence, the CDRs are inadmissible.
Net effect. The recovery may be used as a circumstance corroborating the prosecution case if the disclosure is duly proved and the phone is linked to the accused by IMEI, SIM registration and CDR evidence properly certified; standing alone, it proves only that a phone was found.