Admissibility of WhatsApp Chats, Audio and CDR
In a trial for cheating under section 420 IPC, the complainant produces three items: printouts of WhatsApp chats with the accused, a pen drive containing an audio recording of a telephone call, and a call detail record (CDR) obtained from the service provider. The complainant downloaded the chats from his own mobile phone and says the phone is available. The pen drive has no hash value and the recording was transferred from the phone to a laptop and then to the pen drive. The CDR is accompanied by a certificate from the service provider's nodal officer, but it does not use the form prescribed under section 65B(4) of the Indian Evidence Act; it merely states that the record was generated in the ordinary course of business. The accused objects to all three items as secondary electronic evidence without a valid certificate. The prosecution argues that the chats are primary evidence because the complainant's phone can be produced, and that the CDR is a business record admissible without a certificate. The court must rule on admissibility.
1. Are the WhatsApp printouts admissible? Discuss the effect of producing the mobile phone.
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A printout of a WhatsApp chat is a copy of an electronic record. Under section 65B(1) read with section 65B(4) of the Indian Evidence Act (now section 63 of the Bharatiya Sakshya Adhiniyam), it is admissible as secondary evidence only with a certificate identifying the record, describing the manner of production, giving particulars of the device, and signed by a responsible person. Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal make the certificate mandatory. Producing the mobile phone can help prove the original, and the complainant, as the person in charge of the phone, may give the certificate; but the printouts alone, without a certificate, are vulnerable. The court should not reject the phone itself, but it should insist on a section 65B certificate for the printouts, or on proof of the device and the download process. The evidence can be admitted subject to proof, with weight assessed later.
2. Is the CDR admissible despite the non-prescribed form of the certificate?
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The CDR is a business record, but it is still an electronic record for section 65B. The certificate need not be in a prescribed form if it contains the substance required by section 65B(4): identification of the record, particulars of the device, the manner of production, and the signature of a responsible officer. A nodal officer of the service provider is ordinarily a responsible person. However, a bare statement that the record was generated in the ordinary course of business may not satisfy the requirement. The court should examine whether the certificate identifies the CDR and the computer system. If it does, the CDR is admissible; if not, the prosecution should be allowed to cure the defect by a fresh certificate, unless the trial would be prejudiced. Oral evidence from the nodal officer can support the certificate but cannot substitute for it.
3. What foundational conditions must the audio recording satisfy before it is admitted?
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An audio recording is admissible if the voice is identified, the recording is accurate, the chain of custody is proved, and tampering is ruled out. The pen drive is a copy, so a section 65B certificate or evidence about the transfer from the phone to the laptop and then to the pen drive is necessary. The absence of a hash value weakens authenticity; the prosecution should produce the original phone or the first copy with hash values, and the person who made the transfer. The court may compare the voice with a specimen recording under section 73 of the Evidence Act, but the burden remains on the prosecution. The recording can be admitted if the foundational facts are proved, but its weight may be low if the chain is broken.