WhatsApp Printout Without a Section 65B Certificate and a Hostile Witness at Charge Stage
An FIR alleges that the accused, a junior engineer in a municipal corporation, demanded and accepted ₹50,000 from the complainant for issuing a forged completion certificate. The chargesheet relies on: (i) a printout of WhatsApp messages between the accused's mobile number and the complainant, in which the accused allegedly asks for 'settlement' and the complainant sends a photograph of the certificate; (ii) the complainant's driver, who initially told the police that he saw the money being handed over but later resiled and said he was not present; (iii) the disputed completion certificate bearing the accused's purported signature; and (iv) the complainant's statement. The defence seeks discharge, arguing that the WhatsApp printout has no certificate under Section 65B of the Indian Evidence Act, the hostile witness destroys the prosecution case, and the complainant's statement alone is insufficient. The Magistrate is hearing arguments on charge.
1. Is the WhatsApp printout admissible without a Section 65B certificate?
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The WhatsApp printout is a computer output and is governed by Section 65B of the Indian Evidence Act (now Section 63 BSA). As secondary evidence, it is inadmissible unless the conditions in Section 65B(2) are satisfied and a certificate under Section 65B(4) is produced. Arjun Panditrao Khotkar clarifies that the certificate is mandatory, though it may be produced at any stage before the trial ends and the court can summon the certifying person.
Absent the certificate, the printout cannot be exhibited merely because the complainant identifies the screenshot. If the original phone containing the chat is produced and proved by its owner, the position may differ, but a mere printout is not enough. The Magistrate should therefore exclude the printout for the present unless the prosecution produces the certificate or proves the original device in accordance with law.
2. What is the evidentiary value of the driver turning hostile?
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The driver's hostility does not automatically destroy the prosecution case. Under Section 154 of the Evidence Act, the prosecutor may cross-examine a witness with the court's leave, but his previous statement to the police cannot be used as substantive evidence; it can only be used to contradict him under Section 145. The court may still rely on the part of his deposition that is creditworthy and corroborated by other evidence.
If he says he was not present, that creates a gap, but the prosecution can rely on the complainant, the WhatsApp messages (if admissible), the forged certificate and the money trail. The court should evaluate the hostile witness's evidence along with the totality of the material, not discharge or acquit merely because one witness turned hostile.
3. What test should the Magistrate apply while deciding discharge and framing of charge?
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At the charge stage under Sections 239 and 240 CrPC, the Magistrate does not conduct a mini-trial. The test is whether the material discloses grave suspicion of the offence. The court may sift the evidence to see whether it is legally admissible and sufficient to raise a strong suspicion, but it cannot weigh the defence or decide credibility finally.
If the WhatsApp printout remains inadmissible, the remaining material-the complainant's statement, the disputed certificate, and the driver's earlier statement usable only for contradiction-must be assessed. The complainant's sole testimony can be sufficient if it is credible and the demand and acceptance are proved; but the absence of the electronic evidence may weaken the case. The Magistrate should frame charges only if the admissible material creates grave suspicion; otherwise, discharge.