Self-Certification For WhatsApp Chats By Party Legally Admissible If Requirements Under Section 63 BSA Are Complied: AP High Court

The Andhra Pradesh High Court has held that a self-certificate by a party under Section 65B Indian Evidence Act/Section 63 BSA is legally admissible and generally sufficient for WhatsApp messages or call recordings present on the party's own phone, provided it complies with the statutory requirements given in the provision. 

The requirements that the certificate must identify the electronic record, explain the manner of production, gives its details and certifies that it was functioning properly. 

Holding that the trial Court had proceeded on an erroneous assumption that Section 65B mandates a certificate only from a “proper authority” and not from the person possessing or operating the device, the High Court set aside the order refusing to mark the electronic records.

Section 65B safeguards the authenticity and reliability of electronic records and ensures the integrity of digital evidence produced before Courts.

Justice Ravi Cheemalapati referred to Supreme Court's decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)  to underscore that a certificate under Section 65B(4) is mandatory for secondary electronic evidence, but can also be issued by a person in “lawful control” of the device. The court said:

“A self-certificate (self-certification) provided by the petitioner under Section 65B of the Indian Evidence Act, 1872 (now Section 63 of the Bharatiya Sakshya Adhiniyam, 2023) is legally admissible and generally sufficient for WhatsApp messages or call recordings present on their own phone, provided it complies with the statutory requirements.

A self-certificate under Section 65B(4) of the Indian Evidence Act, 1872, must be signed by a person in a responsible official position, or the user in possession, to authenticate electronic records. It must identify the electronic record, describe its production, and affirm the device's proper functioning, acting as a mandatory prerequisite for admissibility. The certificate must specifically identity the electronic record such as email, video, document being produced. Describe the manner in which the electronic record was produced, Provide details of the device such as computer, phone, involved in the production of the record. Must state that the record was produced by a computer/device operating properly, or that any malfunction did not affect the accuracy of the record.

However, the learned trial Judge upon the presumption that Section-65B mandates certificate issued by the proper authority but not a self-certificate declined to mark the documents. Whereas such a certificate can also be issued by a person in lawful control of the device i.e. mobile phone, however such certificate must fulfil the requirements as indicated above.”

The court passed the order in a petition arising out of divorce proceedings instituted by the husband under the Hindu Marriage Act. During trial, the petitioner sought to mark WhatsApp status, WhatsApp screenshots, email prints, digital photographs, HP DVD, bank statements and other electronic records after filing a self-certificate under Section 65B of the Evidence Act.

Even though the applications to receive and mark additional documents had been allowed, the trial Court refused to permit marking of the electronic records on the ground that the petitioner had not produced a certificate from the proper authority.

The High Court while setting aside the impugned order, directed the trial Court to examine the self-certificate and permit marking of the electronic records if it satisfied the requirements under Section 65B(4).

Case Title: X v/s Y

Case Number: Civil Revision Petition No.1239 of 2024

Counsel for Petitioner: Anita Ahuja

Counsel for Respondent: Bhusarapu B. Yesu Babu

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