When Is Electronic Evidence Unreliable? Objections Under the BSA

Short answer: Electronic evidence is not automatically reliable. Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), copies of electronic records generally need a proper Section 63 certificate with a hash value, and the court will look at how the record was collected and kept. Objections should be raised at the right time, usually when the record is first tendered in evidence.

What counts as electronic evidence

WhatsApp and email messages, call detail records (CDRs), tower location data, CCTV footage, bank statements downloaded from a server, social media posts, photographs and audio recordings are all electronic records. In many modern criminal cases, they form the core of the prosecution story, and sometimes the core of the defence.

What the law says

• Section 61 BSA: an electronic record is admissible like any other document; it cannot be rejected merely because it is electronic.
• Section 63 BSA (old Section 65B): a copy of an electronic record must be accompanied by a certificate in the Schedule form. Part A is signed by the party or person in charge of the device; Part B is signed by a technically qualified person and records the hash value. The Supreme Court upheld this requirement in Pune Bar Association v. Union of India (22 May 2026), calling the hash value an “electronic fingerprint”.
• Mandatory nature: in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), the Supreme Court held the certificate is mandatory for secondary electronic evidence, but it may be produced later in the trial if that is fair to the accused.
• Chargesheet: Section 193(3)(i)(h) BNSS requires the police report to state the sequence of custody of electronic devices.
• Opinion evidence: Section 39 BSA allows the court to consider the opinion of an Examiner of Electronic Evidence and others with specialised skill.
• CDRs: police usually obtain them from telecom providers under Section 94 BNSS (old Section 91); they must come with a Section 63 certificate from the provider. Tower location is approximate, not a precise address.

Common grounds of objection

1. No certificate, or a defective one: unsigned, signed by someone with no control over the device, missing Part B, or without a hash value.
2. Hash mismatch: the hash in the certificate does not match the file supplied, or no hash was recorded at seizure.
3. Screenshots in place of the original: a printout or screenshot cannot show who sent a message, from which number, or whether it was edited, unless properly proved.
4. Incomplete extraction: only selected chats are produced, without the surrounding messages that change their meaning, or a full device image was not made.
5. Gaps in custody: the device was used, switched on or connected after seizure without record. Our note on forensic, medical and digital evidence delays covers the laboratory side.
6. Time and date problems: CCTV clocks that were never synchronised, or time-zone differences in server logs.
7. Attribution: a message from a number or account does not by itself prove who typed it, especially where a device or account is shared.

Timing of objections

Objections fall into two broad types. An objection that the document is inadmissible altogether can, in principle, be raised at any stage. An objection to the mode of proof, such as the absence of a proper certificate, should be raised when the record is tendered and marked as an exhibit; the Supreme Court has held that such an objection, if not raised at trial, may not be allowed later in appeal. That is why it matters that your advocate reviews the digital material before witnesses are examined.

1. On receiving the chargesheet, list every electronic record relied on and check whether a certificate, hash value and seizure memo exist for each.
2. Apply for supply of any missing material, including clone copies of data where permissible.
3. Where the defence needs records, such as CDRs or CCTV to support an alibi, apply early for preservation, since providers and building owners overwrite data after a period.
4. Record objections when the evidence is tendered, and test it through cross-examination of the certifying person and the investigating officer.
5. Where there are specific grounds, apply for examination by a forensic laboratory.

Your rights and common mistakes

You have a right to the documents relied on by the prosecution, and to cross-examine the witnesses who produce electronic records. A common mistake is waiting until final arguments to raise a certificate defect. Another is deleting chats or resetting a phone after an FIR; never do this, as it can be treated as destruction of evidence and will harm your case.

Common questions

Is a WhatsApp screenshot admissible?

It may be admitted if properly proved with a Section 63 certificate and supporting evidence. Without that, its weight is open to challenge.

Can the prosecution file the certificate late?

The Supreme Court has allowed late production in some circumstances, subject to fairness to the accused. The court decides case by case.

Can I rely on my own electronic evidence?

Yes. The same rules apply to the defence, so keep your device safe and obtain a proper certificate before producing it.

When to speak to an advocate

If your case involves digital evidence, speak to an advocate before charges are framed. That is the stage to identify certificate defects, preservation needs and missing material.

Sources: Bharatiya Sakshya Adhiniyam, 2023 (India Code); Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code).

For a confidential discussion about WhatsApp chats, call records, CCTV or other digital evidence in your case, see Criminal Lawyer, Surajpur Court, Greater Noida.

General legal information only; not legal advice or solicitation.