The controversy surrounding the arrest of a famous Bollywood star’s son for his alleged involvement in a drug conspiracy and his recent release on bail by the Bombay High Court has, once again, brought into sharp focus the questionable reliance that Indian agencies place on WhatsApp messages during their investigation.
Are investigating agencies allowed to obtain data (including WhatsApp messages) from phones of the accused and other connected persons during an investigation?
An Investigating Agency can direct and/or request the accused or other concerned persons to give their password, passcode or biometrics to open a phone and access data (including WhatsApp messages) from it. If the accused willingly provides such information, then any data from the phone is considered as legally obtained. However, it is up to the accused to agree to the request and/or directions. If they provide such a password, a passcode or biometrics, the investigating agencies can use them to access the phone and get data.
However, if they refuse the request/directions, investigating agencies must approach the Court seeking a search warrant for the phone. The Court can issue a search warrant allowing them to access data on the phone. In emergencies (such as cases where someone is going to destroy the data or the phone), the investigating agencies may seize the phone under the seizure provisions in the Criminal Procedure Code. [Virendra Khanna v. State of Karnataka, (2021) 3 AIR Kant R 455]
Can data obtained from the phone (including WhatsApp messages) be enough to prove that the accused is guilty?
Any data gathered from the phone (or any other electronic equipment or email account) should be treated as any other document or object secured during the investigation. By itself, it does not prove the guilt of the accused. [Virendra Khanna v. State of Karnataka, (2021) 3 AIR Kant R 455]
Is electronic data (including WhatsApp Messages) admissible as evidence in Indian Courts?
Electronic evidence (including WhatsApp messages) is admissible in court, but the prosecution has to file a certificate under Section 65B of the Indian Evidence Act along with it. This is an essential requirement for the admissibility of any electronic evidence in Court [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1]. This certificate must include:
- details of the electronic record,
- how the electronic record was produced,
- the device on which the electronic record was produced,
- that the electronic record has not been altered or tampered with, and
- that it was produced on a device that is being regularly used.
A person occupying an official position in relation to the operation of the device which created the record has to sign the certificate.
In a NDPS case, the Punjab and Haryana High Court granted bail to the accused because the Prosecution did not file the WhatsApp messages it relied on along with a certificate under Section 65B of the Indian Evidence Act. [Order dated 14.01.2021 in Rakesh Kumar Singla v. Union of India, CRM-M No.23220 of 2020 (O&M)].
What if the investigators obtained WhatsApp messages from a person’s phone without their consent, through hacking or by other illegal means?
If electronic data is obtained through illegal means, investigating agencies may use it to further their investigation. However, anything recovered based on this illegally retrieved data would have no evidentiary value in court. Also, Section 65B of the Indian Evidence Act requires that the prosecution file a certificate in court along with electronic evidence, categorically stating that there has been no alteration or tampering of the electronic record. In case of illegally-retrieved WhatsApp messages, the agency cannot file a certificate under Section 65B of the Indian Evidence Act, which would make the WhatsApp messages inadmissible in court.