In the digital age, a significant portion of our communication, both personal and professional, occurs through platforms like WhatsApp and email. These conversations often contain crucial information that can serve as evidence in legal disputes. However, a complex situation arises when you have seen incriminating messages or emails on someone else’s device but do not have the password or access to it. For instance, Mr. Alok Sharma, a software developer in the city of Vidyanagar, suspected his business partner, Mr. Rohan Gupta, of defrauding their company, ‘Innovate Solutions Pvt. Ltd.’ Mr. Sharma briefly saw emails on Mr. Gupta’s laptop and WhatsApp chats on his phone that confirmed his suspicions, but he could not secure copies. He now faces the challenge of legally presenting this information as evidence in court.

Advice in such cases

If you find yourself in a similar predicament to Mr. Sharma, it is crucial to act strategically and legally. Mishandling the situation can weaken your case or even expose you to legal risks.

• Do Not Attempt Illegal Access: Under no circumstances should you try to guess the password, hack into the account, or physically take the device without consent. Such actions are illegal under the Information Technology Act, 2000, and can lead to criminal charges against you, completely undermining your original case.
• Document Everything You Remember: Immediately write down everything you recall from the conversation or email. Note the date and approximate time you saw it, the participants involved, and the specific content of the messages. This detailed record will be vital for your lawyer and for filing a formal complaint.
• Identify the Device: Make a note of the device on which you saw the evidence—for example, a specific model of a mobile phone (e.g., a blue OnePlus phone) or a laptop (e.g., a silver Dell laptop) and its location.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

The admissibility of electronic evidence in India is primarily governed by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which has replaced the old Indian Evidence Act, 1872.

• Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA): This is the cornerstone for the admissibility of electronic records. It states that any information contained in an electronic record, which has been stored, recorded, or copied in a computer, is also considered a document and is admissible in any proceedings without further proof or production of the original, provided the conditions mentioned in the section are satisfied. This includes providing a certificate authenticating the electronic record.
• Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This section empowers a court or a police officer in charge of a police station to issue a summons or a written order to a person in possession of any document or thing (including electronic devices) to produce it at a specified time and place. This is the legal tool used to compel the opposing party to produce the device containing the evidence.
• Information Technology Act, 2000: This Act provides the legal framework for electronic transactions and cybercrime. It defines terms like ‘electronic record’ and ‘computer,’ which are crucial for interpreting the BSA.

If you are the complainant

As the person seeking to use the evidence (the complainant), you must follow the due process of law to obtain it legally.

• File a Formal Complaint: The first step is to file a police complaint (First Information Report – FIR) if the matter involves a criminal offense like cheating, fraud, or criminal intimidation. If it’s a civil matter, you would file a suit in the appropriate court.
• Application for Seizure/Production: Your lawyer will file an application in court under Section 94 of the BNSS (in criminal cases) or a similar provision in the Code of Civil Procedure (in civil cases), requesting the court to direct the police or the other party to produce the specific electronic device (phone, laptop, etc.) for investigation.
• Forensic Examination: Once the device is seized under court orders, it will be sent to a forensic science laboratory (FSL). Forensic experts can retrieve the data, including deleted messages and emails, which can then be presented in court.
• Obtain the Certificate: The evidence retrieved by the forensic experts must be accompanied by a certificate under Section 63 of the BSA. This certificate validates the authenticity of the electronic record and the process by which it was retrieved.

If you are the victim

If you are the victim of a crime where the evidence exists on your own device (e.g., receiving threatening messages), the process is more straightforward.

• Preserve the Evidence: Do not delete the messages or emails. Take screenshots as a preliminary backup, but remember that the original electronic record on the device is the primary evidence.
• File a Complaint: Immediately report the matter to the police by filing an FIR. Provide them with your device so they can collect the evidence in a forensically sound manner.
• Cooperate with the Investigation: The police will likely send your device for forensic analysis to create a clone of the data and prepare a report. Your cooperation is key to building a strong case.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

How the police behave in such cases

When a complaint involving electronic evidence is filed, the police, especially the cyber crime cell, are trained to follow a specific protocol. They understand the importance of securing the device quickly to prevent data tampering or deletion. Upon receiving a complaint and finding it credible, they will approach the court to get a search and seizure warrant or an order for the production of the device under Section 94 of the BNSS. They will then execute the order and send the seized device for forensic examination. The police are generally cooperative but rely heavily on a clear, detailed, and credible initial complaint from you.

FAQs people normally have

• Is a screenshot of a WhatsApp chat admissible in court?
  

  A screenshot can be used as secondary evidence, but it has weak evidentiary value as it can be easily fabricated. The primary evidence is the data on the device itself. The court will always prefer a forensic report of the original data, authenticated with a certificate under Section 63 of the BSA.

  
  
• What if the other person has already deleted the messages?
  

  Even if messages are deleted from the user interface, they often remain on the device’s memory for a period. Forensic experts can use specialized tools to recover a significant amount of deleted data. This is why acting quickly and getting the device seized is critical.

  
  
• Can I present a printout of an email as evidence?
  

  Similar to screenshots, a simple printout is considered secondary evidence. For it to be admissible, it must be accompanied by the certificate required under Section 63 of the BSA, which attests to the authenticity of the electronic record from which the printout was taken.

  
  

What evidence is required?

To successfully use electronic communications as evidence, you need more than just the content of the messages. The primary requirement is to prove its authenticity and integrity. The crucial piece of evidence is the electronic record itself, retrieved from the device in a forensically sound manner. This must be supported by a certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023. This certificate must:

• Identify the electronic record containing the statement.
• Describe the manner in which it was produced.
• Provide particulars of the device involved in the production of that record.
• Be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities.

How long will the investigation take?

The duration of the investigation can vary significantly. After the device is seized, the process of sending it to the Forensic Science Laboratory (FSL), getting the data extracted and analyzed, and receiving the final report can take anywhere from a few months to over a year. The timeline depends on the complexity of the case, the amount of data to be analyzed, and the backlog at the FSL. Patience and regular follow-ups with the investigating officer through your lawyer are essential during this period.

Advocate Sudhir Rao, Supreme Court of India