FAQ No. 5 - What if I don't have original (or primary) device in my custody ?


65b section of Evidence Act is states about providing copies (means secondary versions) from a computer. This provision has very narrow scope. This law is not explains what and if or in what conditions it may not apply, and it has not given any exceptions. Section only describes about computer output, and not about mobile phone data extractions, website data etc. but we all these (devices) assumes or treat as to be are computers. Today variety of devices, produces variety of data. There is small part is covered in amendment of 79A of IT act.


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If technical and lawful mind apply, by then it is said about a primary evidence, like your current using mobile phone, which we cannot deposit in court proceedings, there we create secondary version of mobile phone data (whatsapp, audios etc.) by help of this law.


In many cases videos, audios was created in mobile phones but it is moved from original phone memory location and mostly preserved on WhatsApp app, instead of where it was. Where original file structure has been changed - its date, time, file size etc. Therefore primary evidence is deleted, moved or disappear or even that data is getting very old and till date of case when evidence has to file, when evidence part comes in case stage, phones were either dead or sold or all data deleted or formatted.


In that case if data copied directly on computer or extracted through PC software, zipped or .rar which (any appropriate) that data values not changed and then those data may be taken as genuine, after expert examination in court proceedings. But if data value's are changed whenever sending someone, in any case when date and time need to be consider, then it would be issue of authenticity of data and that data may be ignored or exclude by the hon'ble courts.


When you share your data from Whatsapp like app, that app exclude meta data. i.e. original name/ date/ time/ data values. from your original file. It means if sent audio file of a call recording through Whatsapp, it will make several changes in file, i.e. File name starts with mobile number followed by date & time - Name 9198xxx 88xxx_ 20230216-201002.mp3 - file info may be date of 16 Feb 2023 - 08:10 PM. But file may changed by this - AUD-20230217-WA002.m4a


And similarly, if that data preserved, on may be on a computer, where the dates & timings are showing on those files with original file format, then that data may consider as genuine data.