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Rape Law in Transition, Part 7: Electronic Evidence and Bail

30 September 2026 · 12 min read

This is Part 7 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

X. Electronic Evidence: Photographs, Videos and Chats

Messages and photographs now decide more disputes about consent than medical reports do. Yet an electronic record is only as good as its proof. That proof is either the original device, or a certificate under section 63 of the Sakshya Adhiniyam, which replaces section 65B of the Evidence Act. The certificate now requires an expert’s declaration and a hash value.

The statute

The Adhiniyam treats electronic records as documents. Section 2(1)(d) includes in the definition of “document”: emails and server logs; files on computers, laptops and smartphones; messages and websites; locational evidence; and voicemail stored on digital devices.

The Explanations to section 57 make the following primary evidence: each file where a record is stored in more than one place; a record produced from proper custody, unless it is disputed; each stored copy of a video recording that is transmitted at the same time; and each automated storage, including temporary files.

Section 61 provides that an electronic record is not to be denied admissibility merely because it is electronic, subject to section 63.

Section 63 covers output produced by a computer or any communication device, and treats several devices used together as a single device. The certificate it requires must accompany the record each time the record is submitted in evidence. It must be in the form set out in the Schedule. And it must be signed both by the person in charge of the device or activity and by an expert.

The Schedule has two parts. Part A requires the hash value to be disclosed. Part B is a further declaration by an expert. In Pune Bar Association v. Union of India the Supreme Court upheld this requirement, describing the hash value as an electronic fingerprint. It observed, while refraining from a conclusive opinion, that a person with special skill in computer science or cyber forensics may sign Part B. That person need not be an examiner notified under section 79A of the Information Technology Act.1 For proceedings pending on 1 July 2024, section 65B of the Evidence Act continues to apply.

The law of the certificate

The decisions under section 65B govern section 63 by analogy.

In Anvar P.V. v. P.K. Basheer a bench of three judges held that secondary electronic evidence can be proved only through the certificate, and that the certificate must accompany the record. An original produced as primary evidence needs no certificate.2

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal a later bench of three judges confirmed that the certificate is a condition precedent to admissibility. Oral evidence cannot take its place.3 The Court also settled three practical points: no certificate is needed where the owner of the device steps into the witness box and proves the original; where the person in charge refuses to give a certificate, the party may apply to the court to compel it; and in a criminal trial the prosecution should furnish the certificate before the trial begins, but the court may permit it later, so long as the hearing is not over and the accused suffers no serious or irreversible prejudice.

In Sonu @ Amar v. State of Haryana the Court held that an objection to a missing certificate goes to the mode of proof. It must therefore be taken when the document is tendered in evidence, and cannot be raised for the first time on appeal.4

Chats in rape cases

The Supreme Court has now applied these rules in cases of sexual offences and related crimes. In Pankaj Singh the prosecutrix’s counsel relied on WhatsApp chats but conceded that no certificate had been produced. The chats had surfaced only in cross-examination, and the accused had never been formally called upon to admit or deny them under section 294 of the Code, so the Court held them not proved.5 In the same case, the sheer volume of contact after the incident weighed against the prosecution. In Kondapaka Sridhar, a murder case, the Court held that call records not proved through the service provider’s nodal officer and unsupported by a certificate could not sustain the case built on them, and that CCTV footage without a certificate was equally unproved.6 And in Shiv Pratap Singh Rana an allegation that photographs had been taken surreptitiously failed because neither the phone nor the photographs had been seized.7

No decision of the Allahabad High Court on section 63, or on the proof of chats in a sexual-offence case, was found in the preparation of this essay.

Using chats: the defence

For the defence, chats are usually the best evidence of the relationship, and they must be handled with discipline. They should be preserved early, by having the accused’s phone forensically imaged, the hash values recorded, and the device kept sealed.

There are then three routes of proof. The first is the original device, proved by its owner; it is submitted that where the owner is the accused, this route requires him to testify, with everything cross-examination brings. The second is a certificate in both parts, signed by the person in charge of the device and by a cyber-forensic expert, stating the hash values and filed with the record. The third is to put the chats to the prosecutrix early and use the formal procedure for admission or denial; Pankaj Singh shows the cost of producing them late and informally.

Counsel should also know what chats can and cannot prove. They show the nature and duration of the relationship, the plans the parties shared, the affection that followed the alleged event, and the trigger for the complaint. They cannot prove consent to the specific act on the specific occasion, which is what Explanation 2 requires. Intimate images should never be annexed to a public pleading; counsel should seek a sealed cover and viewing in chambers.

Using chats: the prosecution

For the prosecution the task is equally concrete. Both parties’ phones should be seized at once, imaged with hash values and sent to the laboratory. Threats, blackmail or morphed images must be connected to the accused through the device, the subscriber records and the platform’s logs. Call records and tower locations should be obtained through the nodal officer with a certificate, and CCTV secured by notice under section 94 before it is overwritten. The certificates should be filed with the charge-sheet, and where one is missing, leave to produce it should be sought before the hearing closes. And when the time comes, the prosecution should object to uncertified material tendered by the defence, for the rule in Sonu @ Amar cuts both ways.

Authenticity

Screenshots can be edited, and images and videos can be morphed or synthetically generated. It is submitted that, whenever authenticity is in doubt, both sides should insist on four things: the original device, its metadata, the hash values, and an examined expert. The Part B declaration exists precisely to test authenticity, and counsel who do not use it forfeit the protection it offers.

XI. Bail and Anticipatory Bail

The statute withholds anticipatory bail only in the gravest cases: the rape of a girl under sixteen, and the gang rape of a girl under eighteen (section 482(4) of the Nagarik Suraksha Sanhita). In those same cases it requires two further things when regular bail is sought. The informant, or a person she authorises, must be present at the hearing (section 483(2)). And the Public Prosecutor must be given notice of the application within fifteen days of its receipt (section 483(1), second proviso).

The Code of Criminal Procedure made corresponding provision in sections 438(4) and 439(1A) for the Penal Code offences against girls under sixteen and under twelve, and for gang rape of girls in those age groups. For ordinary rape, for its aggravated forms, and for section 69, anticipatory bail remains available.

An open transitional question

One transitional question has not been settled. For an offence under the Penal Code, an application filed after July 2024 is governed by the procedure of the new Sanhita (Deepu). But sections 482(4) and 483(2) name offences by their numbers in the Nyaya Sanhita, not the Penal Code. Whether they bar anticipatory bail for an offence under section 376(3) of the Penal Code, by treating it as equivalent, is a question on which no decision was found.

The victim’s voice

The victim’s voice at the bail stage does not depend on those provisions. In Jagjeet Singh v. Ashish Mishra a bench of three judges recognised that a victim has participatory rights at every stage of the proceedings, from investigation to appeal, including bail. It set aside a bail order made without hearing her.8

In Aparna Bhat v. State of M.P. the Supreme Court condemned a bail order that had required the accused to have the complainant tie a rakhi on him.9 It then laid down four rules for bail in sexual offences: conditions must neither require nor permit contact between the accused and the victim; they must not suggest compromise or marriage; they must not reflect stereotypes; and the complainant must be told that bail has been granted, and must receive a copy of the order within two days.

What the court weighs

The court weighs the ordinary considerations: the gravity of the offence and its statutory minimum; the prima facie strength of the case; the risk of pressure on the victim; the accused’s antecedents; the time he has spent in custody; and the stage the trial has reached.

The general principle that bail is the rule and jail the exception rests on Article 21 and the presumption of innocence. It was restated in Satender Kumar Antil v. CBI, which also insisted on compliance with the safeguards against arrest in sections 41 and 41A of the Code.10 In offences carrying a minimum of ten or twenty years, however, that principle yields a good deal to gravity.

Relationship cases in the Allahabad High Court

In relationship cases the Allahabad High Court has shown a clear readiness to grant anticipatory bail where the first information itself describes a long consensual relationship.

In Udayveer Singh it granted anticipatory bail under section 69 after a four-year relationship. In Ritesh Soni it granted anticipatory bail until the conclusion of the trial in a prosecution under section 376(3) and the child-protection statute, where the facts were undisputed, the charge-sheet had been filed, and both parties had been young when the relationship began; but the Court expressly declined to express any opinion on the merits, so the order is weak authority on anything but bail.11 In Shivam Upadhyay, by contrast, the accused’s own conduct showed that he had never meant to marry, and bail was refused.

Drafting and opposing the application

It is submitted that a defence application should be built from the prosecution’s own papers. It should set out: the date of the act against the date of the complaint, which raises both the transition and the delay; the passages in the first information and the victim’s statements that describe the relationship, its duration and her conduct; the medical findings, or her refusal to be examined; the chats, described but never annexed if they are intimate, with an undertaking to file the section 63 certificate; the documents on age, where the child-protection statute is invoked; the trigger for the complaint; the period spent in custody, whether the charge-sheet has been filed, and whether the victim has testified; the accused’s clean antecedents, with an undertaking to have no contact with her; and two or three binding authorities rather than a long list.

The prosecution and counsel for the victim will press different points: the gravity of the offence and its statutory minimum; any pressure on the victim, particularly before she has testified; and the accused’s influence over her family, her workplace or her locality.

They should insist on being heard, under Jagjeet Singh or, where it applies, under section 483(2). If bail is granted, they should ask for conditions the court can enforce: no contact, and distance from her home and her place of work. Nothing in those conditions should be of the kind that Aparna Bhat condemned.

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. Pune Bar Association v. Union of India, Writ Petition (Civil) No. 599 of 2026, order dated 22 May 2026 (Surya Kant CJI, Joymalya Bagchi and Vipul M. Pancholi JJ), paras 4 and 7. ↩

  2. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (R.M. Lodha CJI, Kurian Joseph and R.F. Nariman JJ; no paragraph numbers on Indian Kanoon). ↩

  3. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, AIR 2020 SC 4908, decided on 14 July 2020 (R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian JJ), paras 32, 45, 54, 57, 59 and 62 (Indian Kanoon numbering). ↩

  4. Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441, decided on 18 July 2017 (J.S. Khehar CJI, L. Nageswara Rao and Navin Sinha JJ), para 27. ↩

  5. Pankaj Singh v. State of Haryana, 2024 INSC 254, paras 7 and 21. ↩

  6. Kondapaka Sridhar v. State of Telangana, 2026 INSC 951, decided on 3 September 2026 (J.B. Pardiwala and K. Vinod Chandran JJ), paras 6, 12 and 14. ↩

  7. Shiv Pratap Singh Rana v. State of Madhya Pradesh, 2024 INSC 481, paras 17 and 24. ↩

  8. Jagjeet Singh v. Ashish Mishra, Criminal Appeal No. 632 of 2022, decided on 18 April 2022 (N.V. Ramana CJI, Surya Kant and Hima Kohli JJ), paras 24, 38 and 39. The case concerned murder; the principle is general. ↩

  9. Aparna Bhat v. State of Madhya Pradesh, AIR 2021 SC 1492, paras 33, 44 and 45. ↩

  10. Satender Kumar Antil v. CBI, M.A. No. 1849 of 2021, decided on 11 July 2022 (S.K. Kaul and M.M. Sundresh JJ). Only part of the judgment could be read on Indian Kanoon; its concluding directions were not verified, and it is relied on here for general principle only. ↩

  11. Ritesh Soni v. State of U.P., 2026:AHC:155759, decided on 28 July 2026 (Vivek Kumar Singh J), paras 6 and 18–21. ↩

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