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Are WhatsApp Chats Admissible in Court: Sanjay Rawat

ABSTRACT

Over the years, we have seen how internet-based services are being used in committing a crime. In several cases over the last couple of years, the police have highlighted WhatsApp chats found on phones to explain why they needed to keep people in custody. This strategy has been deployed most recently in narcotics cases involving Hindi film actress Rhea Chakraborty and Aryan Khan, the son of film star Shah Rukh Khan. It has previously been used against activist Umar Khalid and others in the Delhi riots case.

Therefore, with the help of various case laws this assignment tries to understand whether WhatsApp chats are admissible before the court and if yes, by which way WhatsApp chats are admissible and to which extent, as evidence in Indian Courts. We will try to understand the procedure through which WhatsApp Chats can be placed before a court and what are the requisites that are required to be fulfilled.

Key Words: Technology, Electronic Evidence, WhatsApp’s, WhatsApp Chats Admissible in Court

INTRODUCTION

Today, social media has become our primary tool for communication. Just like every other technology, Social medias such as Facebook and private messaging Apps such as WhatsApp too comes with its own sets of pros and cons. Over the years, we have seen how internet-based services are being used in committing a crime. In several cases over the last couple of years, the police have highlighted WhatsApp chats found on phones to explain why they needed to keep people in custody[1].

This strategy has been deployed most recently in narcotics cases involving Hindi film actress Rhea Chakraborty and Aryan Khan, the son of film star Shah Rukh Khan. It has previously been used against activist Umar Khalid and others in the Delhi riots case[2].

However, electronic data is easy to manipulate, create, copy and even destroy from one medium to another medium. Hence, by nature the electronic evidence can be easily manipulated, and the evidentiary value of the evidence might not go strong as the physical evidence does. Susbsquently, the quality, admissibilty and reliability of the electronic evidence can be compromised by various measures. In the court of law, the evidence has to be proved beyond reasonable doubt and in such case the electronic evidence might be a bit fishy about it. So, there arise some ambiguity as to the extent of admissibility of electronic evidence.

The Criminal jurisprudence is such that, Evidence should be proved beyond reasonable doubt but the flexibility of technology always create a problem in believing and proving the authenticity of Technological evidence before the court. The courts definitely remain very cautious in admitting the electronic evidence.

Therefore, with the help of various case laws this assignment tries to understand whether WhatsApp chats are admissible before the court and if yes, by which way WhatsApp chats are admissible and to which extent, as evidence in Indian Courts. We will try to understand the procedure through which WhatsApp Chats can be placed before a court and what are the requisites that are required to be fulfilled.

OBJECTIVES OF THE STUDY: Are WhatsApp Chats Admissible in Court?

  • To determine whether WhatsApp Chats are admissible or not in the Court of law.
  • To understand whether WhatsApp Chats are electronic record as per section 65B of Evidence Act
  • To understand the requirements which are necessary to be fulfilled for  the admissibility of WhatsApp chats in the Court of law

RESEARCH METHODOLOGY

This analysis was carried out using a desk review research and doctrinal method to find out the fact-situations and grounds related to the topic of the research. The methodology adopted in the preparation of the research report is mainly based on secondary sources. The study will be made by use of various secondary sources such as books, journals, newspaper articles, online sources, research articles, statutes etc which are available relating to the concerned study. The proposed research follows an Analytical Methodology. The methods used were purely of a qualitative nature to generate a deeper understanding of the subject matter. A rigorous content analysis technique was employed to develop and generate themes which informed the analysis.

WHAT IS ELECTROIC RECORD

According to Section 2(1) (t) of the Information Technology Act[3], an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”.

The first thing we have to keep in mind is that an “electronic record” is also included in the definition of “evidence” under Section 3 of the Indian Evidence Act. It is treated as ‘documentary evidence[4]’.

Also Read: WHO IS A POLICE OFFICER

ADMISSIBILTY OF ELECTRONIC RECORD UNDER INDIAN EVIDENCE ACT

Electronic Records are those which require a machine to read. This refers to computer-generated records, information stored on visual and aural media such as voicemail systems, DVDs, and microforms such as microfiche and microfilm etc. In other words, an ‘Electronic Record’ is “any combination of text, graphics, data, audio, pictorial, or other information representation in digital form that is created, modified, maintained, archived, retrieved, or distributed by a “computer system”

The Evidence Act allows giving of evidence in respect of facts in issue and relevant facts. So, an electronic record can be evidence in a trial if it relates to a fact in issue or a relevant facts of a case.

The normal rule of evidence is that a document must be proved by primary evidence by proving the document itself. Oral evidence about the contents of the documents is barred by the Evidence Act. Section 64[5] of the Evidence Act says that “documents must be proved by primary evidence” except in the circumstances mentioned in Section 65[6].

Proving of documents through secondary evidence(such as certified copies, photocopies etc) is permitted only in exceptional circumstances which are detailed under Section 65 of the Evidence Act.

THE LEGISLATURE INCORPORATED A SPECIAL PROVISION IN 2000 TO ADMIT ELECTRONIC EVIDENCE IN SECONDARY FORM – SECTION 65B.

Section 65B[7] says that any information contained in an electronic record which is:

  •  printed on a paper (such as print outs),
  • stored, recorded or copied in optical or magnetic data produced by a computer (such as CDs, DVDs)

will be deemed to be a document.

But for such records to be admissible as evidence, the certain conditions have to be fulfilled.

Such conditions are:

  1. the computer that produced it must have been used regularly at the time of production of such electronic documents;
  2. the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device;
  3. the computer should be in proper condition and must work properly at time of creation of electronic record; and,
  4. the duplicate copy must be a reproduction of the original electronic record.

To admit the electronic record as evidence, it must be accompanied with a certificate from a person who produced the copy certifying that the same fulfills the above-said four conditions. Section 65B (4) speaks of this certificate.

There was a judicial confusion as to whether Section 65B(4) was a mandatory condition. In 2020,  in Case of Arjun Pandit Rao v. Kailash Kushanrao[8] a 3-judge bench of the Supreme Court settled conflicting decisions on the point to authoritatively rule that at Certificate under Section 65B is a condition precedent to the admissibility of evidence by way of electronic record.

The Supreme Court also stated that Section 65B (1)[9] differentiates between:

(i) ‘original document’ – which is the original electronic record contained in the computer in which the original information is first stored; and

(ii) the computer output containing such information, which then may be treated as evidence of the contents of the ‘original document’.

The Supreme Court clarified that Certificate is not necessary if the ‘original document’ itself is produced (as a primary evidence). This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. However, in all other cases, proof of such electronic record can be through in accordance with Section 65B (1) together with production of the requisite Certificate under Section 65B (4) of the Act.

The judgment authored by Justice RF Nariman stated :

“Section 65B(1) clearly differentiates between the “original” document – which would be the original “electronic record” contained in the “computer” in which the original information is first stored -and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom –the former being primary evidence, and the latter being secondary evidence.

Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…”. This may more appropriately be read without the words “under Section 62 of the Evidence Act.”.[10]

WHETHER WHATSAPP CHATS ARE ELECTRONIC RECORD SO AS TO BE ADMISSIBLE UNDER EVIDENCE ACT. Are WhatsApp Chats Admissible in Court?

There is a catch with respect to electronic records in terms of WhatsApp Chats which is that the nature of evidence in the case of online conversations like Whatsapp chats will mostly be secondary in nature. In other words, the evidence produced in the court with respect to online chats will be print outs of the backup documents saved in the server or of the screen-shots of the chats, unless the device itself is produced[11].

So the admissibility of Whatsapp Chats will be governed by Section 65B of Indian Evidence Act of 1982, Which state, says that any information contained in an electronic record which is :

  •  printed on a paper(such as print outs) ,
  • stored, recorded or copied in optical or magnetic data produced by a computer(such as CDs, DVDs)

will be deemed to be a document.

By fulfilling the requirements of section 65B, WhatsApp chats can be proved as evidence in Indian Courts.

There are certain decisions which have observed that WhatsApp chats can be admitted in evidence provided they fulfill the conditions under Section 65B of the Evidence Act.

In 2018, the Delhi High Court upheld the acquittal of the rape accused considering WhatsApp chats.[12] In another significant case, three students of Jindal Global University, accused of gangraping and blackmailing their junior were convicted on the basis of WhatsApp chats admitted into evidence. These have been instances where WhatsApp messages have played a concomitant role in corroborating the intention and adducing to the commission of the offence

In Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another[13], the Supreme Court, while hearing a petition challenging an injunction order, made a reference to the Whatsapp chats produced as evidence in the case.

“The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence – in – chief and cross examination. The e – mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not”, the Court observed in the judgment delivered on January 6, 2020.

This means that the WhatsApp chats can be admitted to evidence in trial.

In a recent case Rakesh Kumar Singla vs Union Of India[14], the Punjab and Haryana High Court, while deciding a bail application in an NDPS case, granted liberty to the Narcotics Control Bureau to rely upon the Whatsapp messages of the accused after due compliance of provisions of Section 65-B of the Indian Evidence.

There is a recent order in case Chirag Dipakbhai Sulekha v. State Of Gujarat[15] of the Gujarat High Court as well, which referred to WhatsApp conversations to form a prima facie opinion regarding grant of bail

There is an instance of a Commercial Court in Delhi relying on Whatsapp chats, which were proved in accordance with Section 65B, to decree a suit. There are reports of family court lawyers increasingly relying on Whatsapp chats as evidence in divorce cases.

WHATSAPP FORWARD WITHOUT ORIGINAL CANNOT BE EVIDENCE

The Delhi High Court in a case has held that a Whatsapp forward message, without a known source, cannot be treated as evidence National Lawyers Campaign for Judicial Transparency and Reforms v Union of India[16]. The Court held that such a forwarded message, without its original, cannot be regarded as ‘document’ under the Evidence Act.

“What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis”.

Annexure – A(Whatsapp forward) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure – A with the original”, a bench of Justice Sanjeev Sachdeva observed in the case.

There are cases where courts have treated the “blue tick” in Whatsapp as proof of service of summons.

The upshot of the discussion is that law does not bar receiving WhatsApp chats as evidence, provided it complies with the requirements of electronic evidence under Section 65B of the Evidence Act.

ARE WHATSAPP CHATS ADMISSIBLE IN COURT WITHOUT PROVIDING THE REQUISITE CERTIFICATE UNDER SECTION 65B

Recently, In 2020, The Supreme Court has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. So, it is now a settled law that if the requirement of section 65B(4) is not complied with then the WhatsApp Chat will not be admissible as evidence.

The bench has also clarified that that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. Which means if the owner of a laptop computer, computer tablet or even a mobile phone provide his laptop or phone by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Then there is no need of certificate. Because then it automatically becomes primary evidence.

The Punjab and Haryana High Court has also observed that WhatsApp messages will have no evidentiary value unless they are certified as per Section 65B of the Indian Evidence Act[17]

CONCLUSION: Are WhatsApp Chats Admissible in Court

Hon’ble Supreme Court of India and several High Courts have recently accepted printouts of WhatsApp chats as secondary evidence. However, In July 2021, the Supreme Court made a significant verbatim observation that messages exchanged on social media platforms had no evidential value. It said that the author of such WhatsApp messages could not be tied to them, especially in business partnerships governed by agreements. So, the recent verbatim observation made by the Supreme Court has again put evidentially of WhatsApp messages in question. Due to the extensive use of WhatsApp as a social media platform, the Supreme Court has questioned its reliability while denying admitting WhatsApp messages as evidence in a case.

But this does not necessarily mean that the Supreme Court rejected WhatsApp chat messages as evidence altogether. WhatsApp chat messages form electronic evidence and can be used as corroborative evidence. Because this was only a verbatim by the court and can be said as the obiter-dicta which has no value of precedent but have some persuasive value to an extent.

In today’s time where everything is connected through technology, the primacy of Private chatting Apps has become of paramount importance. We are all dependent on WhatsApp for our day-to-day work. The Crimes are also being committed using WhatsApp and other social media platform. The Cyber crimes are increasing day to day. Women are even constantly trolled, staked, abused and harassed online. This makes the admissibility of WhatsApp chats or other electronic record very necessary for the court to render justice.

Therefore, through this discussion we can say that The Evidence Act categorically allows and admits the evidentiary value of WhatsApp chat. But, The requisites provided in section 65B need to be fulfilled otherwise the evidentiary value of WhatsApp Chats are nil. In Technological evidence the courts are still hesitant because the technology is unpredictable, but the need of the hour is to upgrade our courts.

BILBLIOGRAPHY

Books:

  • Ratanlal & Dhirajlal, THE LAW OF EVIDENCE 108 (LexisNexis, 27th Edn, 2020).
  • Batuk Lal, The Law of Evidence, 149 (Central Law Agency, Allahabad, 23rd Edn., 2020)

Websites:

  • https://www.livelaw.in/know-the-law/whatsapp-chats-admissible-evidence-admissibility-arnab-goswami-chats-168460
  • https://www.indiatoday.in/magazine/cover-story/story/20201012-how-private-are-your-whatsapp-chats-1727605-2020-10-03
  • https://lawtrend.in/whether-whatsapp-messages-chats-are-admissible-as-evidence-in-court/

[1] Can the police in India force someone to hand over their phone and check their messages available at: https://scroll.in/article/1009529/can-the-police-in-india-force-someone-to-hand-over-their-phone-and-check-their-messages(visited on November 2, 2021).

[2] ibid

[3] THE INFORMATION TECHNOLOGY ACT, 2000

[4] Section 65 of Indian Evidence Act of 1872

[5] Indian Evidence Act of 1872

[6] Ibid

[7] Ibid

[8] (2020) 10 SCC 473

[9] Indian Evidence Act of 1872

[10] Arjun Pandit Rao v. Kailash Kushanrao, (2019) SC124

[11] Are WhatsApp Chats Admissible In Evidence?, available at: https://www.livelaw.in/know-the-law/whatsapp-chats-admissible-evidence-admissibility-arnab-goswami-chats-168460 (visited on November 3, 2021).

[12] Ritu v. State (2018 SCC OnLine Del 12914).

[13] (2019) SC 9347

[14]  (2020) Gujrat High Court 1834

[15] 2020 SCC 3220

[16] 2019 SC 191

[17] Rakesh Kumar Singla vs Union of India, 2020 SCC 3220

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