Table of Contents

Are WhatsApp Chats Admissible Evidence?

Introduction

This article is written by Anamta Khan, a student of National Law University, Delhi. The important issue of Are WhatsApp Chats Admissible Evidence is discussed in this article.

The world around us is continuously evolving. The technology has laid down its foundations in every nook and corner of the world. In the present scenario of our country with ever-expanding technology ambiance, the admissibility of e-evidence has become the most germane issue. The advancement of technology brought a drastic change in the mode of communication of people.

Whatsapp chats, emails, text messages have become a prevalent mode of communication. Nowadays various electronic evidence such as DVD, hard-disk, SMS, mail site, etc is produced as evidence in court.

Applicability of law has to always resonate with technology advancement. The Indian computerized system began with the introduction of the Information Technology Act, 2000. This act inserted section 65A and 65B in the Indian evidence act 1872 which deals with the acceptability of electronic evidence in the court of law.

Meaning Of Evidence

The term evidence is defined under section 3 of the Indian evidence act 1872. Section 3 of the act includes the following

Every statement which the court allows to be made by witnesses pertaining to the matter under investigation, such explanations are said to be oral evidence
All documents including e-records produced in the court of law for its inspection, such documents are referred to be as documentary evidence.

Besides this, documentary evidence can be classified into two categories- primary evidence and secondary evidence. As per section 62 of the act, primary evidence means the original copy of the documents produced in the court for review. The legal definition of secondary evidence is given under section 63 of the act.

Secondary evidence is not the original document but those documents referred under section 63. It includes a copy of the original document, certified copies. Though a copy of a copy is not acceptable as evidence, those copies produced by mechanical process and copies of a copy compared with the original are admissible as secondary evidence.

Electronic Evidence

IT act 2000 was amended in the year 2016 to include digital/electronic evidence as admissible evidence. Section 2 (1) (t) of the above act gives the legal definition of the electronic record. The electronic record refers to data, data produced image or sound, and any document sent or received in electronic form or computer-generated electronic data. Electronic data that is transmitted or stored digitally is admissible under section 63 of IEA as secondary evidence.

Section 64 of the act mandates that the content of documents should be proved by primary evidence but section 65 lists few exceptions to it. Section 65 clause (a)(c) and (d) provides for the circumstances where secondary evidence pertaining to the documents is held to be admissible. As per section 65-A, the content of the e-record has to be proved according to the guidelines laid down in section 65-B.

Section 65A-B is special legislation different from the documentary evidence procedure laid down in sections 63 and 65. As per these sections, if the conditions listed below are complied by, then the data stored in electronic form which is printed/copied/stored or created by computer would be regarded as a document. Such documents would be admissible in the court of law without the need for an original copy or direct evidence.

Conditions for admissibility of computer-outputs are listed in section 65-B (2)-

The computer from which information of electronic record is obtained should have been regularly in use to save/process information for a regular activity carried by an individual having lawful control over it.
During feeding of information, the computer should have been working properly
Information in electronic-record should be of such nature that it is on a regular-basis fed into the computer during ordinary-activities.
Information contained in electronic-record should be a derivation or reproduction of the information stored/fed into the computer

Section 65-B(4) lists the conditions which need to be followed to record statement pertaining to the electronic record-

There has to be a certificate that recognizes the electronic record which contains the statement. That certificate –
Should describe the manner through which electronic-record is produced.
Mention all particulars of the device involved in such production
Should take care of conditions of Sec-65B(4)(explained above)
Signed by the responsible official which dealt with the operation of that device
Such certificate should also accompany the electronic record, for instance, computer printouts pertaining to which statement is sought to be given in evidence

Such safeguards need to be taken while dealing with electronic-evidence to ensure its authenticity.

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Judicial Precedents Over Admissibility Of Electronic Records

The court in State (NCT of Delhi) v. Navjot Sandhu[1], dealt with the issue of admissibility of evidence of call records. The accused questioned the authenticity of the evidence and alleged that such evidence shouldn’t be held admissible as procedure laid down in section 65B clause 4 was not followed.

The court held evidence of call records to be admissible as they were taken from the computer by a mechanical procedure and certified by an official. The court observed that irrespective of following the conditions laid down in section 65B, a person is not proscribed to adduce secondary evidence under sections 63 and 65 of the Indian evidence act. The court held that merely because conditions of section 65B(4) are not fulfilled, that doesn’t bar adducing the same evidence under other provisions of the act.

Whether WhatsApp chats are primary evidence or secondary evidence?

In the case of Girwar Singh v. CBI[2], the court-appointed a committee to examine the veracity and authenticity of electronic evidence. It was found that the evidence submitted to the court was not a copy of the original document, but it was copied multiple times and on various devices. The court ruled that in this case, e-evidence was inadmissible.

Similarly, in the case of Vikas Garg v state of Haryana[3], the trial court relied on WhatsApp conversation to convict the accused of the offence of rape. Later on, Punjab and Haryana high court ignored the chats which were incontestable evidence of rape and abuse of the victim. Supreme Court stayed the bail application of the accused and the matter is still pending in the court.

Whether the condition of certificate u/s 65-B(4) mandatory?

Anvar P.V. Versus P.K. Basheer[4] is one of the important judgments where the court discussed several issues regarding the admissibility of electronic evidence in the court of law. The court observed that secondary evidence stored in CD/DVD/drive is inadmissible u/s 65A and 65B unless it complies with the condition of the certificate mentioned in section 65-B (4).

Conditions mentioned in section 65-B(4) discussed above are necessary to comply to ensure the authenticity of the electronic evidence. The court further held that e-evidence submitted without certificate can’t be held admissible by oral evidence and not even by the statement of experts under section 45A of the act.

Electronic records could easily be affected, tampered with, changed, transposed, or damaged and so forth without such safeguards, the entire trial dependent on verification of electronic records can eventually lead to injustice. The court, in this case, ruled that secondary evidence of electronic evidence shall be entirely governed by section 65A-B of the act, and sections 63 and 65 have application in such cases.

In contrast to Anvar case the court relaxed the certificate condition of section 65-B(4) in case Shafi Mohammad v. Territory of H.P [5] in certain scenarios – a) when the device from which the document is produced is not in the possession of the party b) this condition being a procedural one could also be relaxed in the interest of justice.

The two contrasting positions regarding certificate were finally settled in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors[6]. The court held that the condition of the certificate mentioned under section 65B (4) is mandatory for secondary evidence of electronic data to be admissible in court.

The court further reasoned that this condition is redundant if the original document is itself produced. If the device in which the original information is first stored is brought in the court, compliance with the conditions of section 65-B (4) is not necessary.

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Few conditions to be satisfied for admissibility of WhatsApp chats as secondary evidence

As held in various Indian high courts, WhatsApp chats are considered to be electronic evidence and are admissible in court if the following conditions are satisfied-

The receiver should have received the message.
Cell phones should not have been damaged.
The sender should have the mens rea to send those messages.

Significance of blue ticks

In SBI cards and payment services Pvt. Ltd. v. Rohit Jadhav[7] the court observed that if blue ticks are seen over the messaging app, it would be conclusive proof that the receiver has received the message and it would be considered legitimate evidence.

In another case Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman, the high court held that even in the case where most of the communication takes place on WhatsApp, there was an oral valid agreement between the parties.

Conclusion

Whatsapp chats are admissible as secondary evidence in the court of law if certain conditions as discussed above are satisfied. The Judiciary’s stance over the admissibility of electronic evidence is to ensure its credibility and evidentiary value as such evidence could be easily damaged or tampered with.

This progressive stance of courts is the outcome of recognizing the nature of the e-record itself. Current legislation and precedents regarding the admissibility of electronic evidence present a myriad of issues that still remains unresolved. Issues pertaining to the procedure of preserving them, ascertaining their veracity, finding original authors, retrieving them, are still being debated and a progressive precedent in this penumbral area is awaited.

The jurisprudence over the admissibility of electronic evidence is still in its nascent stage even after two decades since the IT act of 2000 was passed. The applicability of laws should resonate with the development of technology. It is expected that in recent years the present lacuna in law would be addressed by amendments and progressive judgments.

– Edited by Aaditi Rohilla

(Editor)

[1] State (NCT of Delhi) v. Navjot Sandhu AIR 2005 SC 3820

[2] Girwar Singh v. CBI Case Number: CRL.A.–263/2009

[3] Vikas Garg v state of Haryana 61 AIR 2017 P&H 2806.

[4] Anvar P.V. Versus P.K. Basheer AIR 2014 10 SCC 473

[5] Shafi Mohammad v. Territory of H.P (CRL.)No.2302 of 2017

[6] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors 2020 SCC OnLine SC 571

[7] SBI cards and payment services Pvt. Ltd. v. Rohit Jadhav 2018 SCC OnLine Bom 1262