Admissibility of E-evidence; Are WhatsApp chats and E-mails admissible in Court?
By Kishan Dutt Kalaskar
Kishan Dutt Kalaskar: The world is ever developing, and the technology boom has laid its foundations for all parts of society. Everything, from communication to preparing to documentation, has gone digital. Numerous organizations from conglomerates to startups, conduct important meetings and business deals on emails. The current Indian situation with the ever-expanding web-based business exercises and e-administration activities from the state, the acceptability of e-evidence in the Court has become a pertinent issue. The Indian computerized system began with the introduction of the Information Technology Act, 2000. The Information Technology Act inserted Section 65A and Section 65B in the Indian Evidence Act, 1872, these sections talk about electronic evidence and its admissibility. Before examining electronic evidence, it is important to initially comprehend the meaning of evidence. Today, numerous e-evidences are introduced before the courts in India consistently, including storage devices, for example, DVD or Hard Disk to portable SMS or even a mail or site information. Subsequently, with the widespread utilization of electronics intends to encourage business deals, it is fundamental to comprehend the enforceability of such transactions in India’s Courts of law, all the more explicitly, the admissibility of electronic records as evidence to build up the legality of such transactions.
Are electronic records admissible in India?
The evidentiary value of an electronic record relies on its quality. To keep up with the growing pace of technology, the legislature authorized the Information Technology (I.T.) Act, 2000, and amended the Indian Evidence Act, 1872 in 2016 to perceive and incorporate electronic records as admissible evidence.
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Section 2(1)(t) of the Information Technology Act, 2000defines an electronic record as data, record, or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.
What is the meaning of Evidence? – Evidence is a type of confirmation/proof introduced to instigate confidence in the matter. The legal meaning of the term Evidence has been laid down in Section 3 of The Indian Evidence Act, 1872. Section 3 defines evidence to mean and incorporate the following:-
- All explanations which the Court allows or needs to be made before it by witnesses, concerning matters of truth under request, such statements are called oral evidence;
- All documents, including electronic records delivered for the Court’s review, such documents are called documentary evidence.
In addition, Evidence can be separated into two parts.
- Oral, or Documentary
- Primary, or Secondary
Primary evidence implies that the document itself was delivered for the review of the Court, whereas Secondary Evidence implies and incorporates certified copies, copies produced using the original by mechanical cycles, copies made from or compared with the originals, counterparts of documents as against the parties who didn’t execute them and oral records of the substance of a document given by some individual who has himself seen it.
Electronic Evidence: Primary or Secondary?
Electronic or digital evidence is any data that is stored or transmitted digitally is secondary evidence. Electronic records’ evidentiary value is generally examined under section 65A and 65B of the Evidence Act, 1872.
The sections state that if the four conditions listed are fulfilled, any information contained in an electronic record which is printed on paper, stored, recorded or copied in an optical media, created by a computer is considered to be a document and is admissible in proceedings without any additional confirmation or production of the original, as evidence of any contacts of the original or any facts expressed in that, which direct evidence would be acceptable.
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The four conditions alluded to above are:
(1) The computer output containing such information ought to have been delivered by the computer when the computer was utilized consistently to store, or handle data for any exercises routinely carried on during that period by the individual having legal command over the utilization of the computer.
(2) During such period, data of the kind contained in the electronic record was consistently fed into the computer in the ordinary course of such exercises.
(3) Throughout the material piece of such period, the computer must be working appropriately. On the off chance that the computer was not appropriately working during such period, it should be indicated that this didn’t influence the electronic record or the precision of the contents.
(4) The data contained in the electronic record ought to be as reproduced or derived from such data fed into the computer in the ordinary course of such activities.
Court Precedents
State (NCT of Delhi) v. Navjot Sandhu, (2005)- In this case, the Supreme Court had held that courts could concede electronic records, for example, printouts and compact discs as prima facie evidence without validation. This case dealt with the evidence and admissibility of the records of cell phone calls. The accused presented that no dependence could be set on the cell phone records on the grounds that the prosecution had neglected to deliver the applicable certificate under section 65B (4) of the Evidence Act and that the procedure set out in section 65B of the Evidence Act was not followed.
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The Supreme Court reasoned that a cross interrogation of the competent witness familiar with the computer’s working during the suitable time and way in which the printouts call records were taken was adequate to demonstrate the call records. Therefore, the printouts and C.D.s were not compared with the original electronic record or certified when citing it as evidence.
The Court inferred that the necessity of a certificate under Section 65B isn’t generally compulsory and regardless of the compliance of the prerequisites of Section 65B, there is no bar to showing secondary evidence under different provisions of the Evidence Act.
Anvar P.V. Versus P.K. Basheer 2014- In this case, the Court has interpreted Section 22A, 45A, 59, 65A and 65B of the Evidence Act and held that secondary information in CD/DVD/Pen Drive is not acceptable without a certificate u/s 65 B (4) of Evidence Act. It has been clarified that electronic proof without certificate u/s 65B can’t be demonstrated by oral evidence and furthermore the opinion of the expert u/s 45A Evidence Act can’t be turned to making such electronic evidence allowable.
The Supreme Court declined to acknowledge the view that the Courts could admit electronic records as prima facie evidence without confirmation. On account of any electronic record, it was held that it ought to be accompanied by the certificate regarding section 65B acquired at the time of taking the document, without which, the secondary evidence about that electronic record is forbidden. The Supreme Court held that the reason for these provisions is to sanctify electronic evidence. The prerequisite of giving an electronic certificate under Section 65B about any electronic evidence or electronic record is required for treating such evidence as admissible under law.
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Shafi Mohammad v. Territory of H.P. (2018)- From that point forward, the Supreme Court, in this case, held that the necessity of the declaration under Section 65B of the Evidence Act according to the judgment of Anvar P.V. isn’t needed in the accompanying two cases: –
- A party who doesn’t have a device from which the document is delivered can’t be required to produce a certificate under Section 65-B (4) of the Evidence Act
- The pertinence of the authentication being procedural can be relaxed by the Court wherever interest of justice so legitimizes.
To settle the two unique interpretations between Anvar P.V. and, Shafi Mohammad, the mater alluded to larger Bench of Hon’ble Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors, settled on July 14 2020. The Supreme Court held that the certificate needed under Section 65B of the Indian Evidence Act is a condition precedent for any electronic proof’s admissibility. The Court explained that the certificate under Section 65B (4) is unnecessary if the original document itself is produced. Assume the proprietor demonstrates a laptop, computer, tablet, or a cell phone possessed or operated by him brings the same in the witness box, on which the original information is first stored. Hence, the certificates’ requirement under Section 65B (4) is unnecessary.
It was further held that Oral Evidence in the place of such certificate couldn’t in any way, suffice as Section 65B (4) is an obligatory necessity of the law. Thus, the Court held that Section 65B(4) of the Evidence Act obviously expresses that secondary evidence is admissible only if followed in the way expressed and not something else. Henceforth, severe consistency with section 65B is currently required for people who depend on any electronic record before the Indian courts.
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WhatsApp messages as evidence
Technology has become an indispensable aspect of our everyday lives. Throughout humankind’s existence, we have perceived how web-based services are being utilized in committing a crime and other wrongdoings. On the premises that WhatsApp has become a verb, let’s discuss WhatsApp Chats’ suitability in a courtroom.
As a means of communication, the utilization of WhatsApp by the organization’s employee is quickly expanding. For close collaboration with partners and customers, WhatsApp is viewed as the best reasonable informing stage for the representatives. In the wake of seeing the expanding utilization of online media platforms like WhatsApp, the Court started to admit texts and pictures sent on these platforms as Evidence in criminal and civil issues.
There are some particular principles by which WhatsApp content ought to be referred to as evidence in the Court. In Indian courts, WhatsApp chats are viewed as an electronic record and are permissible as a conventional document. There are some conditions which should be satisfied for the admissibility of WhatsApp messages as Evidence:
- The recipient should have received the messages, i.e. in the context of WhatsApp, double ticks.
- The telephone should be in regular use. It ought not to be damaged.
- The sender should have the intention to send those messages.
WhatsApp Chats: Primary or Secondary Evidence?
In Girwar Singh v. CBI, electronic evidence was introduced before the Court, for which a committee was appointed to check the authenticity of the electronic evidence. Later, the committee found that the evidence wasn’t the original one or the copy of the original. The evidence was copied numerous times in different devices. Consequently, the Delhi H.C. held the electronic evidence was unacceptable in that case.
Here, it should be noticed that the presentation of evidence which has been copied from an original document is known as Secondary Evidence. Section 63 of the Indian Evidence Act, 1872 states different instances when Evidence is viewed as Secondary Evidence. Then again, Section 62 characterizes Primary Evidence as a document introduced in its original form for the inspection in the Court. It prompts a relevant inquiry, regardless of whether WhatsApp visits will be considered as Primary or Secondary Evidence?
In the case of Vikas Garg and Ors. v. Territory of Haryana (2017), the High Court depended on WhatsApp chats to hold the accused liable for assault, among different offences. Afterward, the Supreme Court remained the High Court’s order for bail, and according to the most recent information accessible, the Special Leave Petition is forthcoming before the Court.
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Later in 2018, the Delhi High Court’s division bench dismissed an appeal against the acquittal of accused by the Trial Court for offences under Section 376 and 506 of the Indian Penal Code, 1850. The bench considered WhatsApp chats between the parties which were properly admitted by the prosecutrix in interrogation. The Court accepted that the chat content exhibit that the prosecutrix has assented for an actual relationship out of her choice and with no incitement.
A substantial and enforceable understanding can be made by means of WhatsApp
In the case of Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman the Court held that in any case, when most of the communication between the parties is done in WhatsApp, there was a substantial oral agreement and is enforceable by law.
The importance of Blue tick on WhatsApp in a legitimate suit
The Bombay High Court, in the case of, SBI Cards and Instalment Administrations Pvt. Ltd. v. Rohit Jadhav, observed that the defaulter had gotten the notification in WhatsApp as well as opened that notice. At that point, Bombay High Court held that after sending a message through WhatsApp, if a blue tick appears, then the informing application is viewed as factual verification that the Respondent had gotten that notice which is viewed as legitimate Evidence.
Other important case laws
The Delhi High Court in National Lawyers Campaign for Judicial Transparency and Reforms and Ors Versus Union of India and Ors, 2017, held that a WhatsApp post doesn’t qualify as legitimate lawful Evidence under the Evidence Act, particularly when neither the original nor a copy of the first document is delivered.
Unexpectedly, the Bombay High Court held SMS/WhatsApp messages to be allowable under the Court of law under Section 65 of Indian Evidence Act, in the case of SBI Cards and Payment Services Pvt Ltd. versus Rohidas Yadav, settled on June 11 2018. The Court held that messages sent through WhatsApp chats are viewed as legitimate Evidence under the law. The blue tick in WhatsApp is legitimate evidence that the Respondent has acknowledged the communication’s physical copy.
Email as Evidence
Abdul Rahaman Kunji Vs. The State of West Bengal-The High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from an individual’s email record can be proved under Section 65B r/w Section 88A of Evidence Act. The witnesses’ declaration to carry out such a strategy to download and print the same is adequate to prove the electronic communication.
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In the case of Smt Bharathi V Rao v. Sri Pramod G Rao, the learned judge held that messages go under the definition’electronic record’ under section 2(t) Information Technology Act 2000 admissible as Evidence.
The Delhi High court clarified section 65B in detail and held that the computer output, when provisions of section 65-B are fulfilled, is treated as Evidence of the contents of the original or facts in that direct evidence is admissible. It determines that the onus of proving its originality lies in the individual who tried to create it as Evidence. Electronic Evidence should be accompanied by a certificate according to section 65B of the Act.
Conclusion
Most business firms conduct their meetings on online platforms and contents of those meetings are shared among the representatives through texting platforms like WhatsApp, Telegram and much more. The legal system in India is additionally turning into a technologically developed system one step at a time. Internet informing applications are conceded by the Court of law as legitimate evidence. The penultimate step demonstrates the electronic record/evidence by creating the original electronic media as Primary Evidence court or its copy, as optional proof u/s 65A/65B of Evidence Act. Thus, on account of CD, DVD, Memory Cards and so on containing secondary evidence, the same will be joined by the certificate regarding Section 65B acquired at the time of taking the document, without which, the secondary evidence relating to the electronic record, is forbidden.
Notwithstanding, there are different issues which are emerging relating to the authorship of the certificate. Therefore, WhatsApp chats are never to be conceded in the Court as primary evidence, rather; secondary evidence. While the law on electronic evidence is still in its beginning stage, following the Information Technology Act, 2000, we hope to see significant advancements on this topic in the near future.
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