Law is dynamic and keep changing with the passage of time as per the requirement of our society.
We are living in a human era where we see technological changes almost everyday and in every sphere of our life. An introduction or update of any kind in our softwares, mobile applications or any gadget brings changes to our lives which we can’t even estimate at the time of purchasing, downloading or updating our gadgets. As time demanded with the widespread use of technological electronic means and to facilities our lives, we have become completely dependent upon software and mobile applications so much that most of the work are done through such software e.g. in form of communication, transportation, aviation, online payments etc. Now the time has come to understand the enforceability of such electronic transactions in any form made through electronic means in our legal system.
Since the beginning of Legal Jurisprudence, the first thing we have been told that “Law is Dynamic”. We never thought something i.e whatsapp which we downloaded for fun or sharing information would be part of Indian Evidence Act or would be considered as an Evidence in various other statutes of other countries.
Now to understand the meaning of “Dynamic” let’s understand the situation of 21st Century with the basics of Legal Jurisprudence which were written down many years before, more specifically, the admissibility of electronic records as evidence in modern era.
Earlier few business transactions and business deals were being performed on various platforms such as e-mail, and even on instant messaging apps such as Whatsapp and other similar applications.
But after the worldwide pandemic covid-19, we have become more dependent upon such electronic technology and most of the schedules, meetings, essentials documents, and receipts are communicated via various modes and WhatsApp is one of he means of communications.
Most of us in our daily lives uses WhatsApp for day today dealings through conversations and documents and various times the situations have emerged before the Indian Courts how to dealt with WhatsApp data and messages as evidence before court of Law.
Admissibility of Electronic Records in INDIA
To keep pace with the rapid developments in technology, the legislature enacted the Information Technology (“IT”) Act, 2000 and amended the Indian Evidence Act, 1872 in 2016 to recognize and include electronic records as an admissible evidence.
In accordance to Section 3 of the Indian Evidence Act,1872 an evidence means and includes all documents including electronic records for the purpose of inspection by the Court. Whereas, Section 2 (1) (t) of the IT Act defines Electronic Evidence as “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche.”
Evidence law in India is categorized into primary and secondary evidence, primary evidence being the original, and secondary evidence being any number of copies or reproductions of the original. The general rule of law of evidence is that when primary evidence (i.e the original) is not available, secondary evidence (i.e copies) is not admissible.
The principle governing primary and secondary evidence is applicable to electronic evidence too. While the device that produces the electronic record is primary evidence, any reproduction of such electronic record (print outs, soft copy) is secondary evidence. However, due to the complexities associated with adducing primary electronic evidence, this general rule that secondary evidence is only admissible when primary evidence is available is relaxed.
The Evidence Act allows giving of evidence in respect of facts in issue and relevant facts So, an electronic record can be an evidence in a trials if it relates to a fact in issue or a relevant facts of a case. However, there is a catch with respect to electronic records. 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. All electronic documentation, therefore, falls under the category of secondary evidence. Owing to the nature of electronic records and their susceptibility to tampering, courts have adopted stringent measures while evaluating the authenticity, reliability, and relevance of all forms of electronic records, including chats on social messaging platforms, chat engines, and traditional electronic records such as e-mail. The slightest doubt that such record may have been tampered with is sufficient for courts to reject its admissibility altogether. Section 65 of the Indian Evidence Act, 1872 provides for situations when a party may lead secondary evidence.
Section 65A IEA, says that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B prescribes the mode for proof of contents of electronic records.
Section 65B says that any information contained in an electronic record which is:
* printed on a paper (such as print outs)
* stored, recorded or copies in optical or magnetic data produced by a computer (such as CDs, DVDs) will be deemed to be a document.
The primary purpose is to sancity proof of secondary evidence. This facility of proof byt secondary evidence would apply to any computer output, such output being deemed as a document. Accordingly, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic produced by a computer and to be referred to as computer output, shall also be deemed to a document.
The section lays down certain conditions which have to be satisfied in relation to the information and the computer in question. Where those conditions are satisfied, the electronic record shall become admissible in any proceedings without further proof or production of the original as evidence of any contents of the original as evidence of any contents of the original or of and fact stated in it.
Conditions for considering an electronic record:
The conditions which have to be satisfied so as to make a computer output as evidence are stated so as to make a computer output as evidence are stated in sub-section (2). They are as follows:
1. The computer output containing the information was produced by the computer during the period over which the computer was used regularly to stores or process the information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
2. The information contained in the electronic record is of the kind which was regularly fed into the computer in the ordinary course of its activities;
3. The computer should have been operating properly during the periods of the data feeding or if it was not operating properly during that period or was out of operation, that gasp was not such as to affect the electronic record of the accuracy of its contents;
4. The information contained in the electronic record was derived or is reproduced from the information fed into the computer in the ordinary course of its activities.
When a statement has to be produced in evidence under this section, it should be accompanied by a certificate which should identify the electronic record containing the statement and describe the manner in which it was produced, give the particulars of the device involved in the production of the electronic record showing that the same was produced by a computer and showing compliance with the conditions of sub-section (2) of this section.
The statement should be signed by a person occupying a responsible official position in relation to the operating or management of the relevant activities. Such statement shall be evidence of the matter stated in the certificate. It should be sufficient for this purpose that the statement is made to the best knowledge and belied of the person making it.
Despite the mandatory nature of these conditions, the law has been applied inconsistently. For instance, the certificate of authenticity has not always been filed with the electronic records in legal proceedings.
RECENT VIEW OF COURTS ON CERTIFICATE OF 65B IEA:
Arjun Panditrao Khotkar v. Kailash Kushaunro Gorantyal & Ors, Civil Appeal Nos. 20825-20826 of 2017, decided on 14 July 2020. The Supreme Court held that the certificate required under Section 65B of the Indian Evidence Act, is a condition precedent for the admissibility of any electronic evidence. we may reiterate, therefore, that the certificate required under Section 65B(40 is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anwar P.V (supra), and incorrectly “clarified” in Shafhi Mohammed. Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
The Court clarified that the certificate under Section 65B(4) is unnecessary if the original document itself is produced. If the owner proves a laptop, computer, computer tablet or a mobile phone owned or operated by him brings the same in the witness-box, on which the original information is first stored, the requirement of the certificate under Section 65B(4) is unnecessary.
It was held that Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is mandatory requirement of the law. It was held that Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) ineffectual. The Court held that the following directions shall be followed by the Court dealing with electronics evidence till rules and directions under Section 67C of IT Act and data retention conditions are formulated for compliance by telecom and internet service providers:
…..general directions are issued to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is requited to cross-examine a particular witness.” Hence, strict compliance with section 65B is now mandatory for persons who intend to rely any electronic record before the courts in India.
WHATSAPP MESSAGES AS AN EVIDENCE:
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to a travesty of justice.
WhatsApp message as evidence:
Technology has become an indispensable aspect of out everyday lobes. 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 Chat’s 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 wae of seeing the expanding utilization of online media platforms like WhatApp, the court started tp 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 message 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 Courts’s order for bail, and according to the most recent information accessible, the Special Leave Petition is forthcoming before the Court.
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 on WhatsApp, there was a substantial ora agreement and is enforceable by law. RECENT JUDGEMENTS: The Delhi High Court in National Lawyers campaign For Judicail Transparency And Reforms & Ors Versus Union Of India &Ors, W.P (C) 447/2017, decided on 22 May 2017 held that a WhatsApp post does not qualify as valid legal evidence under the Evidence Act, especially when neither the original nor a copy of the original document is produced. (Forwarded WhatsApp msg not admissible).
There are many instances where the High Courts also have considered WhatsApp chats in the court of law as evidence like in Rakesh Kumar Singla v. Union of India, CRM-M No. 23220 of 2020 (O&M) the Punjab and Haryana High Court rely upon WhatsApp chats while granting a bail application in an NDPS case and also held that without any certificate under S. 65b of evidence act WhatsApp chats cannot be treated as evidence. The High Court of Gujrat in Chirag Dipakbhai Sulekha v. State of Gujrat, R/CRIMINAL MISC. APPLICATION NO. 18834 of 2020 referred to WhatsApp chats in granting the bail.
In Bail Appl. 959/2018 Saurabh Chaudhary versus The State, anticipatory bail granted U.S: 438 Cr.PC with observation that “Status report indicates that the prosecutrix had contended that there were certain WhatsApp Chat between the prosecutrix and the petitioner with regard to abortion. Status report indicates that the mobile phones of the petitioner as well as prosecutrix have been examined by FSL and the FSL report has not confirmed the allegations made by the prosecutrix. Status report also indicates that the investigation is complete and the chargesheet has already been filed.”
In Bail Appl. 1773/2017 Santosh Gupta vs State, while granting bail relying upon WhatsApp it was held the Petitioner was arrested upon two WhatsApp messages on which The two messages do not speak about a dowry harassment and at this stage refraining from giving any final opinion it would be worth mentioning that considering that the deceased was in the first trimester of her pregnancy and an advice rendered not to squat for long or not to travel cannot be said to be harassment. The other allegations against the petitioner are her dissatisfaction for the gifts received at the time of Diwali.
Considering the nature of allegations, the fact that the deceased died of Aluminium Phosphide poisoning which most likely suicidal in nature, the petitioner has been in custody for the last 8 months and charge-sheet has been filed and due to the medical condition of the petitioner, this Court deems it fit to grant bail to the petitioner.
Hon’ble Supreme Court Of India in Sujit Tiwari Vs. State Of Gujarat And Another in Criminal Appeal No. 1897 of 2019 Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS0 – Sections 36a,37 and 67 – Criminal Procedure Code, 1973 (CrPC) -Section 167- Illegally transportation of heroin – Bail application – Prosecution story is that the appellant was aware of what his brother was doing and was actively helping his brother – At this stage we would not like to comment on the merits of the allegations leveled against the present appellant – But other than the few WhatsApp messages and his own statement which he has resiled from, there is very little other evidence – At this stage it appears that the appellant may not have been aware of the entire conspiracy because even the prosecution story is that the brother himself did not know what was loaded on the ship till hew was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go towards Egypt and that would not have been a crime under NDPS Act – Bail granted with conditions.
PRESERVATION OF RECORD:
Keeping in view the Law and Order the Court may also order for preservation of record of WhatsApp. In January 2020, the Delhi High Court asked WhatsApp and Google on Tuesday to preserve and provide information, as per their internal policies, to the police in relation to the recent violence at Jawaharlal Nehru University (JNU). Justice Brijesh Sethi also asked the police to “at the earliest” summon witness and seize the phones of members of two WhatsApp chat groups on which the January 5 violence was allegedly coordinated. In the arguments prior to passing of the order, Google told the court that if the police provides it with the user information, including email IDs, of the members of the two WhatsApp groups – ‘Unity Against Left’ and ‘Friends of RSS’ – then it can find out whether the chat histories are backed up on Google Drive and if yes, the same can be preserved and provided to the investigating agency. It also told the court that it “will protect whatever is there on our system as on date.”
The conclusion of the discussion is that law does not bar receiving WhatsApp chats, Telegram Chat, Email Chat, SMS Chat, SIGNAL Chat or Chats in any Electronic -Digital Form as evidence, provided it comply with the requirements of electronic evidence under Section 65B of the Evidence Act.