ITM UNIVERSITY, Raipur

ASSIGNMENT

Indian Evidence Act, 1872

Relevancy and Admissibility of Whatsapp Chats in Court as Evidence

Submitted By:
Shreya Bapat
 Relevancy and Admissibility of Whatsapp Chats in Courts
as Evidence

Introduction

Social media has become our primal tool for communication in present times.
Just like every other technology, 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. With the help of various case laws this
assignment shows how WhatsApp messages are admitted by the court as
evidence.

Evidentiary Value of Whatsapp Chats

In Indian courts, WhatsApp chats are seen as an electronic record and are
admissible in the form of a conventional document. "Electronic record" is
included in the definition of "evidence" under Section 3 of the Indian Evidence
Act as, “all documents including electronic records produced for the inspection
of the Court”. It is treated as 'documentary evidence'.

According to Section 2(1) (t) of the Information Technology Act, 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".
There are certain conditions which need to be fulfilled for the admissible of
WhatsApp messages as evidence:

1. The messages must be received by the receiver.

2. The phone must be in regular use. It should not be damaged.

3. The sender must have intention to send that messages.

The normal rule of evidence is that a document must be proved by primary

evidence by proving the document itself. Section 64 of the Evidence Act says
that "documents must be proved by primary evidence" except in the
circumstances mentioned in Section 65. 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.
Case-laws

1. Anvar v. P.K Baseer & Ors

In this landmark case, the Supreme Court of India answered all the
controversies which were created regarding the admissibility of electronic
records in the court. In this case, the honourable Supreme Court made it
clear that the requirements given under Section 65B are mandatory. The
court also clarified that Section 63 and 65 of the Indian Evidence Act, 1872
do not apply to secondary evidence in the form of electronic evidence. As far
as electronic evidence is concerned, only Section 65A and 65B are relevant.

2. Shafi Mohammed v. State of HP

In 2018, this judgement was overruled in the case of Shafi Mohammed v.
State of HP, wherein the Supreme Court relaxed the mandatory
requirements under Section 65B and stated that electronic evidence
presented without a certificate under Section 65B(4) can be relied upon. In
cases when an electronic device, which produced an electronic record, is not
in the possession of a party presenting the evidence, requirements of
Section 65(4) cannot be fulfilled. At the same time, there must be no denial
of justice to such parties and the court must relax this procedural
requirement if the interests of justice so satisfy.

3. Vikas Garg & Ors. v. State of Haryana (2017)

In this case, the trial court relied on WhatsApp chats to hold the accused
guilty of rape, among other offences. Later, the Supreme Court stayed the
High Court’s order for bail and as per the latest information available, the
Special Leave Petition is pending before the honourable court.

4. Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace, LLP Ltd

Recently in January 06, 2020, the honourable Supreme Court granted an
injunction under Section 36 of the Specific Relief Act, 1963 in the case of
Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace, LLP Ltd. The court held
that WhatsApp messages, which are considered as virtual communication,
are capable of being considered as evidence. Before the consideration, the
meaning and content of the virtual communication must be proved through
evidence-in-chief and cross-examination during the trial.
5. Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020)
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 admissibility of by way of electronic record.

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).”

Conclusion

As a matter of practice over the last few years, we have observed that
WhatsApp chats, or communication happening over any social media or
instant messaging platforms for that case, are submitted in the form of print
outs of actual chats. This practice clearly takes WhatsApp chats out of the
scope of Section 62 and they cannot be considered as primary evidence. 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.