ELECTRONIC EVIDENCE: ADMISSIBILITY OF EVIDENCE OVER WHATSAPP

BY AKANKSHA MISHRA,

LEGAL INTERN, H.K. LAW OFFICES

INTRODUCTION

The world is becoming advanced day –by –day, there is a rapid growth in infrastructure in almost all developing countries. The main aim of these developing countries is to make advancements in their areas of technology for the purpose of bringing themselves at pace with the developed countries. This drastic advancement in the field of technology has made almost everything, from preparing documents to distanced communication, go digital. Due to this ever expanding technological base in the business sector, the acceptability of e-evidence in the Court has become a pertinent issue.

In the present times most of us use whatsapp for exchanging various kinds of information including business information’s, bank details, personal details etc. Though there are various other social networking platforms such as facebook, linkdlen, etc but among all these whatsapp is the only application that is used most commonly by even the employees in the business organizations for contacting their clients, colleagues, or even their bosses. Due to this extensive use of platforms like whatsapp, the messages including images and texts both, are now being recognized as evidences by courts in criminal as well as civil matters.

In 1872, when the Indian evidence act came into force, it chiefly recognized only documented evidences placed on accord but since over the last few years these social media stages have occupied a vital position in our day to day accomplishments, the need for admissibility of such electronic evidences became crucial. It is due to this that section 65A and 65B were introduced in our legal system by the Indian evidence (amendment) act of 2000 and in the same year the Indian legislature fused the information and technology act, universally known as I.T Act, with the aim of keeping a pace with the emergent technology.

WHAT IS AN EVIDENCE? 

As per the lexicon meaning evidence is a sign/proof to show that something exists or is true.

As per sec 3 of the Indian evidence act[1],“ Evidence” means and includes—

(1) all statements which the Court certifies or requires to be made before it by witnesses, in relation to matters of fact under examination, such statements are called oral evidence;

(2) all documents including electronic records produced for the scrutiny of the Court, such documents are called documentary evidence.

 As per sec 61 of the act An evidence can be categorized as-

  • Oral or documentary 
  • Primary or secondary

Sec 62 of the act defines primary evidence .Primary evidence is the original documents produced before the court, it is the chief source of evidence. Its significance in the court of law is the uppermost.

Sec 63 of the act defines secondary evidence.it is those documents which are not unique but are permissible in the court of law in the nonappearance of primary evidence.

ELECTRONIC RECORD AND SECTION 65A AND 65B

Electronic Records is data logged or data engendered image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche[2]

Sec 65A and 65B were introduced in the act with the primary purpose of recognizing electronic evidences. The two sections ensure that the parties which use numerous electronic channels such as whatsapp, for interchange of information can now assign them a credential value and can take advantage of the ongoing electronic advancements to use such information in their favor in the court of law.

Out of these 2 sections section 65B is the most crucial one and it is often challenging for young lawyers and judges to interpret it while arguing and deciding a matter. The doctrine of  “Generalia Specialibus Non Derogant” When inferred, it means that general laws do not succeed over special laws or, the general does not detract from specifics.[3] When a law is examined before the courts, it is assumed that the legislature enacted the law keeping in mind the welfare of society as supreme. Thus, repealing a law is not usually taken into consideration and is done only when the circumstances are of rare nature. In case there appears a conflict of interpretation of statutes in question, this maxim is applied.

According to sec 65A if an evidence fulfills the requirements of sec 65B then it may be regarded as admissibly in the court of law.  It states the prerequisites that need to be satisfied for a piece of evidence to be admissible.

The 4 requirements of sec 65b are-

(a) the computer output comprising of the information was created by the computer during the period over which the computer was used repeatedly to store or process information for the purposes of any actions repeatedly carried on over that period by the person having lawful control over the usage of the computer;

(b) during the said period, information of the kind confined in the electronic record or of the kind from which the information so confined is derived was frequently fed into the computer in the ordinary course of the said events;

(c) during the material part of the said period, the computer was functioning appropriately or, if not, then in respect of any period in which it was not functioning appropriately or was out of operation during that part of the period, was not such as to disturb the electronic record or the truthfulness of its contents; and

(d) the information contained in the electronic record replicates or is derived from such information fed into the computer in the regular course of the said activities.

A significant question that stands up now is whether the evidences over whatsapp are to be regarded as primary evidences or secondary evidences. The answer to such controversies was put down in the famous Supreme Court judgment of the case of Anvar v. P.K Baseer & Ors,[4] In this case, the Honourable Supreme Court held that the requirements specified under Section 65B are mandatory in nature. The court also illuminated that Section 63 and 65 of the Indian Evidence Act, 1872 do not apply to secondary evidence in the form of electronic evidence. In regards to  electronic evidence, only Section 65A and 65B are relevant.

This judgment was however overruled in the case of Shafi Mohammed v. State of HP, as a result of which the court removed the mandatory requirements in sec 65b and indicated that the electronic evidences placed before the court even without a certificate under Section 65B(4)  are capable of being relied upon. If the electronic evidences are being produced by a party who is not in the possession of the device from which such evidences are being produced then the requirement under 65(4) are not being full filed, but the court held that in such a case the court may relax this procedural requirement for the sake of justice to the parties.

But Again, in Arjun Panditrao Khotkar v. Kailash Kushanrao, the Supreme Court of India held that the condition mentioned under Section 65B(4) of the Evidence Act (which is in concern to the certificate to be produced before the court) is crucial for admissibility of electronic records. 

FAMOUS PARLIAMENTARY ACT CASE

Navjot Sandhu v. State of Delhi[5] popularly known by “parliamentary attack case” is one of the most landmark case pertaining to admissibility of electronic evidences. One of the key issues that was raised by the counsel for the accused was regarding the admissibility and credibility of call records that were presented by the prosecution as evidence in the court. It was argued by the defense counsel that since the prosecution has failed to produce a certificate as required under sec 65B(4) of the evidence act, the call records that were being presented cannot be relied upon by the court. But the court in this case held that the printouts of the call records were satisfactory in itself to prove the call records and there was no requirement to produce the certificate. Thus, the court removed the mandatory requirement of sec 65B, making it discretionary. The court puts it’s faith upon the principle of generalia specialibus non derogant (special law will always get ahead of the general law), held that the evidence relating to electronic record being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same[6] therefore, the court was of the opinion that the oral evidences presented in reference to the electronic evidences were in itself dependable in the court of law.

This judgment of the supreme court was overruled in In Anvar P.V. v. P.K. Baseer & Ors. After the introduction of sec 65A and 65B of the evidence act. These sections made the condition of producing the certificate as obligatory and not optional. the 3-judge bench of R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ overruled the decision of the bench in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 to that extent.

RECENT CASES WHERE WHATSAPP MESSAGES WERE MADE ADMISSIBLE 

There are many instances in which the court has relied upon whatsapp messages as a secondary evidence. In Vikas Garg and Ors. v. State of Haryana the court relied upon the communication between the victim and the accused over whtasapp as there was no witness to the case since the accused assaulted the victim over whatssapp by forecing her to send compromising images to the accused. This had a huge impact on the physical and mental being of the victim and it became necessary for the court to take the whatsaap chats as evidences for the sake to justice to the victim.

In  Rakesh Kumar Singla v. Union of India, the high court of Punjab referred to the chats over whatsapp for granting bail to the accused in NDPS case.

In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another, the Hon’ble Supreme Court of India observed that the messages on whatsapp are virtual communication and such evidences can be presented in the court of law and there reliability has to be proved in cross examination and examination in chief.

CONCLUSION 

It can be rightly concluded that even after presence of such provisions the electronic evidences are tricky to be relied upon unless these electronic evidences are correctly embodied in our legal system as well as the courts which may be possible if the legislature and the courts can draw inspiration from other legal frameworks around the globe. Since the communication over these platforms are produced in the form of printouts in the court, these are thus considered as secondary and not primary evidence.

Since social media platforms have become an insuperable part of our lives the crimes over these platform have also leveled up. Thus it becomes a requirement for the court to frame laws governing these platforms. It is on the courts to examine the authenticity, reliability and credibility of these evidences before taking them into account while deciding a case.

While the laws on electronic evidences is still vague, it is still a hope that better laws, like the I.T act 2000, will widen the scope of such evidences in the Indian courts.


[1] Sec 3 Indian Evidence Act 1872

[2]  Section 2(1)(t) of Information Technology Act,2000.

[3] https://en.wikipedia.org/wiki/Statutory_interpretation accessed on 12 April 2020

[4] 2014 10 SCC 473

[5]State (N.C.T of Delhi) vs Navjot Sandhu, (2005) 11 SCC 600

[6] https://www.scconline.com/blog/post/2014/09/20/ruling-of-navjot-sandhu-case-to-the-extent-of-admissibility-of-electronic-evidence-as-secondary-evidence-overruled/

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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