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Evidentiary Value of WhatsApp Chats and other Social Media Platforms

by Aarushi Yadav
Evidentiary Value of WhatsApp Chats

INTRODUCTION

Social media is playing a very important role in today’s time. Through virtual communities and social networking websites, social media can be defined as interactive computer-mediated technologies that promote the creation and exchange of ideas, information, opinions, career interests, and other forms of expression. In the present world that we live in, social media and its platforms have entirely surrounded us. Nowadays, almost everything is accessible via the internet and social media platforms. There has been an increase in crime rates and crimes committed using technology as a result of technological advancements.

In the hands of investigators, social media has become a helpful tool. Electronic records are becoming increasingly significant as evidence in court cases. The use of social media platforms has increased rapidly in recent years. 

The Indian Evidence Act of 1872 and the Information Technology Act of 2000 are the two most essential laws regulating electronic records. WhatsApp for chats is one of the most famous and effective social media platforms.

RELEVANT PROVISIONS

  • Under section 2(1)(t)[1] of the IT act 2000 -has clearly defined that what is the meaning of electronic record i.e., any data which is either stored in an electronic device or which has been communicated through any electronic media EX- WhatsApp most convenient way of communication beat be formal or informal communications.
  • Under section 3[2] of the evidence act 1872 – any document which is produced before the trail can be treated as evidence which even includes electronic data as well.
  • Under section 17 [3]of the evidence act which talks about admission which is some what connected to confession and it clearly states that any statement made in any form including electronic form which is relevant is admissible in court.

Example –let’s say if any person makes a confession or admission on WhatsApp any after wards the person gives his consent to show these WhatsApp conversations in court then they will be considered as substantial evidence.

  • According to section 22A[4] of the act the oral admissions which are made about the contents of electronic records are not considered relevant if the genuineness of electronic record is in question.
  • Section 62[5] provides for the primary evidences which are itself presented in the court for inspection.
  • Section 63[6]provides for the secondary evidence which are the certified copies of an original document and oral account of documents by person.

EVIDENTIARY VALUE OF WHATSAPP CHATS

Evidence helps in proving or disproving a fact in issue or relevant facts. Evidence can be given for a fact in issue or relevant fact and of no other thing as specified under section 5 [7]of the Indian Evidence Act, 1872 (hereinafter referred to as the act). So, in order to present evidence in court of law one has to first prove a fact as fact in issue or relevant fact after this only one can give evidence over it.

WhatsApp chats can prove to be very crucial evidences in proving or disproving a fact in or relevant fact. WhatsApp is a kind of electronic record and according to section 3 of the act, evidence means and includes all documents including electronic records which are produced before the court of law for inspection. Electronic record is defined under section 2(1)(t) of the Information technology act 2000, it is data which is in form of image, sound, information which is sent, received or generated. Section 17 defines admissions which also includes statements which are contained in electronic form as chats on WhatsApp are kind of admissions which could be self-serving(admission) or could be self-harming(confession), Admissions made by any person stated in the act under specified circumstances on the WhatsApp will be considered as relevant fact. According to section 22A of the act the oral admissions which are made about the contents of electronic records are not considered relevant if the genuineness of electronic record is in question, so if someone is giving an oral admission of WhatsApp chats between him and other person but the electronic record i.e., the data received and sent between these two is in question due it’s genuineness then the oral account will not be considered as relevant under the act.

There are two kinds of evidences:

  1. Primary evidences: These are the documents which are present itself before the court for inspection as provided u/s 62 of the act. E.g., original tape-recorded conversation of ransom calls is primary evidence.
  2. Secondary Evidences: These are the certified copies of original documents and oral accounts of documents by a person who has seen it as provided u/s 63 of the act. E.g., CDRs recovered from phone of an accused is secondary evidence.

As WhatsApp chats are presented before court after taking a print out of it on a paper so it is secondary evidence as it is a copy of original chats on a paper. So, if the phone with the alleged WhatsApp chats is presented before the court itself and shown to the court for inspection it will be primary evidence.

After Information Technology Act 2000 came into force section 65A[8] and 65B [9]were inserted in the act to make secondary electronic record admissible in the court of law. Section 65A provides that the contents of the electronic records can be proved according to the provisions of Section 65B. Section 65B is for secondary evidences like WhatsApp chats printed on paper so that these evidences can be made admissible in the court as the basic rule regarding the electronic record was that it should be submitted as primary evidence. Sub section 1 of the section provides that any electronic record which is printed on paper, stored, recorded or copied in or magnetic media which is produced by a computer is deemed as document, further the sub section states that the computer from which the electronic record is taken has to fulfil certain conditions provided under sub section (2) of the section and if those conditions are satisfied then then the electronic record will become admissible. There are 4 conditions/requirements that should be satisfied as given under sub section of the act:

  1. firstly, the computer through which the output is obtained must be in regular use for storing and processing information by the person who is in lawful control of the computer.
  2. Secondly, the information is of that kind which is fed into the computer in ordinary course of business.
  3. Thirdly, the computer from which information is taken must be operating properly during data feeding and if it is not operational for a period of time then the gap should no be such as to affect the accuracy of the information.
  4. Fourthly, information in electronic record must be derived and reproduced in the ordinary course of computer activities.

Sub section 3 provides that where there is more than one computer from which information is derived the interlinked computers has to be treated as one single computer. Sub section 4 provides that when a statement has to be produced as evidence under this section it should be accompanied by a certificate which should identify the electronic record containing the statement.

As given under sub section 1 of 65B that a electronic record printed on paper will be deemed to be a document so, WhatsApp chats printed on a paper will deemed to be a document under this section and if conditions that are specified under sub section 2 are satisfied then the chats will be admissible in the court of law. According to 65B (4) a certificate has to be presented along with electronic record containing statement. In case of WhatsApp chats produced in court by printing them on paper should be given along with the certificate. The certificate should describe the manner in which electronic record was produced, particulars of device from which record is taken and the compliance with the sub section 2. The certificate should be signed by a person occupying a responsible official position in relation to operation or management of the relevant activities.  

In case of primary evidence, the certificate under section 65B is not required, but as WhatsApp chats are generally printed on a paper and then produced in the court, they are secondary evidence and certificate u/s 65B should be presented along with it to make it admissible in the court.

CASE LAWS

  • In Sonu vs. State of Haryana[10], CDRs of mobile phones were recovered from the accused. They were Exhibited before the trial court without objection from the defence. It was held that the CDRs were unreliable being marked without certificate as required by sec. 65B (4) could not be raised at the belated stage since it relates to mode and method of proof of document.
  • In Vikram vs. State of Punjab[11], it was held that in case of primary evidence, the certificate under section 65B is not required. When original tape-recorded conversation of ransom calls was handed over to police, it was admitted as evidence requiring no certificate, such certificate is mandatory only for secondary evidence.
  • In Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another[12], the Supreme Court has made reference that “the WhatsApp conversations, which are virtual verbal communications, are a subject of evidence with regard to their meaning and content to be proved during the trial by evidence in chief and cross-examination,”
  • In Sri. P. Padmanabh v. Syndicate Bank Limited[13], the Karnataka High Court declared that if a ‘computer’ is admittedly malfunctioning, the output or information received from that computer cannot be regarded as evidence.
  • In Anvar P.V. v. P.K. Baseer & Ors.[14], “the 3-judge bench comprising R.M. Lodha, CJ and Kurian Joseph and R.F. Nariman, JJ of Supreme Court overruled the judgement delivered in State (NCT of Delhi) v. Navjot Sandhu[15] to the extent of deciding the evidentiality of secondary evidence in a court of law and by applying the principle of generalia specialibus non derogant (special law will always preserve over the general law) has mandated the requirements mentioned in Section 65B of the Evidence Act and held that certificate is compulsory in order to admit electronic evidence.[16]
  • The honourable court eased the required clause, in Shafhi Mohammed v. State of Himachal Pradesh[17], the court stated that any electronic document provided as evidence without meeting the condition mentioned in Section 65B (4) (regarding certificate production) can be relied on. Also held that Sections 65A and 65B are supplementary in nature which is added to assist the code on the subject and are procedural in nature.
  • The Supreme Court of India held in Arjun Panditrao Khotkar v. Kailash Kushanrao[18] that the criterion set forth in Section 65B (4) of the Evidence Act (relating to the certificate to be produced before the court) is essential for electronic documents to be admissible.

CONCLUSION

As WhatsApp chats are generally produced in the court after printing on a paper for inspection these are secondary evidence according to section 63 of the act to make them admissible in the court requirements given u/s 65B has to be satisfied, one of the most important requirements is attachment of certificate under sub section (4). The Information Technology Act 2000 has helped in incorporating various provisions in different laws for making electronic record and documents relevant for bringing justice to the society in this digital era where almost everything is done digitally through online platforms.

REFERENCES


[1] Electronic record

[2] Evidence

[3] Admission defined

[4]When oral admissions as to contents of documents are relevant

[5]Primary evidence.

[6] Secondary evidence.

[7] Evidence may be given of facts in issue and relevant facts.

[8] Special provisions as to evidence relating to electronic record

[9] Admissibility of electronic records

[10] AIR 2017 SC 3441

[11] (2017) 3 SCC 518

[12] 2020 Latest Caselaw 3 SC

[13] AIR 2008 Kant 42, 2008 (1) KarLJ 153

[14] (2014) 10 SCC 473

[15] 2005 11 SCC 600

[16] https://blog.ipleaders.in/whatsapp-chats-can-used-evidence-not/?amp=1

[17] (2018) 5 SCC 311

[18] (2020) 3 SCC 216


About the author:

Aarushi Yadav

Aarushi Yadav is a 3rd year law student pursuing BBALL.B (Hons.) from The Northcap University. She can be reached via LinkedIn or email.

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