Are WhatsApp Chats Admissible In Evidence?

The social media is abuzz with the details from alleged Whatsapp chats between Republic TV anchor Arnab Goswami and former BARC CEO Partho Das Gupta. The 500-page long Whatsapp conversations between Goswami and Das Gupta found their way into social media after Mumbai Police annexed it in its supplementary charge filed in the TRP rigging case.

In this backdrop, several users raised questions regarding admissibility of Whatsapp chats as evidence. Let us discuss this issue.

The first thing we have to keep in mind is that an "electronic record" is also included in the definition of "evidence" under Section 3 of the Indian Evidence Act. 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".

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 trial 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.

The normal rule of evidence is that a document must be proved by primary evidence by proving the document itself. Oral evidence about the contents of the documents is barred by the Evidence Act(Section 92). 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. We have already seen how electronic records as regarded as documents under the Evidence Act).

Realizing the advent of information technology, the legislature incorporated a special provision in 2000 to admit electronic evidence in secondary form - Section 65B.

Section 65B says that any information contained in an electronic record which is :

• printed on a paper(such as print outs) ,
• stored, recorded or copied in optical or magnetic data produced by a computer(such as CDs, DVDs)

will be deemed to be a document.

But for such records to be admissible as evidence, the certain conditions have to be fulfilled.

Such conditions are :

1. the computer that produced it must have been used regularly at the time of production of such electronic documents;
2. the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device;
3. the computer should be in proper condition and must work properly at time of creation of electronic record; and,
4. the duplicate copy must be a reproduction of the original electronic record.

To admit the electronic record as evidence, it must be accompanied with a certificate from a person who produced the copy certifying that the same fulfills the above-said four conditions. Section 65B(4) speaks of this certificate.

There was a judicial confusion as to whether Section 65B(4) was a mandatory condition. Last year, 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 the admissibility of evidence by way of electronic record(Arjun Pandit Rao v. Kailash Kushanrao)

The Supreme Court also stated that Section 65B (1) differentiates between:

(i) 'original document' - which is the original electronic record contained in the computer in which the original information is first stored; and

(ii) the computer output containing such information, which then may be treated as evidence of the contents of the 'original document'.

The Supreme Court clarified that Certificate is not necessary if the 'original document' itself is produced (as a primary evidence). This can be done by the owner of a laptop computer, 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. However, in all other cases, proof of such electronic record can be through in accordance with Section 65B (1) together with production of the requisite Certificate under Section 65B (4) of the Act.

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).This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...".

Decisions

There are certain decisions which have observed that Whatsapp chats can be admitted in evidence provided they fulfill the conditions under Section 65B of the Evidence Act.

In Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another, the Supreme Court, while hearing a petition challenging an injunction order, made a reference to the Whatsapp chats produced as evidence in the case.

"The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence - in - chief and cross examination. The e - mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not", the Court observed in the judgment delivered on January 6, 2020.

This means that the Whatsapp chats can be admitted to evidence in trial.

In a recent case, the Punjab and Haryana High Court, while deciding a bail application in an NDPS case, granted liberty to the Narcotics Control Bureau to rely upon the Whatsapp messages of the accused after due compliance of provisions of Section 65-B of the Indian Evidence(Rakesh Kumar Singla vs Union Of India).

There is a recent order of the Gujarat High Court as well, which referred to Whatsapp conversations to form a prima facie opinion regarding grant of bail(Chirag Dipakbhai Sulekha vs State Of Gujarat)

There is an instance of a Commercial Court in Delhi relying on Whatsapp chats, which were proved in accordance with Section 65B, to decree a suit. There are reports of family court lawyers increasingly relying on Whatsapp chats as evidence in divorce cases.

Whatsapp Forward without original cannot be evidence

The Delhi High Court in a case has held that a Whatsapp forward message, without an unknown source, cannot be treated as evidence(National Lawyers Campaign for Judicial Transparency and Reforms v Union of India). The Court held that such a forwarded message, without its original, cannot be regarded as 'document' under the Evidence Act.

"What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis".

Annexure - A(Whatsapp forward) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure - A with the original", a bench of Justice Sanjeev Sachdeva observed in the case.

There are cases where courts have treated the "blue tick" in Whatsapp as proof of service of summons.

The upshot of the discussion is that 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.

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