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 :the computer that produced it must have been used regularly at the time of production of such electronic documents; the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device; the computer should be in proper condition and must work properly at time of creation of electronic record; and, 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 ...

Are WhatsApp Chats Admissible In Evidence?

LiveLaw Research Team

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