Explained: Admissibility of WhatsApp Chats in a Court of Law

   Admissibility of WhatsApp Chats in a Court of Law

• Technology has become an essential part of our daily lives. Over the years, we have observed how internet-based services are being used in executing a crime.

What is Documentary Evidence?

• At this point, it is clear that electronic records generated before the court will be counted as documentary evidence. For such an electronic record to be admissible, it must not have been meddled with or altered.

• For this, Section 65A of the Indian Evidence Act, 1872 states that the subject matter of an electronic record may be presented in accord with the conditions specified in Section 65B. Briefly, the requirements given under Section 65B can be encapsulated into the following bullet points:

1. The evidence must be put in storage in the computer when it is being used frequently for the objective of storage and it must be used by a person who is lawfully in ownership of the computer.

2. The content of the evidence must be fed in it during routine usage or activities staged by the computer.

3. The computer must be fully in operation and in a good situation, if not then it must be verifiable in the court that the evidence has not been altered and is in a presentable situation before the court.

4. The evidence must be submitted in court as it was initially obtained during the usual course of the procedure of the system.

Are WhatsApp Chats Primary Evidence or Secondary Evidence?

• In the case of Girwar Singh v. CBI, electronic evidence was submitted before the court and a committee was assigned to check the genuineness of the electronic evidence.

• The committee discovered that the evidence wasn’t the original one or the copy of the original. The evidence was copied several times on various devices. Hence, the Delhi HC held the electronic evidence as inadmissible in court.

• Here, it must be noted that the exhibition of evidence that has been replicated from an original document is known as secondary evidence. Section 63 of the Indian Evidence Act, 1872 lays down several instances when a piece of evidence is considered as secondary evidence.

• On the other hand, Section 62 of the same act defines primary evidence as a document produced in its original form for the inspection of the court. This leads to a pertinent question: whether WhatsApp chats will be considered as primary or secondary evidence?

• In the landmark case of Anvar v. P.K Baseer & Ors, the Supreme Court of India countered all the controversies which were conceived regarding the admissibility of electronic records in the court.

• In this case, the Supreme Court made it clear that the constraints given under Section 65B are compulsory. The court also shed light 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 apprehensive, only Section 65A and 65B are appropriate.

• In 2018, this judgement was overruled in the case of Shafi Mohammed v. the State of HP, wherein the Supreme Court eased the compulsory 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 ownership of a party presenting the evidence, requirements of Section 65(4) cannot be satisfied. At the same time, there must be no refusal of justice to such parties and the court must unwind this routine requirement if the interests of justice so satisfy.

• In the case of Vikas Garg & Ors. v. State of Haryana (2017), the trial court depended upon WhatsApp chats to hold the accused guilty of rape, among other offences. Soon after, the Supreme Court stayed the High Court’s order for bail and as per the latest information available, the Special Leave Petition is awaited before the honourable court.

• Later in 2018, a division bench of the Delhi High Court rejected an appeal against the acquittal of the accused by the trial court for offences under Section 376 and 506 of the Indian Penal Code, 1850.

• The bench contemplated WhatsApp chats between the parties which were duly acknowledged by the prosecutrix in cross-examination. The court was of the view that the chat contents reveal that the prosecutrix has consented to a physical relationship out of her free will and without any incentive.

• Recently on 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 deemed to be virtual communication, are proficient in being considered as evidence. Before the consideration, the meaning and content of the virtual communication must be established through evidence-in-chief and cross-examination during the trial.

Conclusion

• As a matter of routine over the last few years, it has been observed that WhatsApp chats, or communication occurring 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 counted as primary evidence.