The recent leak of WhatsApp Chats between Arnab Goswami and Ex-BARC Head Partho Das Gupta, filed along with supplementary charge sheet in Fake TRP case, is raising questions in social media about the admissibility of such chats in a court of law as a piece of evidence.
Let us try to find out the answer to this question.
Section 3 of the Indian Evidence Act, 1872 provides that “Evidence” includes “Electronic Record” also.
Electronic Record has been defined under Section 2(1)(t) of the Information and Technology Act as follows:
t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;
Evidence like WhatsApp Chats, E-mail, SMS etc are of secondary nature, as print out of such evidence is produced in the court, so unless the electronic device such as mobile phone or computer is itself produced in the court, it is treated as secondary evidence.
Section 92 of the Act bars oral evidence to prove the contents of a document. Section 64 of the Evidence Act provides except in circumstances provided in Section 64, document must be proved by primary evidence.
Focusing on the issue of proving electronic evidence, in year 2000 the Parliament amended the Evidence Act and included Section 65B for the purpose of admission of electronic evidence in secondary form.
Section 65 B provides that
“any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document, provided following conditions are fulfilled:
the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Further electronic record can be admitted as evidence, if it is accompanied with a certificate as required under Section 65B(4) of the Act.
In the year 2020, the Supreme Court (Arjun Pandit Rao vs Kailash Kushan Rao) held that the condition under Section 65B (4) is mandatory, but where the original document is itself produced then the certificate under Section 65B(4) is not required.
Judicial Precedents
In the case of Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another, the Supreme Court held that WhatsApp chats and Emails are admissible as evidence in a trial.
The Bombay High Court (SBI Cards & Payment Services Pvt Ltd. vs. Rohidas Yadav, Execution Application No. 1196 of 2015) has also held that WhatsApp chats are admissible as evidence in the Court of law provided requirements of Section 65B of Indian Evidence Act are complied with.
The Gujarat High Court in the case of Chirag Dipakbhai Sulekha vs State of Gujarat, gave due consideration to the WhatsApp Chats while considering bail application.
Similarly, the Punjab and Haryana High Court (Rakes Kumar Singla vs Union of India), has also admitted WhatsApp Chats as evidence after recording its satisfaction as to requirements of Section 65B, while granting bail to an accused of NDPS offence.
IN the case of Bhandari Hosiery Exports Ltd. & Ors vs. In-Time Garments Pvt. Ltd., Company Appeal (AT) (Insolvency) No. 143 of 2019, National Company Law Tribunal took cognizance of a WhatsApp chat of a corporate debtor to an operational creditor complaining about the quality of the goods. Considering this chat the NCLT held that there was a Pre-existing dispute under Section 9 of the Code.
Whether a Whatsapp Forward Message admissible as Evidence?
In the case of National Lawyers Campaign for National Lawyers Campaign for Judicial Transparency and Reforms v Union of India, the Delhi High Court held that WhatsApp forward message without any information about its original source cannot be admitted as Evidence.
Recently it has been seen that the Court has allowed service of notices and summons through WhatsApp and two blue ticks have been deemed to be sufficient service of notice or summons.
Conclusion
Therefore from the above, it is clear that WhatsApp chats are admissible in Court of Law as Evidence, provided the requirements of law under Section 65B of Indian Evidence Act 1872, are satisfied.
Also the recent issue of WhatsApp privacy policy is also going to be a big concern on right to privacy of individuals and its use in court of law.
By
Rajat Rajan Singh
Editor-in-Chief at Law Trend
and
Advocate, Allahabad High Court Lucknow
