Admissibility of Electronic Evidence, WhatsApp chats/SMS/Emails in Indian Courts

Introduction

The world has developed a ton, and with the developing world, technology has spread its
foundations to pretty much every part of society. Everything, from communication to preparing
to documentation, has gone digital. Numerous organizations conduct significant meetings and
business deals on email and texting applications, for example, WhatsApp and other comparative
applications. Schedules and minutes of meetings, basic records, and receipts are completely
conveyed by means of or on office WhatsApp groups. For India's situation, with the always
expanding web-based business exercises and e-administration activities from the state, the
acceptability of e-evidence in the Court of law has become an appropriate issue. Maybe nothing
represents the beginning of the Indian computerized system in a way that is better than the
introduction of the Information Technology Act, 2000. The Information Technology Act inserted
Section 65A and Section 65B in the Indian Evidence Act, 1872. These sections talk about
electronic evidence and its admissibility. Prior to examining electronic evidence, it is important
to initially comprehend the meaning of evidence. Today, numerous e-evidences are introduced
before the courts in India consistently, including storage devices, for example, DVD or Hard
Disk to portable SMS or even a mail or site information. Subsequently, with the widespread
utilization of electronics intends to encourage business deals, it is fundamental to comprehend
the enforceability of such transactions in India's Courts of law, all the more explicitly, the
admissibility of electronic records as evidence to build up the legality of such transactions.

Are electronic records admissible in India?

The evidentiary value of an electronic record relies on its quality. To keep up with the fast
advancements in technology, the legislature authorized the Information Technology (I.T.) Act,
2000 as well as amended the Indian Evidence Act, 1872 in 2016 to perceive and incorporate
electronic records as admissible evidence.
Section 2(1)(t) of the Information Technology Act, 2000 defines an electronic record as data,
record, or data generated, image or sound stored, received or sent in an electronic form or
microfilm or computer-generated microfiche.

What is the meaning of Evidence? - Evidence in straightforward terms is any types of

confirmation/proof introduced to instigate confidence in the mind. The legal meaning of the term
Evidence has been given in Section 3 of The Indian Evidence Act, 1872. Section 3 defines
evidence to mean and incorporate: -

 All explanations which the Court allows or needs to be made before it by witnesses,
concerning matters of truth under request, such statements are called oral evidence;
 All documents, including electronic records delivered for the Court's review, such
documents are called documentary evidence.

In addition, Evidence can be separated into two parts.

 Oral, or Documentary
 Primary, or Secondary

Primary evidence implies the document itself delivered for the review of the Court while
Secondary Evidence implies and incorporates certified copies, copies produced using the original
by mechanical cycles, copies made from or compared with the originals, counterparts of
documents as against the parties who didn't execute them and oral records of the substance of a
document given by some individual who has himself seen it.

Electronic Evidence: Primary or Secondary?

Electronic or digital evidence is any data that is stored or transmitted digitally. It is secondary
evidence. Electronic records' evidentiary value is generally examined under section 65A and 65B
of the Evidence Act, 1872.

The sections state that if the four conditions listed are fulfilled, any information contained in an
electronic record which is printed on paper, stored, recorded or copied in an optical media,
created by a computer is considered to be a document and gets admissible in proceedings without
any additional confirmation or production of the original, as evidence of any contacts of the
original or any facts expressed in that, which direct evidence would be acceptable.

The four conditions alluded to above are:

(1) The computer output containing such information ought to have been delivered by the
computer when the computer was utilized consistently to store, or handle data for any exercises
routinely carried on during that period by the individual having legal command over the
utilization of the computer.

(2) During such period, data of the kind contained in the electronic record was consistently fed
into the computer in the common course of such exercises.

(3) Throughout the material piece of such period, the computer must be working appropriately.
On the off chance that the computer was not appropriately working during such period, it should
be indicated that this didn't influence the electronic record or the precision of the contents.

(4) The data contained in the electronic record ought to be such reproduces or is derived from
such data fed into the computer in the ordinary course of such activities.

Supreme Court's views

State (NCT of Delhi) v. Navjot Sandhu, (2005)- In this case, the Supreme Court had held that
courts could concede electronic records, for example, printouts and compact discs as prima facie
evidence without validation. This case dealt with the evidence and admissibility of the records of
cell phone calls. The accused presented that no dependence could be set on the cell phone
records on the grounds that the prosecution had neglected to deliver the applicable certificate
under section 65B (4) of the Evidence Act and that the procedure set out in section 65B of the
Evidence Act was not followed.

The Supreme Court reasoned that a cross interrogation of the competent witness familiar with the
computer's working during the suitable time and way in which the printouts call records were
taken was adequate to demonstrate the call records. Therefore, the printouts and C.D.s were not
compared with the original electronic record or certified at the time of citing it as evidence.
The Court inferred that the necessity of a certificate under Section 65B isn't generally
compulsory and regardless of the compliance of the prerequisites of Section 65B, there is no bar
to showing secondary evidence under different provisions of the Evidence Act.

Anvar P.V. Versus P.K. Basheer 2014- In this case, the Court has interpreted Section 22A,
45A, 59, 65A and 65B of the Evidence Act and held that secondary information in CD/DVD/Pen
Drive is not acceptable without a certificate u/s 65 B(4) of Evidence Act. It has been clarified
that electronic proof without certificate u/s 65B can't be demonstrated by oral evidence and
furthermore the opinion of the expert u/s 45A Evidence Act can't be turned to making such
electronic evidence allowable.

The Supreme Court declined to acknowledge the view that the Courts could admit electronic
records as prima facie evidence without confirmation. It was held that on account of any
electronic record, it ought to be accompanied by the certificate regarding section 65B acquired at
the time of taking the document, without which, the secondary evidence about that electronic
record is forbidden. The Supreme Court held that the reason for these provisions is to sanctify
electronic evidence. The prerequisite of giving an electronic certificate under Section 65B about
any electronic evidence or electronic record is required for treating such evidence as admissible
under law.

Shafhi Mohammad v. Territory of H.P. (2018)- From that point forward, the Supreme Court,
in this case, held that the necessity of the declaration under Section 65B of the Evidence Act
according to the judgment of Anvar P.V. isn't needed in the accompanying two cases: -

1. A party who doesn't have a device from which the document is delivered can't be required to
produce a certificate under Section 65-B (4) of the Evidence Act

2. The pertinence of the authentication being procedural can be relaxed by the Court wherever
interest of justice so legitimizes.

To settle the two unique interpretations between Anvar P.V. and, Shafi Mohammad, the mater
alluded to larger Bench of Hon'ble Supreme Court of India in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal and Ors, settled on July 14 2020. The Supreme Court held that
the certificate needed under Section 65B of the Indian Evidence Act is a condition precedent for
any electronic proof's admissibility. The Court explained that the certificate under Section 65B
(4) is unnecessary if the original document itself is produced. Assume the proprietor
demonstrates a laptop, computer, tablet, or a cell phone possessed or operated by him brings the
same in the witness box, on which the original information is first stored. All things considered,
the certificates' requirement under Section 65B (4) is unnecessary.

It was further held that Oral Evidence in the place of such certificate couldn't in any way, suffice
as Section 65B (4) is an obligatory necessity of the law. Thus, the Court held that Section 65B(4)
of the Evidence Act obviously expresses that secondary evidence is admissible only if followed
in the way expressed and not something else. Henceforth, severe consistency with section 65B is
currently required for people who mean to depend on any electronic record before the Indian
courts.

WhatsApp messages as evidence

Technology has become an indispensable piece of our everyday lives. Throughout the long term,
we have perceived how web-based services are being utilized in committing crime and
wrongdoing. On the premises that WhatsApp has become a verb, let's discuss the suitability of
WhatsApp Chats in a courtroom.

As a communication, the utilization of WhatsApp by the employee of the organization is quickly

expanding. For close collaboration with partners and customers, WhatsApp is viewed as the best
reasonable informing stage for the representatives. In the wake of seeing the expanding
utilization of online media platforms like WhatsApp, the Court started to admit texts and pictures
sent on these platforms as Evidence in criminal and civil issues.

In any case, there are some particular principles by which WhatsApp content ought to be referred
to as evidence in the Court. In Indian courts, WhatsApp chats are viewed as an electronic record
and are permissible as a conventional document. There are some conditions which should be
satisfied for the admissibility of WhatsApp messages as Evidence:
  The recipient should get the messages.
 The telephone should be in regular use. It ought not to be harmed.
 The sender should have the intention to send those messages.

WhatsApp Chats: Primary or Secondary Evidence

In Girwar Singh v. CBI, electronic evidence was introduced before the Court, for which a
committee was appointed to check the authenticity of the electronic evidence. Later, the
committee found that the evidence wasn't the original one or the copy of the original. The
evidence was copied numerous times in different devices. Consequently, the Delhi H.C. held the
electronic evidence as unacceptable in the Court.

Here, it should be noticed that the presentation of evidence which has been copied from an
original document is known as Secondary Evidence. Section 63 of the Indian Evidence Act, 1872
states different instances when Evidence is viewed as Secondary Evidence. Then again, Section
62 of a similar act characterizes Primary Evidence as a document introduced in its original form
for the inspection of the Court. It prompts a relevant inquiry, regardless of whether WhatsApp
visits will be considered as Primary or Secondary Evidence?

In the case of Vikas Garg and Ors. v. Territory of Haryana (2017), the High Court depended
on WhatsApp chats to hold the accused liable for assault, among different offences. Afterward,
the Supreme Court remained the High Court's order for bail, and according to the most recent
information accessible, the Special Leave Petition is forthcoming before the Court.

Later in 2018, the Delhi High Court's division bench dismissed an appeal against the acquittal of
accused by the Trial Court for offences under Section 376 and 506 of the Indian Penal Code,
1850. The bench considered WhatsApp chats between the parties which were properly admitted
by the prosecutrix in interrogation. The Court accepted that the chat content exhibit that the
prosecutrix has assented for an actual relationship out of her choice and with no incitement.

A substantial and enforceable understanding can be made by means of WhatsApp: In the

case of Shamsudin Bin Mohd. Yosuf v. Suhaila Binti Sulaiman the Court held that in any
case, when most of the communication between the parties is done in WhatsApp, there was a
substantial oral agreement and is enforceable by law.

The importance of Bluetick on WhatsApp in a legitimate suit: The Bombay High Court, in
the case of, SBI Cards and Instalment Administrations Pvt. Ltd. v. Rohit Jadhav, observed
that the defaulter had gotten the notification in WhatsApp as well as opened that notice. At that
point, Bombay High Court held that lawful notification sending through WhatsApp, and if a blue
tick is seen over the WhatsApp, then the informing application is viewed as substantial
verification that the Respondent had gotten that notice which is viewed as legitimate Evidence.

Other important case laws

The Delhi High Court in National Lawyers Campaign for Judicial Transparency and
Reforms and Ors Versus Union of India and Ors, 2017, held that a WhatsApp post doesn't
qualify as legitimate lawful Evidence under the Evidence Act, particularly when neither the
original nor a copy of the first document is delivered.

Unexpectedly, the Bombay High Court held SMS/WhatsApp messages to be allowable under the
Court of law under Section 65 of Indian Evidence Act, in the case of SBI Cards and Payment
Services Pvt Ltd. versus Rohidas Yadav, settled on June 11 2018. The Court held that lawful
notification or messages sent through WhatsApp chats are viewed as legitimate Evidence under
the law. The blue tick in WhatsApp is legitimate evidence that the Respondent has
acknowledged the communication's physical copy.

Email as Evidence

Abdul Rahaman Kunji Vs. The State of West Bengal-The High Court of Calcutta while
deciding the admissibility of email held that an email downloaded and printed from an
individual's email record can be proved under Section 65B r/w Section 88A of Evidence Act.
The witnesses' declaration to carry out such a strategy to download and print the same is
adequate to prove the electronic communication.
In the case of Smt Bharathi V Rao v. Sri Pramod G Rao, the learned judge held that messages
go under the definition' electronic record' under section 2(t) Information Technology Act 2000
admissible as Evidence.

In the Delhi High court clarified section 65B in detail and held that the computer output, when
provisions of section 65-B are fulfilled is treated as Evidence of the contents of the original or
facts in that of which direct evidence is admissible. It determines that the onus of proving its
originality lies in the individual who tried to create it as Evidence. Electronic Evidence should be
accompanied by a certificate according to section 65B of the Act.

Conclusion

Most business firms conduct their meetings on online platforms and contents of those meetings
are shared among the representatives through texting platforms like WhatsApp, Telegram and
much more. The legal system of India is additionally turning into a technologically developed
step by step. Internet informing applications, for example, WhatsApp, Telegram, and so on, are
conceded by the Court of law as legitimate evidence. The lone alternative to demonstrate the
electronic record/evidence is by creating the original electronic media as Primary Evidence court
or its copy, as, optional proof u/s 65A/65B of Evidence Act. Thus, on account of CD, DVD,
Memory Cards and so on containing secondary evidence, the same will be joined by the
certificate regarding Section 65B acquired at the time of taking the document, without which, the
secondary evidence relating to the electronic record, is forbidden. Notwithstanding, there are
different issues which are emerging relating to the authorship of the certificate. WhatsApp chats
never be conceded in the Court as primary evidence; rather, it is conceded by the Court as
secondary evidence. While the law on electronic evidence is as yet in its beginning stage even
following a long time since the Information Technology Act, 2000 came into power; we hope to
see significant advancements on this topic in the following five years.