Whatsapp Conversations as Evidence

Source: Delhi High Court 

Why in News? 

A bench of Justice Subramonium Prasad held that the Whatsapp conversations cannot be read as evidence without there being a proper certificate as mandated under the Indian Evidence Act, 1872 (IEA). 

• The Delhi High Court held this in the case of Dell International India Private Limited v. Adeel Feroze and Ors. 

What is the Background of Dell International India Private Limited v. Adeel Feroze and Ors. Case? 

• The petitioner in this case approached the Court under Article 226 and 227 of the Constitution of India, 1950 (COI) challenging the order passed by Delhi State Consumer Dispute Redressal Commission by which the State Commission has upheld the order wherein the District Commission refused to take on record the written statement filed by the petitioner filed on the grounds that it has been filed beyond the period of limitation. 
• The order in dispute was made as a result of Revision Petition which was filed in the State Commission against the order of the District Commission. 
• The Respondent in this case has filed a Consumer Complaint Case against the Petitioner before the District Commission on 19th September 2022. 
• On 16th November 2022 summons were issued in this case. The documents were received by the petitioner on 23rd December 2022. 
• It was contended by the petitioners that the documents were incomplete. 
• The written statement was filed by the petitioner on 31st January 2023. 
• On 18^th April 2023 a rejoinder was filed and on 16th May 2023 an application for condonation of delay of seven days in filing the written statement was filed before the District Commission. 
• The District Commission refused to condone the delay of seven days in filing the Written Statement because of the false case put up by the Petitioner herein. 
• The Petitioner thereafter challenged the Order passed by the District Commission by filing a Revision Petition under Section 47B of the Consumer Protection Act, 2019, before the State Commission. 
• The State Commission vide its Order dated 12th December 2023 found that there was no material irregularity in the Order dated 04th July 2023 and refused to exercise its revisional jurisdiction. 
• This order has been challenged by the writ petition. 

What were the Court’s Observations? 

• The petitioner in this case filed a screenshot to show that the entire copy of the complaint along with the annexures was not received by the petitioner and it was only handed over to the counsel for petitioner before District Commission on 31st January 2023. 
• It was firstly observed that under Article 226 of the COI the High Court is not acting as a Court of appeal and it is only concerned with the action as to whether the Tribunal is acting within its jurisdiction, and it has not contravened any rules of natural justice.  
• The Court held that the screenshots cannot be taken into consideration as the Whatsapp conversations cannot be read as evidence without there being a proper certificate as mandated under IEA. 
• The Court held that as per the records the complete document along with the summons has been served on the petitioner. 
• Hence, the Court refused to interfere with the order passed. 

What is the Law Regarding Electronic Evidence under Section 62 and Section 63 of Bhartiya Sakshya Adhiniyam, 2023 (BSA)? 

• Section 62 of Bhartiya Sakshya Adhiniyam, 2023 (BSA) provides that the contents of electronic records may be proved in accordance with the provisions of section 63.  
• Section 63 of BSA provides: 
  • Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.  
  • The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—  
    • The computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device; 
    • 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 or communication device in the ordinary course of the said activities;  
    • Throughout the material part of the said period, the computer or communication device 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 or communication device in the ordinary course of the said activities. 
  • Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—  
    • in standalone mode; or 
    • on a computer system; or  
    • on a computer network; or  
    • on a computer resource enabling information creation or providing information processing and storage; or  
    • through an intermediary, all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly. 
  • In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—  
    • identifying the electronic record containing the statement and describing the manner in which it was produced;  
    • giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);  
    •  dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,  
      and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule. 
• This provision was contained in Section 65A and 65B of the IEA.  

What are the Settled Legal Precedents with Regard to Admissibility of Electronic Evidence? 

• There are settled legal precedents regarding the admissibility of electronic evidence 
  • Anvar P.V. (s) v. P.K. Basheer and others (2014):  
    • In this case the Hon’ble Supreme Court overruled the law laid down in State NCT of Delhi v. Navjot Sandhu alias Afshan Guru (2005). 
    • The Hon’ble Court held that Section 65B is a complete code and special law, the general law under Section 63 and Section 65 must yield. 
    • The Hon’ble Court here invoked the rule of interpretation Generalia specialibus non derogant.  
    • Thus, the Hon’ble Court held that Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. 
  • Shafhi Mohammed v. State of Himachal Pradesh (2018): 
    • The Hon’ble Court in this case laid down the position of law when the electronic evidence is produced by a party who is not in possession of the device. 
    • The Court held that applicability of Section 63 and Section 65 of IEA cannot be held to be excluded. 
    • The Hon’ble Court laid down the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. The Court held that such a party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. 
    • Thus, the Court held that the applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies. 
  • Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantayal and others (2020) 
    • Finally, the controversy surrounding the electronic evidence was settled by the Hon’ble Supreme Court in this case. 
    • The Court further held that the certificate under Section 65B (4) is unnecessary if the original document itself is produced. This can be done by the owner of the laptop, mobile phone etc by stepping into the witness box. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). 
    • Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. 

What are the Recent Court Decisions Where WhatsApp Chats Were Admitted in Evidence? 

• Rakesh Kumar Singla v. Union of India (2021) 
  • The Punjab and Haryana High Court in this case cited the judgment of Arjun Panditrao v. Kailash Kushanrao (2020) and held that certificate under Section 65B of IEA is required when the party wishes to produce WhatsApp messages as electronic evidence. 
  • Thus, the Court concluded that WhatsApp messages can be relied upon after due compliance with Section 65 B of IEA. 
• M/S. Karuna Abhushan Pvt. Ltd v. Shri Achal Kedia (2020) 
  • The Delhi High Court in this case discussed the validity of WhatsApp messages as legal evidence. 
  • The Court held that the messages sent through WhatsApp messaging app are valid legal evidence under law and the blue tick over the messaging is a valid proof that the recipient read it. 
  • The Court also held that mobile Whatsapp and Facebook chat are taken as evidence proof in the court of law. 
  • The Court again reiterated that for the purposes of proving the Whatsapp chats the provisions contained in Section 65B of IEA should be followed. 
• National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India (2017) 
  • The Delhi High Court held in this case that a document received as a WhatsApp forward does not even qualify as a document in terms of the Evidence Act, 1872, if neither the original nor the copy of the original has been produced.