Online chats and its admissibility in Indian Court-Chat as evidence in Court

The blue tick in whatsapp message can be considered as valid prove of receiving and  Summon can be issued by court. So the major question arise now, is whatsapp chat admissible in court?

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 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 computer, tablet, a mobile phone, laptop computer,

But has to step inside the witness box  and prove that the concerned device, on which the original information is first stored, is owned and/or operated by him and has not been obtained fraudulently . 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 Delhi High Court in a case has held that a Whatsapp forward message, without an unknown source, cannot be treated as evidence (National Lawyers Campaign for Judicial Transparency and Reforms v Union of India). The Court held that such a forwarded message, without its original, cannot be regarded as 'document' under the Evidence Act.

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 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 thedevice itself is produced

Evidence  Act

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'.

The pre requisite to prove evidence to be admissible is that 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 fulfils the above-said four conditions. Section 65B (4) speaks of this certificate.

 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.

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.

Bishwa Kumar Jain # 9582584584 B com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K. Practice Advocate Supreme Court and High Court of Delhi.