Table of Contents:

• Introduction
• Basic Definitions
• Nature of WhatsApp conversation to be admitted as an evidence
• Landmark judgments
  • Arnab Manoranjan Goswami vs the State of Maharashtra 
  • Ambalal Sarabhai Enterprises Ltd. Vs KS Infraspace\ LLP Limited and Anr. [Civil Appeal No. 9346 of 2019]
• SBI Cards and Instalment Administration Pvt. Ltd. Vs Rohit Jadhav
• Shafi Mohommad vs State of Himachal Pradesh
• State of (NCT of Delhi) vs Navjot Sandhu [(2005) 11 SCC 600]
• Rakesh Kumar Singla vs Union Of India [CRM- M No. 23220/2020]
• Chirag Dipakbhai Sulekha vs State of Gujarat [Criminal Misc. Application No. 18834 of 2020]
• Conclusion

Introduction

Evidence plays a very crucial role in the adjudication of a particular matter that comes before the court. The rule of evidence and what can be admissible as evidence is governed under the Indian Evidence Act, 1872. If we see in today’s contemporary world large section of the population is depend upon the social media platforms throughout the world. People are depend upon the social media platform from their personal to their professional life. And therefore, the electronic records are playing on the front foot like a piece of evidence and this evidence was governed under the Information technology Act, 2000 as well as the Indian Evidence Act, 1872. 

As we are talking about social media and its various platforms the most famous used platform is WhatsApp. Every person either it’s a school going student or a working professional or senior citizen everyone is very much depend upon WhatsApp. 

Now the most controversial question that arises here is can a chat that happened on WhatsApp be admissible as evidence while deciding upon a matter in a court of law. This question created a buzz after the leaking of the WhatsApp conversation in the TRP Scam case between the Republic Bharat Anchor and CEO of the channel Mr. Arnab Goswami and the former CEO of BARC Partho Das Gupta.

Basic Definition

Electronic record

The term electronic record as defined under section 2 (t) (1) of the Information technology Act, 2000 as “a data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.”

Evidence

The word evidence is defined under the Section 3 of the Indian Evidence Act, 1872 as “all documents including any electronic record produced before this court for inspection can be treated as evidence.”

Primary Evidence

The expression primary evidence is defined under section 62 of the Indian Evidence Act, 1872. According to this section Primary evidence means that the document itself produced for the inspection of the court.”

Secondary Evidence

According to section 63 of the Indian Evidence Act, 1872 Secondary Evidence means and includes certified copies and oral accounts of the contents of the document.

The courts in India by interpreting the above definitions admit a WhatsApp conversation as a piece of evidence but again it depends upon case to case basis.

Nature of WhatsApp conversation to be admitted as an evidence

By taking a recent case that created hype among the media regarding the WhatsApp chat in TRP scam case between Arnab Goswami and Partho Das Gupta and the cases in which the apex court upheld the evidentiary value of the WhatsApp chats in the determination of a particular matter. The court considered the WhatsApp chat as secondary evidence as only the print of the screenshots of the chat were produced before the court. This is because as we studied the definition of electronic record a great emphasis was given on its primary nature.

But in the contemporary world, with the changing need of the society, a special provision was incorporated in the Indian Evidence Act as Section 65A which provides that the content of electronic records must be proved with the compliance of section 65B.

Despite that, the provision of Section 22A of the Indian evidence act also provides that oral admission in the context of electronic evidence is not relevant until and unless the genuineness of such electronic record must be produced before the court.

Landmark Judgments

Arnab Manoranjan Goswami vs the State of Maharashtra 

A case was filed against the Anchor and the CEO of the Republic Bharat News Channel with four other accused in relation to the TRP (Television Rate Points) Scam. Soon after the proceeding was carried on suddenly a hype was created in the media when a WhatsApp chats of 500 pages were leaked. These WhatsApp chats were also considered in the charge sheet which raised a serious question in relation to national security. These WhatsApp chats include the conversation related to how financial frauds have happened in the country, involvements of the High profile people, and not only this there are some conversations which is related to bribing the judges and deciding of the portfolio of the ministry. Also, the chats suggest that Mr. Goswami also had information regarding the retaliatory strike by India after the Phulwama terror attack.

• Ambalal Sarabhai Enterprises Ltd. Vs KS Infraspace\ LLP Limited and Anr. [Civil Appeal No. 9346 of 2019]

The apex court in the instant case held that the WhatsApp conversations will be considered as verbal communication and therefore to admit it as evidence in the court its genuineness will be proved before the court at the time of cross and chief examination.

• SBI Cards and Instalment Administration Pvt. Ltd. Vs Rohit Jadhav

In the instant case, the Bombay high court held that after sending the messages through WhatsApp if a blue tick appears then it is considered as the information is provided to the concerned person. Therefore, the court admitted the WhatsApp conversation as the legitimate proof in this case.

• Shafi Mohommad vs State of Himachal Pradesh [(2018) 2 SCC 801]

In the instant case, the Supreme Court overruled the judgment of State of (NCT of Delhi) vs Navjot Sandhu [(2005) 11 SCC 600] and held that any electronic record produced before the court if is not in compliance with Section 65B (4) can be taken into consideration and the court can rely upon the same. Further, the court stated that the provision of Section 65A and section 65B are of supplementary nature and is inserted in the act to assist the court as it is procedural in nature.

There are also situations where the court takes WhatsApp chats into consideration as an important piece of evidence.

In Rakesh Kumar Singla vs Union Of India [CRM- M No. 23220/2020], the Punjab and Haryana High Court while relying upon the WhatsApp conversation granted the bail to the petitioner in a case related to NDPS and the court further held that the WhatsApp chat must be in compliance with the section 65B of the act and a certificate of such compliance must be submitted before the court.

Similarly in Chirag Dipakbhai Sulekha vs State of Gujarat [Criminal Misc. Application No. 18834 of 2020] the Gujarat High Court by relying on WhatsApp chat granted the bail.

Conclusion

In the contemporary world, people are now very much depend upon social media. In today’s scenario from business to household social media plays a very crucial role. From a school going child to a senior citizen, every person is connected to social media such as WhatsApp, Instagram, Facebook, etc., therefore, the Indian legal system moves a step forward and adopts the technology in the court proceedings.

Therefore it is now a well settled law that a screen shot of a WhatsApp conversation or virtual conversation on any other social media platform will be considered as the evidence. But the WhatsApp chats are considered to be secondary evidence as the definition of electronic record will be considered as the primary evidence but due to the unstable reliability of WhatsApp messages, it is considered to be as a secondary evidence.

The government of India amended the Indian evidence Act in 2000 by inserting the section 65A which pointed out certain conditions to consider secondary evidence as a shred of legal evidence before the court. the information technology act was also commenced in the year 2000 which depicts the intent of the legislature that the scope of the law is like a liquid that can change its shape and volume according to the changing needs of the society.