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ADMISSIBILTY OF WHATSAPP CHATS AS EVIDENCE IN THE COURT OF LAW


INTRODUCTION

We are in the age of information technology. There has been a gradual shift from manual to computerized way of life. Even the nation is moving towards digitization. And with the introduction of global pandemic and digitization of courts, digital evidence has been an inherent part of the criminal justice system. With the advent and widespread use of electronic means to facilitate business transactions and day to day events, it is vital to understand the enforceability of such transactions in Indian Courts of law, more specifically, the admissibility of electronic records as evidence to establish legality of such transactions.

Conversations in Whatsapp, Facebook or any such other social messaging platform is an intricate part of a person’s life and people often share details from their lives to their close ones on such platform and therefore the content in such platforms cannot be ignored. The relevancy and admissibility of digital evidence is now accepted and it has been no more controversial after amendment of IT Act, 2000 along with amendment in Indian Evidence Act, 1872 in the year 2008. However admissibility of such digital evidence is subject to some condition laid down in Indian evidence act. Digital evidence so called electronic records has been admitted as documentary evidence under Section 3 of the Evidence Act, which speaks “all documents including electronic records produced for the inspection of the court are called documentary evidence”. The point of difference is that the verbal statement produced in evidence is called oral evidence contrary to electronic records. The term 'electronic records' has been given the same meaning as that assigned to it under the IT Act. IT Act provides for "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche". The definition of 'admission' (Section 17 of the Evidence Act) has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance.


Digital evidence acquisition is not just systematic inspection of computer or mobile etc, it is more complex and important task as it is going to decide the civil or criminal liability. Since there is no specific test laid down that can be used to determine whether digital evidence possesses the requisite scientific validity or not, there can be an abruption in the justice and violation of individual privacy.


Therefore, it is essential to be informed on how electronic records of conversations and documents shared on such platforms should be preserved and protected in the event these are to be produced as evidence in court.


RELEVANCY OF DIGITAL EVIDENCE

IT Act provides for the definition of electronic records, it includes "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche". The definition of 'admission' under Section 17 of the Evidence Act now includes a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. Section 22-A has been inserted into Evidence Act, to provide for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question. The definition of 'evidence' has been amended to include electronic records. The definition of 'documentary evidence' has been amended to include all documents, including electronic records produced for inspection by the court. New sections 65-A and 65-B have been introduced to the Evidence Act, under the Second Schedule to the IT Act. Section 65-A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65-B. Section 65-B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic, is deemed to be a document and is admissible in evidence without further proof of the original's production, provided that the conditions set out in Section 65-B are satisfied. The conditions specified in Section 65-B (2) are:

1. Firstly, the computer output containing the information should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by the person having lawful control over the use of the computer.


2. The second requirement is that it must be shown that during the said period the information of the kind contained in electronic record or of the kind from which the information contained is derived was 'regularly fed into the computer in the ordinary course of the said activity'.


3. A third requirement is that during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time that break did not affect either the record or the accuracy of its contents.


4. The fourth requirement is that the information contained in the record should be a reproduction or derived from the information fed into the computer in the ordinary course of the said activity.


Section 65-B(1) states that if any information contained in an electronic record produced from a computer (known as computer output) has been copied on to a optical or magnetic media, then such electronic record that has been copied 'shall be deemed to be also a document' subject to conditions set out in Section 65-B(2) being satisfied. Both in relation to the information as well as the computer in question such document 'shall be admissible in any proceedings when further proof or production of the original as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.'


All the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer and references in this section to a computer shall be construed accordingly." Section 65 B (4) provides that in order to satisfy the conditions set out above, a certificate of authenticity signed by a person occupying a responsible official position is required. Such certificate will be evidence of any matter stated in the certificate.


The certificate must identify the electronic record containing the statement, describe the manner in which it was produced and give such particulars of any device involved in the production of the electronic, record as may be appropriate for the purpose of showing that the electronic record was produced by a computer. The certificate must also deal with any of the matters to which the conditions for admissibility relate.



ADMISSIBLITY OF ELECTRONIC EVIDENCE

Acceptance of digital evidence in court depends on the fact whether the evidence is relevant, whether it is authentic, whether it is hearsay, if yes, whether a copy is acceptable or the original is required. Relevancy and admissibility of a digital evidence has to be seen in the light of Sections 3, 5, 65A , 65B and 136 of The Indian Evidence Act, as well as on general principle of evidence that all admissible fact are relevant but all relevant facts are not admissible . Relevancy of a fact depends upon the connection of fact with either the fact in issue or some other relevant fact in such a manner as is provided in either of the provisions of relevancy in the Indian evidence act but relevancy Section of the Act has nowhere dealt with relevancy of digital evidence except in admission clause. Thus it shows that digital records are form of admission provided that such digital records are fulfilling the basic criteria of admissibility in other words it suggests an inference as to facts in issue or relevant facts (Section 5 read with Section 136). Accordingly admissibility has to be seen in two perspectives-

  1. Admissibility of fact in order to decide the case.

  2. Admissibility of evidence in order to prove the fact.

Regarding the admissibility of facts the first proviso of Section 165 expressly provides that judgment shall be based only upon relevant facts. On the other hand Section 136 (1) read with Section 5 provides that evidence shall be admitted only upon relevant facts or directly upon issue. The duty has been cast on the court under section 5, that it shall allow evidence only upon relevant facts or fact in issue. A manifestation of this duty in the form of direction is to be found in Section 136 (I) which reads as-“when either party purposes to give evidence, the judge may ask in what manner the alleged fact, if proved, would be relevant and the judge shall admit the evidence if he thinks that the fact if proved would be relevant, and not otherwise.”

Under this situation the relevancy and admissibility of digital evidence may be analyzed as follows-

Digital evidence as documentary evidence has been made relevant under section 17 of the Evidence Act in the form of admission. As per Section 17, a statement, oral or documentary, or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, is relevant. Again as per Section 22A which deals with relevancy of oral evidence as to contents of electronic records makes it clear that oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic records produced is in question. Section 39 which deals with statements that forms part of a longer statement or of a conversation or part of an isolated document, or is contained in a document that forms part of a book or series of letters or papers specify it that when any statement of which evidence is contained is part of electronic record (Section 39 Evidence Act), evidence must be given of so much and no more of the electronic record as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and of the circumstances under which it was made.


It is clear from above discussion that electronic records are relevant however the admissibility of digital evidence depends upon fulfilling of the condition laid down in Section 5 read with Section 136 of the Evidence Act. The controversy/difficulty in regard to admissibility of digital evidence is that digital evidence is treated as documentary evidence in the Act, though are oral statements. So it is against the basic principle of evidence that “Oral statements should be made available before the opposition for cross examination failing which they will be mere statements”


Fundamental principle of evidence is that oral evidence may be given to prove all facts, except documents, provided that oral evidence is direct. Oral evidence that is not direct is challenged by the hearsay rule and, unless it is saved by one of the exceptions to the hearsay rule, it is inadmissible. The law excludes hearsay evidence because it is difficult or impossible to determine its truth and accuracy which is usually achieved through cross examination. Since the person who makes such statement and the person to whom it is made cannot be cross examined, as third person’s account of it, is excluded.


Though hearsay rule is related to oral evidence somehow it also affects rule related to documentary evidence. Due to digitalization of document, the hearsay rule has faced several new challenges. While the law has mostly anticipated primary evidence (i.e. the original document itself) and has created special conditions for secondary evidence, increasing digitization has come to means that more and more documents are electronically being stored as secondary evidence. As a result, the adduction of secondary evidence of documents has increased. In the Anvar P.V. v. P.K. Basheer & Ors the Supreme Court noted that “…there is a revolution in the way that evidence is produced before the court”.


Before Information Technology (IT) amendment Act 2000, evidence of ‘Electronic Documents’ was adduced through printed reproductions or transcripts, the authenticity of which was certified by a competent signatory. The signatory would identify his/her signature in court and be open to cross examination. This simple procedure met the conditions of both Sections 63 and 65 of the Evidence Act. But, IT amendment Act has inserted two new evidentiary rules in the form of two new Sections Section 65A and Section 65B for electronic records in The Indian Evidence Act, 1872. Section 65A of the Evidence Act performs the same function for electronic records that Section 61 does for documentary evidence.


It creates a separate procedure, distinct from the simple procedure for oral evidence, to ensure that the adduction of electronic records obeys the hearsay rule. It also secures other interests, such as the authenticity of the technology and the sanctity of the information retrieval procedure. But Section 65A is further distinguished because it is a special law that stands apart from the documentary evidence procedure contained in Sections 63 and 65.


Section 65B of the Evidence Act details this special procedure for adducing electronic records in evidence. Sub-Section (2) lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used. Sub-Section (4) of Section 65B requires the production of a certificate by a senior person who was responsible for the computer on which the electronic record was created, or was stored. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the device that created it, and certify compliance with the technological conditions of sub-Section (2) of Section 65B.

However, Indian courts have continued to bypass the special provisions laid down in Sections 65A and 65B and have applied Sections 63 and 65 of the Evidence Act. The Supreme Court in State (NCT of Delhi) v. Navjot Sandhu (the parliament attack case), When the lack of a proper certificate regarding the authenticity and integrity of the evidence was pointed out, the Supreme Court held “Irrespective of the compliance of the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65”.


It is only after Amar Singh v. Union of India case in which The Supreme Court held that the provisions of Sections 65A and 65B of the Evidence Act created special law that overrides the general law of documentary evidence. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65Aof the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.


Court further observed that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India.


Once electronic evidence is properly adduced according to Section 65B of the Evidence Act, along with the certificate of sub-Section (4), the other party may challenge the genuineness of the original electronic record. If the original electronic record is challenged, Section 22A of the Evidence Act permits oral evidence as to its genuineness only. In this regard, relevant oral evidence as to the genuineness of the record can be offered by the Examiner of Electronic Evidence, an expert witness under Section 45A of the Evidence Act who is appointed under Section 79A of the IT Act.


However the ruling of the Anvar case or establishment of Section 65A and Section 65B more strongly has some type of adversarial effect. It can be understood by example of 2G spectrum corruption scandal such corruptions come to the public only when taped or wiretapped conversation were leaked. Some of the conversation were recorded on CD and brought to SC's attention. There is no way that person in possession of electronic evidence can obtain the certification required by Section 65B (4) of Evidence Act with any state coming to know about it and, presumably, attempting to stop the publication. So the ruling of the Anvar case may affect public interest adversely.


ELECTRONIC MESSAGES AS DIGITAL EVIDENCE

Interpretation of Section 2(1) (t) and (i) of IT Act makes it clear that mobile phones are included in the definition of computer and that’s why SMS, WHATSAPP, FACEBOOK and E-MAIL Messages are treated as electronic record. So such electronic Messages would be admissible as documents under the Section 65 read with 65A and 65B of Indian Evidence Act, 1872 Provided that conditions of Section are fulfilled.


Under the provisions of Section 88A, there is a presumption that an electronic message forwarded by the sender through an electronic mail server to the addressee to whom the message fed into his computer for transmission. However, there is no presumption as to the person by whom such message was sent. This provision only presumes the authenticity of the electronic message, and not the sender of the message.


However reliability of such type electronic messages is different thing because despite technical measures, there is still probability of electronic records are being tampered with. These electronic messages can be easily changed by various unsending features and it will not be original message so its relevancy as well admissibility will be affected. With new advancement, whatsapp has introduced deleting features, which can delete a text message after sending it to a person. Because of this complex scientific methods are being devised to determine the probability of such tampering. In this regard IT Amendment Bill 2008, Section 79A empowers the Central Government to appoint any department, body or agency as examiner of electronic evidence for providing expert opinion on electronic form evidence before any court or authority. Courts are also empowered under section 45 of evidence Act to take expert opinion on scientific matter.

An issue arise in Pramod Mahajan murder trial case that a SMS could emanate from a particular handset/mobile number and when received could display another mobile number and only secured electronic evidence should be accepted as valid evidence. In regard to admissibility there is no doubt as Section 65B is very clear on this point. In regard to secured electronic record to Section 85B which states that, “(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.” The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B read with Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication. It is now well-established by the court that SMS, MMS and e-mails are admissible. In State of Delhi v. Mohd Afzal & Others, it was held that electronic records are admissible. It also cleared the doubt that even if there is a scope of misuse of system or failure of operating system or interpolation as to affect the accuracy of such electronic data then it is the onus on the person who is challenging such electronic data. The court said that mere theoretical and general apprehensions cannot make clear evidence inadmissible in court.

However since there is a great chance of cloning the mobile number hacking of e-mail A/C and tempering of the electronic Messages that’s why evidentiary value of such digital evidence (electronic Messages) is less than other documentary records.


RIGHT TO PRIVACY

The investigation authorities may move court to get a summoning order compelling WhatsApp to reveal the chats of an accused. However, Whatsapp’s stance has been that due to its policy of end-to-end encryption, it does not have access to content of chats because of her new end to end encryption. Whatsapp has also reiterated the aforesaid stance before the Supreme Court of India Facebook Inc. v. Union of India. In the aforesaid pending matter, the Court had previously given directions to the Centre to come out with definitive timeline with respect to notification of the revised Intermediary Guidelines which will provide more clarity on the duty of intermediaries with respect to furnishing information in an investigation.


As per Rule 3(5) of the Draft IT Intermediaries Guidelines (Amendment) Rules, 2018, intermediaries would be mandated to enable law enforcement authorities to trace the origins of any unlawful content on their platforms. Even if the draft guidelines are brought into force, they would merely require Whatsapp to locate the originator of a message, and not reveal the content of the message. Therefore, it would be difficult for the police authorities to compel Whatsapp to reveal the content of a chat.


Arguendo, even if some law is in fact enacted to compel Whatsapp to reveal chats to the investigation authorities (which will have to pass the test of not being violative of the fundamental right of privacy), it would be extremely difficult for the police to obtain a summoning order under Section 91 of the Code of Criminal Procedure (CrPC) for conducting a general search of WhatsApp chats on an accused’s mobile phone to discover incriminating material.


The reason for the same is evident. Unless the police have accessed the accused’s phone before or they have credible information about the existence of specific incriminating material on an accused’s phone, courts would be reluctant to grant a summoning order because it is a settled position of law that Section 91 CrPC cannot be used for the purpose of a ‘roving and fishing’ enquiry in State of Orissa v. Debendra Nath Padhi.


It is imperative for police authorities to show, while seeking a summoning order under Section 91 CrPC, that the persons to whom the summons is addressed hold the records in question and that the same are necessary for purposes of the matter at hand as decided in the case of Sureshkumar v. C Sandhumani

Even though exact specificity is not required, police authorities cannot make vague requests and the application for summoning cannot be based on ‘mere anticipation’ or ‘likelihood of existence’.

If a law is in fact enacted to mandate intermediaries to assist investigation authorities to reveal chats of an accused person, major constitutional issues would be at stake in relation to privacy. Private companies have globally resisted being participants in the act of breach of privacy of their clients (for instance, Apple refusing to help FBI to create a back-door key to unlock iPhone of a terror accused).


THE STANCE IN UNITED STATES


When police authorities access the locked phone of an accused, can it compel the accused to unlock it or provide the password? The Indiana Supreme Court in the United States was recently faced with this significant constitutional question.


The petitioner, Seo, was accused of harassing DS, who she had first contacted with a number associated with her iPhone. Subsequently, DS started receiving multiple calls and text messages from various unassigned numbers and the police authorities believed that Seo was placing those calls by concealing her phone number through a mobile app. The police arrested Seo and obtained a warrant that ordered her to unlock her iPhone so that police could search it.


However, Seo refused to unlock her iPhone and she was held in contempt by the trial court. She subsequently appealed against the contempt order and the Indiana Supreme Court reversed the same, observing that forcing Seo to unlock her iPhone would violate her right against self-incrimination.


The decision in Seo raises an interesting question in Indian context also. Similar to the fifth amendment right in USA, Article 20(3) of the Indian Constitution mandates that no person accused of an offence shall be compelled to be a witness against himself.”


The Indian law on self-incrimination can be summarized in the following points based on a combined reading of State of Bombay v. Kathi Kalu Oghad and Selvi v. State of Karnataka:

  1. Broadly, Article 20(3) protects an accused from being compelled to give ‘testimonial evidence’ in relation to self-incriminatory material. The said protection extends not only to evidence given in a court of law, but also to compelled testimony obtained from an accused during investigation.

  2. Evidence can be classified into three broad categories, namely - oral testimony, documentary evidence, and material evidence (physical evidence). In Kathi Kalu Oghad, testimonial evidence was defined in a restrictive manner as oral or written statements which convey the personal knowledge of a person in respect of relevant facts. However, in Selvi, the scope of testimonial evidence was extended to include any kind of evidence in which personal knowledge is conveyed in respect of a relevant fact. Therefore, testimonial evidence is a piece of evidence that is communicative in nature and involves the use of mental faculties.

  3. On the other hand, Article 20(3) does not apply to physical evidence since it is merely identificatory in nature. Physical evidence, like a blood sample or a fingerprint, does not involve use of mental faculties and it does not lead to any communication based on personal knowledge of the accused which may incriminate him/ her. While in the case of testimonial evidence, an accused can give different statements to a question asked of him/her, in the case of physical evidence, the intrinsic character of the evidence cannot change. Thus, furnishing of physical evidence does not exactly amount ‘to be a witness’.

  4. For testimonial evidence to be self-incriminatory, it must be of such a character that by itself, it should have the tendency of incriminating the accused. However, it is imperative to note that self-incriminatory material is not limited to merely confessions, but also extends to answers which ‘furnish a link in the chain of evidence’ to support a conviction.

  5. There is an exception to the bar of Article 20(3). Testimonial evidence can be compelled if it is used for comparison with material that is already in the possession of the investigators.

In Selvi, the scope of testimonial evidence was extended to evidence which, despite not being of oral or written character, provides material based on personal knowledge. Testimonial evidence does not cease to be so, merely because it is not spoken or written in nature. As long as there is compulsion, even by a deed, leading to an expression of the contents of an individual’s mind, it would be protected under Article 20(3). This position of law is also consistent with the US law, where the right against self-incrimination spares an accused from “having to share his thoughts and beliefs with the Government”.


Basis the aforesaid position of law, it can be concluded that providing the password of a phone or unlocking it will amount to testimonial compulsion which is covered by Article 20(3). In Seo,4 the Court stated that unlocking a phone would communicate three kinds of personal knowledge to the police:


(1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possessed those files. And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment’s protection.

Therefore, unlocking a phone is not as innocuous as providing a fingerprint. It amounts to providing information based on the personal knowledge of the accused, and is, therefore, testimonial in nature.


As highlighted above, an exception exists with respect to the above rule and testimonial evidence can be compelled if it is for the purpose of comparison with facts that are already in the possession of investigators. This exception is similar to the ‘doctrine of foregone conclusion’ developed by US Courts whereunder the State can compel the accused to furnish testimonial evidence if it already knows the information conveyed, making it a ‘foregone conclusion’. However, for this exception to apply, the authorities would have to establish that they have independent knowledge of the following:


(i) the phone belongs to the accused;

(ii) they can independently identify what files will be discovered from the phone; and

(iii) the documents they are seeking exist on the phone.

For instance, in In re Grand Jury Subpoena to Sebastien Boucher (2009), Sebastien Boucher’s laptop was seized while he was entering the US border. Upon inspection, the said laptop was found to contain some images related to child pornography and Boucher himself assisted the border agents in locating the pornographic material on the hard disk of his laptop. Due to the existence of images and videos involving child pornography on his laptop, Boucher was arrested.


Subsequently, the laptop was rebooted for further investigation, but the hard disk of the laptop was found to be encrypted. To gain access to the hard disk, the investigation authorities applied for summons directing Boucher to produce an unencrypted version of the hard disk. The District Court found this case to be covered by the doctrine of foregone conclusion since the incriminatory act of production was superseded by the government’s independent knowledge of the existence and location of the documents.


More importantly, the Court concluded that the investigation authorities are not required to be aware of the contents of the files; they are only required to establish knowledge of existence and location of the documents. In this case, Boucher had himself earlier helped the police authorities and due to his act, the police authorities were aware about the existence and location of pornographic material on his phone.


The investigation authorities may move court to get a summoning order compelling WhatsApp to reveal the chats of an accused. However, WhatsApp’s stance has been that due to its policy of end-to-end encryption, it does not have access to content of chats. WhatsApp has also reiterated the aforesaid stance before the Supreme Court of India. In the aforesaid pending matter, the Court had previously given directions to the Centre to come out with definitive timeline with respect to notification of the revised Intermediary Guidelines which will provide more clarity on the duty of intermediaries with respect to furnishing information in an investigation.


As per Rule 3(5) of the Draft IT Intermediaries Guidelines (Amendment) Rules, 2018, intermediaries would be mandated to enable law enforcement authorities to trace the origins of any unlawful content on their platforms. Even if the draft guidelines are brought into force, they would merely require WhatsApp to locate the originator of a message, and not reveal the content of the message. Therefore, it would be difficult for the police authorities to compel WhatsApp to reveal the content of a chat.


Arguendo, even if some law is in fact enacted to compel WhatsApp to reveal chats to the investigation authorities (which will have to pass the test of not being violative of the fundamental right of privacy), it would be extremely difficult for the police to obtain a summoning order under Section 91 of the Code of Criminal Procedure (CrPC) for conducting a general search of WhatsApp chats on an accused’s mobile phone to discover incriminating material.


The reason for the same is evident. Unless the police have accessed the accused’s phone before or they have credible information about the existence of specific incriminating material on an accused’s phone, courts would be reluctant to grant a summoning order because it is a settled position of law that Section 91 CrPC cannot be used for the purpose of a ‘roving and fishing’ enquiry. It is imperative for police authorities to show, while seeking a summoning order under Section 91 CrPC, that the persons to whom the summons is addressed hold the records in question and that the same are necessary for purposes of the matter at hand.


Even though exact specificity is not required, police authorities cannot make vague requests and the application for summoning cannot be based on ‘mere anticipation’ or ‘likelihood of existence’.


It would be interesting to see how this issue develops in the near future. If a law is in fact enacted to mandate intermediaries to assist investigation authorities to reveal chats of an accused person, major constitutional issues would be at stake in relation to privacy. Private companies have globally resisted being participants in the act of breach of privacy of their clients (for instance, Apple refusing to help FBI to create a back-door key to unlock iPhone of a terror accused).

Only time will tell how this issue will play out in India.


CONCLUSION

It is clear from above discussion that electronic records are relevant however the admissibility of digital evidence depends upon fulfilling of the condition laid down in Section 5 read with Section 136 of the Evidence Act. The chats can be used as evidence depending on certain facts and circumstances. Though these chats are now end to end encrypted buy still can be retrived by the help of Section 91 of the Code of Criminal Procedure (CrPC). Most importantly, these chats can also be misused as a self incriminating object harming the privacy of the accused and person related to them. Therefore, it can be said that the admissibility of these chats in the court of law as a piece of evidence is very much acceptable and can be used to prove greater facts.


REFERENCES


  • Tejas D. Karia, Digital Evidence: An Indian Perspective, Digital Evidence and Electronic Signature Law Review 216 (2008)

  • Louis Strydom, Computer Evidence, 2nd World Conference on the Investigation of Crime, ICC Durban, Dec. 2001

  • M. Monir, Text Book on The Law of Evidence 219-229 (Universal Law Publishing Co. New Delhi- India 9th Edn., 2013).

  • Arvind Kumar Dubey (ed.), The Law of Evidence, by Batuk Lal 98-221(Central Law Agency, Allahabad 16th edn., 2003).

  • Devanshu Sajlan, WhatsApp chats and criminal investigations: A legal analysis, Bar & Bench (May 27, 2021, 2:34 PM) https://www.barandbench.com/columns/whatsapp-chats-criminal-investigation-legal-analysis.

  • Sammed Akiwate, Admissibility of WhatsApp Chats in a Court of Law, Cyber Blog India, (May 29, 2021, 11:09 AM) https://cyberblogindia.in/admissibility-of-whatsapp-chats-in-court-law/.


Yukta Ambastha

Semester VI

National University of Study and Research in Law, Ranchi

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