Admissibility of WhatsApp chat in evidence in India

Admissibility of WhatsApp chat in evidence in India

I. Key Legal Provisions for WhatsApp Chat Admissibility

In India, WhatsApp chats are admissible as electronic evidence under the Indian Evidence Act, 1872, provided certain conditions are met. The key provisions governing the admissibility and evidentiary value of WhatsApp chats are as follows: 

1. Section 65A & 65B of the Indian Evidence Act, 1872

A.These sections specifically deal with the admissibility of electronic records as evidence.

B.Section 65B(1) states that any electronic record (including WhatsApp chats) produced from a computer or digital device is considered a document if accompanied by a certificate under Section 65B(4).

C.The certificate must specify:

a.The device used to produce the record.

b.The integrity of the data.

c.The identity of the person handling the device.

d.A declaration that the record was produced in the regular course of business.

2. Information Technology Act, 2000

A.Under this Act, electronic records are granted legal recognition.

B.Section 2(1)(t) defines electronic records to include data stored digitally, making WhatsApp chats fall under this category.

3. Indian Penal Code (IPC) and Criminal Procedure Code (CrPC)

A.WhatsApp messages can serve as evidence in criminal cases if they are relevant to the matter in question.

B.Section 91 CrPC empowers courts to summon documents, including electronic evidence like WhatsApp chats.

II. Judicial Precedents on WhatsApp Chats as Evidence

A.In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), the Supreme Court of India emphasized the necessity of a Section 65B certificate for electronic records to be admissible.

B.In Anvar P.V. v. P.K. Basheer (2014), the Supreme Court ruled that secondary electronic evidence (like WhatsApp chats, emails, etc.) must comply with Section 65B certification.

III. Key Considerations for WhatsApp Chats as Evidence

A.Authenticity: The party presenting the chat must prove its authenticity.

B. Integrity: The content must be unaltered and original.

C. Context: Courts assess the context to ensure the chat’s relevance and credibility.

IV. Practical Steps to Present WhatsApp Chats as Evidence

1. Take screenshots or download chat logs.

2. Ensure timestamps, sender details, and message content are visible.

3. Obtain a 65B certificate from the person handling the device or server.

4. Present the evidence in court with proper documentation.

V. Key Requirements for a Section 65B Certificate

A Section 65B certificate under the Indian Evidence Act, 1872 is a crucial document that authenticates electronic evidence, such as WhatsApp chats, emails, or call records, ensuring its admissibility in Indian courts. This certificate must fulfill certain legal requirements to be valid.

The certificate must:

A.Identify the electronic device that generated or stored the evidence.

B.Describe the process of obtaining the electronic record (e.g., screenshots, downloads, etc.).

C.Confirm that the electronic evidence was produced during the regular course of business or activity.

D.Certify that the data has not been tampered with and is a true copy of the original.

E.Be signed by a person in a responsible position (such as the owner of the device, IT administrator, or relevant authority).

VI. Important Tips for Drafting a Strong 65B Certificate

A.Ensure precise details about the device and method used for extraction.

B.Clearly confirm that the data is unaltered and authentic.

C.The certificate must be signed by a person responsible for managing the device or data (not necessarily a technical expert but someone in authority).

D. Use formal language and keep the document structured and clear.

VII. Sample Format of a Section 65B Certificate

[On Official Letterhead, if applicable]

CERTIFICATE 

UNDER SECTION 65B 

OF THE INDIAN EVIDENCE ACT, 1872

I, [Full Name], son/daughter of [Parent’s Name], aged [Age] years, residing at [Address], do hereby certify as follows:

1. I am a person holding a responsible position in relation to the operation of the computer / device / system from which the electronic evidence (WhatsApp chats / other data) was retrieved.

2. The electronic record in question was generated by a [specify device: mobile phone, computer, server, etc.] having the following details:

a.Device Type: [e.g., Samsung Galaxy S21]

b.Device Number / IMEI: [e.g., 123456789012345]

c.Phone Number (if applicable): [e.g., +91-9876543210]

d.Email/Account Details (if relevant): [e.g., xyz@gmail.com]

3. The data in question, consisting of WhatsApp chats / messages / conversations, was produced during the regular course of business / communication and has been stored securely without any alterations.

4. The contents of the electronic record were extracted using [Specify Method — e.g., screenshot, screen recording, data extraction software] and accurately represent the original data stored on the said device.

5. I hereby certify that the copy of the electronic record provided is a true and accurate reproduction of the original stored data.

6. The document was prepared under my supervision, and I am competent to testify to its authenticity.

Place: [Insert Place]

Indian Solar Date: [Insert Date]

English Date: [Insert Date]

Signature: ____________________

Name: [Full Name]

Designation: [Job Title, if applicable]

Contact Information: [Email / Phone Number]

VIII. The full provision of Section 65B of the Indian evidence Evidence Act, 1872 as amended by the Information Technology Act 2000 is as below:

Section 65B – Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (referred to in this section 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 of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:

(a) The computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer.

(b) During the said period, information of the kind contained in the electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activities.

(c) Throughout the material part of the said period, the computer 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, it was not such as to affect the electronic record or the accuracy of its contents.

(d) The information contained in the electronic record reproduces or is derived from information supplied to the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on by any person was regularly performed by computers, whether —

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers,

all the computers so used shall be treated for the purposes of this section as constituting a single computer.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) 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;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section, —

(a) "computer" means any device that has information processing capabilities.

(b) "electronic record" means any record generated, stored, or transmitted in electronic form.

Much more to write.

Authored by 

Advocate Ranjitsinh Ghatge 🦅 

Visit: 

www.rgparalegalservices.com 

www.thelegaltoday.blogspot.com