The article is written by Lokesh Vyas, a student of Institute of law Nirma University. This article discusses the usage of Whatsapp in the legal proceedings.

Introduction

We live in the age of information where internet is more accessible than humans. We live within the contours of the internet because it makes our work easy to do. Considering the era we live in, the usage of Whatsapp in courts is neither surprising nor it is something new. There have been instances where the court allowed electronic means of communication to facilitate the court proceedings and expedite the delivery of justice. Such usage also strengthens the existence of the right to a speedy trial which is a Fundamental Right of a person. Allowing Whatsapp to serve the summons by the courts has caused a huge discourse on the internet and has become a moot point among people. This article would highlight usage of Whatsapp in facilitating legal proceedings.

Summons under Indian Legal System

Meaning of summons

Summon is a legal instrument used by a court to call upon a person who is involved in a legal proceeding. Summons are served to ensure the presence of a person before the court on the given date of the proceeding. Summons can be issued in both civil and criminal cases.

Legal Provisions for Summons

The Code of Criminal Procedure (CrPC), 1973 and Code of Civil Procedure (CPC), 1908 both deal with the summons.

Law	Legal provisions for summons
The Code of Criminal Procedure (CrPC), 1973	Section 61 to 69 and Section 91-92
Code of Civil Procedure (CPC), 1908	Section 27 and Order 5

 

The Validity of Summons Served via Electronic Means

Order V Rule 9(2) of CPC empowers the court to deliver summons in such manner as the court deems fit. Moreover, Order 5 Rule 9(3) uses the expression “any other means of transmission” which includes fax message or electronic mail service. Therefore the usage of Whatsapp by the court was not against legal provisions.

Usage of Electronic Means to Serve Summons and Legal Notices

In India, serving the summons by electronic media or electronic legal notices is not a new development. There have been cases in the past where the court allowed usages of email or SMS to serve summons e.g. In 2G case, the court considered summons sent through email as a valid summon.

Many times, questions pertaining to the validity of electronic legal notice and processes arise. Provisions under Part X of the Code of Civil Procedure, 1908 (5 of 1908) and Order V, Rule 9 of the Code of Civil Procedure, 1908 enables the High Court to make rule and regulations in this regard.

The Delhi High Court has also made rules regarding the service of legal notices through email by the virtue of above legal provisions and other provisions which enables it in this regard.

A recent case of Supreme Court Central Electricity Regulatory Commission vs National Hydroelectric Power Corporation Ltd [(2010) 10 SCC 280], resolved this question after observing the cases that were pending before the courts due to non-serving of notices. Most of these case were commercial cases. Here, the court permitted the service of Notice by email along with the ordinary mode of serving notice. (see here)

In Ksl and Industries Ltd., (Formerly Known as Krishna Texport Industries Ltd.), a Company Duly Incorporated Under the Companies Act, 1956 vs Mannalal Khandelwal and the State of Maharashtra Through the Office of the Government Pleader (Criminal Writ Petition No. 1228 of 2004), Mumbai High Court said that to avoid the delay in legal proceedings because of unserved summons must be interrupted by using all the practical methods and services including emails. Moreover, the Court said “The Court should avoid giving long dates. Instead, the Court must repeatedly issue summons to secure the presence of the accused. The Court must ensure that the accused are not permitted to abuse the system.” (see here)

In Indian Bank Association & Ors vs Union Of India & Anr (2014) 5 SCC 590, the Supreme Court gave directions and said that while issuing summons by Metropolitan Magistrate/Judicial Magistrate a pragmatic and realistic approach should be embraced. Serving of summons should be proper with right address and must be sent properly by post as well as by the email address received from the complainant. If a need arises, the assistance of the police or the nearby Court to serve notice to the accused may be taken by the court. Furthermore, the Apex Court also said that a short date should be fixed for notice of appearance and if the summons is received back un-served, follow up action should be taken immediately. (See here)

Serving of Summons via Whatsapp

The court expanded the scope of electronic media by using Whatsapp to serve summons.

The first such instance happened in the State of Haryana where financial commission headed by IAS officer Ashok Khemka in the matter of property dispute allowed the serving of summons through Whatsapp to one of the respondents who had shifted to Kathmandu. (see here)

In another case of Tata Sons Limited & Ors vs John Does CS(COMM) 1601/2016, Justice Rajiv Sahai Endlaw of the Delhi High Court permitted the right to serve summons to the defendant via Whatsapp texts as well as by emails to a defendant. (see here)

In another case, Kross Television India Pvt Ltd & Another vs Vikhyat Chitra Production & Others, on 23rd March 2017 Justice Gautam Patel of Bombay High Court in the case of copyright infringement allowed the serving of the notice of summons through Whatsapp after normal attempts for serving summons failed.

In a recent case, Justice Surabhi Sharma Vats of the Delhi High Court allowed a woman to serve the summons to her estranged husband who was living in Australia via Whatsapp. Moreover, the court considered “double-tick” as valid delivery of summons.

This case involved the issue of domestic violence and maintenance. All the other available means to serve the notice of summons were used but all attempts failed.

Finally for sake of justice and respecting the interests of parties, the court allowed the sending summons through Whatsapp. The court allowed Whatsapp, text message and email after considering the time consumed in ordinary service and two failed attempts to serve summons. (see here)

Points to ponder upon

The court in this recent case did not go into the technicality of Whatsapp application. In this case, the key takeaway is that mere “double-tick” was considered as a served summon. The Court, in this case, did not ponder upon the question that whether the message serving summon was actually read by the person. Because generally when the message is delivered it shows double-tick but it becomes blue-ticks once the person reads the message.

In all the above cases, the court took the interest of innocent parties into account and mandated the submission of the affidavit that shows that the correct contact details are provided and summon is served to the right person. The question what if the Whatsapp number is changed and summon served to someone else was not explicitly dealt by the court in such cases. It is the duty of the party who is giving the required contact details to ensure that the summon is served to the right person otherwise it would not be the fault of the person who is expected to be served summons. Generally, the court ensures before sending summons that it is delivered to the right person.

In furtherance of the same, the issue of privacy may arise. However, there was no breach of privacy by the court in such cases. The admission of Whatsapp in the court proceedings was the last resort and it is adopted when all the ordinary methods fail. The action of the court is to facilitate the pending proceedings and the question of privacy breach does not arise in such scenario. The breach of privacy is the loss of, unauthorized access to, or disclosure of, personal information. The serving of summon through Whatsapp does not involve any of them, therefore, there is no breach of privacy.

The underlying principle behind permitting Whatsapp in all the above cases was to take away the unjust benefit of voluntarily keeping oneself away from court proceedings. This would also speed up the proceedings of cases which are stuck due to the unserved summons. Moreover, in all the above cases, the court also mandatorize the submission of an affidavit to assure that the right person is actually served summon. It prevents people from misusing the right given by the court.

By Considering the ordinary time taken to serve such notice, the Court strengthened the well-established legal principle which states that “justice delayed is justice denied.”

Not a Matter of Right

In another case, Bhim Rathke vs Mr. R.K. Sharma on 22 February 2018 Special Judge of Patiala House Courts, New Delhi dismissed the application of complainant who sought the usage of email and Whatsapp for serving summons. Rejecting the application, the Court said that the court system does not have the facility to effect the service through electronic mode. (see here)

This shows that claiming the usage of Whatsapp or email is not a matter of right of the applicant rather it is the discretion of the court to grant permission for the same.

Limitations

The usage of SMS, email, and fax is already in force and the usage of Whatsapp has only widened the scope of electronic media. It suggests that now Whatsapp, email, fax, and other such means come under the purview of electronic media. Even after using these means for serving legal notices, we cannot overlook their inherent limitations. Everyday technology is advanced, people can take the help of techno experts to escape any problem which involves technology.

Even Whatsapp is available with many hacked versions which allow hiding your identity or last use of the application. Nowadays, there are various hacked versions of Whatsapp which helps one to hide delivery of message even after if you have read that message. So if the defendant or any other person wants to evade legal proceedings he/she can do it by using such applications along with other tricks to escape court proceedings. Therefore we should not be content with the usage of Whatsapp for serving notice. Thinking that such action will resolve all the possibilities of evasion from court proceedings is not appreciated, rather we need to brood upon the situation that may arise if the current action fails.

Concluding Remarks

After taking all the above-mentioned cases into account, it can be deduced that Indian legal system is ready to accept changes if the changes align to meet the ends of justice. The main purpose behind the establishment of courts was to impart justice which is not limited to giving punishment to wrongdoer or providing compensation to the aggrieved party. All the stages of legal proceedings should meet the interest of people then only it can be said that justice has been served. Although the advent of Whatsapp use in legal proceedings is in its nascent stage in India yet its contribution cannot be overlooked. The use of Whatsapp in serving summons is the last resort which means that it should be used when all the other available means are exhausted.

Moreover, it cannot be claimed as a matter of right by the applicant because Indian laws explicitly do not allow it but at the same time, the interpretation of statutes lies with the court which allows judges to expand the law. Indian judiciary has never left a stone unturned whenever it felt the interest of an innocent party at stake. The underlying principle of the right to a speedy trial is used in Expedited court proceedings and the court has followed the same principle by allowing the use of Whatsapp to serve summons, therefore it is in harmony with constitutional principle.

Reference

1. Service Of Court Notice Through WhatApp Is A New Dynamic Norm Of Service Of Court Notice, (http://www.mondaq.com/india/x/592636/court+procedure/Service+Of+Court+Notice+Through+WhatApp+Is+A+New+Dynamic+Norm+Of+Service+Of+Court+Notice)
2. Service of summons via Whatsapp!, (https://www.thedailystar.net/law-our-rights/service-summons-Whatsapp-1402657)
3. Delhi HC Allows Service Of Summons Via Whatsapp, Text message and Email (http://www.livelaw.in/delhi-hc-allows-service-summons-via-Whatsapp-text-message-email-read-order/)
4. ‘Double Tick’ On Whatsapp Prima Facie Shows Summons Have Been Delivered (http://www.livelaw.in/double-tick-on-Whatsapp-prima-facie-shows-summons-have-been-delivered-read-order/)
5. Delhi Court Allows Service Of Summons Through Whatsapp, SMS, E-Mail In Domestic Violence Case (http://www.livelaw.in/delhi-court-allows-woman-serve-summons-estranged-husband-australia-Whatsapp-sms-e-mail-read-order/)
6. Validity Of Electronic Legal Notices And Processes In India Through E-Mails, (http://ptlb.in/iips/?p=299)