This article is written by Mayank Labh, a student of NALSAR, Hyderabad.
“There is a revolution in the way that evidence is produced before the court”. said the SC in Anwar’s case. With the advancement of technology where more and more documents are getting digitised, it becomes necessary to look at how the law and the judiciary are able to keep its pace with rapidly changing technologies. So, this article is just a small step in this direction as it tries to analyse whether SMS/WhatsApp message is considered as an admissible evidence in courts of India.
To bridge the widening gap between law and technology, Parliament enacted the Information and Technology Act, 2000 that, among other things, provide the re-definition of electronic records.
According to Section 2(1) (t) of the IT 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”.
Section 65B of Indian Evidence Act
It states that irrespective of the sections in the act, any electronic act which can be printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document.
Section 2(i) defines computer as “any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”. This definition also includes the mobile phones as well. It means that SMS/WhatsApp message would be admissible under the court of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872. However, it has to fulfil four conditions mentioned in the section before it can be deemed as a document. Such conditions are a) the computer that produced it must have been used regularly at the time of production of such electronic documents; (ii) the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device; (iii) the computer should be in proper condition and must work properly at time of creation of electronic record; and, (iv) the duplicate copy must be a reproduction of the original electronic record.
Position of Indian Courts
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.
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