whatsapp

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.

https://lawsikho.com/course/diploma-cyber-law-fintech-technology-contracts
click above

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.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:  

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content 

 

 

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

4 COMMENTS

  1. Hi sir ,
    We are thankful for the write up . I have a query please help me in clearing it.

    We have filed a cheque bounce case under 138A but the accused is not accepting the notices and summon as well. It states that person not found but he has read WhatsApp messages of notice as well as summon. Will this be considered as an evidence that a person has been served the summon and hence the case shall be proceeded against it.please enlighten me on this.

  2. Dear Author,

    Thanks for the insightful article on SMS/Whatsapp messages can be considered as evidence. My query is in whats app there is a option of email chat. After clicking on that it sends you an email where chat comes in txt format and can be edited. So if i want to show its true chat how do i do it. My other query is if my phone was stolen for few hours and personal data was used by someone can i file a case against tthat person. I am a victim of 498a and DV case by my greedy wife and her family. Your guidance will be a great help for me.

    Thanks & Regards,
    Hemant

    • No if your phone is stolen then it cant be used as evidence because it does not fulfills the provision of section 65-B of evidence act.
      and its true in whats app there is a option of e-mail which can be edited. for which screen short is the solution

LEAVE A REPLY