Can Whatsapp Chats be used as Evidence ?
Evidence plays an important role in legal cases, Electronic records are admissible as evidence. The two most important laws governing electronic records in India are the Indian Evidence Act 1872 and the Information Technology Act 2000.
Section 2(1)(t) in The Information Technology Act, 2000 "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated micro fiche;
Section 3 in The Indian Evidence Act, 1872, Evidence means and includes, all documents including electronic records produced for the inspection of the Court.
Is it primary or secondary evidence ?
Whatsapp chats come under Secondary Evidence. As they are submitted as copies of the original document. Sec 63 of Indian Evidence Act, Secondary evidence means and includes Copies made from or compared with the original. Admissibility as evidence:
Whatsapp chats can be admissible as electronic records. To be admissible they should satisfy the criteria mentioned in Section 65 (b) Admissibility of electronic records. The four conditions that are mentioned under Section 65B(2) in The Indian Evidence Act, 1872 are as follows:
The computer that produced the electronic evidence was being regularly used and was under lawful control of the person during the said period.
Information of the kind contained in the electronic record or the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
The computer was operating properly, 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, was not such as to affect the electronic record or the accuracy of its contents.
The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Submission of certificate for electronic evidence: When submitting electronic evidence a certificate has to be produced. The certificate must 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. Sec 65B(4) of Indian Evidence Act.
Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another, the Supreme Court has made reference to WhatsApp chats as evidence and said that “the WhatsApp messages which are virtual verbal communications are a matter of evidence with regard to their meaning and its content to be proved during the trial by evidence in chief and cross-examination”.
Chirag Dipakbhai Sulekha vs State Of Gujarat, WhatsApp chats were used as evidence in granting of bail.
Supreme Court bench of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy said messages exchanged on social media platforms have no evidential value and that the author of such WhatsApp messages cannot be tied to them, especially in business partnerships governed by agreements.
Although Honourable Supreme Court of India and several High Courts have accepted print-outs of WhatsApp chats as secondary evidence. A recent remark by Supreme Court bench where it said "What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages". This remark has put the observation of Whatsapp chats as evidence.