WhatsApp Chats as evidence in courts: Case Laws in India

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Whatsapp is an instant text messaging application, as of October 2020 it is used by more than 2 billion users in more than 180 countries. Its use has become so prevalent that it has become a primary mode of communication for many individuals. Many parties now use Whatsapp even for business purposes, such as communicating with clients, sending documents or even negotiating contracts.

As a cyber lawyer, one of the questions I get asked frequently is whether Whatsapp messages can be adduced as evidence in court.  Some clients think that because of its “informal” nature, Whatsapp messages would not be admissible as evidence. However, this assumption is inaccurate since there have been many instances where the Indian Courts have allowed Whatsapp messages to be adduced as evidence. 

In January 2021, the Punjab and Haryana High Court had observed that WhatsApp messages will have no evidentiary value unless they are certified as per Section 65B of the Indian Evidence Act (Rakesh Kumar Singla vs Union Of India) .

In State of Haryana Versus Hardik Sikri & Ors, On May 24, 2017 the haryana state trial court recognized WhatsApp chat as evidence and sentenced the three former law students of OP Jindal Global University in Sonepat – 20 years imprisonment to main accused Hardik Sikri and his friend Karan Chhabra for gangraping and blackmailing a junior management student for two years, and seven-year jail term to third accused Vikas Garg. 

“The WhatsApp chats running into pages is so abusive and vulgar that the extracts of the same cannot be explained and put into the judgment and what only can be concluded through the WhatsApp chat is that the prosecutrix (victim) was totally under control and dominance of the accused, Hardik,” additional sessions judge (ASJ) Sunita Grover

In Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another, the Supreme Court, while hearing a petition challenging an injunction order made a reference to the Whatsapp chats produced as evidence in the case. "The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during the trial by evidence - in - chief and cross-examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not".

There is a recent order of the Gujarat High Court as well, which referred to Whatsapp conversations to form a prima facie opinion regarding grant of bail (Chirag Dipakbhai Sulekha vs State Of Gujarat)

The Delhi High Court in a case has held that a Whatsapp forward message, without an unknown source, cannot be treated as evidence (National Lawyers Campaign for Judicial Transparency and Reforms v Union of India). The Court held that such a forwarded message, without its original, cannot be regarded as a 'document' under the Evidence Act.

In Nivrutti Gaikwad Versus State of Mah. & Pooja Gaikwad (2020(2) Criminal Court Cases 735 (Bombay)

 It was held that Exchange of messages on personal account of two persons, Not public place - However, if messages are posted in Whatsapp Group then it is public place as all members of the group have access to those messages.

SBI Cards & Payments Services Pvt Ltd. Versus Rohidas Jadhav Hon. Justice Patel of Bombay High Court was of opinion that "The Respondent to the Execution Application has been evading service of this Notice under Order XXI Rule 22 of the Code of Civil Procedure 1908. He was served by an authorized officer of the Claimant, Ms Fatema Kalyanwala by sending a PDF and message to his mobile number as a WhatsApp message. For the purposes of service of Notice under Order XXI Rule 22, I will accept this. I do so because the icon indicators clearly show that not only was the message and its attachment delivered to the Respondent’s number but that both were opened." A Bluetick was considered as acknowledgment. 

The NCLAT in the matter of Bhandari Hosiery Exports Ltd. & Ors vs. In-Time Garments Pvt. Ltd., Company Appeal (AT) (Insolvency) No. 143 of 2019, decided on 1 March 2019,  took on record a text message sent over WhatsApp messenger by a corporate debtor to an operational creditor complaining about the quality of goods supplied. On basis of this WhatsApp message, the Court held that there was a ‘pre-existing dispute’ under Section 9 of the Code and accordingly Insolvency Application could not be admitted on account of a pre-existence dispute.

Moreover, Hon. Supreme Court of India, vide Order dated 10.07.2020 in Suo Moto Writ Petition (C) No. 3/2020 in 'Re: Cognizance For Extension of Limitation' had allowed the service of summons via electronic mode including WhatsApp. 

Liability of Group Admin

WhatsApp group admin can’t be held liable for member’s post unless common intention shown held by Bombay High Court :Alleged Crime was under Section 67 of the IT Act, 2000 (related to obscenity)

Kishor v State of Maharashtra [2021] GCtR 787 (Nagpur, Bombay HC) 01/03/2021 in Criminal Application (APL) 573/2016 .


MADRAS High Court Another Judgement 

If the petitioner had played the role of a group administrator alone and nothing else, then while filing final report, the petitioner's name shall be deleted. If some other material is also gathered by the first respondent so as to implicate the petitioner, then of course the petitioner will have to challenge the case only on merits."

R. Rajendran v. The Inspector of Police & Kathirvel

Case No: Crl.O.P.(MD)No.8010 of 2021 & CRL.M.P.(MD)No.4123 of 2021

Forse v Secarma Ltd , Wells and Solari v PNC Global Logistics, Darren Case v Tai Tarian are some of the foreign case laws 

Conclusion :

The general principle is that Whatsapp messages in the form of print outs  or the mobile device showing chats can be admissible as evidence.  This is especially where there is no dispute as to the authenticity of the Whatsapp message, and no dispute as to the identity of the parties to the Whatsapp conversation.  Bearing in mind the findings of the cases above, parties who intend to adduce Whatsapp messages as evidence in their court cases should still ensure that:

  • the snapshots of their discussions contain the necessary information to identify the sender/recipient of the messages.
  • The owner of the phone or laptop or computer from where the WhatsApp chats are extracted/printed should produce a signed IEA section 65B certificate.
  • they don’t wholly rely on Whatsapp messages to build their case, especially when there are other documents available that would be able to conclusively prove the facts in issue.
  • If the print out of chat is produced with IEA section 65B certificate it will be considered as secondary evidence, if the phone or laptop or computer is produced it will be considered as primary evidence
Advocate (Dr.) Prashant Mali is a practicing Cyber Lawyer and is considered Authority in Electronic Evidence matters.

Comments

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