‘Evidentiary Value of WhatsApp Messages’

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In today's era of information technology the focus of country is on digital India. Use of science and technology by criminals, in commission of crime, is increasing day by day and to deal with such crime and criminals, it is very important that the investigating agencies must be aware and trained about such technologies. Collection of scientific evidence is important aspect of crime investigation, police officers involved in collection of direct evidence, are hardly trained in collection of scientific evidence. Another issue is that there is neither specific guideline of court nor any specific law to deal with scientific investigation. By the Information Technology Act, 2000 certain amendments were done in Indian Evidence Act, 1872 in regard to admissibility of scientific evidence; however that is subject to some condition laid down in the Act. During investigation investigating agencies collect a number of scientific evidence like tape recorded conversation, mobile communication, Facebook, WhatsApp messages, string operation, polygraph test, DNA evidence and so on, however how much weightage shall be given to such evidence is subject to controversy. The main thrust of this article is to analyse WhatsApp messages as evidence and to find out how much evidentiary value is given by courts to such messages. Whether such scientific evidence may be concluded as a conclusive proof or not, needs to be analyised. Since there is no specific guideline or test which determine the accuracy or scientific validity of such evidence. Author will suggest some factors to be taken into consideration while appreciating such evidence.

In regard to WhatsApp message problem is this that whatsApp messages are not stored on server so once message has been send the receiver may very easily edit the messages and if any controversy arise in future in regard to content of message and if it is not saved in the senders mobile then it will be very difficult to prove what message had been sent and receiver may present edited message very easily because once WhatsApp message is delivered it is no more saved on sever like general mobile messages.

In Rakesh Kumar Singla vs Union of India (CRM-M no. 23220 of 2020) relying on WhatsApp chats court granted the bail in an NDPS Act. Gujarat High Court in Chirag Deepak Bhai Sulekha vs State of Gujarat (Criminal Misc. Application No. 18834 of 2020) granted bail on the basis of WhatsApp chats.  In regard to forwarded message on WhatsApp Delhi High Court in National lawyers campaign for judicial reforms and reforms vs union of India (2019 SCC OnLine SC 411) held that forwarded message cannot be treated as evidence it cannot be treated as 'document' under Indian Evidence Act without having original of forwarded message. In Sri P.  padmanabh vs Syndicate Bank limited Karnataka (2008 AIR (Kar) 42) High Court held that if computer itself was not in proper condition means it was malfunctioning then output or any information received from such computer cannot be treated as an evidence and should not be relied upon.  On the basis of WhatsApp chat Delhi High Court in Ritu vs state (2018 SCC online Delhi 12914)  released the accused of rape. In the same line   students of Jindal global University were punished for gang raping and blackmailing their juniors. The onviction was based on WhatsApp chats admitted as evidence (Misc. No. 23 962 of 2017).

In case of Girwar Singh vs CBI ((2016) 5 RCR (Cri) 757) Court appointed committee to check the authenticity of electronic evidence and the committee found that evidence was not the original one but the copy of original one and the evidence was copied a number of time in different devices ultimately Delhi High Court did not accepted such messages as evidence in the case.  Bombay High Court in SBI cards installment and station private limited versus Rohit Jadhav (2018 SCC OnLine Bom 1262) held that if blue tick is appeared then it will be considered that receiver has opened (and read) the message. If message was notice then it will be presumed that notice was served.   It is important to note that court did not consider the other situation in this scenario it is quite possible that in the member of the family may have opened the message or it is also quite was well that in general notice is not served through WhatsApp because if Court is admitting such mode of notice then there must be a provision in law for such mode of notice.

In recent months a number of media highlighted case has been charge-sheeted on the basis of WhatsApp messages, whether it is TRP conspiracy between republic editor in chief Arnab Goswami and (BARC) CEO partho Das Gupta or whether it is case of North East Delhi by JNU students Sarjil imam and pinjra Tod activist or it is Sushant Singh Rajput case.

So it can be concluded that for a admissibility of such messages the device must be in good condition and must be in regular use again the sender of such message must have an intention to send those messages then only such messages can be treated as evidence.

 Sudhir Kumar Dwivedi

Assistant Professor, JEMTEC School of Law

www.jimsgn.org

Sudhir Kumar Dwivedi

Assistant Professor, JEMTEC School of Law

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