WhatsApp as Evidence….. What’s that?

Introduction

We are inundated by electronic
data and increasingly even by social media! Social media and Apps, such as,
WhatsApp, Facebook, LinkedIn are fast replacing other traditional forms of
communication and human interaction. However, one frontier which has yet not
been fully breached by the social media is the Indian courts. Can chats on
WhatsApp be admitted as evidence in a Court case? This was an issue which the
Bombay High Court recently had an occasion to consider in the case of Kross
Television India Pvt. Ltd vs. Vikhyat Chitra Production, Notice of Motion (L)
No. 572/2017. Certain other High Court judgments have also had an
occasion to rely on WhatsApp Chats as evidence. Let us examine some of these
interesting cases.

Background

Evidence in courts in India is
admissible provided it confirms to the contours of the Indian Evidence
Act, 1872. This Act applies to all judicial proceedings in or before
any court in India. It defines evidence as meaning and including all statements
which the court permits or requires to be made before it by witnesses in
respect of matters of fact which are under inquiry. Such evidence is known as
oral evidence. The Act also deals with documentary evidence. The definition of documentary
evidence in the Indian Evidence Act was modified by the Information
Technology Act, 2000 to provide that all documents including electronic
records produced for the inspection of the court would be known as documentary
evidence. Hence, electronic records have been given the status of evidence.
Section 2(1)(t) of the Information Technology Act defines an electronic record
to mean any data, record or data generated, image or sound stored, received or
sent in an electronic form or micro film or computer generated microfiche.

Section 65B of the Indian Evidence
Act deals with admissibility of electronic records as evidence. Any information
contained in an electronic record which is stored, recorded or copied in
optical / magnetic media (known as computer output) produced by a ‘computer’ is
also deemed to be a document provided 4 conditions are satisfied. Further, such
a document shall be admissible as evidence. The 4 conditions which must be
satisfied are (a) the computer output must be produced by the computer during
the period when the computer was used to store or process information by
persons having lawful control over it; (b) information of the kind contained in
the output was regularly fed into the computer; (c) the computer was operating
properly throughout the period; and (d) the information contained in the
electronic record reproduces information fed into the computer in the ordinary
course of activities.  

The term ‘computer’ is not
defined in the Indian Evidence Act but the Information Technology Act defines
it to mean 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. Thus,
this definition is wide enough to include a smartphone also!

The Delhi High Court in a criminal
case of State vs. Mohd. Afzal, 107(2003) DLT 385 has held that
computer generated electronic records are evidence and are admissible at a
trial if proved in the manner specified by section 65B of the Indian Evidence
Act. It has given a very vivid explanation of the law relating to electronic
records being admissible as evidence. It held that the normal rule of leading
documentary evidence is the production and proof of the original document
itself. Secondary evidence of the contents of a document can also be led under
the Evidence Act. Secondary evidence of the contents of a document can be led
when the original is of such a nature as not to be easily movable. Computerised
operating systems and support systems in industry cannot be moved to the court.
The information is stored in these computers on magnetic tapes (hard disc).
Electronic record produced there from has to be taken in the form of a print
out. Section 65B makes admissible without further proof, in evidence, print out
of a electronic record contained on a magnetic media a subject to the
satisfaction of the conditions mentioned in the section. Four conditions are
mentioned. Thus, compliance with the conditions of section 65B is enough to
make admissible and prove electronic records. It even makes admissible an
electronic record when certified that the contents of a computer printout are
generated by a computer satisfying the four conditions, the certificate being
signed by a person occupying a responsible official position in relation to the
operation of the device or the management of the relevant activities. Thus,
section 65B(4) provides for an alternative method to prove electronic record
and not the only method to prove electronic record. It further held that the
last few years of the 20^th century saw rapid strides in the field of
information and technology. The expanding horizon of science and technology
threw new challenges for the ones who had to deal with proof of facts in
disputes where advanced techniques in technology were used and brought in aid.
Storage, processing and transmission of date on magnetic and silicon medium
became cost effective and easy to handle. Conventional means of records and
data processing became outdated. Law had to respond and gallop with the
technical advancement.  Hence, the Delhi
High Court concluded that electronic records are admissible as evidence in
Court cases.

In M/s. Sil Import, USA vs.
M/s. Exim Aides Silk Exporters, 1999 (4) SCC 567, the Supreme Court
held that a notice in writing for a bounced cheque must be given under the
Negotiable Instruments Act to the drawer of the bounced cheque. It held that
the legislature must be presumed to have been aware of the modern devices and
equipment already in vogue and also in store for future. If the court were to
interpret the words giving notice in writing in the section as restricted to
the customary mode of sending notice through postal service or even by personal
delivery, the interpretative process would fail to cope up with the change of
time. Accordingly, it allowed a notice to be served by fax.

WhatsApp relied on

There have been a few cases where
WhatsApp chats have been relied upon by the Courts while deciding cases. In a
bail application before the Bombay High Court in the case of Kaluram
Chaudhary vs. Union of India, Cr. WP No. 282/2016 the accused produced
a call record of WhatsApp communications between himself and his wife, which
showed that at the relevant time he was in communication of his wife on
WhatsApp, whereas the panchanama drawn showed that he was subjected to search
and seizure and his phone, bearing the same number on which his wife was
chatting with him as above, was shown as having being recovered from him. Thus,
he claimed that the arrest was perverse and the entire case was false. Although
the High Court rejected the bail application it held that the electronic
records of WhatsApp chats were matters of evidence, which would have to be
strictly proved in accordance with law at the trial stage.

Similarly, based on threats issued
to a person on WhatsApp, the Madras High Court directed the police to conduct
an enquiry in the case of H.B. Saravana Kumar vs. State, Crl. O.P. No.
10320/2015. The Court relied on a CD containing the WhatsApp chats as
evidence of the threats. 

Recent case of Kross Television

The recent case of Kross
Television before the Bombay High Court was one pertaining to a case of plagiarism
and copyright violation. Kross Television had pleaded that Vikhyat Chitra
Production had made a Kannada movie, Pushpaka Vimana which in effect was
a copy of a Korean movie. Kross Television had purchased the official rights of
this Korean film but before they could make the movie, Vikhyat Chitra
had already plagiarised the original Korean film by making Pushpaka Vimana.
Accordingly, Kross moved the High Court seeking an injunction against  Vikhyat Chitra. However, for this to
take place, first they needed to serve a Notice on Vikhyat Chitra so that it
would know that it has a case pending against it. They tried obtaining the
address of Vikhyat Chitra from various sources and sent couriers but the
defendant kept changing its address to avoid service of the Notice. They even
served the Notice on 2 email addresses belonging to the defendant. Ultimately,
they managed to call a mobile number of AR Vikhyat, the head of Vikhyat
Chitra and spoke with him. WhatsApp Chats with him showed that he stated
that he did not understand anything and would check with his legal team and
revert. However, there was still no response from Vikhyat Chitra.

Accordingly, Kross Television
moved the High Court for ex-parte injunction. In a scathing order, the
High Court has held that it did not see what more could be done for the
purposes of this Motion. It cannot be that rules and procedure are either so
ancient or so rigid (or both) that without some antiquated formal service mode
through a bailiff or even by beat of drum or pattaki, a party cannot be said to
have been ‘properly’ served. The purpose of service is put the other party to
notice and to give him a copy of the papers. The mode is surely irrelevant.
Courts have not formally approved of email and other modes as acceptable simply
because there are inherent limitations to proving service. Where an alternative
mode is used, however, and service is shown to be effected, and is
acknowledged, then surely it cannot be suggested that the Defendants had ‘no
notice’. To say that is untrue; they may not have had service by registered
post or through the bailiff, but they most certainly had notice. They had
copies of the papers. They were told of the next date. A copy of the previous
order was sent to them. Defendants who avoid and evade service by regular modes
cannot be permitted to take advantage of that evasion.

The High Court relied on the
WhatsApp chats with AR Vikhyat, the head of Vikhyat Chitra Production, as
evidence that he has received the Notice. It also relied on the fact that the
WhatsApp status of this head showed a picture of Pushpaka Vimana.
Further, (and probably for the first time), the High Court relied on TrueCaller
App which showed that the mobile number indeed belonged to AR Vikhyat.

Considering all these electronic
evidences, the High Court held that if Vikhyat Chitra believed they
could resort to these tactics to avoid service, they were wrong. They may
succeed in avoiding a bailiff; they may be able to avoid a courier or a postman
but they have reckoned without the invasiveness of information technology. Vikhyat
Chitra in particular did not seem to have cottoned on to the fact that when
somebody calls him and he responds, details can be obtained from in-phone apps
and services, and these are very hard to either obscure or disguise. There are
email exchanges. There are message exchanges. The Court held that none of these
established that the defendants were not adequately served. Accordingly, it
held that the defendants should bear the consequences of their actions.
Ultimately, the High Court granted an interim injunction against Vikhyat Chitra
Production from the showing the movie in all forms, cinema, TV, DVDs, etc.,
and also granted a host of other restrictions against it pending final disposal
of the suit.

Thus, in this case, the Bombay
High Court relied not just on WhatsApp chats but also on the TrueCaller App of
the defendant. This surely is one of the most revolutionary verdicts delivered
by the Courts.

In a similar development,
according to certain reports, the court of the Haryana Financial Commissioner
in the case of Satbir Singh vs. Krishan Kumar has served a
summons on a non-resident through WhatsApp since his physical address in India
was untraceable. The court ordered that the summons should be sent on the
defendant’s WhatsApp from the mobile of a counsel, who would produce proof of
electronic delivery via WhatsApp by taking a printout and duly authenticating
it by affixing his own signature.

Conclusion

The Delhi High Court has held that
the law did not sleep when the dawn of information technology broke on the
horizon. The world over statutes were enacted and rules relating to
admissibility of electronic evidence and its proof were enacted. It is
heartening to note that the Bombay High Court and the Madras High Court have
relied on WhatsApp chats and TrueCaller as evidence.