Copy of E-mail, WhatsApp Chats, Facebook Posts etc. considered by Courts in India

 Copy of E-mail, WhatsApp Chats, Facebook Posts etc. considered by Courts in India

Case	Contention	Observation of Court
Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307)	There was no concluded contract. Specific performance cannot be ordered.	The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during 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.
Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506	Though the defamation matter on e-mail (placed in court by a copy), under Sec. 500 IPC, is proved with Sec. 65B-certificate as per Sec. 58, admitted facts need not be proved.	Certificate under sec. 65B is made mandatory, in view of Arjun Panditrao Khotkar, (2020) 3 SCC 216.
Rangaswamy v. State of Karnataka (2022)	The Nodal Officer of Vodafone Company provided, through e-mail, the call details of mobile phones and customer application forms, with certificate under Sec. 65(B).	However, in his cross-examination, he has admitted that he has not mentioned the location of the towers in the said mobile CDRs.
Zutti Engineering Solutions Pvt.  Ltd.  v. M.  Vignesh (2019) High Court of Telangana	Copy of e-mail conversations between plaintiff and defendant was sought to be marked. Trial Court dismissed the prayer to mark the same without giving reasons.	In revision, the High Court allowed to receive the copy in evidence if the petitioner complied with Section 65B of the Evidence Act, subject to proof and relevance.
S @ S v. C P (2018) High Court of Delhi	The respondent filed print-outs from the ‘Facebook’ page of the petitioner. She has also filed certain recorded telephone conversations in two CDs with transcripts. counsel for the petitioner raised objections as to non compliance of  provisions of section.	Printouts from the Facebook – only show that one Deepa is acquainted with the petitioner but there is no indication of any objectionable relationship. Telephonic conversations in the CDs do not refer to any demand of dowry.
Shyam Investments v. Masti Health And Beauty Pvt Ltd. (2020 – High Court of Madras)	The printout  of the websites of the plaintiffs and defendant produced along with the certificate under Section 65B. Also print out of registration certificates of the marks also filed supported by the affidavit under Section 65B.	Printout  of the websites accepted (in the Trade Mark/passing off matter). Held – the plaintiffs were entitled for damages as sought for. Injunction was also granted.
Sanjib Sarkar v. Rajasree Roy, AIR  2022 Cal- 12	Secondary evidence of Facebook messages is admissible if only there is a certificate under Sec. 65B (4). Oral evidence in support of it by the wife (in the matter of annulment of marriage on the ground of fraud) was not enough.	The wife argued that the secondary evidence was supported by evidence in primary form by her.  The finding of the trial court was confirmed, as it was admitted by the appellant that the evidence was sourced from the “the original electronic device owned by” the wife.
Kadar Nazir Inamdar v.  State of Maharashtra (2022)	Alleged Facebook conversation (Secondary evidence) is wholly untenable as there is no material to show the retrieval of the data by the Investigating Officer. Nor a certificate under Sec. 65B is produced.	The submissions about the authenticity and genuineness of Facebook chat do not deserve countenance at this stage. The question of admissibility would be a matter of trial.
Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452	Screen shots of Whatsapp messages available with the NCB, which would connect the petitioner with the said contraband.	Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence.
Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri)  1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393	Petitioners prayed for quashing of the FIR, in the matter related to alleged suicide by a late actor. Printouts of Whatsapp chats were produced along with the complaint.	The printouts of Whatsapp chats showed that there was no whatsapp chats at the relevant time within the proximate date and time. FIR qua second petitioner was quashed and set aside.
Abhishek Tripathi v. Smt.  Aparna Tripathi (2022), Chhattisgarh High Court	Print-out of Whatsapp chat, between husband and wife, is not admissible in evidence under the provisions of Sec. 65B unless and until it bears certificate.	Court granted bail, acting upon the Whatsapp.
Kumari Chaithra v. State of Karnataka  (2022)	Whatsapp chat (Secondary evidence) is not proved by a certificate under Sec. 65B is produced. It is necessarily to file the certificate (while filing the charge-sheet).	While considering the bail petition, Court exercising the discretion, can consider the Whatsapp messages, to find the relation between the parties, in a sexual offence matter. Certificate is required while marking the documents.
Ambika Roy v. Honble Speaker, West Bengal Legislative Assembly (2022)	The Speaker (in the steps for disqualifying a BJP-MLA for joined the TMC) illegally rejected of the following evidence produced with the certificate u/s 65B – Printouts of Tweets, Facebook page of AITC, Video recording of the press conference and screenshots of Twitter handle of AITC.	If the Speaker found a certificate under Sec. 65-B to be defective, then it had to summon the person referred to Sec. 65-B. It was necessary for the Speaker to duly take into account the certificate given by the petitioner before rejecting the electronic evidence as inadmissible.

What Type of Copies Can be Used as ‘Computer Outputs’ under Sec. 65B?

As shown above, by virtue of Sec. 65B of the Evidence Act, a computer output (i.e. copy or print-out of an electronic record) is deemed to be also an (original) document. For proving the ‘computer output’ (copy or print-out), Sec. 65B directs that the Certificate, as provided under subsection (4), is essential. The ‘computer output’ (copy) can be-

• Print-outs,
• CDs, Pen drives etc. and
• Screenshots.

The Information Technology Act, 2000 (No. 21 of 2000) defines ‘Electronic Record’ as under:

• “ ‘Electronic Record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”

What should be the Contents of the Sec. 65B Certificate

Sub Sections 2 and 4 of Sec. 65B are the crucial provisions. They read as under:

• “(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
  • (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
  • (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
  • (c) throughout the material part of the said period, the computer was operating properly or, 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; and
  • (d) 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.”
• “(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
  • (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
  • (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
  • (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
• and purporting to 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) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

From Sub Sections (2) and (4) of Sec. 65B, it is clear that the certificate must refer to the following aspects –

• the computer was used regularly to store or process information;
• the activities were regularly carried on over that period;
• they were done by a person having lawful control over the computer;
• the information was regularly fed into the computer;
• it was in the ordinary course of the said activities;
• the computer was operating properly (if not, give details);
• the information was fed in the ordinary course of the activities.
• the electronic record must be identified
• the manner in which it was produced;
• particulars of device involved in the production of that electronic record.

Who can Give Certificate under Sec. 65B?

Sec. 65B(4) reads as under:

• “(4) In any proceedings where it is desired to give a statement in evidence … … a certificate doing any of the following things, that is to say,—
  • (a)… (b)…. (c) ….
• and purporting to 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)
• shall be evidence of any matter stated in the certificate; and
• for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”

Basing on Sub-section (4) of Section 65B, it is made clear in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 –

• The 65B(4) certificate can be given by-
  • (1) anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device,
  • (2) a person who may otherwise be in the ‘management of relevant activities’, and who can give the certificate to the “best of his knowledge and belief”.
• See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Time for Producing Sec. 65B(4) Certificate

The Sec. 65B(4) Certificate can be given ‘long after the electronic record has actually been produced by the computer’. In Arjun Panditrao it is also pointed out as under:

• “An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”
• See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Court-Jurisdiction to Order Production of a Certificate

Our Apex Court referred to in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216, the following provisions of law that enables a court to order (on the request of the parties to the proceedings or on its own) production of Sec. 65B(4) Certificate –

• 1. The Indian Evidence Act, Section 165. It empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts; 
• 2. The Civil Procedure Code, Order XVI – Rule 6, 7, and 10. (R. 6 pertains to Summons to produce document; R. 7 – Power to require persons present in Court to give evidence or produce document; and R. 10 – Procedure where witness fails to comply with summons).
• 3. The Code of Criminal Procedure, Sec. 91 and 349. (s. 91 discusses as to Summons to produce document or other thing; s. 349 – Imprisonment or committal of person refusing to answer or produce document).

Should the ‘Correctness’ of Copy or Print-out Must be Proved?

No.

S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because,  S. 65B(5)(c) lays down-

• ‘a computer out-put shall be taken to have been produced by a computer’. 

Sec. 65B(5)(c) reads:

• ‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
  • (Note: Sec. 65B(5)(c) stands incongruent to to Sec. 65B(2) which reads as under: “(2). The conditions … in respect of a computer output shall be the following, namely:—(a) the computer output containing the information was produced by the computer … (which) was used regularly to store or process information …. over that period by the person having lawful control over the use of the computer …..“

Post Circulated/Forwarded on WhatsApp Platform/Group – Not a ‘Document’

In National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India, 2019 (Delhi High Court) the petition made very serious allegations has been filed merely based on a post allegedly circulated on WhatsApp group. Counsel for the petitioner submitted that in terms of Section 154 of the Code Criminal Procedure, 1973 any information, which was provided to the police, was sufficient to set the criminal process into motion. The High Court responded as under:

• “I am unable to accept this contention, in as much as, in the present case, the petitioners, very candidly admit that they are not privy to any information. What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis.”
• “Annexure – A (forwarded message) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure – A with the original.”

“What is Evidential Value of WhatsApp Messages these days?“

The chats, that were done prior to a written agreement in a commercial transaction, are extrinsic evidence and hence, ordinarily, they are not relevant. Oral statements as regards the contents in a document are also liable to be eschewed, in law. Further, Sec. 93 and 94 of the Evidence Act speak as to exclusion of evidence (i) intend to ‘explain or amend ambiguous document’ and (ii) ‘against application of the document to existing facts’. It is profitable to refer the Supreme Court decision in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, which reads as under:

• “The grounds of exclusion of extrinsic evidence are:
• (i) to admit inferior evidence when law requires superior would amount to nullifying the law,
• (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

It is seen that, in the hearing of A2Z Infraservices Ltd. v. Quippo Infrastructure Ltd., on 14 July 2021, the Apex Court (Chief Justice NV Ramana and Justices AS Bopanna and Hrishikesh Roy) pointed out this legal position as under:

• “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,”

Following are the Landmark Cases of the Supreme Court on Sec. 65B

• Supreme Court dealt with CCTV footage (copy) in the following cases:
  • State (NCT of Delhi) v. Navjot Sandhu, 2005-11 SCC 600,
  • Tomaso Bruno v. State of UP, 2015-7 SCC 178.
• CDs/VCDs in respect of video recording by the Election Commission
  • Arjun Panditrao v. Kailash Kushanrao, 2020-3 SCC 216.
• CDs containing election speeches and songs, in:
  • Anvar PV v. PK Basheer, 2014-10 SCC 473.
• Call Detail Records – CDR – of mobile phones,in:
  • Sonu v. State of Haryana, 2017-8 SCC 570.
• Tape recorded conversation on the landline phone, in
  • Vikram Singh v. State of Punjab, 2017-8 SCC 518.
• Propriety of videography of the scene of crime or scene of recovery during investigation, in: