Admissibility of WhatsApp Chats & Phone Recordings in Court

In today's modern era, social media and its various platforms have become an omnipresent part of our daily lives. The rise of technology has made it easier for people to take screenshots of their chats and record conversations, whether on phones or other devices, in their everyday lives.

This article will explore the admissibility of WhatsApp chats as evidence in Indian courts, drawing on relevant case law to shed light on the legal framework governing their use. We will also consider the extent to which WhatsApp chats may be considered primary or secondary evidence, depending on the circumstances of the case. 

There is an ongoing debate about the admissibility of such recordings in court, particularly when they are made without the knowledge or consent of the other party.

In India, the admissibility of WhatsApp chats and audio recordings as evidence in court is subject to certain conditions and safeguards to ensure their integrity. The admissibility of such evidence depends on various factors, such as the authenticity and reliability of the evidence, the way it was obtained, and whether it is relevant to the case.

WhatsApp chats and audio recordings can be considered electronic evidence under Section 65B of the Indian Evidence Act, which deals with the admissibility of electronic records. Section 65B requires that the electronic evidence should be accompanied by a certificate, signed by a person who oversees the computer or device used to generate the electronic record, to certify the authenticity of the record.

For such records to be admissible as evidence, certain conditions must be met. These conditions include: the electronic record must have been produced using a computer that was regularly in use at the time of its production, the information contained in the electronic device must be of a type that is regularly and normally supplied to the computer, the computer must have been in proper working condition at the time of the creation of the electronic record, and the duplicate copy must be an accurate reproduction of the original electronic record.

In addition to the requirements of Section 65B, the admissibility of WhatsApp chats and audio recordings also depends on whether they are relevant to the case and whether they are reliable. The court may consider factors such as the circumstances under which the evidence was obtained, the consistency of the evidence with other evidence, and the credibility of the source of the evidence.

Overall, WhatsApp chats and audio recordings can be admissible as evidence in Indian courts, provided that they meet the requirements of the Indian Evidence Act and are relevant and reliable. However, it is important to note that the admissibility of evidence ultimately depends on the discretion of the judge hearing the case.

This article also aims to shed light on the legal position in India concerning audio recordings and to outline the process for introducing such recordings as evidence in court.

INTRODUCTION

The rise of social media and technology has led to the increasing use of online messaging platforms like WhatsApp and the recording of conversations in various formats, including audio recordings. As a result, the admissibility of these forms of communication and recording as evidence in legal proceedings has become a topic of much discussion and debate.

Given the widespread use of social media and technology, many people now rely on these platforms for their personal and professional communication. As a result, the admissibility of WhatsApp chats and audio recordings can have a significant impact on various aspects of their lives, including legal disputes, criminal investigations, and employment disputes, among others. As such, understanding the legal framework governing the use of WhatsApp chats and audio recordings is critical for ensuring that justice is served in an increasingly digital world.

LEGAL POSITION

In India, the admissibility of audio recordings and WhatsApp chats as evidence in court is subject to certain conditions and safeguards to ensure their integrity. The admissibility of such evidence depends on various factors, such as the authenticity and reliability of the evidence, the way it was obtained, and whether it is relevant to the case.

WhatsApp chats and audio recordings can be considered electronic evidence under Section 65B of the Indian Evidence Act, which deals with the admissibility of electronic records.

Section 65 B- Admissibility of electronic records

Section 65B requires that the electronic evidence should be accompanied by a certificate, signed by a person who oversees the computer or device used to generate the electronic record, to certify the authenticity of the record.

For such records to be admissible as evidence, certain conditions must be met. These conditions include: the electronic record must have been produced using a computer that was regularly in use at the time of its production, the information contained in the electronic device must be of a type that is regularly and normally supplied to the computer, the computer must have been in proper working condition at the time of the creation of the electronic record, and the duplicate copy must be an accurate reproduction of the original electronic record.

There have been several cases in India where the admissibility of electronic evidence under Section 65B has been challenged. Some notable cases and their findings are:

Anvar P.V. v. P.K. Basheer

In this case, the Supreme Court of India held that electronic evidence must be accompanied by a certificate under Section 65B(4) of the Evidence Act, failing which the evidence cannot be admitted. The court also laid down the following conditions:

1. The electronic record containing the statement requires a certificate for identification.
2. A description of how the electronic record was reproduced is necessary for the certificate.
3. Providing details about the device used to produce the record is necessary for the certificate.
4. Section 65 B (2) of the Evidence Act outlines certain conditions that must be addressed in the certificate.
5. The certificate must bear the signature of an individual who holds a responsible official position concerning the operation of the relevant device.

It was also held that sections 65-A and 65-B of the Evidence Act, read with the Information Technology Act, 2000, provide a complete code for evidence relating to electronic records. This special provision governs the admissibility of secondary evidence of electronic records, such as CDs, VCDs, and chips. Such evidence is only admissible if accompanied by a certificate obtained at the time of taking the document, as per Section 65-B. The general law under Sections 63 and 65 of the Evidence Act has no application in this regard.

In addition to the requirements of Section 65B, the admissibility of WhatsApp chats and audio recordings also depends on whether they are relevant to the case and whether they are reliable. The court may consider factors such as the circumstances under which the evidence was obtained, the consistency of the evidence with other evidence, and the credibility of the source of the evidence.

Overall, WhatsApp chats and audio recordings can be admissible as evidence in Indian courts, provided that they meet the requirements of the Indian Evidence Act and are relevant and reliable. However, it is important to note that the admissibility of evidence ultimately depends on the discretion of the judge hearing the case.

The Supreme Court, in Ambalal Sarabhai Enterprise Ltd. v. KS Infraspace LLP Limited and Another, has recognized WhatsApp chats as admissible evidence. The Court stated that these virtual verbal communications can be used as evidence during the trial and their meaning and content can be proven through evidence in chief and cross-examination.

The Punjab and Haryana High Court has accepted WhatsApp chats as evidence in certain cases. One such case is Rakesh Kumar Singla v. Union of India, in which the Court relied on WhatsApp chats to grant bail in an NDPS case.

ORIGINALITY OF DOCUMENT

In the case of the National Lawyers Campaign for Judicial Transparency and Reforms v Union of India, the Delhi High Court ruled that a WhatsApp forward message, which does not have a known source, cannot be considered admissible evidence. The court held that such forwarded messages, without their source, cannot be regarded as a 'document' under the Indian Evidence Act.

The case was related to the alleged assault on a group of lawyers at the Tis Hazari Court complex in Delhi. During the proceedings, a video clip of the incident was produced as evidence, which was received as a forwarded message on WhatsApp. However, the source of the video was not known, and it was not clear whether the video had been tampered with or edited in any way.

The court noted that under Section 3 of the Indian Evidence Act, a document must be produced before the court to be considered as evidence. In the case of a forwarded message, the original sender of the message is unknown, and it cannot be established whether the message was authentic or tampered with. Therefore, the court held that a forwarded message without its source cannot be considered a document under the Evidence Act.

The court also observed that in the case of electronic evidence, such as WhatsApp messages, the authenticity, and integrity of the evidence are crucial, and the burden of proving these lies is with the person who produces the evidence. In the absence of the source, it becomes difficult to establish the authenticity and integrity of the evidence, and hence such forwarded messages cannot be treated as admissible evidence.

In conclusion, the Delhi High Court ruled that a WhatsApp forward message without a known source cannot be considered admissible evidence in court, as it does not qualify as a 'document' under the Indian Evidence Act.

AUDIO RECORDINGS

Indian Courts have repeatedly permitted the use of such recordings as evidence, with specific conditions and precautions in place to ensure the authenticity of the recording.

In general, the court has held that audio recordings can be admitted as evidence if they meet certain requirements. These requirements include the following:

• The recording must be relevant to the case.
• The recording must be authentic, meaning it must not have been tampered with or altered in any way.
• The recording must be reliable, meaning it must be a true and accurate representation of the events it purports to record.
• The recording must be properly identified and marked as evidence following the law.

In addition to these requirements, the court has also held that the weight and credibility of audio recordings as evidence will depend on the facts and circumstances of each case. The court has cautioned that audio recordings should be treated with caution and should be evaluated in the context of other evidence in the case.

One important case in which the court addressed this issue is State (NCT of Delhi) v. Navjot Sandhu, also known as the "Tape Case." In this case, the court considered the admissibility of audio recordings of phone conversations between a journalist and a senior police officer regarding the investigation of a high-profile murder case.

The court held that audio recordings can be admitted as evidence if they meet certain requirements, such as authenticity and reliability. The court also emphasized that the weight and credibility of audio recordings as evidence will depend on the facts and circumstances of each case.

In R.M. Malkani v. State of Maharashtra, the Supreme Court held that audio recordings can be admissible evidence in court if they are relevant, material, and have probative value. The court observed that audio recordings can be a valuable form of evidence as they can capture the nuances of the spoken word that may be missed in written records. The court also held that the admissibility of audio recordings does not depend on the consent of the parties involved, as long as the recording is not obtained illegally.

In the case of Ram Singh v. Col. Ram Singh, the Supreme Court held that audio recordings can be admissible evidence in court even if they were made without the knowledge or consent of one of the parties involved.

The admissibility of call recordings obtained without consent may also be subject to the provisions of other laws, such as the Indian Telegraph Act, of 1885, and the Information Technology Act, of 2000. These laws may impose certain restrictions on the interception or recording of communications without the consent of the parties involved.

Therefore, whether a call recording obtained without consent is admissible as evidence will depend on the specific facts and circumstances of each case, and whether the recording satisfies the requirements of relevancy, materiality, probative value, and legality.

CONCLUSION

Courts in India have accepted WhatsApp chats as evidence in various cases, subject to the fulfilment of conditions laid out in Section 65(B)(2) of the Indian Evidence Act. However, if the source of forwarded messages is unknown and the original cannot be furnished, the records cannot be admissible as evidence.

On the other hand, if the fundamental principles of a contract are fulfilled, contracts arrived at over WhatsApp can be considered valid and enforceable oral contracts.

Blue ticks on WhatsApp have also been considered legitimate proof of message receipt and reading. While past judgments have set the foundation for legal action related to electronic evidence, new legal developments will continue to shape our understanding of the evidential value of WhatsApp chats and electronic evidence in general.

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