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Admissibility Of Electronic Evidence With Special Reference To Instagram Chats

Nowadays, the usage of technological devices for the purpose of sharing information and communication has been drastically increased. The digital world centers on the usage of technological devices such as computers, cell-phones, and other technologies. The digital world provides numerous opportunities for committing offences. Such information in the electronic form can be used to prove or disprove a relevant fact or a fact-in-issue.
  1. The Black's Law Dictionary defines evidence as:
    "something that tends to prove or disprove the existence of an alleged fact".
  2. Initially, electronic evidence was not admissible under the Indian Evidence Act, 1872 [Hereinafter referred to as the Evidence Act] i.e. the Evidence Act didn't have any express provision for the same. Thus, the law was not at par with technological growth.
Accordingly, the Information Technology Act, 2000 [Hereinafter referred to as the IT Act] was enacted. Also, the Evidence Act was amended to incorporate certain changes to make electronic evidence admissible in a criminal trial or a civil proceeding.

There are only two types of evidence that can allowed in a court of law in India i.e. oral evidence and documentary evidence.3 After the amendment, the definition of "evidence" under the Evidence Act now includes electronic records. The IT Act defines electronic records as "data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche".4 Any information, either electronically stored or transferred, which have some probative value can be electronic evidence.5
  1. Firstly, this research project will give a brief overview on the statutory framework for the admissibility of electronic evidence under the Evidence Act;
  2. secondly, it will be analysing the case of Arjun Panditrao Khotkar v Kailash Kishanrao Goratya l6 [Hereinafter referred to as the Arjun v Kailash], the confusion which was arose in the previous judgments given by the Hon'ble Supreme Court ( Anvar P V v P K Basheer 7, Shahfi Mohammad v State of Himachal Pradesh 8 and Tomaso Bruno v State of Uttar Pradesh 9) over the interpretation of section 65B was clarified in this case; and
  3. lastly, this research project will discuss the admissibility of the Instagram chats as electronic evidence under section 65B.
Research Questions:
  1. Whether The Requirement Of A Certificate Under Section 65b(4) Must Be Complied With Even When An Original Electronic Record Is Produced As Electronic Evidence, Or Does It Need To Be Complied With Only When A Secondary Electronic Record Is Produced As Electronic Evidence?
  2. Whether The Requirement Of A Certificate Under Section 65b(4) Must Be Complied With Even Though It Is Impossible To Procure The Certificate From The Competent Authority?
  3. What Is The Current Legal Position On The Admissibility Of The Instagram Chats As Electronic Evidence Under Section 65b?

Legal Framework For Admissibility Of Electronic Evidence

It is the judge who is empowered by the Evidence Act to decide whether an evidence is admissible or not.10 Sections 65A and 65B, which forms a complete code for the admissibility of electronic evidence, were inserted in the Evidence Act through the Indian Evidence (Amendment) Act, 2000.

The conditions mentioned under section 65B needs to be satisfied to prove the contents of any electronic record.11 Section 65B starts with a non-obstante clause.12 Section 65B of the Evidence Act prescribes the manner in which the contents of an electronic record can be proved. The primary purpose of this provision is to sanctify proof by secondary evidence. This facility of proof by secondary evidence would apply to any computer output, such output being deemed as a document. A computer output is a deemed document for the purposes of proof.

The Evidence Act states that "any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer [Hereinafter referred to as computer output], shall be deemed to be also a document" and if the conditions precedent in this provision are met, then such an electronic record will be admissible "without further proof" or "production of the originals".13

The rule enunciated in section 91 is that to prove the information contained in a document is to produce the original document itself (best evidence rule). However, section 65B (1) clearly shows that it has overcome the problem of original v copy.

The provision clearly provides that if the requirements of section 65B are satisified, then, even the secondary copies of a primary electronic record will be admissible in the court of law without further proof. Thus, section 65B (1) is an exception to the best evidence rule.14 Under the Evidence Act, the requirements as to relevancy of computer output has also been provided.15

This provision lays down the requirements that needs to be fulfilled so as to make a computer output as primary evidence. The requirement of a certificate under section 65B (4) needs to be satisfied to prove that the contents of an electronic record is authenticated. There are conflicting interpretations given by the Supreme Court as to whether the condition precedent under this section should be mandatorily followed or not. This will be discussed and analysed in the next part of this research project.

Requirement Of A Certificate Under Section 65b (4): Mandatory Or Not?

The Hon'ble Supreme Court has taken conflicting views in different cases over the interpretation of section 65B. In the case of Arjun v Kailash16 the scope and ambit of section 65B was clarified. The confusion arose because of the contradictory views taken by the Supreme Court in its earlier judgments i.e. Anvar P V v P K Basheer 17 [Hereinafter referred to as Anvar v Basheer], Shahfi Mohammad v State of Himachal Pradesh 18 [Hereinafter referred to as Shahfi Mohammad Case] and Tomaso Bruno v State of Uttar Pradesh19 [Hereinafter referred to as Tomaso Bruno Case].

Prior Judicial Interpretation Of Section 65b

The case of State (NCT of Delhi) v Navjot Sandhu 20 is the first case in which the Supreme Court has discussed the admissibility of an electronic evidence. In this case, the Court was of the view that a secondary electronic evidence can also be produced under section 63 and 65 of the Evidence Act. However, the case of Anvar v Basheer overruled the case of State (NCT of Delhi) v Navjot Sandhu.

In Anvar v Basheer, the Hon'ble Supreme Court held that "Sections 63 and 65 have no application to secondary evidence by way of electronic record as this is wholly governed by Sections 65A and 65B". The Court, in this case, opined that section 65A & 65B together forms a complete legal framework for the admissibility of an electronic record in the court of law and a secondary electronic evidence is not admissible unless the conditions precedent in section 65B are fulfilled, which includes the production of a certificate under section 65B (4) for the purpose of authentication.

Also, if the requirements laid down by section 65B are not fulfilled then the proof of an electronic evidence cannot be permitted by oral evidence. However, if a primary electronic evidence is produced under section 62, then it will be admissible as well as the conditions precedent under section 65B are not required to be satisfied.

The Hon'ble Supreme Court in the Tomaso Bruno Case didn't referred to the earlier judgment of Anvar v Basheer and held that "section 65B was not a complete code". The view taken by the Supreme Court in the Shahfi Mohammad Case created more confusion on the issue whether the requirement of a certificate under 65B (4) is mandatory or not.

In this case, it was held that the condition precedent under section 65B (4) is procedural in nature, which need not be satisfied when the person who is responsible to produce the certificate under section 65B (4) doesn't have access to the electronic device. This confusion which was created by these judicial pronouncements on the scope and ambit of section 65B was clarified in the case Arjun v Kailash.

The Case Of Arjun v/s Kailash

In the case of Arjun v Kailash, it was observed by the Hon'ble Supreme Court that section 65B (1) differentiates between the primary electronic record i.e. the device where the information was first stored and the secondary copies that are made from that primary electronic record.

n this case, the Court has held that the requirement of a certificate under section 65B (4) must be satisfied when a secondary copy of a primary electronic record is produced before the court. The requirement of a certificate under section 65B (4) is not required to be satisfied in case if an original electronic record is produced.

The Court concurred the dictum given by the Supreme Court in the case of Anvar v Basheer. The Court concurred that section 65B contains non-obstante clause and it is a complete legal framework for the admissibility of an electronic evidence. The Court clarified that this dictum should be read by omitting the words "under Section 62 of the Evidence Act". As section 65B is a complete code for electronic evidence and that's why it should supersede other provisions.

In this case, the Supreme Court also overruled the Shahfi Mohammad Case. There are provisions under the Evidence Act21, the Civil Procedure Code22 and the Criminal Procedure Code23 which empowers the Court to order for the production of any document in a trial. Accordingly, in Arjun v Kailash it was held that in case if a person fails to procure a certificate under section 65B (4) then that person can file an application to the Judge to order for the production of certificate.

Thus, the Court concluded that "the obligation placed by Section 65B (4) was mandatory, and not voluntary, and is a condition precedent before secondary copies of an electronic record can be admitted". The conditions under sections 65B (2) and 65B (4) must be satisfied cumulatively.

Can Instagram Chats Be Used As Evidence In The Court Of Law

In the recent times courts are acknowledging social media content as evidence in court. Electronic evidence can be handled or edited or exploited or influenced in certain cases, the courts needs to follow strict procedure during the analysis of the authenticity and reliability that includes various chats or massages and contents in various social media platform, chatting platform and electronic mails.

If any doubt arises regarding the reliability of the evidence or about its authenticity then the court can reject the evidence materials persisting on the chats and other electronic media from their admission in court as evidence. The conversations done in on line massaging platforms can be documented using screen shot process.

Although in this process these chats or dates are saved as photos which can easily be tampered or edited which questions the authenticity of these evidences lies on the party challenging it. Now under section 65B of the Indian evidence Act the Instagram Chat information can be produced as evidence in court. The parent company of Instagram was also provided its information to the court in a case. In a way it proves that these are admissible in court.

In the case of Largent v Reed 24, the facts go on like the plaintiff claimed that due to a recent accident her life was made quite complicated, although the defendant produced some posts about the accident photos from Facebook which showed that she attended the gym and was good mood during her daily activities. The court ordered that she must submit her Facebook login details to the court for further investigation in the case.

Through this case we can deduct that online social media content can be produced as legal evidence in deciding factor of a case and these posts or chats have an evidential value in the eyes of law. Although the authenticity of the screenshots of chats is still questionable in court of law.

In some rulings where courts observed that WhatsApp chats are to be admitted as evidence if they fulfil certain conditions under Section 65B of the Evidence Act. In the case of Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another 25, the Hon'ble Supreme Court, during the hearing of a petition that is challenging an injunction order has referred to the WhatsApp chats that are produced as evidence.

In the judgement delivered on the 6th of January 2020, the court said that the messages sent and received on WhatsApp which are virtual denotations of verbal communication are mattered as evidence with regards to the meaning and their context which are to be proved during the trial by evidence in the examination by the chief and the cross. The electronic mails and WhatsApp messages will have to be read and understood as a whole to interpret that if there is a concluded contact or not.

This infers that the WhatsApp chats can be admitted as evidence in the trial. In a recent case, Rakesh Kumar v UOI 26 the Punjab and Haryana high court also took reference to section 65 B of the Indian Evidence Act during a hearing of a bail petition in a case of NDPS which granted the liberty to NCB to ponder upon WhatsApp messages of the accused after due compliance with the section.

In a recent case of Chirag Dipakbhai Sulekha v the State of Gujarat 27, the court passed an order which referred to WhatsApp messages as prima facie comments on granting bail. There is also an occasion in the Commercial Court of Delhi when it relied upon WhatsApp chats to prove a decree of a suit according to section 65B. Nowadays reports are coming about reliance on WhatsApp chats for divorce cases.

In the Punjab and Haryana high court furthermore observed that WhatsApp messages have no evidentiary value until they are submitted with a certificate by section 65B of the Indian Evidence Act in the Rakesh Kumar case. A single-judge bench constituting Justice Jayshree Thakur observed that while deciding a bail petition for an NDPS case. While opposing the application the NCB stressed upon some of the alleged WhatsApp chats of the accused and had submitted the screenshots of those connected with the petitioner with the contraband.

Nevertheless, the court had asked that if such messages complied with the section 65B condition of the Indian Evidence Act. When the response was not affirmative the court observed that in case of Arjun v Kailash.28 The court held that a certificate under section 65B of the evidence act is a prime requirement when the reliance upon electronic records. So, the messages on chats have no evidentiary value in court.

The bench although granted the liberty to NCB for the reliance upon WhatsApp chats after compliance with section 65B. The bench also stated while granting the bail that it is needless to say that the NCB always would have the liberty of relying upon WhatsApp chats after they comply with section 65B of the evidence act.

To conclude we can say that the value of electronic records as evidence is a matter of doubt because sometimes they can be tampered or forged so the courts need to be very carefully examine them before relying upon them. As a matter of fact, the WhatsApp chats in accordance with certification and an expert advice to check the credibility should be stored upon for better reliance on them in future.

Comparison Of Legal Position Between United Kingdom And India

Renowned Justice Nariman and Justice V. Ramasubramanian mentioned that except a few minor changes, section 65B of the Indian Evidence Act was a replication of the section 5 of U.K Civil Evidence Act, 1968. The section 5 of this act was repealed in the year 1995. So when the section 65B was added to Evidence Act, in the year 2000 the Indian Judiciary adopted such a provision that was already repealed in U.K.

The section 5 of the U.K Civil Evidence Act was repealed following the recommendation of the Law Commission which denoted that the particular frame work under which section 5 is being considered outdated is the constant development in computer technology and there is no need for separate territory regarding computer � generated documents. India also thought on the same line and adopted this measure for addressing problems more practically.

Conclusion
In recent times the technological growth has gathered mixed emotions among the people because of its own merits and demerits. The courts have this practical problem in accepting electronic evidence as there is a chance of manipulation of these electronically available evidences. Although all these manipulations and edited or forged evidences can easily be identified with the help of experts presents today who can analyse these things and also the social media platform providing services and give us the correct reports.

Nevertheless, all we can hope is that with the advancement in technology we can expect to have changes in the legal system and a smoother process to be adopted by the court of the Indian Legal system that will make these evidences admissible in court in a more prominent way without the authenticity being compromised.

We can also hope that the courts without stressing upon the production of the certificate for the authentication of these evidences the courts should adopt a more practical measure say, the opinion of the experts were given more values and more authentic approach to be adopted by the courts as we all know that if evidences can be forged then the documents of certification can also be forged.

The advancement of technology should also be taken into consideration by the courts and frequent help of the experts should be taken and considered important as the deciding conclusion of a case involving such evidences which should provide speedy justice to the victims of cases and will lead to formation of better society. Index Of Authorities
Statutes:
  • Code of Civil Procedure, 1908 9 Code of Criminal Procedure, 1973 9 Indian Evidence Act, 1872 5 Information Technology Act, 2000 5
Case Laws:
  • Ambalal Sarabhai Enterprise Ltd v KS Infraspace LLP Limited and Another 10 2020 JC (SC) 1859
  • Anvar P V v P K Basheer (2014) 10 SCC 473 5
  • Arjun Panditrao Khotkar v Kailash Kishanrao Goratyal 2020 SCC OnLine 5 SC 571
  • Chirag Dipakbhai Sulekha v the State of Gujarat R/Criminal Misc 11

Application No 18834 Of 2020:
  • Largent v Reed PICS Case No 11-4463 (CP Franklin Nov 8, 2011) Walsh, J 10 Rakesh Kumar v UOI 1983 (3) SCC 91 11 Shahfi Mohammad v State of Himachal Pradesh (2018) 2 SCC 801 5 State (NCT of Delhi) v Novjot Sandhu (2005) 11 SCC 600 8 Tomaso Bruno v State of Uttar Pradesh (2015) 7 SCC 178 5
Legal Dictionary:
  • Bryan A Garner, Black's Law Dictionary (9th edn, West Publishing Co 1990) 5
End-Notes:
  1. A Venkateswara Rao, 'Admissibility of Electronic Evidence' (District Court of India, 26 August 2020) accessed 7 October 2021.
  2. Bryan A Garner, Black's Law Dictionary (9th edn, West Publishing Co 1990).
  3. Indian Evidence Act 1872, s 3 (Evidence Act).
  4. Information Technology Act 2000, s 2(1)(t) (IT Act).
  5. IT Act, s 79A.
  6. 2020 SCC OnLine SC 571.
  7. (2014) 10 SCC 473.
  8. (2018) 2 SCC 801.
  9. (2015) 7 SCC 178.
  10. Evidence Act, s 136.
  11. Evidence Act, s 65A.
  12. Anwar P V (n 7); Bharat Vasani & Varun Kannan, 'Supreme Court on the admissibility of electronic evidence under Section 65B of the Evidence Act' (India Corporate Law: Cyril Amarchand Blogs, 27 January 2021) accessed 7 October 2021.
  13. Evidence Act, s 65B(1).
  14. Admissibility of Electronic Evidence (n 1); Aditya Mehta & Swagata Ghosh, 'Section 65B of the Indian Evidence Act, 1872: Requirements for admissibility of electronic evidence revisited by the Supreme Court' (India Corporate Law: Cyril Amarchand Blogs, 27 July 2020)
  15. Evidence Act, s 65B(2).
  16. Arjun Panditrao khotkar (n 6).
  17. Anvar P V (n 7).
  18. Shahfi Mohammad (n 8).
  19. Tomaso Bruno (n 9).
  20. (2005) 11 SCC 600.
  21. Evidence Act, s 165.
  22. Code of Civil Procedure 1908, Order XVI r 7.
  23. Code of Criminal Procedure 1973, ss 91 & 349.
  24. Largent v Reed PICS Case No 11-4463 (CP Franklin Nov 8, 2011) Walsh, J.
  25. 2020 JC (SC) 1859.
  26. 1983 (3) SCC 91.
  27. R/Criminal Misc Application No 18834 of 2020.
  28. Arjun Panditrao khotkar (n 6).

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