The world is changing rapidly around us. In every corner of the world, technology has laid its foundations. The admissibility of electronic evidence is the most German issue in the current scenario of our country with the ever-expanding technological ambiance. The progress of technology has caused a dramatic change in the way people are communicated.
WhatsApp, e-mails, text messages have become a common communication mode. Various electronic proof is now available in court, such as DVD, Hard Disk, SMS, mail, etc.
Meaning of evidence-
Under Indian Evidence act,1872 Evidence is defined as –
- Every statement which the court allows to be made by witnesses pertaining to the matter under investigation, such explanations are said to be oral evidence
- All documents including e-records produced in the court of law for its inspection, such documents are referred to be as documentary evidence.
Besides this, documentary evidence can be classified into two categories- primary evidence and secondary evidence. As per section 62 of the act, primary evidence means the original copy of the documents produced in the court for review. The legal definition of secondary evidence is given under section 63 of the act.
Digital/electronic proof as acceptable evidence was incorporated into IT Act 2000 amended in 2016. The legal definition of the electronic record is contained in Section 2(1)(t) of the above act. The electronic record refers to data, image or sound generated by data and any documents sent or received in electronic form or electronic data generated by computer. As secondary evidence under section 63 of the IEA, the electronic data which is transmitted or stored digitally is allowable.
Section 65-B(4) lists the conditions which need to be followed to record statement pertaining to the electronic record-
A certificate must be provided that recognises the electronic record containing the declaration. This certificate –
- should describe the way electronic records are produced.
- Mention all the device details involved in this production
- The conditions of Sec-65B(4) should be taken into account (explained above)
- Signed by the official responsible for the operation of the device
- This certificate should also accompany the electronic record, for example, computer printouts that are to be provided with evidence.
Whether WhatsApp chats are primary evidence or secondary evidence
In the case of Girwar Singh v. CBI, the court-appointed a committee to examine the veracity and authenticity of electronic evidence. It was found that the evidence submitted to the court was not a copy of the original document, but it was copied multiple times and on various devices. The court ruled that in this case, e-evidence was inadmissible.
Few conditions to be satisfied for admissibility of WhatsApp chats as secondary evidence –
As held in various Indian high courts, WhatsApp chats are considered to be electronic evidence and are admissible in court if the following conditions are satisfied-
- The receiver should have received the message. (the message should be blue ticked)
- Cell phones should not have been damaged.
- The sender should have the mens rea to send those messages.
So, WhatsApp chats are allowable in the court as secondary proof if certain conditions as discussed above are met. The judge’s position with regard to the admissibility of electronic evidence is that the judge can easily damage or manipulate the credibility of the evidence as such.
This progressive position of the courts is the result of the nature of the e-record itself being recognised. There are many unresolved questions concerning current legislation and precedents regarding the eligibility of electronic evidence. Things related to the way they are preserved, their accuracy assessed, the original authors found, retrieved are still under discussion and a gradual precedent is awaited in this penumbral area.
Even after two decades since the IT act of 2000 was passed, the case law on the allowability of electronical evidence is still in its infancy. Laws should be applied in accordance with technology development. In recent years, amendments and progressive judgments are expected to address the current loophole in the law.
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