admisibility of eletronic evidence

The Information Technology (IT) Act 2000 was amended to allow for the admissibility of digital evidence.  The Information Technology Act, 2000 and its amendment are based on the United Nations Commission on International Trade Law (UNCITRAL) model Law on Electronic Commerce. An amendment to the Indian Evidence Act 1872, the Indian Penal Code 1860 and the Banker’s Book Evidence Act 1891 provides the legislative framework for transactions in electronic world. The e-EVIDENCE can be found in e-mails, digital photographs, ATM transaction logs, word processing, documents, instant message histories, files saved from accounting programs, spreadsheets, internet browser histories databases, Contents of computer memory, Computer backups, Computer printouts, Global Positioning System tracks, Logs from a hotel’s electronic door locks, Digital video or audio files. Digital Evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive and more readily available.

Indian evidence act : concerning sections

Sec 3- talks about the documentary and all form of electronic evidence

Sec 59

Sec65a,65b

Section 65B of the Evidence Act details this special procedure for adducing electronic records in evidence. Sub-section (2) lists the technological conditions upon which a duplicate copy (including a print-out) of an original electronic record may be used:

1. At the time of the creation of the electronic record, the computer that produced it must have been in regular use,
2. The kind of information contained in the electronic record must have been regularly and ordinarily fed in to the computer,
3. The computer was operating properly; and,
4. The duplicate copy must be a reproduction of the original electronic record.

The Section 65B of the Evidence Act makes the secondary copy in the form of computer output comprising of printout or the data copied on electronic/magnetic media admissible. It provides:²¹ Notwithstanding anything contained in this Act, 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 shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

Sec. 65B (2)

The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used; Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer; The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy; Information reproduced is such as is fed into computer in the ordinary course of activity.²²

Sec.65 B (3)

The following computers shall constitute as single computer

1. By a combination of computers operating over that period; or
2. By different computers operating in succession over that period; or
3. By different combinations of computers operating in succession over that period; or
4. In any other manner involving the successive operation over that period, in whatever order, of one or more
5. In any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers.

Sec. 65B (4)

Regarding the person who can issue the certificate and contents of certificate, it provides the certificate doing any of the following things: identifying the electronic record containing the statement and describing the manner in which it was produced; giving the particulars of device, dealing with any of the matters to which the conditions mentioned in subsection ﴾ 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 subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.²³ This contention is further strengthened by the insertion words “Notwithstanding anything contained in this Act” to Section 65A & 65B, which is a non obstante clause, further fortifies the fact that the legislature has intended the production or exhibition of the electronic records by Section 65A & 65B only. A non obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over the provision in the same or other act mentioned in the non obstante clause. It is equivalent to saying that despite the provisions or act mentioned in the non obstante clause, the provision following it will have its full operation or the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment or the provision in which the non obstante clause occurs. The aforesaid principles of interpretation with respect to the non obstante clause in form of “Notwithstanding anything contained in this Act” is further supported by the Hon’ble Apex Court in Union of India and Anr., v. G.M. Kokil and Ors.²⁴ observed “It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.” Further, the Hon’ble Apex Court in the case cited as Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,²⁵ explained the scope of non obstante clause as “It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned tahe enactment following it will have its full operation”.

when electronically stored information is offered as evidence, the following tests need to be affirmed for it to be admissible:

1. Is the information relevant.
2. Is it authentic.
3. Is it hearsay.
4. Is it original or, if it is a duplicate, is there admissible secondary evidence to support it; and
5. Does its probative value survive the test of unfair prejudice?

Cases:

Anvar vs basheer

In this regard, relevant oral evidence as to the genuineness of the record can be offered by the Examiner of Electronic Evidence, an expert witness under section 45A of the Evidence Act who is appointed under section 79A of the IT Act. In Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke.⁴⁵ The court relying upon the judgment of Anvar case while considering the admissibility of transcription of recorded conversation in a case where the recording has been translated, it was held that as the voice recorder had itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for electronic evidence.

Admissibility of whats app messeges in the court

 In the case of Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] MLRHU 196, the High Court held that print-outs of e-mails and Whatsapp messages fall within the wide meaning of “document” under the Evidence Act. As such, those print-outs can be treated as any other printed document when it comes to admissibility.

The High Court went on to hold that even if a party disputes the genuineness of a print-out of a Whatsapp message, the Whatsapp message may still be admitted as evidence if the following criteria is met:

• The party who adduces the Whatsapp message must prove that the Whatsapp message concerns the existence or non-existence of a fact in issue, or that it is otherwise relevant to the proceedings; and
• The party who adduces the Whatsapp message must meet the procedural requirements of admitting a document produced by a computer (eg: through oral evidence that the print out was produced by the computer in the course of the ordinary use of the computer, or by providing a certificate under Section 90A of the Evidence Act 1950).

In this case, the High Court not only found the Whatsapp messages to be admissible, but added that they should be given “great weight” because of the contemporaneous nature of the Whatsapp messages with the key events in that case.  The High Court also found that the Whatsapp messages can be used to corroborate the oral testimonies of the witnesses, giving them more credibility.

Have there been situations where Whatsapp messages were not admissible?

In the recent Industrial Court case of Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd [2017] 1 MELR 383, the court refused to attach any weight to a snapshot image of a Whatsapp conversation.  This was the snapshot in question:

In this case, there was a dispute as to whether the Claimant was the person who sent the alleged Whatsapp message. The Industrial Court held that the snapshot did not conclusively prove that the Claimant was the sender, since the image did not show these particulars:

• The Claimant’s name
• The date of the Whatsapp message
• The Claimant’s handphone number
• The Claimant’s profile picture

Further, through a demonstration in Court, the Claimant was able to show the Court that a Whatsapp message can be fabricated, resulting in a fabricated Whatsapp snapshot image of that message.

In another recent case, Nazaruddin Mohd Shariff @ Masari & Ors v Samsyem Saam & Ors [2017] 1 MLRH 594, the High Court found it was “wholly unsafe at this stage of the proceedings to rely on Whatsapp messages as conclusive evidence”.  Here, the Defendants attempted to rely on some Whatsapp messages with the Plaintiffs to prove that the Plaintiffs had allegedly admitted that they were not the rightful beneficiaries of the estate. The High Court concluded that this issue could easily be proven by adducing the “Sijil Faraid”, a formal document which would have conclusively shown the rightful beneficiaries of the estate, which the Defendants failed to do. As such, the High Court refused to admit the Whatsapp messages as evidence.

Commentary

The general principle is that Whatsapp messages can be admissible as evidence.  This is especially where there is no dispute as to the authenticity of the Whatsapp message, and no dispute as to the identity of the parties to the Whatsapp conversation.  Bearing in mind the findings of the cases above, parties who intend to adduce Whatsapp messages as evidence in their court cases should still ensure that:

• the snapshots of their discussions contain the necessary information to identify the sender/recipient of the messages; and
• they don’t wholly rely on Whatsapp messages to build their case, especially when there are other documents available that would be able to conclusively prove the factts

authencticity of documents.:

the documents must be admitted in the court by providing a certificate of autencticity as prescribed  under Section 90A of the Evidence Act 1950. In that that expert issues a certificate after examining the document carefully. These expert are appointed by the government on the basis of expertise in that field.