How to Prove E-Mails, WhatsApp Chats, Facebook Posts and Website Information in Courts?

Jojy George Koduvath, Kottayam.

Is it Necessary to Produce Mobile Phone or Computer to Prove Electronic Evidence?

The answer is, “Not Necessary”.
Print-outs; Copies in CDs, Pen drives etc. are admissible.

S. 65B is an Enabling Provision. It Directs to ‘Deem‘ Copy to be “Original“

Sec. 65B, Indian Evidence Act is an express enabling provision to use a copy or print out (termed as ‘computer output’) in evidence as if it is original, inasmuch as Sec. 65B says that computer output (copy) shall be –

“deemed to be also a document“, and
admissible “without further proof or production of the original” as evidence of
- any contents of the original or
- any fact stated therein.

Relevant portion of Sec. 65B reads as under:

Sec. 65B. Admissibility of electronic records-
- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be deemed to be also a document …. and shall be admissible ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein….”

S. 65B, Evi. Act Applies to Copy alone; and Not to Original Electronic Record

From Sec. 65B(1), as stated above, it is clear –

Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it will not be applicable to (original) ‘electronic record‘.

The Supreme Court, in Anver PV v. PK Basheer, 2014-10 SCC 473, held as under:

“24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216).

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:
- Shafhi Muhammed v. State of HP, 2018-2 SCC 801.

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End Notes:

Section 165 of the Evidence Act states as follows:

“Section 165. Judge’s power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

Order XVI rule 6 of the Civil Procedure Code, 1908

“6. Summons to produce document.—Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

Order XVI rule 7 of the Civil Procedure Code, 1908

7. Power to require persons present in Court to give evidence or produce document.—Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

Order XVI rule 10 of the Civil Procedure Code, 1908

10. Procedure where witness fails to comply with summons.—(1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court— (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non- service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.”

Sec. 91 of the Code of Criminal Procedure, 1973

“91. Summons to produce document or other thing.— (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

Sec. 349 of the Code of Criminal Procedure, 1973

“349. Imprisonment or committal of person refusing to answer or produce document.—If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346.”

The High Court of Rajasthan in Paras Jain v. State of Rajasthan, 2015 SCC OnLine Raj 8331, referring to Anvar PV, it is held as under:

“Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.”(quoted in Arjun Panditrao.)

Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

How to Prove E-Mails, WhatsApp Chats, Facebook Posts and Website Information in Courts?

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