WhatsApp chats and Section 65 of Evidence Act: How it can impact Aryan Khan's case

Asia's Tech News Daily

WhatsApp chats and Section 65 of Evidence Act: How it can impact Aryan Khan's case

Indian law lays out detailed processes and procedures to be followed in the course of a criminal trial, including the issue of what can be used as “valid evidence” in a court and how such evidence is to be gathered.

With Bombay HC hearing the bail pleas of Aryan Khan, the question that has arisen is whether WhatsApp chats can be used as prima facie evidence against him. On Wednesday, Aryan’s legal team argued that his WhatsApp chats are not admissible as evidence in court.

Section 65 of the Indian Evidence Act deals with the issue of admissibility of electronic evidence, including e-mails, chats and social media posts.

READ: Beyond Aryan Khan case: Are WhatsApp chats admissible as evidence in court?

At present, such electronic evidence is considered “secondary evidence” under the law, unless the device itself is produced before the court.

Section 65B(1) of the Evidence Act also clearly differentiates between the original information contained in the “computer” itself and copies made therefrom – the device being primary evidence, and the “copies” considered secondary evidence.

SC judgement in Arjun Panditrao Khotkar case

In its judgement in the Arjun Panditrao Khotkar case passed on July 17, 2020, a three-judge bench of the Supreme Court clarified that a “certificate” is mandatory from the “authority” that has control or ownership of the device during the time when the electronic communication was created.

Without such a certificate, electronic communication is not admissible as evidence.

READ: Meet the man who retrieved many deleted chats of celebrities

However, the bench headed by Justice RF Nariman also clarified that if the device itself, along with the owner/authorised user of the device on which the original information is stored, is produced before the court, the “certificate” is not required.

Over the years, the courts have laid down the following principles:

  • There must be a certificate that identifies the electronic record containing the statement.
  • The certificate must describe the manner in which the electronic record was produced.
  • The certificate must furnish the particulars of the device involved in the production of that record.
  • The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act.
  • The certificate must be signed by a person occupying an official position in relation to the operation of the relevant device.

It was further clarified by the Apex court that there must be a certificate accompanying the electronic evidence in which that person is required to state that the same is to the best of his/her knowledge and belief.

These measures are taken by the courts to ensure the source and authenticity of the electronic record.

The Supreme Court also clarified that if the authorised person or authority refuses to give the certificate despite repeated requests, “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.”

Relevance in Aryan Khan case

In the context of the Aryan Khan case, however, it should also be noted that the question is about “certification” of the alleged WhatsApp chats, whether the phone itself was seized, and the verification of the validity of the “printouts” and “text” of the chats which is being produced in court as evidence.

The NCB officer who downloaded and printed the WhatsApp chats will have to give a 65 B certificate specifying how and when and in what manner the WhatsApp chats were printed out from Aryan Khan’s cell phone.

In addition, the NCB will also have to show the seizure memo (panchnama) of when the cell phone was seized, as well as certify the chain of custody of the device, to authenticate that there has not been any tampering with the device.

READ: WhatsApp tells Delhi HC new privacy policy on hold till data protection law comes into force

In January 2020, a two-judge bench of the Supreme Court accepted WhatsApp chats and e-mails as “proof” of a contract. The bench had held that “WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and their contents to be proved during the 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”.

More recently, in January 2021, the Punjab and Haryana High Court granted bail to a man accused under the NDPS Act, after noting that the Whatsapp messages would “have no evidentiary value” unless they were certified under the provisions of Section 65B of the Evidence Act.

However, the Apex court, as well as the Punjab and Haryana HC have in their orders noted that the “certificate” of authenticity can be submitted at any stage of the trial.

Senior Advocate Vivek Sood, who is an expert on Information Technology laws, says WhatsApp chats by themselves are not direct evidence of “consumption” of drugs.

“The WhatsApp chat by itself cannot prove consumption unless you can prove that the alleged product was actually procured and delivered. The WhatsApp chats would at best indicate a conversation which could be used as secondary evidence of intent,” Vivek Sood told India Today.

READ | https://www.indiatoday.in/magazine/cover-story/story/20201012-how-private-are-your-whatsapp-chats-1727605-2020-10-03 ALSO READ | Case of no evidence, NCB misinterpreting WhatsApp chats: Aryan Khan’s bail plea in Bombay HC WATCH | Aryan-Ananya WhatsApp chats: Conclusive proof or cunningly leaked by NCB?

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