Whether Electronic Records in form of SMS-Whatsapp Messages are Admissible in the court of Law
Section 2(1) (t) of the IT Act, an electronic record is “data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro filche”.
Text Messages qualify to be an electronic record as it is a data or record generated and stored , received or sent and fits into the definition of section 2(1)(t). Does fall under the ambit.
Section 4 of the IT Act 2000 gives legal recognition to the electronic records.
Section 65B. Admissibility of electronic records:
(1) 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 (hereinafter referred to as the computer output) 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.
Sub-Section (1) of Section 65B lays down ground/basis for text messages as form f data on record to be an electronic evidence.
PARTIAL REMEDY – CONTEND THAT REQUIREMENT OF A CERTIFICATE IS NECEESSARY FOR Text MSG to be ADMISSIBLE (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 showingthat 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. intervention) by means of any appropriate equipment.
In REKHA SHARMA VS CBI this principle of Certificate being given to an electronic record was considered.
State vs Mohd Afzal – Electronic Records are Admissible
It was held that the electronic records are admissible as evidence. If someone challenges the accuracy of a computer evidence or electronic record on the grounds of misuse of system or operating failure or interpolation then the person challenging it must prove the same beyond reasonable doubt.
The defendants had contended that the Computer and digital knowledge can easily be tampered with.
Fulfilment of 4 conditions under Section 65B(2) –
(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.
IN PEOPLE V WATKINS ( IMP CASE LAW PROVING ADMISSIBILITY)
The Illinois court provided a detailed analysis of the admissibility of the text message photos. To establish a foundation for admissibility, text messages are treated like any other documentary evidence. To authenticate a document, the proponent must present evidence to demonstrate that the document is what the proponent claims it to be. The proponent need only prove a rational basis upon which the fact finder may conclude that the document did in fact belong to or was authored by the party alleged. The trial court, serving a limited screening function, must then determine whether the evidence of authentication, viewed in the light most favourable to the proponent, is sufficient for a reasonable juror to conclude that authentication of the particular item of evidence is more probably true than not.
People v. Von Gunten (In California Court of Appeal) – Text Message can be transmitted by more than one person. Hence questioning the authenticity of message in question
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e-mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e-mail messages.
Lorraine v. Markel American Insurance Company (D.Md. May 4, 2007) 241 F.R.D. 534.
Case provides a comprehensive analysis of how to authenticate digital evidence such as digital photos, email and text messages.
State v. Byrraju Ramliag: E-Signatures are admissible in court of law