Has Supreme Court Held That Whatsapp Chats Cannot Be Used As Evidence ? [Fact Check]

While refusing bail to Aryan Shahrukh Khan in the Cruise Ship Drug Case, the Special Court observed that WhatsApp chats prima facie reveal that accused Aryan Khan is dealing in illicit drug activities for narcotic substances on regular basis. After this, a news report was being widely shared in Social media in support of the claim that Whatsapp chats could not have been the basis for denying bail.

The report claims that the ‘Supreme Court said messages exchanged on social media platform have no evidential value and that the author of such WhatsApp messages cannot be tied to them, especially in business partnerships governed by agreements.’ It quotes another report from Times of India, which said that, while hearing a case ‘a bench of Chief Justice N V Ramana and Justices A S Bopanna and Hrishikesh Roy said, “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.”‘

Reading of the Times Of India report reveals that the Supreme Court has not passed any order making such remarks, but only made the above oral remarks. 

What was the context?

In this case, while hearing an arbitration appeal, the Calcutta High Court noted that there is an admission on the part of one party (A2Z Infraservices) of their liability towards the other party ‘from the statement of account contained in their Whats App message’.  The court therefore directed the party to ‘deposit all the money received by them in future from South Delhi Municipal Corporation in connection with the work covered by the Master Service Agreement in the escrow account subject to further direction in this behalf by the arbitral tribunal or the arbitral award that may be passed.’

A2Z filed a special leave petition before the Supreme Court and contended that a WhatsApp message which was disputed by it as forged and fabricated should not have been taken into account by the High Court. While issuing notice in this case, the Court made the above oral remarks. The order contains no such observations.

Are oral remarks part of judicial record?

Recently, the Supreme Court had observed that oral remarks are not a part of the official judicial record.  A formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing, the court had observed.

Are Whatsapp chats admissible in evidence?

A Delhi District Court judgment  addresses this issue. Referring to provisions of the Information Technology Act, it observed that the messages sent through whatsapp messaging app are valid legal evidence under law and the blue tick over the messaging is a valid proof that the recipient read it. Mobile whatsapp and and facebook chat are taken as evidence proof in the court of law, the court said.

Further, in Ambalal Sarabhai Enterprise vs Ks Infraspace LLP Limited 2020 (5) SCC 410, the Supreme Court had made an observation that 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.

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