National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India W.P.(C) 4447/2017

Question: Whether an FIR (First Information Report) can be registered on the basis of a Whatsapp text message?

Answer: No, An FIR cannot be registered on the basis of hearsay Whatsapp text message whose original has not been seen and whose authenticity has not been proved.

Forum: Delhi High Court

Bench: (J) Sanjeev Sachdeva

Facts of the Case-

In the year 2016 Kalikho Pul, an ex-Chief Minister of Arunachal Pradesh had committed suicide after the Supreme Court dismissed his government while adjudicating a petition by which a challenge was made to his government. He had left a suicide note in which he had made certain allegations with regard to corruption in the Judiciary etc.

National Lawyers Campaign for judicial Transparency and Reforms is an NGO (Non-Governmental Organisation) which is involved in highlighting issues and bringing reforms in the Judicial organ.

They were the Petitioner No 1 in the instant case and Petitioner No 2 to 9 were advocates and a law student respectively. They filed a Writ petition of Mandamus in the Delhi High Court by which they sought directions from the High Court to the Delhi Police, West Bengal Police, State of Arunachal Pradesh and its police along with the CBI for getting an FIR registered and making an investigation based upon the contents of the suicide note left behind by Kalikho Pul.

They had filed the petition based upon some information which was being circulated on a Whatsapp group and they had filed an annexure of the translated text.

Interestingly, the Petition had been filed by an Advocate on behalf of the Petitioners and there were no signatures of the Petitioners on the petition apart from the signature of the Advocate for the Petitioners.

The Affidavit that had been attached along with the Petition was that of an advocate Ms. Rohini M Amin who claimed to be the authorized representative of the Petitioner No 1 and Petitioner No 4 in the petition and she had sworn the affidavit on behalf of the other petitioners as well. No authority letter had been filed by her which showed that she had been authorized by the other petitioners to do so.

Issues of the Case

The issue for determination, in this case, was whether an FIR can be registered when:

1. The source of information is a Whatsapp message.
2. The petitioners have not seen the original annexure and compared it with the one filed with the petition,
3. The petitioners are not ready to state clearly that the contents of the annexure are true and correct,
4. They are not connected with the allegations made in the annexure.

 Arguments-

The Petitioners claimed that they had reason to believe that the allegations made in the suicide note were worthy of being investigated by the state authorities and they claimed that the annexure filed by them along with the petition was a redaction of the suicide note left by Kalikho Pul.

They claimed that they were not making any false allegations against anyone but rather there was a suicide note which had been left behind by a person and as such an FIR must be registered to probe into the allegations made in the suicide note.

They stated that they did not know about the authenticity of the contents of the suicide note but they thought that the suicide note was full of credibility.

Judgment- 

The Ld. Judge of the High Court dismissed the petition with costs of Rs. 25,000/- which were imposed on each of the petitioners for wasting the precious time of the Court. It was held by the Ld. Court that:

1. The affidavit filed by the petitioners does not say that the information based upon which the petition had been filed was correct and true to the best of their knowledge,
2. The petitioners had not seen the original note or the original of the Annexure that had been filed along with the petition, thus the Petitioners were relying on hearsay information based upon a Whatsapp message whose authenticity they had not checked,
3. The Annexure which was filed along with the Petition could not be considered as a document for the purpose of the Indian Evidence Act, 1872 since neither the original nor the copy of the original document had been produced,
4. They had failed to establish as to how they were connected with the allegations which had been set out in the petition.
5. Thus, the Petition had been filed making wild allegations and there was no merit in the same.

It is to be noted that under the Scheme of the Indian Evidence Act, 1872 Sec 65-B contemplates that an electronic record containing information which has been produced on a document can be treated as an evidence provided certain conditions are met.

A person who is relying on such a document also has to certify by furnishing a certificate that he believes in the authenticity and integrity of the data and its source.

In the instant case, the Petitioners had failed to authenticate the Annexure which contained the electronic record and they merely stated that they had reasons to believe that it was true.

They had no idea as to from where the original WhatsApp message had transpired and who was the maker/sender of it. As such the Court refused to treat it as evidence for the purpose of the Indian Evidence Act, 1872, ultimately dismissing the petition with costs.