INTRODUCTION:
Pandemic has compelled the people across the sectors to adopt for deviations in accordance to the circumstances, accordingly litigation have seen certain changes, such as limitation period have been extended for the filing, service and presentation of documents, evidences, notices, complaints and many others. Nevertheless, the Judges and Advocates have slowly and gradually accommodated towards virtual hearing through the medium of applications; meanwhile, service of legal notices and summons virtually were already adopted by the legal system but pandemic has accelerated the adoption of e-summoning.
IT ACT 2000 AND RELEVANCE:
The Apex court in the case of Arjun Pandit Rao Khotkar V. Kailash Kushan Rao Gorantyal[1] the apex court have relied on the IT act of Canada and U.K Civil Evidence Act and Criminal Act issued directions pertaining to the framing of rules that shall deal with retention, retrieval, preservation and production of Electronic Evidences under section 67(C)[2] of Information and Technology Act 2000. Nevertheless, in the case of Central Electricity Regulatory Commission v. National Hydroelectric Power Corpn. Ltd.[3], service of legal notices through e-mail was discussed for the first time in India, but was rejected by the Supreme court.
In the case of Shafhi Mohammad V. State Of H.P[4] it was held that the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B (4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.
SERVICE VIA INSTANT MESSAGING SERVICES:
The Hon’ble Supreme court in Re: Cognizance for Extension of Limitation[5] has observed that service of summons and notices in addition with exchange of pleadings is a mandatory requirement for every legal proceeding and thus, during the lockdown, it was not possible to visit the post-offices, courier companies or to deliver the letters physically. Furthermore, with regard to the same the Apex court have deemed appropriate that such services can be done via means of INSTANT MESSAGING SERVICES, i.e., WhatsApp, Telegram and Signal Etc.in addition to the e-mail.
There have been continuous conflicts with respect to the delivery/service of summons and notices through instant messaging services, such as the Bombay Hight court, in the matter of SBI Cards and Payments Services Pvt. Ltd. V. Rohidas Jadhav[6]the blue ticks were a confirmation that the messages have been delivered and thus, the same would be considered as serviced.
PROBABLE CHALLENGES:
WhatsApp allows a user to switch whether they want to let the sender know that they have read the message(s). If a party has disabled read receipts, will the court still be able to ensure that the notice had been duly served?
Mr K.K. Venugopal, the Attorney General, submitted before the Supreme Court in a 2019 case that summons shall be allowed to be served through either fax or email, but not through WhatsApp. He referred to a Tamil Nadu case where the Government asked WhatsApp to decrypt some of the messages in the interests of national security, law, and order. WhatsApp denied this request stating that their platform is end-to-end encrypted. He further submitted that WhatsApp often fails to cooperate with police authorities citing the same reason. This directly hampers the investigation in critical cases.
Modified APKs provide certain features which are not available in the original WhatsApp application. These modified APKs promise features such as the ability to download status, set custom last seen, hide double ticks, and whatnot.
CONCLUSION:
Services via WhatsApp or Telegram or any other Instant Messaging Service is an advantage but may possess certain flaws with regard to the modification of APKs, Encrypted privacy and disability of blue ticks. However, service of notices and summons through electronic mode can assist exponentially in speeding all those litigations such as section 138 of NI Act, wherein, prime reason for delay is service of summons.
[1] CIVIL APPEAL NOS. 20825-20826 OF 2017
[2] PRESERVATION AND RETENTION OF INFORMATION BY INTERMEDIARIES. –
(1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.
(2) Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1) shall be punished with an imprisonment for a term which may extend to three years and also be liable to fine.
[3] 2010 (10) SCC
[4] SPECIAL LEAVE PETITION (CRL.) No .2302 of 2017
[5] SUO MOTO W.P. (C) NO. 3/2020
[6] EXECUTION APPLICATION NO. 1196 OF 2015
DUCTUS EDGE 