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Notice through WhatsApp… Mr Khemka’s order

Posted by Vijayashankar Na on April 8, 2017
Posted in Cyber Law  | No Comments yet, please leave one

This is in continuation of the previous article “Is a WhatsApp Notice valid in law?… A Case for Cyber Notice service“.

The copy of the order of Mr Khemka is now available and reproduced here. Some key observations in the order are discussed here.

First point of observation is that the order states that the mobile number of the respondent to whom the WhatsApp notice was ordered to be sent was provided by the petitioner. The Financial Commissioner did not have first hand knowledge of the mobile number. It was the advocate of the petitioner who stated that he had spoken to the respondent and informed him about the summons and he had refused to provide his address.

Based on this averment, the Financial Commissioner ordered that an “Image” of the summons be sent through WhatsApp by the respondent and the same shall be treated as proper mode of service. It was also ordered that the petitioner would  produce proof of electronic delivery through WhatsApp messenger by taking a print out and duly authenticate the print out by affixing his signature.

It appears that the Financial Commissioner ignored the fact that “Electronic Documents” need to be authenticated with digital signatures and print outs of electronic documents need to be authenticated with Section 65B certificate to be admissible as evidence.

The order  therefore appears to be not in conformity with the laws applicable to electronic documents under ITA 2000/8. The Financial Commissioner may assume certain powers to define the procedures for the proceedings in his Court. But whether it extends to ignoring provisions of ITA 2000/8 is a moot point.

The Financial Commissioner has  quoted a Supreme Court Order in the case M/s. SIL Import, USA v. M/s. Exim Aides Silk Exporters, Bangalore, (AIR 1999 SC 1609) to substantiate his stand that technology advancement has to be adopted by Courts. We fully agree that certain flexibility to adopt technology through creative interpretation of legacy law is acceptable and desirable but such interpretations should be used to fill gaps in the law and not to openly flout other laws.

The decision arrived by the Financial Commissioner here does not appear to have been based on proper appreciation of ITA 2000/8 and can create a bad precedent which may spread misunderstanding of the WhatsApp system and its validity under Indian law.

The Supreme Court case used as a support for this decision  referred to the validity of  a “Fax”  message as a valid notice regarding dishonour of a cheque just before the time available for notice was to expire. The Supreme Court allowed the use of Fax as a valid mode of transmission of a notice. The circumstances of this case was not directly applicable to the current case before the Financial Commissioner.

The technology of Facsimile transmission is not a transmission of an “Electronic Document” and is not covered under ITA 2000/8. Fax message is to be treated as a transmission of an analog message over telephonic network covered under the Telegraph Act and hence ITA 2000/8 may not be applicable to it. Also this Supreme Court decision was a “Pre-ITA 2000” decision and requires to be reviewed even if in today’s context, a Facsimile messages may be sent as a digital transmission.

Hence relying on this decision by Mr Khemka as the Financial Commissioner for a transmission of an electronic document which falls well within ITA 2000/8 is debatable.

In our opinion, WhatsApp messaging or SMS can be considered as an electronic document and would be valid as equivalent to a paper document. But it would be considered as an “Unsigned” paper document if it is not digitally signed with the use of a digital signature certificate issued by a licensed certifying authority. If it has to be admitted as evidence, collateral information has to be added with suitable meta data and definitely a Section 65B certified document.

In the subject case, WhatsApp message was being used as a substitute for a Court summons and additionally, it was not even sent from the Court’s phone number or e-mail. The Court delegated the sending of the notice to the petitioner who had a vested interest in the notice. The Court also does not seem to have made any effort to check if the averment made by the petitioner that the respondent is indeed a owner of the said mobile number and he was using the WhatsApp account (which has its own distinct code) to which the message was ordered to be sent. Hence it is difficult to presume that the summons can be considered as not having been properly issued by the Court..

The order can therefore be considered as a decision that can be challenged and overturned.

Naavi

A Financial Commissioner (FC) Court in Haryana, considered as a quasi judicial body headed by the IAS officer Ashok Khemka has created what can be considered as a “Double Edged Precedent” by sending a “Summons” through WhtsAPP. (I suppose thsi Ashok Khemka is the same person who made news by his fight against Mr Robert Vadra).

As per details available here the order was passed since the petitioner in a partition case did not have the address of the respondent since he had shifted out to Kathmandu but as per the records of the Commission, the person had spoken over phone but not revealed his address.

Mr Khemka seems to have observed that “An E Mail address or a mobile phone number is also the address of a person in the present times” and ordered that the summons may be sent by a WhatsApp message and a “Printout” of the delivery report on WhatsApp shall be considered as a proof of delivery.

At first glance this is a progressive thought and Mr Khemka should be congratulated in thinking creatively.

But it must be observed that the Court  did not make an attempt to get the registered billing address of the SIM card from the mobile service provider which would have solved its immediate problem and also provided validity to the ownership of the device as belonging to the respondent.

Naavi has been pioneering the principle that “Cyber Notice” is more relevant than other forms of notice  and even set up the service under “Cyber-notice.com” to provide legally valid notices in Cyber Space.

Mr Khemka’s Order is welcome as it shows the preparedness of the judicial authorities to think positively about the use of technology for legal notices. However, it is necessary that the notices are served in a manner that it cannot be legally questioned unless the notice is only a matter of special privilege granted to the litigant and the Court would be prepared to hear the case ex-parte if he does not show up.

A notice otherwise has to meet the legal requirements of the land and a mere serving of the notice on the WhatsApp and taking the colour of the right tick on the message as a “Delivery Receipt” is fraught with dangerous undesirable consequences.

While on the one hand, some Courts are challenging “Talaq” over Whats App and some are questioning the legal validity of WhatsApp itself, for one other Court to give legitimacy to WhatsApp notice is a huge contradiction.

Under the principles established by Naavi at Cyber-Notice.com or ceac.in, electronic notices are served but with a trusted third party taking up the responsibility for creating documentary records which add weightage to the evidence created for delivery with a Section 65 B Certification.

In the Khemka’s order, there is an assumption that a person spoke from a mobile number who was by voice identified as so and so and that phone number was considered as his address. Then the notice itself was sent to an intermediary called WhatsApp which redirected the message to an App supposedly installed in the same mobile number and relied on the colour coding of the delivery information that is displayed on the mobile.

What if the voice recognition of the person is not made? What if the WhatsApp application is actually installed on a device other than what is indicated or accessed only from a web application?, What if the delivery system does not function reliably? are questions that needs to be answered if the notice is to be considered as acceptable.

If CEAC.IN or Cyber-Notice.com had handled this notice delivery, it would have created supplementary records and provided a Section 65B certification for the process. With the evidence so created, the delivery would have been considered much more acceptable in law than it will be by the Court registrar sending a WhatsApp message to a number believed to be controlled by the respondent.

Naavi

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