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.