26 October 2020


Judgments

Supreme Court

Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal

MANU/SC/0521/2020

14.07.2020

Law of Evidence

Certificate required under Section 65B(4) of Evidence Act is a condition precedent to the admissibility of evidence by way of electronic record

Present Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 (Evidence Act). Two election petitions were filed by the present Respondents before the Bombay High Court under Sections 80 and 81 of the Representation of the People Act, 1951, challenging the election of the present Appellant, (who is the Returned Candidate [RC] belonging to the Shiv Sena party from 101-Jalna Legislative Assembly Constituency) to the Maharashtra State Legislative Assembly for the term commencing November, 2014.

The entirety of the case before the High Court had revolved around four sets of nomination papers that had been filed by the RC. It was the case of the present Respondents that, each set of nomination papers suffered from defects of a substantial nature and that, therefore, all four sets of nomination papers, having been improperly accepted by the Returning Officer of the Election Commission, (RO), the election of the RC be declared void. In order to buttress this submission, the Respondents sought to rely upon video-camera arrangements that were made both inside and outside the office of the RO.

Given the fact that allegations and counter allegations were made as to the time at which the nomination forms were given to the RO, and that videography was available, the High Court, by its order, ordered the Election Commission and the concerned officers to produce the entire record of the election of this Constituency, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates’.

In compliance with this order, such video recordings were produced by the Election Commission, together with a certificate issued with regard to the CDs/VCDs. Based, therefore, on “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence, and based upon this evidence, it was found that, as a matter of fact, the nomination forms by the RC had been improperly accepted. The election of the RC was therefore was declared void in the impugned judgment.

The Appellant, submitted that, without the necessary certificate in writing and signed under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence.

Certificate required under Section 65B(4) of the Evidence Act is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. v. P.K. Basheer & Ors., and incorrectly “clarified” in Shafhi Mohammad v. State of Himachal Pradesh. Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) of the Evidence Act is a mandatory requirement of the law.

The clarification is that the required certificate under Section 65B(4) of the Evidence Act is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1) of the Evidence Act, together with the requisite certificate under Section 65B(4) of the Evidence Act.

Section 65B of the Evidence Act does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. vs. P.K. Basheer & Ors., present Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. This is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate.

Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C of the Information Technology Act, 2000 and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Appeals dismissed.

Relevant

Anvar P.V. v. P.K. Basheer MANU/SC/0834/2014
; Shafhi Mohammad v. The State of Himachal Pradesh MANU/SC/0058/2018

Tags : Admissibility Evidence Provision Interpretation

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