# ANVAR P.V v. P.K. BASHEER AND ORS.·

- **Citation:** [2014] 11 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 2014-09-18
- **Case number:** Civil Appeal No. 4226 of 2012
- **Bench:** R.M. Lodha, Kurian Joseph, ROHINTON FALi NARIMAN
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anvar-p-v-v-p-k-basheer-and-ors-29444
- **Pages:** 29

## Headnote

Representation of the People Act, 1951: s.100(1)(b) r/w
s.123(2)(ii) and (4) - Election petition - On the ground that C
publication, announcement and speeches in relation to
personal character and conduct of petitioner, amounted to
commission of corrupt practices - High Court dismissed
election petition - Held: There was no reliable evidence to
show that the printing and distribution of alleged publication o
was with the consent of returned candidate or his election
agent - The speeches, songs and announcements were
recorded using other instruments and by feeding them into
the computer -
CD were made therefrom which were
produced in court, without due certification. - Those CDs were
E
not admissible in evidence since the mandatory requirements
of s.658 of Evidence Act were not satisfied - There was
missing link in chain of circumstances to lead to a reasonable
inference on consent by returned candidate with regard to
printing - Election petition was rightly dismissed - Evidence
Act, 1872 - s. 658.
Evidence Act, 1872: s.658 - Admissibility of electronic
record - Held: An electronic record by way of secondary
evidence shall not be admitted in evidence unless the
F
'
requirements u/s. 658 are satisfied - Thus, in the case of CD,
G
VCD, chip, etc., the same should be accompanied by the
certificate in terms of s. 658 obtained at the time of taking the
document, without which, the secondary evidence pertaining
399
H
400
SUPREME COURT REPORTS
[2014] 11 S.C.R.
•
A to that electronic record, is inadmissible -
Information
Technology Act, 2000.
Dismissing the appeal, the Court
HELD: 1. Section 658 of Evidence Act deals with the
B admissibility of the electronic record. The Evidence Act
does not contemplate or permit the proof of an electronic
record by oral evidence if requirements under Section
658 of the Evidence Act are not complied with. The
evidence relating to electronic record is a special
C provision. Generalia specialibus non derogant, special law
will always prevail over the general law. Sections 63 and
65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly
governed by Sections 65A and 658. An electronic record
o by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 658 are
satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 658 obtained at the time of taking the document,
E without which, the secondary evidence pertaining to that
electronic record, is inadmissible. The appellant
admittedly has not produced any certificate in terms of
Section 658 in respect of the CDs. Therefore, the same
cannot be admitted in evidence. [Paras 13, 17, 22 to 23]
F [411-8; 415-C-H]
State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru
(2005) 11 SCC 600: 2005 (2) Suppl. SCR 79 - overruled.
2. The speeches, songs and announcements were
G recorded using other instruments and by feeding them
into a computer, CDs were made therefrom which wen\
produced in court, without due certification. 'T\"i e.
allegation was that at least 25,000 copies of Exhibit-I" 1leaflet were printed and published with the consent of the
H returned candidate-first respondent which allegedly
•
ANVAR P.V. v. P.K. BASHEER
401
contained a false statement regarding involvement of the
A
appellant in a murder case to prejudice the prospects of
the appellant's election. The corrupt practice must be
committed by (i) returned candidate, (ii) or his election
agent (iii) or any other person acting with the consent of
the returned candidate or his election agent. There was
B
no evidence to prove that the printing and publication of
Exhibit-P1-leaflet was made with the consent of the first
respondent or his election agent. 'Connivance' is different
from 'consent'. [paras 24, 26, 30] [416-C, D; 417-G-H; 420B-D]
C
Charan Lal Sahu v. Giani Zail Singh and Anr. (1984) 1
SCC 390: 1984 (2) SCR 6 - relied! on.
3. Consent is to be in

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••
[2014] 11 S.C.R 399
ANVAR P.V.
A
v.
P.K. BASHEER AND ORS.·
(Civil Appeal No. 4226 of 2012)
SEPTEMBER 18, 2014
I
B
[R.M. LODHA, CJI, KURIAN JOSEPH AND ROHINTON
FALi NARIMAN, JJ.)
Representation of the People Act, 1951: s.100(1)(b) r/w
s.123(2)(ii) and (4) - Election petition - On the ground that C
publication, announcement and speeches in relation to
personal character and conduct of petitioner, amounted to
commission of corrupt practices - High Court dismissed
election petition - Held: There was no reliable evidence to
show that the printing and distribution of alleged publication o
was with the consent of returned candidate or his election
agent - The speeches, songs and announcements were
recorded using other instruments and by feeding them into
the computer -
CD were made therefrom which were
produced in court, without due certification. - Those CDs were
E
not admissible in evidence since the mandatory requirements
of s.658 of Evidence Act were not satisfied - There was
missing link in chain of circumstances to lead to a reasonable
inference on consent by returned candidate with regard to
printing - Election petition was rightly dismissed - Evidence
Act, 1872 - s. 658.
Evidence Act, 1872: s.658 - Admissibility of electronic
record - Held: An electronic record by way of secondary
evidence shall not be admitted in evidence unless the
F
'
requirements u/s. 658 are satisfied - Thus, in the case of CD,
G
VCD, chip, etc., the same should be accompanied by the
certificate in terms of s. 658 obtained at the time of taking the
document, without which, the secondary evidence pertaining
399
H
400
SUPREME COURT REPORTS
[2014] 11 S.C.R.
•
A to that electronic record, is inadmissible -
Information
Technology Act, 2000.
Dismissing the appeal, the Court
HELD: 1. Section 658 of Evidence Act deals with the
B admissibility of the electronic record. The Evidence Act
does not contemplate or permit the proof of an electronic
record by oral evidence if requirements under Section
658 of the Evidence Act are not complied with. The
evidence relating to electronic record is a special
C provision. Generalia specialibus non derogant, special law
will always prevail over the general law. Sections 63 and
65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly
governed by Sections 65A and 658. An electronic record
o by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 658 are
satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 658 obtained at the time of taking the document,
E without which, the secondary evidence pertaining to that
electronic record, is inadmissible. The appellant
admittedly has not produced any certificate in terms of
Section 658 in respect of the CDs. Therefore, the same
cannot be admitted in evidence. [Paras 13, 17, 22 to 23]
F [411-8; 415-C-H]
State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru
(2005) 11 SCC 600: 2005 (2) Suppl. SCR 79 - overruled.
2. The speeches, songs and announcements were
G recorded using other instruments and by feeding them
into a computer, CDs were made therefrom which wen\
produced in court, without due certification. 'T\"i e.
allegation was that at least 25,000 copies of Exhibit-I" 1leaflet were printed and published with the consent of the
H returned candidate-first respondent which allegedly
•
ANVAR P.V. v. P.K. BASHEER
401
contained a false statement regarding involvement of the
A
appellant in a murder case to prejudice the prospects of
the appellant's election. The corrupt practice must be
committed by (i) returned candidate, (ii) or his election
agent (iii) or any other person acting with the consent of
the returned candidate or his election agent. There was
B
no evidence to prove that the printing and publication of
Exhibit-P1-leaflet was made with the consent of the first
respondent or his election agent. 'Connivance' is different
from 'consent'. [paras 24, 26, 30] [416-C, D; 417-G-H; 420B-D]
C
Charan Lal Sahu v. Giani Zail Singh and Anr. (1984) 1
SCC 390: 1984 (2) SCR 6 - relied! on.
3. Consent is to be inferred from the circumstances.
However, if an inference on consent from the
D
circumstances is to be drawn, ~he circumstances put
together should form a chain ~hich should lead to a
reasonable conclusion that the candidate or his agent
has given the consent for publication of the objectionable
material. There was no allegation 4t all that the said leaflet
E
was printed by the first respondent or with his consent.
The only allegation was on knowledge and connivance
on the part of the first respondent. In such circumstances,
it cannot be said that there was a complete chain of
circumstances which would lead to a reasonable
inference on consent by the first respondent with regard
F
to printing of Exhibit-P1-leaflet. Not only that there are
missing links, the evidence available was also not cogent
and credible on the consent aspect of first respondent.
Though the evidence was on printing of 1,000 copies of G
Exhibit-P1, the evidence on distribution was of many
thousands. There was no consistent case with regard to
the distribution of Exhibit-P1 making it difficult for the
Court to hold that there is credible evidence in that regard.
[Para 31, 33 to 36] [421-A-C; 422-F; 424-C-E]
H
402
SUPREME COURT REPORTS
[2014) 11 S.C.R.
A
Sheopat Singh v. Harish Chandra and Anr. AIR 1960 SC
B
c
1217; Ram Sharan Yadav v. Thakur Muneshwar Nath Singh
and Ors. (1984) 4 sec 649: 1985 (1) scR. 1089; Ratik Ram
v. Jaswant Singh Chouhan and Ors. (1975) 4 SCC 769 -
relied on.
Case Law Reference:
. 2005 (2) Suppl. $CR 19
overruled
Pc:1ra 20
1984 (2) SCR 6
relied on
Para 30
AIR 1960 SC 1217
relied on
Para 31
1985 (1) SCR 1089
relied on
Para 35
(1975) 4 sec 769
relied on
Para 39
o
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4226 of 2012.
From the Judgment & Order dated 13.04.2012 of the High
Court of Kerala at Ernakulam in Election Petition 3/2011.
E
Vivek Chib, Asif Ahmed, Neeraj Shekhar for the Appellant.
F
Kapil Sibal, Haris Beeran, Mushtaq Salim, Radha Shyam
Jena for the Respondent.
The Judgment of the Court was delivered by
KURIAN, J. 1. Construction by plaintiff, destruction by
defendant. Construction by pleadings, proof by evidenc1e; proof
only by relevant and admissible evidence. Genuineness,
veracity or reliability of the evidence is seen by the court only
G after the stage of relevancy and admissibility. These are some
of the first principles of evidence. What is the nature and
manner of admission of electronic "records, is one of the
principal issues arising for consideration in this appeal.
•. H
2. In the general election to the Kerala Legislative
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.)
403
Assembly held on 13.04.2011, the first respondent was declared
A
elected to 034 Eranad Legislative Assembly Constituency. He
was a candidate supported by United Democratic Front. The
appellant contested the election as an independent candidate,
allegedly supported by the Left Democratic Front. Sixth
respondent was the chief election agent of the first respondent.
B
There were five candidates. Appellant was second in terms of
votes; others secured only marginal votes. He sought to set
aside the election under Section 100(1)(b) read with Section
123(2){ii) and ( 4) of The Representation of the People Act,
1951 (hereinafter referred to as 'the RP Act') and also sought C
for a declaration in favour of the appellant. By order dated
16.11.2011, the High Court held that the election petition to set
aside the election on the ground under Section 123(2)(a)(ii) is
not maintainable and that is not pursued before us either. Issues
(1) and (2) were on maintainability and those were answered D
as preliminary, in favour of the appellant. The contested issues
read as follows:
"(1) xxx xxx
xxx
(2)
xxx xxx
xxx
E
(3)
Whether Annexure A was published and distributed
in the constituency on 12.4.2011 as alleged in
paragraphs 4 and 5 of the election petition and if
so whether Palliparamban Aboobacker was an
F
agent of the first respondent?
(4)
Whether any of the statements in Annexure A
publication is in relation to the personal character
and conduct of the petitioner or in relation to the
G
candidature and if so whether its alleged publication
will amount to commission of corrupt practice under
section 123(4) of The Representation of the People
Act?
xxx xxx
xxx
H
404
SUPREME COURT REPORTS
[2014) 11 S.C.R. •
A
(6)
Whether the Flex Board and posters mentioned in
Annexures D, E and E 1 were exhibited on
13.4.2011 as part of the election campaign of the
first respondent as alleged in paragraphs 6 and 7
of the election petition and if so whether the alleged
B
exhibition of Annexures D, E and E1 will amount to
commission of corrupt practice under section
123(4) of The Representation of the People Act?
(7)
Whether announcements mentioned in paragraph
c
8 of the election petition were made between
6.4.2011 and 11.4.2011, as alleged in the above
paragraph, as part of the election propaganda of
the first respondent and if so whether the alleged
announcements mentioned in paragraph 8 will
D
amount to commission of corrupt practice as
contemplated under section 123(4) of The
Representation of the People Act?
(8)
Whether the songs and announcements alleged in
E
paragraph 9 of the election petition were made on
8.4.2011 as alleged, in the above paragraph, as
part of the election propaganda of the first
respondent and if so whether the publication of the
alleged announcements and songs will amount to
commission of corrupt practice under section
F
123(4) of The Representation of People Act'?
(9)
Whether Mr. Mullan Sulaiman mentioned in
paragraph 1 O of the election petition did make a
speech on 9.4.2011 as alleged in the above
G
paragraph as part of the election propaganda of
the first respondent and if so whether the alleged
speech of Mr. Mullan Sulaiman amounts to
commission of corrupt practice under section
123(4) of The Representation of the People Act?
H
'
•
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
405
(10) Whether the announcements mentioned in A
paragraph 11 were made on 9.4.2011, as alleged
in the above paragraph, as part of the election
propaganda of the first respondent and if so
whether the alleged announcements mentioned in
paragraph 11 of the election petition amount to
B
commission of corrupt practice under section
123(4) of The Representation of the People Act?
(11) Whether the announcements mentioned in
paragraph 12 of the election petition were made, c
as alleged in the above paragraph, as part of the
election propaganda of the first respondent and if
so whether the alleged announcements mentioned
in paragraph 12 of the election petition amount to
commission of corrupt practice under section D
123(4) of The Representation of the People Act?
(12) Whether the alleged announcements mentioned in
paragraph 13 of the election petition were made as
alleged and if so whether it amounts to commisSipn
E
of corrupt practice under section 123(4) of The
Representation of the People Act?
(13) Whether the alleged announcements mentioned in
paragraph 14 of the election petition were made as
alleged and if so whether it amounts to commission
F
of corrupt practice under section 123(4) of The
Representation of the People Act.
(14) Whether the election of the first respondent is liable
to be set aside for any of the grounds mentioned G
in the election petition?"
3. By the impugned judgment dated 13.04.2012, the High
Court dismissed the election petition holding that corrupt
practices pleaded in the petition are not proved and, hence,
H
406
SUPREME COURT REPORTS
[2014) 11 S.C.R
•
A
the election cannot be set aside under Section 100(1)(b) of the
RP Act; and thus the Appeal.
4. Heard Shri Vivek Chib, learned Counsel appearing for
the appellant and Shri Kapil Sibal, learned Senior Counsel
B
appearing for the first respondent.
5. The evidence consisted of three parts - (i) electronic
records, (ii) documentary evidence other than electronic
records, and (iii) oral evidence. As the major thrust in the
arguments was on electronic records, we shall first deal with
C the same.
6. Electronic record produced for the inspection of the court
is documentary evidence under Section 3 of The Indian
Evidence Act, 1872 (hereinafter referred to as 'Evidence Act').
D The Evidence Act underwent a major amendment by Act 21 of·
2000 [The Information Technology Act, 2000 (hereinafter
referred to as 'IT Act')]. Corresponding amendments were also
introduced in The Indian Penal Code (45 of 1860), The Bankers
E
Books Evidence Act, 1891, etc.
7. Section 22A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of
electronic records are relevant.- Oral admissions as to
the contents of electronic records are not relevant, unless
F
the genuineness of the electronic record produced is in
question."
G
H
8. Section 45A of the Evidence Act reads as follows:
"45A. Opinion of Examiner of Electronic Evidence.-
When in a proceeding, the court has to form an opinion
on any matter relating to any information transmitted or
stored in any computer resource or any other electronic or
digital form, the opinion of the Examiner of Electronic
Evidence referred to in section 79A of the Information
Technoloqv Act, 2000(21 of 2000)., is a relevant fact.
•
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
407
Explanation.-For the purposes of this section, an
A
Examiner of Electronic Evidence shall be an expert."
9. Section 59 under Part II of the Evidence Act dealing with
proof, reads as follows:
"59. Proof of facts by oral evidence.-All facts, except
B
the contents of documents or electronic records, may be
proved by oral evidence."
10. Section 65A reads as follows:
c
"65A. Special provisions as to evidence relating to
electronic record: The contents of electronic records may
be proved in accordance with the provisions of section
658."
11. Section 65B reads as follows:
"658. Admissibility of electronic records:
D
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is
E
printed on a paper, stored, recorded or copied in optical
or magnetic media produced by a computer (hereinafter
referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer
in question and shall be admissible in any proceedings,
F
without further proof or production of the original, as
evidence of any contents of the original or of any fact stated
therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect
G
of a computer output shall be the following, namely: -
(a)
the computer output containing the information was
produced by the computer during the period over
which the computer was used regularly to store or
H
408
A
B
c
D
E
SUPREME COURT REPORTS
[2014] 11 S.C.R..
process information for the purposes of any
activities regularly carried on over that period by the
person having lawful control over the use of the
computer;
(b)
during the said period, information of the kind
contained in the electronic record or of the kind
from which the information so contained is derived
was regularly fed into the computer in the ordinary
course of the said activities;
(c)
throughout the material part of the said period, the
computer was operating properly or, if not, then in
respect of any period in which it was not operating
properly or was out of operation during that part of
the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d)
the information contained in the electronic record
reproduces or is derived from such information fed
into the computer in the ordinary course of the said
activities.
(3) Where over any period, the function of storing or
processing information for the purposes of any activities
regularly carried on over that period as mentioned in
clause (a) of sub-section (2) was regularly performed by
F
computers, whether -
G
H
(a)
by a combination of computers operating over that
period; or
(b)
by different computers operating in succession
over that period; or
(c)
by different combinations of computers operating
in succession over that period; or
•
ANVAR P.V. v. P.K. BASHEER (KURIAN, J.]
409
(d)
in any other manner involving the successive
A
operation over that period, in whatever order, of one
or more computers and one or more combinations
of computers,
all the computers used for that purpose during that
8
period shall be treated for the purposes of this
section as constituting a single computer; and
references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to give a
C
statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say, -
(a)
identifying the electronic record containing the
statement and describing the manner in which it o
was produced;
(b)
giving such particulars of any device involved in the
production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer;
E
(c)
dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying
a responsible official position in relation to the
operation of the relevant device or the management
F
of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section
G
it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person
stating it.
(5) For the purposes of this section, -
H
410
SUPREME COURT REPORTS
[2014) 11 S.C.R. •
A
(a)
information shall be taken to be supplied to a
B
c
D
E
computer if it is supplied thereto in any appropriate
form and whether it is so supplit>d directly or (with
or without human intervention) by means of any
appropriate equipment;
(b)
whether in the course of activities carried on by any
official, information is supplied with a view to its
being stored or processed for the purposes of
those activities by a computer operated otherwise
than in the course of those activities, that
information, if duly supplied to that computer, shall
be taken to be supplied to it in the course of those
activities;
(c)
a computer output shall be taken to have been
produced by a computer whether it was produced
by it directly or (with or without human intervention)
by means of any appropriate equipment.
Explanation: For the purposes of this section any
reference to information being derived from other .
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process."
These are the provisions under the Evidence Act relevant
F to the issue under discussion.
G
12. In the Statement of Objects and Reasons to the IT Act,
it is stated thus:
"New communication systems and digital technology have
made drastic changes in the way we live. A revolution is
occurring in the way people transact business."
In fact, there is a revolution in the way the evidence is
produced before the court. Properly guided, it makes the
H systems function faster and more effective. The guidance
•
ANVAR P.V. v. P.K. 8ASHEER [KURIAN, J.]
411
relevant to the issue before us is reflected in the statutory
A
provisions extracted above.
13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure
8
prescribed under Section 658. Section 658 deals with the
admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic form,
generated by a computer. It may be noted that the Section
starts with a non obstante clause. Thus, notwithstanding c
anything contained in the Evidence Act, any information
contained in an electronic record which is printed on a paper,
stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a document
only if the conditions mentioned under sub-Section (2) are
0
satisfied, without further proof or production of the original. The
very admissibility of such a document, i.e., electronic record
which is called as computer output, depends on the satisfaction
of the four conditions under Section 658(2). Following are the
specified conditions under Section 658(2) of the Evidence Act:
(i)
The electronic record containing the information
should have been produced by the computer during ..
the period over which the same was regularly used
E
to store or process information for the purpose of
any activity regularly carried on over that period by
F
the person having lawful control over the use of that
computer;
(ii)
The information of the kind contained in electronic
record or of the kind from which the information is
G
derived was regularly fed into the computer in .the
ordinary course of the said activity;
(iii)
During the material part of the said period, the
computer was operating properly and that even if
it was not operating properly for some time, the
H
412
A
8
SUPREME COURT REPORTS
[2014] 11 S.C.R. •
break or breaks had not affected either the record
or the accuracy of its contents; and
(iv)
The information contained in the record should be
a reproduction or derivation from the information fed
into the computer in the ordinary course of the said
activity.
14. Under Section 658(4) of the Evidence Act, if it is
desired to give a statement in any proceedings pertaining to
an electronic record, it is permissible provided the following
C conditions are satisfied:
D
E
F
(a)
There must be a certificate which identifies the
electronic record containing the statement;
(b)
The certificate must describe the manner in which
the electronic record was produced;
(c)
The certificate must furnish the particulars of the
device involved in the production of that record;
(d)
The certificate must deal with the applicable
conditions mentioned under Section 658(2) of the
Evidence Act; and
(e)
The certificate must be signed by a person
occupying a responsible official position in relation
to the operation of the relevant device.
15. It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must accompany
G the electronic record like computer printout, Compact Disc
(CD), Video Compact Disc (VCD), pen drive, etc., pertaining
to which a statement is sought to be given in evidence, when
the same is produced in evidence. All these safeguards are
taken to ensure the source and authenticity, which are the two
H hallmarks pertaining to electronic record sought to be used as
•
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
413
evidence. Electronic records being more susceptible to
A
tampering, alteration, transposition, excision, etc. without such
safeguards, the whole trial based on proof of electronic records
can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms
8
of Section 658 of the Evidence Act, the question would arise
as to the genuineness thereof and in that situation, resort can
be made to Section 45A - opinion of examiner of electronic
evidence.
17. The Evidence Act does not contemplate or permit the
C
proof of an electronic record by oral evidence if requirements
under Section 658 of the Evidence Act are not complied with,
as the law now stands in India.
18. It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
the evidential output was recording properly at the material time.
The presumption can be rebutted if evidence to the contrary is
adduced. In the United States of America, under Federal Rule
of Evidence, reliability of records normally go to the weight of
evidence and not to admissibility.
D
E
F
19. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the Evidence
Act, read with Sections 59 and 658 is sufficient to hold that the
special provisions on evidence relating to electronic record
G
shall be governed by the procedure prescribed under Section
658 of the Evidence Act. That is a complete code in itself.
Being a special law, the general law under Sections 63 and
65 has to yield.
H
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[2014] 11 S.C.R .•
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20. In State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru', a two-Judge Bench of this Court had an occasion
to consider an issue on production of electronic record as
evidence. While considering the printouts of the computerized
records of the calls pertaining to the cellphones, it was held at
B Paragraph-150 as follows:
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"150. According to Section 63, secondary evidence
means and includes, among other things, "copies made
from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies
compared with such copies". Section 65 enables
secondary evidence of the contents of a document to be
adduced if the origi~al is of such a nature as not to be
easily movable. It is not in dispute that the information
·contained in the call records is stored in huge servers
which cannot be easily moved and produced in the court.
That is what the High Court has also observed at para 276.
Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official
of the service-providing company can be led in evidence
through a witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based on
his personal knowledge. Irrespective of the compliance with
the requirements of Section 65-B, which is a provision
dealing with admissibility of electronic records, there' is no
bar to adducing secondary evidence under the other
provisions of the Evidence Act,' namely, Sections 63 and
65. It may be that the certificate containing the details in
sub-section (4) of Section 65-B is not filed in the instant
case, but that does not mean that secondary evidence
cannot be given even if the law permits such evidence to
be given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65."
21. It may be seen that it was a case where a responsible
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1.
(2005) 11 sec 600.
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ANVAR P.V. v. P.K. 8ASHEER [KURIAN, J.]
415
official had duly certified the document at the time of production
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itself. The signatures in the certificate were also identified. That
is apparently in compliance with the procedure prescribed
under Section 658 of the Evidence Act. However, it was held
that irrespective of the compliance with the requirements of
Section 658, which is a special provision dealing with
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admissibility of the electronic record, there is no bar in adducing
secondary evidence, under Sections 63 and 65, of an electronic
record.
22. The evidence relating to electronic record, as noted
herein before, being a special provision, the general law on
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secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yie!d to the same. Generalia specia/1bus
non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59
and 65A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 658. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in Navjot
Sandhu case (supra), does not lay down the correct legal
position. It requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 658 are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same
shall be accompanied by the certificate in terms of Section 658
obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is
inadmissible.
23. The appellant admittedly has not produced any
certificate in terms of Section 658 in respect of the CDs,
Exhibits-P4, PB, P9, P10, P12, P13, P15, P20 and P22.
Therefore, the same cannot be admitted in evidence. Thus, the
whole case set up regarding the corrupt practice using songs,
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[2014] 11 S.C.R.
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A announcements and speeches fall to the ground.
24. The situation would have been different had the
appellant adduced primary evidence, by making available in
evidence, the CDs used for annou'ricement and songs. Had
8 those CDs used for objectionable songs or announcements
been duly got seized through the police or Election Commission
and had the same been used as primary evidence, the High
Court could have played the same in court to see whether the
allegations were true. That is not the situation in this case. The
speeches, songs and announcements were recorded using
C other instruments and by feeding them into a computer, CDs
were made therefrom which were produced in court, without
due certification. Those CDs cannot be admitted in evidence
since the mandatory requirements of Section 658 of the
Evidence Act are not satisfied. It is clarified that notwithstanding
D what we have stated herein in the preceding paragraphs on the
secondary evidence on electronic, record with reference to
Section 59, 65A and 658 of the Evidence Act, if an electronic
record as such is used as primary evidence under Section 62
of the Evidence Act, the same is admissible in evidence,
·E without compliance of the conditions in Section 658 of the
Evidence Act.
25. Now, we shall deal with the ground on publication of
Exhibit-P1-leaflet which is also referred to. as Annexure-A. To
F quote relevant portion of Paragraph-4 of the election petition:
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"4. · On the 12th of April, 2011, the day previous to the
alection, one Palliparamban Aboobacker, S/o
Ahamedkutty,
Palliparamban
House,
Kizhakkechathalloor, Post Chathalloor, who was a
member of the Constituency Committee of the UDF
and the Convenor of Kizhakkechathalloor Ward
Committee of the United Democratic Front, the
candidate of which was the first respondent, falling
within the Eranad Mandalam Election Committee
•
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
417
and was thereby the agent of the first respondent,
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actively involved in the election propaganda of the
first respondent with the consent and knowledge of
the first respondent, had got printed in the District
Panchayat Press, Kondotty, at least twenty five
thousand copies of a leaflet with the heading "PP
Manafinte
Rakthasakshidhinam
Nam
Marakkathirikkuka April 13" (Martyr Day of P P
Manaf - let us not forget April 13) and in the leaflet
there is a specific reference to the petitioner who
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is described as the son of the then President of the c
Edavanna Panchayat Shri P V Shaukat Ali and the
allegation is that he gave leadership to the murder
of Manaf in Cinema style. The name of the
petitioner is specifically mentioned in one part of the
· leaflet which had been highlighted with a black
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circle around it specifically making the allegation
that it was the petitioner under whose leadership
the murder was committed. Similarly in another part
of the leaflet the name of the petitioner is specifically
mentioned with a black border in square. The
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leaflet comprises various excerpts from newspaper
reports of the year 1995 highlighting the comments
in big letters, which are the deliberate contribution
of the publishers. The excerpts of various
newspaper reports was so printed in the leaflet to
expose the petitioner as a murderer, by intentionally
concealing the fact that petitioner was honourably
acquitted by the Honourable Court ... ."
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26. The allegation is that at least 25,000 copies of ExhibitP1-leaflet were printed and published with the consent of the
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first respondent. Exhibit-P1, it is submitted, contains a false
statement regarding involvement of the appellant in the murder
of one Manaf on 13.04.1995 and the same was made to
prejudice the prospects of the appellant's election. Evidently,
Exhibit-P1 was got printed through Haseeb by PW-4H
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[2014] 11 S.C.R. •
A Palliparamban Aboobakar and published by Kudumba
Souhrida Samithi (association of the friends ot' the families),
though PW-4 denied the same. The sarnt:J was printed at
District Panchayat Press, Kondotty with the assistance of one
V. Hamza.
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27. At Paragraph-4 of the election petition, it is further
averred as follows:
"4.
. .. Since both the said Aboobakar and V. Hamza
are agents of the first respondent, who had actively
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participated in the election campaign, the printing,
publication and distribution of annexure-A was
made with the consent and kAowledge of the first
respondent as it is gathered from Shri P V Mustafa
a worker of the petitioner that the expenses for
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printing have been shown in the electoral ret1Jrn of
the first respondent. ... "
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At Paragraph-18 of the election petition, it is stated thus:
"18. . .. As far as the printing arid publication of annexureA leaflet is concerned, the same was not only done
with the knowledge and connivance of the 1st
respondent, it was done with the assistance of the
his official account agent Sri V. Hamza, who
happened to be the General Manager of the Press
in which the said leaflets were printed .... "
28. PW-4-Palliparamban Aboobakar has completely
denied the allegations. Strangely, Shri Mustafa and Shri Hamza,
referred to above, have not beeri examined. Therefore,
G evidence on printing of the leaflets is of PW-4-Aboobakar and
PW-42. According to PW-4, he had not seen Exhibit-P1-leaflet
before the date of his examination. He also denied that he was
a member of the election committee. According to PW-42, who
was examined to prove the printing of Exhibit-P1, the said
H Hamza was never the Manager of the Press. Exhibit-X4-copy
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ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
419
of the order form, based on which the leaflet was printed, shows
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that the order was placed by one Haseeb only to print 1,000
copies of a supplement and the order was given in the name
of PW-4 in whose name Exhibit-P1 was printed, Exhibit-X5receipt for payment of printing charges shows that the same
was made by Haseeb. The said Haseeb also was not
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examined. Still further, the allegation was that at least 25,000
copies were printed but it has come out in evidence that only
1,000 copies were printed.
29. It is further contended that Exhibit-P1 was printed and
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published with the knowledge and consent of the first
respondent. Mere knowledge by itself will not imply consent,
though, the vice-versa may be true. The requirement under
Section 123(4) of the RP Act is not knowledge but consent. For
the purpose of easy reference, we may quote the relevant
provision:
"123. Corrupt practices.-The following shall be deemed
to be corrupt practices for the purposes of this Act:-
(1) xxx
(2) xxx
(3) xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
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(4) The publication by a candidate or his agent or by any
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other person with the consent of a candidate or his
election agent, of any statement of fact which is false, and
which he either believes to be false or does not believe to
be true, in relation to the personal character or conduct of
any candidate, or in relation to the candidature, or G
withdrawal, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that
candidate's election."
30. In the grounds for declaring election to be void under
Section 100(1 )(b), the court must form an opinion "that any
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[2014] 11 S.C.R.
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A corrupt practice has been committed by a returned candidate
or his election agent or by any other person with the consent
of a returned candidate or his election agent". In other words,
the corrupt practice must be committed by (i) returned
candidate, (ii) or his election agent (iii) or any other person
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agent. There are further requirements as well. But we do not
think it necessary to deal with the same since there is no
evidence to prove that the printing and publication of ExhibitP1-leaflet was made with the consent of the first respondent
c or his election agent, the sixth respondent. Though it was
vehemently contended by the appellant that the printing and
publication was made with the connivance of the first
respondent and hence consent should be inferred, we are
afraid, the same cannot be appreciated. 'Connivance' is
0 different from 'consent'. According to the Concise Oxford
English Dictionary, 'connive' means to secretly allow a wrong
doing where as 'consent' is permission. The proof required is
of consent for the publication and not connivance on public.ation.
In Charan Lal Sahu v. Giani Zail Singh and another2, this
Court held as under:
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"30 .... 'Connivance' may in certain situations amount to
consent. which explains why the dictionaries give 'consent'
as one of the meanings of the word 'connivance'. But it is
not true to say that 'connivance' invariably and necessarily
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means or amounts to consent, ~hat is to say, irrespective
of the context of the given situation. The two cannot,
therefore, be equated. Consent implies that parties are ad
idem. Connivance does not necessarily imply that parties
are of one mind. They may or may not be, depending upon
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the facts of the situation .... "
31. Learned Counsel for the appellant vehemently contends
that consent needs to be inferred from the circumstances. No
doubt, on charges relating to commission of corrupt practices,
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ANVAR P.V. v. P.K. BASHEER [KURIAN, J.)
421
direct proof on consent is very difficult. Consent is to be inferred
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from the circumstances as held by this Court in Sheopat Singh
v. Harish Chandra and another3. The said view has been
consistently followed thereafter. However, if an inference on
consent from the circumstances is to be drawn, the
circumstances put together should form a chain which should
lead to a reasonable conclusion that the candidate or his agent
has given the consent for publication of the objectionable
material. Question is whether such clear, cogent and credible
evidence is available so as to lead to a reasonable conclusion
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on the consent of the first respondent on the alleged publication c
of Exhibit-P1-leaflet. As we have also discussed above, there
is no evidence at all to prove that Exhibit-P1-leaflet was printed
at the instance of the first respondent. One Haseeb, who placed
the order for printing of Exhibit-P1 is not examined. Shri Hamza,
who is said to be the Manager of the Press at the relevant time,
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was not examined. Shri Mustafa, who is said to have told the
appellant that the expenses for the printing of Exhibit-P1 were
borne by the first respondent and the same have been shown
in the electoral return of the first respondent is also not
examined. No evidence of the electoral returns pertaining to the
expenditure on printing of Exhibit-P1 by the first respondent is
available. The allegation in the election petition is on printing
of 25,000 copies of Exhibit-P1. The evidence available on
record is only with regard to printing of 1,000 copies.