# ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO GORANTYAL AND ORS

- **Citation:** [2020] 7 S.C.R. 180
- **Court:** Supreme Court of India
- **Decided:** 2020-07-14
- **Case number:** Civil Appeal Nos. 20825-20826 of 2017
- **Bench:** R.F. Nariman, S. Ravindra Bhat, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/arjun-panditrao-khotkar-v-kailash-kushanrao-gorantyal-and-ors-34646
- **Pages:** 103

## Headnote

Evidence Act, 1872 - ss.3, 22A, 45A, 61-65, 65A, 65B, 136 -
Interpretation of s.65B - Electronic records - Admissibility of -
Appellant's election challenged on the ground that his nomination
papers having been filed after the stipulated time ought to have
been rejected - Respondents relied on video camera recordings of
the office of Returning Officer (RO) - Video recordings produced
by Election Commission without requisite certificate u/s.65-B(4) -
However, admitted in evidence by High Court, relying upon oral
evidence of RO in cross examination - Election of the appellant
declared void - Matter referred to three judges stating that in view
of Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three Judge
Bench), Division Bench judgment in Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801 may need reconsideration - Held:
Per R.F. Nariman, J. (for himself, S. Ravindra Bhat and
V. Ramasubramanian, JJ.) Special provisions of ss.65A and 65B
are a complete Code in themselves when it comes to admissibility of
evidence of information contained in electronic records - A written
certificate u/s.65B(4) is a sine qua non for admissibility of such
evidence - Oral evidence in place of such certificate cannot suffice
as s.65B(4) is mandatory - However, on facts, the respondents
having done everything possible to obtain the necessary certificate
are relieved of the mandatory obligation - Moreover, apart from
electronic record, other evidence was also relied upon by High Court
to arrive at the same conclusion - Impugned judgment not faulted
- Further, certificate u/s.65B(4) is unnecessary if the original
document itself is produced - Anvar P.V., as clarified, is the law on
s.65B - Shafhi Mohammad and the judgment dtd. 03.04.18 reported
as [2018] 3 SCR 1096 are overruled - Per V. Ramasubramanian J.
(Supplementing) Major jurisdictions of the world have come to
[2020] 7 S.C.R. 180
180
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terms with the development of technology and fine-tuned their
legislations - Need for a relook at s.65B - Information Technology
Act, 2000 - ss.2(i), (j), (l), (o), (r) & (t) - Representation of the
People Act, 1951 - Interpretation of Statutes - Civil Evidence Act,
1968(UK) - ss.5, s.6(1) - Civil Evidence Act, 1995(UK) - ss.8, 9,
13 and 15(2) - Criminal Law.
Information Technology Act, 2000 - s.67C - Held: General
directions issued to cellular companies & internet service providers,
to be followed by courts dealing with electronic evidence, till rules
and directions u/s.67(C) are formulated for compliance by telecom
and service providers - Evidence Act, 1872 - ss.39, 45A and 65B.
Evidence Act, 1872 - s.65B - Acrimony behind - Reason for
- Held: Per V. Ramasubramanian J. (Supplementing) s.65B(1) starts
with a non-obstante clause excluding the application of the other
provisions and makes the certification a precondition for
admissibility - Such admissibility as the first check post, coupled
with the fact that a number of 'computer systems' (defined in s.2(l),
2000 Act) owned by different individuals, may get involved in the
production of an electronic record, with the 'originator' (defined in
s.2(za), 2000 Act) being different from the recipients or the sharers,
has created lot of acrimony behind s.65B - Information Technology
Act, 2000 - ss.2(l), (za) - Federal Rules of Evidence (USA) - rr.901,
902 - UK Civil Evidence Act, 1968 - s.5 - Civil Evidence Act,
1995(UK) - Police and Criminal Evidence Act, 1984 (UK) - s.69 -
Youth Justice and Criminal Evidence Act, 1999 - s.60 - Canada
Evidence Act, 1985 - s.31.1-31.3, 31.5 & 31.6.
Evidence Act, 1872 - s.65B(4) - Certificate under - When
unnecessary - Discussed.
Evidence Act, 1872 - ss.65B(2)(a) to (d) and 65B(4) -
Conditions mentioned under - Held: Conditions mentioned in subsections 2(a) to 2(d) of s.65B must be satisfied cumulatively - Further,
conditions mentioned in sub-section (4) are also cumulative.
Evidence Act, 1872 - s.65B(1) - Non-obstante clause - Purport
of - Discussed.
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ARJUN PANDITRAO KHOTKAR
v.
KAILASH KUSHANRAO GORANTYAL AND ORS.
(Civil Appeal Nos. 20825-20826 of 2017)
JULY 14, 2020
[R.F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
Evidence Act, 1872 - ss.3, 22A, 45A, 61-65, 65A, 65B, 136 -
Interpretation of s.65B - Electronic records - Admissibility of -
Appellant's election challenged on the ground that his nomination
papers having been filed after the stipulated time ought to have
been rejected - Respondents relied on video camera recordings of
the office of Returning Officer (RO) - Video recordings produced
by Election Commission without requisite certificate u/s.65-B(4) -
However, admitted in evidence by High Court, relying upon oral
evidence of RO in cross examination - Election of the appellant
declared void - Matter referred to three judges stating that in view
of Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three Judge
Bench), Division Bench judgment in Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801 may need reconsideration - Held:
Per R.F. Nariman, J. (for himself, S. Ravindra Bhat and
V. Ramasubramanian, JJ.) Special provisions of ss.65A and 65B
are a complete Code in themselves when it comes to admissibility of
evidence of information contained in electronic records - A written
certificate u/s.65B(4) is a sine qua non for admissibility of such
evidence - Oral evidence in place of such certificate cannot suffice
as s.65B(4) is mandatory - However, on facts, the respondents
having done everything possible to obtain the necessary certificate
are relieved of the mandatory obligation - Moreover, apart from
electronic record, other evidence was also relied upon by High Court
to arrive at the same conclusion - Impugned judgment not faulted
- Further, certificate u/s.65B(4) is unnecessary if the original
document itself is produced - Anvar P.V., as clarified, is the law on
s.65B - Shafhi Mohammad and the judgment dtd. 03.04.18 reported
as [2018] 3 SCR 1096 are overruled - Per V. Ramasubramanian J.
(Supplementing) Major jurisdictions of the world have come to
[2020] 7 S.C.R. 180
180
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terms with the development of technology and fine-tuned their
legislations - Need for a relook at s.65B - Information Technology
Act, 2000 - ss.2(i), (j), (l), (o), (r) & (t) - Representation of the
People Act, 1951 - Interpretation of Statutes - Civil Evidence Act,
1968(UK) - ss.5, s.6(1) - Civil Evidence Act, 1995(UK) - ss.8, 9,
13 and 15(2) - Criminal Law.
Information Technology Act, 2000 - s.67C - Held: General
directions issued to cellular companies & internet service providers,
to be followed by courts dealing with electronic evidence, till rules
and directions u/s.67(C) are formulated for compliance by telecom
and service providers - Evidence Act, 1872 - ss.39, 45A and 65B.
Evidence Act, 1872 - s.65B - Acrimony behind - Reason for
- Held: Per V. Ramasubramanian J. (Supplementing) s.65B(1) starts
with a non-obstante clause excluding the application of the other
provisions and makes the certification a precondition for
admissibility - Such admissibility as the first check post, coupled
with the fact that a number of 'computer systems' (defined in s.2(l),
2000 Act) owned by different individuals, may get involved in the
production of an electronic record, with the 'originator' (defined in
s.2(za), 2000 Act) being different from the recipients or the sharers,
has created lot of acrimony behind s.65B - Information Technology
Act, 2000 - ss.2(l), (za) - Federal Rules of Evidence (USA) - rr.901,
902 - UK Civil Evidence Act, 1968 - s.5 - Civil Evidence Act,
1995(UK) - Police and Criminal Evidence Act, 1984 (UK) - s.69 -
Youth Justice and Criminal Evidence Act, 1999 - s.60 - Canada
Evidence Act, 1985 - s.31.1-31.3, 31.5 & 31.6.
Evidence Act, 1872 - s.65B(4) - Certificate under - When
unnecessary - Discussed.
Evidence Act, 1872 - ss.65B(2)(a) to (d) and 65B(4) -
Conditions mentioned under - Held: Conditions mentioned in subsections 2(a) to 2(d) of s.65B must be satisfied cumulatively - Further,
conditions mentioned in sub-section (4) are also cumulative.
Evidence Act, 1872 - s.65B(1) - Non-obstante clause - Purport
of - Discussed.
Maxims - lex non cogit ad impossibilia; impotentia excusat legem
- Application of - Discussed - Evidence Act, 1872 - s.65B(4).
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL
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Evidence Act, 1872 - s.65B(4) - Certificate under - Stage of
production - Held: So long as the hearing in a trial is not yet over,
the requisite certificate can be directed to be produced by the Judge
at any stage - Criminal Law - Criminal Trial - Stage of admitting
evidence - Code of Criminal Procedure, 1973 - ss.91, 207, 311.
Words & Expressions -"doing any of the following things" -
Held: Aforesaid expression must be read as doing all of the following
things - "any" can mean "all" given the context - Interpretation of
Statutes - Evidence Act, 1872 - s.65B(4).
Evidence Act, 1872 - ss.65B(4), 165 - Certificate under -
Production of - Inability of persons not in possession of - Held:
Major premise of Shafhi Mohammad v. State of Himachal Pradesh
(2018) 2 SCC 801 that such certificate cannot be secured by persons
who are not in possession of an electronic device is wholly incorrect
- An application can always be made to a Judge for production of
such a certificate from the requisite person u/s.65B(4) in cases in
which such person refuses to give it - Code of Civil Procedure,
1908 - Or.XVI - Code of Criminal Procedure, 1973 - s.91.
Evidence Act, 1872 - s.65B(1) - Deeming fiction - Operation
of - Held: Sub-s. (1) of s.65B begins with a non-obstante clause and
then mentions information contained in an electronic record
produced by a computer, which is made a "document" by a deeming
fiction - This deeming fiction only takes effect if the further
conditions mentioned in the section are satisfied in relation to both
the information and the computer in question - If such conditions
are met, the "document" shall then be admissible in any proceedings.
Representation of the People Act, 1951 - s.100(1)(d)(i) - Held:
Where the person whose nomination has been improperly accepted
is the returned candidate himself, the conclusion has to be that the
result of the election would be "materially affected", without there
being any necessity to plead and prove the same.
Answering the reference and dismissing the appeals with
costs, the Court
HELD: Per R.F. Nariman, J. (for himself, S. Ravindra Bhat
and V. Ramasubramanian, JJ.)
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1.1 The subject matter of Sections 65A and 65B of the
Evidence Act is proof of information contained in electronic
records. The marginal note to Section 65A indicates that "special
provisions" as to evidence relating to electronic records are laid
down in this provision. The marginal note to Section 65B then
refers to "admissibility of electronic records". Section 65B(1)
opens with a non-obstante clause, and makes it clear that any
information that is 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, and shall be admissible in any proceedings without
further proof of production of the original, as evidence of the
contents of the original or of any facts stated therein of which
direct evidence would be admissible. The deeming fiction is for
the reason that "document" as defined by Section 3 of the
Evidence Act does not include electronic records. Section 65B(2)
then refers to the conditions that must be satisfied in respect of
a computer output, and states that the test for being included in
conditions 65B(2(a)) to 65(2(d)) is that the computer be regularly
used to store or process information for purposes of activities
regularly carried on in the period in question. The conditions
mentioned in sub-sections 2(a) to 2(d) must be satisfied
cumulatively. [Paras 20-22][209-A-E]
1.2 Under Sub-section (4), a certificate is to be produced
that identifies the electronic record containing the statement and
describes the manner in which it is produced, or gives particulars
of the device involved in the production of the electronic record
to show that the electronic record was produced by a computer,
by either a person occupying a responsible official position in
relation to the operation of the relevant device; or a person who
is in the management of "relevant activities" - whichever is
appropriate. What is also of importance is that it shall be sufficient
for such matter to be stated to the "best of the knowledge and
belief of the person stating it". Here, "doing any of the following
things..." must be read as doing all of the following things, it
being well settled that the expression "any" can mean "all" given
the context. This being the case, the conditions mentioned in
sub-section (4) must also be interpreted as being cumulative.
[Para 23][209-E-G; 210-A]
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Bansilal Agarwalla v. State of Bihar [1962] 1 SCR 33;
Om Parkash v. Union of India (2010) 4 SCC 17 : [2010]
2 SCR 447 - relied on.
1.3 The sub-section (1) of Section 65B begins with a nonobstante clause, and then goes on to mention information
contained in an electronic record produced by a computer, which
is, by a deeming fiction, then made a "document". This deeming
fiction only takes effect if the further conditions mentioned in the
Section are satisfied in relation to both the information and the
computer in question; and if such conditions are met, the
"document" shall then be admissible in any proceedings. The
words "...without further proof or production of the original..."
make it clear that once the deeming fiction is given effect by the
fulfilment of the conditions mentioned in the Section, the "deemed
document" now becomes admissible in evidence 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. The non-obstante clause in sub-section (1)
makes it clear that when it comes to information contained in an
electronic record, admissibility and proof thereof must follow the
drill of Section 65B, which is a special provision in this behalf -
Sections 62 to 65 being irrelevant for this purpose. However,
Section 65B(1) clearly differentiates between the "original"
document - which would be the original "electronic record"
contained in the "computer" in which the original information is
first stored - and the computer output containing such information,
which then may be treated as evidence of the contents of the
"original" document. All this necessarily shows that Section 65B
differentiates between the original information contained in the
"computer" itself and copies made therefrom - the former being
primary evidence, and the latter being secondary evidence.
[Paras 30, 31][220-G-H; 221-A-D]
1.4 Despite the law so declared in Anvar P.V., wherein this
Court made it clear that the special provisions of Sections 65A
and 65B of the Evidence Act are a complete Code in themselves
when it comes to admissibility of evidence of information
contained in electronic records, and also that a written certificate
under Section 65B(4) is a sine qua non for admissibility of such
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evidence, a discordant note was soon struck in Tomaso Bruno.
The judgment of Anvar P.V. was not referred to at all. In fact, the
judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was
adverted to, which was a judgment specifically overruled by Anvar
P.V. Section 65B(4) was also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno following Navjot
Sandhu that secondary evidence of the contents of a document
can also be led under Section 65 of the Evidence Act to make
CCTV footage admissible would be in the teeth of Anvar P.V.,
and cannot be said to be a correct statement of the law. The said
view is accordingly overruled. [Paras 34, 35][222-G; 223-A-B;
224-B-C]
Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)
7 SCC 178 : [2015] 1 SCR 721 - overruled.
1.5 Quite apart from the fact that the judgment in Shafhi
Mohammad states the law incorrectly and is in the teeth of the
judgment in Anvar P.V., following the judgment in Tomaso Bruno
- which has been held to be per incuriam hereinabove - the
underlying reasoning of the difficulty of producing a certificate by
a party who is not in possession of an electronic device is also
wholly incorrect. As a matter of fact, Section 165 of the Evidence
Act empowers a Judge to order production of any document or
thing in order to discover or obtain proof of relevant facts.
Likewise, under Order XVI of the Civil Procedure Code, 1908
which deals with 'Summoning and Attendance of Witnesses', the
Court can issue orders for the production of documents. Similarly,
in the Code of Criminal Procedure, 1973, the Judge conducting
a criminal trial is empowered to issue the orders for production
of documents. Thus, it is clear that the major premise of Shafhi
Mohammad that such certificate cannot be secured by persons
who are not in possession of an electronic device is wholly
incorrect. An application can always be made to a Judge for
production of such a certificate from the requisite person under
Section 65B(4) in cases in which such person refuses to give it.
[Paras 39-43][228-C-E; 229-B; 230-C; 231-C]
1.6 The facts of the present case show that despite all efforts
made by the Respondents, both through the High Court and
otherwise, to get the requisite certificate under Section 65B(4)
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of the Evidence Act from the authorities concerned, yet the
authorities concerned wilfully refused, on some pretext or the
other, to give such certificate. In a fact-circumstance where the
requisite certificate has been applied for from the person or the
authority concerned, and the person or authority either refuses
to give such certificate, or does not reply to such demand, the
party asking for such certificate can apply to the Court for its
production under the provisions aforementioned of the Evidence
Act, CPC or CrPC. Once such application is made to the Court,
and the Court then orders or directs that the requisite certificate
be produced by a person to whom it sends a summons to produce
such certificate, the party asking for the certificate has done all
that he can possibly do to obtain the requisite certificate. Two
Latin maxims become important at this stage. The first is lex
non cogit ad impossibilia i.e. the law does not demand the
impossible, and impotentia excusat legem i.e. when there is a
disability that makes it impossible to obey the law, the alleged
disobedience of the law is excused. On an application of the
aforesaid maxims to the present case, it is clear that though
Section 65B(4) is mandatory, yet, on the facts of this case, the
Respondents, having done everything possible to obtain the
necessary certificate, which was to be given by a third-party over
whom the Respondents had no control, must be relieved of the
mandatory obligation contained in the said sub-section.
[Paras 45, 49][231-E-H; 236-C-D]
Re: Presidential Poll (1974) 2 SCC 33; Chandra
Kishore Jha v. Mahavir Prasad and Ors. (1999) 8 SCC
266 : [1999] 2 Suppl. SCR 754; Special Reference 1 of
2002 (2002) 8 SCC 237 : [2002] 3 Suppl. SCR 366;
Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
(2005) 3 SCC 601 : [2005] 2 SCR 670 - relied on.
2.1 Section 65B does not speak of the stage at which such
certificate must be furnished to the Court. In Anvar P.V., this
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
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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 in the circumstances aforementioned. This
is, of course, subject to discretion being exercised in civil cases
in accordance with law, and in accordance with the requirements
of justice on the facts of each case. When it comes to criminal
trials, it is important to keep in mind the general principle that
the accused must be supplied all documents that the prosecution
seeks to rely upon before commencement of the trial, under the
relevant sections of the CrPC. The stage of admitting documentary
evidence in a criminal trial is the filing of the charge-sheet. When
a criminal court summons the accused to stand trial, copies of all
documents which are entered in the charge-sheet/final report have
to be given to the accused. Section 207 of the CrPC, which reads
as follows, is mandatory. Therefore, the electronic evidence, i.e.
the computer output, has to be furnished at the latest before the
trial begins. In a criminal trial, it is assumed that the investigation
is completed and the prosecution has, as such, concretised its
case against an accused before commencement of the trial. The
prosecution ought not to be allowed to fill up any lacunae during
a trial. Therefore, in terms of general procedure, the prosecution
is obligated to supply all documents upon which reliance may be
placed to an accused before commencement of the trial. Thus,
the exercise of power by the courts in criminal trials in permitting
evidence to be filed at a later stage should not result in serious
or irreversible prejudice to the accused. A balancing exercise in
respect of the rights of parties has to be carried out by the court,
in examining any application by the prosecution under Sections
91 or 311 of the CrPC or Section 165 of the Evidence Act.
Depending on the facts of each case, and the Court exercising
discretion after seeing that the accused is not prejudiced by want
of a fair trial, the Court may in appropriate cases allow the
prosecution to produce such certificate at a later point in time. If
it is the accused who desires to produce the requisite certificate
as part of his defence, this again will depend upon the justice of
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the case - discretion to be exercised by the Court in accordance
with law. [Paras 50, 52-54][236-D-G; 237-E-F; 238-C, F;
239-A-B]
2.2 So long as the hearing in a trial is not yet over, the
requisite certificate can be directed to be produced by the learned
Judge at any stage, so that information contained in electronic
record form can then be admitted, and relied upon in evidence.
It may also be seen that the person who gives this certificate can
be anyone out of several persons who occupy a 'responsible official
position' in relation to the operation of the relevant device, as
also the person who may otherwise be in the 'management of
relevant activities' spoken of in Sub-section (4) of Section 65B.
Considering that such certificate may also be given long after
the electronic record has actually been produced by the computer,
Section 65B(4) makes it clear that it is sufficient that such person
gives the requisite certificate to the "best of his knowledge and
belief" (Obviously, the word "and" between knowledge and belief
in Section 65B(4) must be read as "or", as a person cannot testify
to the best of his knowledge and belief at the same time). The
certificate required under Section 65B(4) is a condition precedent
to the admissibility of evidence by way of electronic record, as
correctly held in Anvar P.V., and incorrectly "clarified" in Shafhi
Mohammed. Oral evidence in the place of such certificate cannot
possibly suffice as Section 65B(4) is a mandatory requirement of
the law. Section 65B(4) of the Evidence Act clearly states that
secondary evidence is admissible only if lead in the manner stated
and not otherwise. To hold otherwise would render Section 65B(4)
otiose. [Paras 57-59][243-B-G]
Taylor v. Taylor (1876) 1 Ch.D 426 - referred to.
3. While on the subject, it is relevant to note that the
Department of Telecommunication's license conditions [i.e. under
the 'License for Provision of Unified Access Services' framed in
2007, as also the subsequent 'License Agreement for Unified
License' and the 'License Agreement for provision of internet
service'] generally oblige internet service providers and
providers of mobile telephony to preserve and maintain electronic
call records and records of logs of internet users for a limited
duration of one year. Therefore, if the police or other individuals
(interested, or party to any form of litigation) fail to secure those
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records - or secure the records but fail to secure the certificate -
within that period, the production of a post-dated certificate (i.e.
one issued after commencement of the trial) would in all
probability render the data unverifiable. This places the accused
in a perilous position, as, in the event the accused wishes to
challenge the genuineness of this certificate by seeking the opinion
of the Examiner of Electronic Evidence under Section 45A of the
Evidence Act, the electronic record (i.e. the data as to call logs
in the computer of the service provider) may be missing. To
obviate this, general directions are issued to cellular companies
and internet service providers to maintain CDRs and other
relevant records for the concerned period (in tune with Section
39 of the Evidence Act) in a segregated and secure manner if a
particular CDR or other record is seized during investigation in
the said period. Concerned parties can then summon such records
at the stage of defence evidence, or in the event such data is
required to cross-examine a particular witness. This direction
shall be applied, in criminal trials, till appropriate directions are
issued under relevant terms of the applicable licenses, or under
Section 67C of the Information Technology Act. [Paras 61,
62][244-A-F]
3.1 In the present case, by the impugned judgment dated
24.11.2017, Election Petition 6/2014 and Election Petition 9/2014
have been allowed and partly allowed respectively, the election
of the RC being declared to be void under Section 100 of the
Representation of the People Act, 1951, inter alia, on the ground
that as nomination papers at serial numbers 43 and 44 were not
presented by the RC before 3.00 p.m. on 27.09.2014, such
nomination papers were improperly accepted. However, by an
order dated 08.12.2017, this Court admitted the Election Appeal
of the Appellant, and stayed the impugned judgment and order.
This matter has been heard after the five year Legislative
Assembly term is over in November 2019. This being the case,
ordinarily, it would be unnecessary to decide on the merits of the
case, as the term of the Legislative Assembly is over. However,
having read the impugned judgment, it is clear that the learned
Single Judge was anguished by the fact that the Election
Commission authorities behaved in a partisan manner by openly
favouring the Appellant. Despite the fact that the reason given of
"substantial compliance" with Section 65B(4) in the absence of
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the requisite certificate being incorrect in law, yet, considering
that the Respondent had done everything in his power to obtain
the requisite certificate from the appropriate authorities, including
directions from the Court to produce the requisite certificate, no
such certificate was forthcoming. [Paras 64-66][245-A-G;
246-A-C]
3.2 It is clear that apart from the evidence in the form of
electronic record, other evidence was also relied upon to arrive
at the same conclusion. The High Court's judgment therefore
cannot be faulted. None of the earlier judgments of this Court
referred to in Mairembam Prithviraj have been adverted to in
Rajendra Kumar Meshram cited by Shri Adsure. In particular,
the judgment of three learned Judges of this Court in Vashist
Narain Sharma has specifically held that where the person whose
nomination has been improperly accepted is the returned
candidate himself, it may be readily conceded that the conclusion
has to be that the result of the election would be "materially
affected", without there being any necessity to plead and prove
the same. The judgment in Rajendra Kumar Meshram, not having
referred to these earlier judgments of a larger strength binding
upon it, cannot be said to have declared the law correctly. As a
result thereof, the impugned judgment of the High Court is right
in its conclusion on this point also. [Paras 68, 71][247-D; 249-H;
250-A-C]
Rajendra Kumar Meshram v. Vanshmani Prasad Verma
(2016) 10 SCC 715 : [2016] 9 SCR 74 - held not
correct law.
Mairembam Prithviraj v. Pukhrem Sharatchandra Singh
(2017) 2 SCC 487 : [2016] 9 SCR 687; Durai
Muthuswami v. N. Nachiappan and Ors. (1973) 2 SCC
45 : [1974] 1 SCR 40 - referred to.
4. The reference is answered by stating that:
(a) Anvar P.V., as clarified hereinabove, is the law declared
by this Court on Section 65B of the Evidence Act. The judgment
in Tomaso Bruno, being per incuriam, does not lay down the law
correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011
reported as Shafhi Mohammad and the judgment dated 03.04.2018
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reported as (2018) 5 SCC 311, do not lay down the law correctly
and are therefore overruled.
b. The clarification referred to above is that the required
certificate under Section 65B(4) 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), together with the requisite certificate under
Section 65B(4). The last sentence in Anvar P.V. which reads as
"...if an electronic record as such is used as primary evidence
under Section 62 of the Evidence Act..." is thus clarified; it is to
be read without the words "under Section 62 of the Evidence
Act,..." With this clarification, the law stated in paragraph 24 of
Anvar P.V. does not need to be revisited.
c. The general directions issued in paragraph 62 shall
hereafter be followed by courts that deal with electronic evidence,
to ensure their preservation, and production of certificate at the
appropriate stage. These directions shall apply in all proceedings,
till rules and directions under Section 67C of the Information
Technology Act and data retention conditions are formulated for
compliance by telecom and internet service providers.
d. Appropriate rules and directions should be framed in
exercise of the Information Technology Act, by exercising powers
such as in Section 67C, 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. Likewise,
appropriate rules for preservation, retrieval and production of
electronic record, should be framed as indicated earlier, after
considering the report of the Committee constituted by the Chief
Justice's Conference in April, 2016. [Para 72][250-C-H;
251-A-C]
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL
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Shafhi Mohammad v. State of Himachal Pradesh (2018)
2 SCC 801; Shafhi Mohammad v. State of Himachal
Pradesh (2018) 5 SCC 311 : [2018] 3 SCR 1096; K.
Ramajyam v. Inspector of Police (2016) Crl. LJ 1542 -
overruled.
Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399 - clarified.
Kundan Singh v. State 2015 SCC OnLine Del 13647;
Paras Jain v. State of Rajasthan 2015 SCC OnLine
Raj 8331 - approved.
Cochin State Power and Light Corporation v. State of
Kerala [1965] 3 SCR 187; Raj Kumar Dubey v.
Tarapada Dey and Ors. (1987) 4 SCC 398 : [1988] 1
SCR 118; M/s B.P. Khemka Pvt. Ltd. v. Birendra Kumar
Bhowmick and Anr. (1987) 2 SCC 401; Hira Tikoo v.
U.T., Chandigarh and Ors. (2004) 6 SCC 765 : [2004]
1 Suppl. SCR 65; State of Karnataka v. M.R. Hiremath
(2019) 7 SCC 515 : [2019] 8 SCR 713; Vashist Narain
Sharma v. Dev Chandra [1955] 1 SCR 509 - relied
on.
Vikram Singh and Anr. v. State of Punjab and Anr. (2017)
8 SCC 518 : [2017] 8 SCR 177; State v. Navjot Sandhu
(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Tukaram
S. Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC
329 : [2010] 2 SCR 396; Central Bureau of
Investigation v. R.S. Pai (2002) 5 SCC 82 : [2002] 2
SCR 889; Jagjit Singh v. Dharam Pal Singh (1995)
Supp (1) SCC 422 - referred to.
Per V. Ramasubramanian, J. (Supplementing)
1.1 Section 65B(1), Indian Evidence Act, 1872 starts with
a non-obstante clause excluding the application of the other
provisions and it makes the certification, a precondition for
admissibility. While doing so, it does not talk about relevancy. In
a way, Sections 65A and 65B, if read together, mix-up both proof
and admissibility, but not talk about relevancy. Section 65A refers
to the procedure prescribed in Section 65B, for the purpose of
proving the contents of electronic records, but Section 65B
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speaks entirely about the preconditions for admissibility. As a
result, Section 65B places admissibility as the first or the
outermost check post, capable of turning away even at the border,
any electronic evidence, without any enquiry, if the conditions
stipulated therein are not fulfilled. The placement by Section 65B,
of admissibility as the first or the border check post, coupled
with the fact that a number of 'computer systems' (as defined in
Section 2(l) of the Information Technology Act, 2000) owned by
different individuals, may get involved in the production of an
electronic record, with the 'originator' (as defined in Section 2(za)
of the Information Technology Act, 2000) being different from
the recipients or the sharers, has created lot of acrimony behind
Section 65B, which is evident from the judicial opinion swinging
like a pendulum. [Paras 10, 11][254-B-E]
1.2 It is a matter of fact and record that courts all over the
world were quick to adapt themselves to evidence in analogue
form, within the framework of archaic, centuries old rules of
evidence. It was not as if evidence in analogue form was incapable
of being manipulated. But the courts managed the show well by
applying time tested rules for sifting the actual from the
manipulated. The felicity with which courts adapted themselves
to appreciating evidence in analogue form was primarily due to
the fact that in analogue technology, one is able to see and/ or
perceive something that is happening. In analogue technology, a
wave is recorded or used in its original form. In digital technology,
the analogue wave is sampled at some interval and then turned
into numbers that are stored in a digital device. Therefore, what
are stored, are in terms of numbers and they are, in turn,
converted into voltage waves to produce what was stored. Further,
Without looking up to the law makers to come up with necessary
amendments from time to time, the courts themselves developed
certain rules, over a period of time, to test the authenticity of
these documents in analogue form and these rules have in fact,
worked well. But the facility of operating in anonymity in the cyber
space has made electronic records more prone to manipulation
and consequently to a greater degree of suspicion. Over a period
of time, certain jurisdictions have come up with reasonably good
solutions. [Paras 12, 13, 17 and 22][254-F-H; 255-A-B; 257-C;
258-E]
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL
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1.3 ConclusionThe major jurisdictions of the world have come to terms
with the change of times and the development of technology and
fine-tuned their legislations. Therefore, it is the need of the hour
that there is a relook at Section 65B of the Indian Evidence Act,
introduced 20 years ago, by Act 21 of 2000, and which has created
a huge judicial turmoil, with the law swinging from one extreme
to the other in the past 15 years from Navjot Sandhu to Anvar
P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. [Para 46]
[282-D-E]
State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005] 2 Suppl. SCR 79; Anvar P.V. v. P.K. Basheer,
(2014) 10 SCC 473 : [2014] 11 SCR 399; Tomaso Bruno
vs. State of UP (2015) 7 SCC 178 : [2015] 1 SCR 721;
Sonu v. State of Haryana (2017) 8 SCC 570 : [2017] 8
SCR 151; Shafhi Mohammad v. The State of Himachal
Pradesh (2018) 2 SCC 801 : S. Pratap Singh v. State of
Punjab [1964] 4 SCR 753; Yusaffalli Esmail Nagree v.
State of Maharashtra [1967] 3 SCR 720; N. Sri Rama
Reddy v. V. V. Giri AIR 1972 SC 1162; R.M. Malkani v.
State of Maharashtra AIR 1973 SC 157 : [1973] 2 SCR
417; Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra (1976) 2 SCC 17 : [1975] Suppl. SCR
281; Ram Singh v. Col. Ram Singh AIR 1986 SC 3 :
[1985] Suppl. SCR 399; Tukaram S. Dighole v.
Manikrao Shivaji Kokate (2010) 4 SCC 329 : [2010] 2
SCR 396 - referred to.
Harry Parker v. Mason [1940] 2 KB 590; R. v. Burr
and Sullivan [1956] Crim LR 442; Hopes and Lavery
v. H. M. Advocate [1960] Crim LR 566; R. v. Mills
[1962] 3 All ER 298; R. v. Maqsud Ali [1965] 2 All ER
464; The Statute of Liberty, Sapporo Maru M/S (Owners)
v. Steam Tanker Statute of Liberty (Owners) [1968] 2
All ER 195; R. v. Pettigrew [1980] 71 Cr. App. R. 39;
Castle v. Cross [1984] 1 WLR 1372; R v. Robson
Mitchell and Richards [1991] Crim LR 360; Lorraine
v. Markel American Insurance Co. 241 FRD 534 (2007)
- referred to.
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Case Law Reference
In the judgment of R.F. Nariman, J. (for himself, S. Ravindra
Bhat and V. Ramasubramanian, JJ.)
[2014] 11 SCR 399
clarified
Para 2
(2018) 2 SCC 801
overruled
Para 2
[2018] 3 SCR 1096
overruled
Para 9
[2015] 1 SCR 721
overruled
Para 9
[1962] 1 SCR 33
relied on
Para 23
[2010] 2 SCR 447
relied on
Para 23
[2017] 8 SCR 177
referred to
Para 33
[2005] 2 Suppl. SCR 79
referred to
Para 35
[2010] 2 SCR 396
referred to
Para 37
(1974) 2 SCC 33
relied on
Para 45
[1999] 2 Suppl. SCR 754
relied on
Para 45
[2002] 3 Suppl. SCR 366
relied on
Para 45
[2005] 2 SCR 670
relied on
Para 45
[1965] 3 SCR 187
relied on
Para 46
[1988] 1 SCR 118
relied on
Para 47
(1987) 2 SCC 401
relied on
Para 48
[2004] 1 Suppl. SCR 65
relied on
Para 49
[2019] 8 SCR 713
relied on
Para 51
[2002] 2 SCR 889
referred to
Para 53
[2016] 9 SCR 74
held not correct
Para 69
law
[2016] 9 SCR 687
referred to
Para 70
[1974] 1 SCR 40
referred to
Para 70
(1995) 1 Suppl. SCC 422
referred to
Para 70
[1955] 1 SCR 509
relied on
Para 70
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL & ORS.
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In the judgment of V. Ramasubramanian, J. (Supplementing)
[1964] 4 SCR 753
referred to
Para 17
[1967] 3 SCR 720
referred to
Para 17
[1973] 2 SCR 417
referred to
Para 17
[1975] Suppl. SCR 281
referred to
Para 17
[1985] Suppl. SCR 399
referred to
Para 17
[2010] 2 SCR 396
referred to
Para 17
[2005] 2 Suppl. SCR 79
referred to
Para 46
[2014] 11 SCR 399
referred to
Para 46
[2015] 1 SCR 721
referred to
Para 46
[2017] 8 SCR 151
referred to
Para 46
(2018) 2 SCC 801
referred to
Para 46
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2082520826 of 2017.
From the Judgment and Order dated 24.11.2017 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Election Petition Nos.
6 of 2014 and 9 of 2014.
With
Civil Appeal Nos. 2407 and 3696 of 2018.
Ms. Meenakshi Arora, Pravin M. Shah, Sr. Advs., Ravindra
Keshavrao Adsure, Haribhau Damodar Zol, Pratik Arvind Bhosle,
Prashant Ramakant Katneshwarkar, Ait Babanrao Kale, Sagar N.
Pahune Patil, Shashibhushan P. Adgaonkar, Aditya Sikchi, Jakalwar,
Gagandeep Sharma, Gautam Talukdar, Vikas Upadhyay, Ashwin Kumar
Nair, Advs. for the appearing parties.
The Judgments of the Court were delivered by
R. F. NARIMAN, J.
1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 2082520826 of 2017 is allowed.
2. These Civil Appeals have been referred to a Bench of three
honourable Judges of this Court by a Division Bench reference order
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dated 26.07.2019, dealing with the interpretation of Section 65B of the
Indian Evidence Act, 1872 ("Evidence Act") by two judgments of this
Court. In the reference order, after quoting from Anvar P.V. v. P.K.
Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of
this Court), it was found that a Division Bench judgment in SLP (Crl.)
No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal
Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a
larger strength.
3. The brief facts necessary to appreciate the controversy in the
present case, as elucidated in Civil Appeals 20825-20826 of 2017, are as
follows:
i.
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, namely, Shri Arjun Panditrao
Khotkar (who is the Returned Candidate [hereinafter referred
to as the "RC"]belonging to the Shiv Sena partyfrom 101Jalna Legislative Assembly Constituency) to the Maharashtra
State Legislative Assembly for the term commencing
November, 2014. Election Petition No.6 of 2014 was filed by
the defeated Congress (I) candidate Shri Kailash Kishanrao
Gorantyal, whereas Election Petition No.9 of 2014 was filed
by one Shri Vijay Chaudhary, an elector in the said
constituency. The margin of victory for the RC was extremely
narrow, namely 296 votes- the RC having secured 45,078
votes, whereas Shri Kailash Kishanrao Gorantyal secured
44,782 votes.
ii.
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, one Smt. Mutha, (hereinafter referred
to as the "RO"), the election of the RC be declared void.In
particular, it was the contention of the present Respondents
that the late presentation of Nomination Form Nos. 43 and 44
by the RC - inasmuch as they were filed by
the RC after the stipulated time of 3.00 p.m. on 27.09.2014 -
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL & ORS. [R. F. NARIMAN, J.]
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rendered such nomination forms not being filed in accordance
with the law, and ought to have been rejected.
iii. 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.