These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017
ARJUN PANDITRAO KHOTKAR …Appellant
Versus
KAILASH KUSHANRAO GORANTYAL AND ORS. …Respondents
WITH
CIVIL APPEAL NO.2407 OF 2018
CIVIL APPEAL NO.3696 OF 2018
J U D G M E N T
R.F. Nariman, J.
1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-
20826 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 dated
26.07.2019, dealing with the interpretation of Section 65B of the Indian
1
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 party from 101-Jalna 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
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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 - 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. According to the Respondents, the
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nomination papers were only offered at 3.53 p.m. (i.e. beyond 3.00
p.m.), as a result of which it was clear that they had been filed out of
time. A specific complaint making this objection was submitted by Shri
Kailash Kishanrao Gorantyal before the RO on 28.09.2014 at 11.00
a.m., in which it was requested that the RO reject the nomination forms
that had been improperly accepted. This request was rejected by the
RO on the same day, stating that the nomination forms had, in fact,
been filed within time.
4. 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 dated
16.03.2016, 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’.
5. 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, which read as follows:
“Certificate
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This is to certify that the CDs in respect of video recording
done on two days of filing nomination forms of date
26.9.2014 and 27.9.2014 which were present in the record
are produced.
6.
Transcripts of the contents of these
CDs/VCDs were prepared by the High Court itself. Issue nos.6 and 7 as
framed by the High Court (and its answers to these issues) are important,
and are set out in the impugned judgment dated 24.11.2017, and extracted
hereinbelow:
“ Issues Findings
6. Whether the petitioner proves
that the nomination papers at Sr.
Nos. 43 and 44 were not
presented by respondent/
Returned candidate before 3.00
p.m. on 27/09/2014 ?
Affirmative. (nomination
papers at Sr. Nos. 43
and 44 were not
presented by RC before
3.00 p.m. of 27.9.2014.)
5
Sd/-
Asst. Returning Officer
101 Jalna Legislative Assembly
Constituency/Tahsildar
Jalna
Sd/-
Returning Officer
101 Jalna Legislative Assembly
Constituency/Tahsildar
Jalna”
7. Whether the petitioner proves
that the respondent /Returned
candidate submitted original
forms A and B along with
nomination paper only on
27/09/2014 after 3.00 p.m. and
along with nomination paper at
Sr. No. 44 ?
Affirmative. (A, B forms
were presented after
3.00 p.m. of 27.9.2014)”
7. In answering issues 6 and 7, the High Court recorded:
“60. Many applications were given by the petitioner of
Election Petition No. 6/2014 to get the copies of electronic
record in respect of aforesaid incidents with certificate as
provided in section 65-B of the Evidence Act. The
correspondence made with them show that even after
leaving of the office by Smt. Mutha, the Government
machinery, incharge of the record, intentionally avoided to
give certificate as mentioned in section 65-B of the
Evidence Act. After production of the record in the Court in
this regard, this Court had allowed to Election Commission
by order to give copies of such record to applicants, but
after that also the authority avoided to give copies by
giving lame excuses. It needs to be kept in mind that the
RC is from political party which has alliance with ruling
party, BJP, not only in the State, but also at the center. It is
unfortunate that the machinery which is expected to be fair
did not act fairly in the present matter. The circumstances
of the present matter show that the aforesaid two officers
tried to cover up their mischief. However the material gives
only one inference that nomination forms Nos. 43 and 44
with A, B forms were presented before the RO by RC after
3.00 p.m. of 27.9.2014 and they were not handed over
prior to 3.00 p.m. In view of objection of the learned
counsels of the RC to using the information contained in
aforesaid VCDs, marked as Article A1 to A6, this Court
had made order on 11.7.2017 that the objections will be
considered in the judgment itself. This VCDs are already
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exhibited by this Court as Exhs. 70 to 75. Thus, if the
contents of the aforesaid VCDs can be used in the
evidence, then the petitioners are bound to succeed in the
present matters.”
8. The High Court then set out Sections 65-A and 65-B of the
Evidence Act, and referred to this Court’s judgment in Anvar P.V. (supra).
The Court held in paragraph 65 of the impugned judgment that the CDs
that were produced by the Election Commission could not be treated as an
original record and would, therefore, have to be proved by means of
secondary evidence. Finding that no written certificate as is required by
Section 65-B(4) of the Evidence Act was furnished by any of the election
officials, and more particularly, the RO, the High Court then held:
“69. In substantive evidence, in the cross examination of
Smt. Mutha, it is brought on the record that there was no
complaint with regard to working of video cameras used
by the office. She has admitted that the video cameras
were regularly used in the office for recording the
aforesaid incidents and daily VCDs were collected of the
recording by her office. This record was created as the
record of the activities of the Election Commission. It is
brought on the record that on the first floor of the building,
arrangement was made by keeping electronic gazettes
like VCR players etc. and arrangement was made for
viewing the recording. It is already observed that under
her instructions, the VCDs were marked of this recording.
Thus, on the basis of her substantive evidence, it can be
said that the conditions mentioned in section 65-B of the
Evidence Act are fulfilled and she is certifying the
electronic record as required by section 65-B (4) of the
7
Evidence Act. It can be said that Election Commission, the
machinery avoided to give certificate in writing as required
by section 65-B (4) of the Evidence Act. But, substantive
evidence is brought on record of competent officer in that
regard. When the certificate expected is required to be
issued on the basis of best of knowledge and belief, there
is evidence on oath about it of Smt. Mutha. Thus, there is
something more than the contents of certificate mentioned
in section 65-B (4) of the Evidence Act in the present
matters. Such evidence is not barred by the provisions of
section 65-B of the Evidence Act as that evidence is only
on certification made by the responsible official position
like RO. She was incharge of the management of the
relevant activities and so her evidence can be used and
needs to be used as the compliance of the provision of
section 65-B of the Evidence Act. This Court holds that
there is compliance of the provision of section 65-B of the
Evidence Act in the present matter in respect of aforesaid
electronic record and so, the information contained in the
record can be used in the evidence.”
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.
9. Shri Ravindra Adsure, learned advocate appearing on behalf of
the Appellant, submitted that the judgment in Anvar P.V. (supra) covered
the case before us. He argued that without the necessary certificate in
8
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. He referred to Tomaso Bruno and Anr. v.
State of Uttar Pradesh (2015) 7 SCC 178, and argued that the said
judgment did not notice either Section 65B or Anvar P.V. (supra), and was
therefore per incuriam. He also argued that Shafhi Mohammad (supra),
being a two-Judge Bench of this Court, could not have arrived at a finding
contrary to Anvar P.V. (supra), which was the judgment of three Hon’ble
Judges of this Court. In particular, he argued that it could not have been
held in Shafhi Mohammad (supra) that whenever the interest of justice
required, the requirement of a certificate could be done away with under
Section 65B(4). Equally, this Court’s judgment dated 03.04.2018, reported
as (2018) 5 SCC 311, which merely followed the law laid down in Shafhi
Mohammad (supra), being contrary to the larger bench judgment in Anvar
P.V. (supra), should also be held as not having laid down good law. He
further argued that the Madras High Court judgment in K. Ramajyam v.
Inspector of Police (2016) Crl. LJ 1542, being contrary to Anvar P.V.
(supra), also does not lay down the law correctly, in that it holds that
evidence aliunde, that is outside Section 65B, can be taken in order to
9
make electronic records admissible. In the facts of the present case, he
contended that since it was clear that the requisite certificate had not been
issued, no theory of “substantial compliance” with the provisions of Section
65B(4), as was held by the impugned judgment, could possibly be
sustained in law.
10. Ms. Meenakshi Arora, learned Senior Advocate appearing on
behalf of the Respondents, has taken us in copious detail through the facts
of this case, and has argued that the High Court has directed the Election
Commission to produce before the Court the original CDs/VCDs of the
video-recording done at the office of the RO, along with the necessary
certificate. An application dated 16.08.2016 was also made to the District
Election Commission and RO as well as the Assistant RO for the requisite
certificate under Section 65B. A reply was given on 14.09.2016, that this
certificate could not be furnished since the matter was sub-judice. Despite
this, later on, on 26.07.2017 her client wrote to the authorities again
requesting for issuance of certificate under Section 65B, but by replies
dated 31.07.2017 and 02.08.2017, no such certificate was forthcoming.
Finally, after having run from pillar to post, her client applied on 26.08.2017
to the Chief Election Commissioner, New Delhi, stating that the authorities
10
were refusing to give her client the necessary certificate under Section 65B
and that the Chief Election Commissioner should therefore ensure that it
be given to them. To this communication, no reply was forthcoming from
the Chief Election Commissioner, New Delhi. Given this, the High Court at
several places had observed in the course of the impugned judgment that
the authorities deliberately refused, despite being directed, to supply the
requisite certificate under Section 65B, as a result of which the impugned
judgment correctly relied upon the oral testimony of the RO herself.
According to Ms. Arora, such oral testimony taken down in the form of
writing, which witness statement is signed by the RO, would itself amount
to the requisite certificate being issued under Section 65B(4) in the facts of
this case, as was correctly held by the High Court. Quite apart from this,
Ms. Arora also stated that - independent of the finding given by the High
Court by relying upon CDs/VCDs - the High Court also relied upon other
documentary and oral evidence to arrive at the finding that the RC had not
handed over nomination forms directly to the RO at 2.20 p.m (i.e. before
3pm). In fact, it was found on the basis of this evidence that the nomination
forms were handed over and accepted by the RO only after 3.00 p.m. and
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were therefore improperly accepted, as a result of which, the election of
the Appellant was correctly set aside.
11. On law, Ms. Arora argued that it must not be forgotten that
Section 65B is a procedural provision, and it cannot be the law that even
where a certificate is impossible to get, the absence of such certificate
should result in the denial of crucial evidence which would point at the truth
or falsehood of a given set of facts. She, therefore, supported the decision
in Shafhi Mohammad (supra), stating that Anvar P.V. (supra) could be
considered to be good law only in situations where it was possible for the
party to produce the requisite certificate. In cases where this becomes
difficult or impossible, the interest of justice would require that a procedural
provision be not exalted to such a level that vital evidence would be shut
out, resulting in manifest injustice.
12. Shri Vikas Upadhyay, appearing on behalf of the Intervenor,
took us through the various provisions of the Information Technology Act,
2000 along with Section 65B of the Evidence Act, and argued that Section
65B does not refer to the stage at which the certificate under Section
65B(4) ought to be furnished. He relied upon a judgment of the High Court
of Rajasthan as well as the High Court of Bombay, in addition to Kundan
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Singh v. State 2015 SCC OnLine Del 13647 of the Delhi High Court, to
argue that the requisite certificate need not necessarily be given at the time
of tendering of evidence but could be at a subsequent stage of the
proceedings, as in cases where the requisite certificate is not forthcoming
due to no fault of the party who tried to produce it, but who had to apply to
a Judge for its production. He also argued that Anvar P.V. (supra) required
to be clarified to the extent that Sections 65A and 65B being a complete
code as to admissibility of electronic records, the “baggage” of Primary and
Secondary Evidence contained in Sections 62 and 65 of the Evidence Act
should not at all be adverted to, and that the drill of Section 65A and 65B
alone be followed when it comes to admissibility of information contained in
electronic records.
13. It is now necessary to set out the relevant provisions of the
Evidence Act and the Information Technology Act, 2000. Section 3 of the
Evidence Act defines “document” as follows:
“Document.-- "Document" means any matter expressed
or described upon any substance by means of letters,
figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the
purpose of recording that matter.”
“Evidence” in Section 3 is defined as follows:
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“Evidence."-- "Evidence" means and includes—(1) all
statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact
under inquiry;
such statements are called oral evidence;
(2)
all documents including electronic records produced for
the inspection of the Court; such documents are called
documentary evidence.”
The Evidence Act also declares that the expressions “Certifying
Authority”, “electronic signature”, “Electronic Signature Certificate”,
“electronic form”, “electronic records”, “information”, “secure electronic
record”, “secure digital signature” and “subscriber” shall have the meanings
respectively assigned to them in the Information Technology Act.
14. Section 22-A of the Evidence Act, which deals with the
relevance of oral admissions as to contents of electronic records, 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
the genuineness of the electronic record produced is in
question.”
15. Section 45A of the Evidence Act, on the opinion of the
Examiner of Electronic Evidence, then states:
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“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 Technology
Act, 2000 (21 of 2000), is a relevant fact.
Explanation.-- For the purposes of this section, an
Examiner of Electronic Evidence shall be an expert.”
16. Sections 65-A and 65-B of the Evidence Act read as follows:
“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 65B.”
“65B. Admissibility of electronic records.- (1)
Notwithstanding anything contained in this 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 (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, without further proof or production of the
original, as evidence or 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
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 process
15
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
computers, whether-
(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
16
(d) in any other manner involving the successive 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 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
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 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;
(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 of the relevant
activities (whichever is appropriate) shall be evidence of
any matter stated in the certificate; and for the purposes of
this subsection 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,
(a) information shall be taken to be supplied to a computer
if it is supplied thereto in any appropriate form and
17
whether it is so supplied 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.”
17. The following definitions as contained in Section 2 of the
Information Technology Act, 2000 are also relevant:
“(i) “computer” means any electronic, magnetic, optical or
other high-speed data processing device or system which
performs logical, arithmetic, and memory functions by
manipulations of electronic, magnetic or optical impulses,
and includes all input, output, processing, storage,
computer software or communication facilities which are
connected or related to the computer in a computer
system or computer network;”
“(j) “computer network” means the inter-connection of one
or more computers or computer systems or
communication device through– (i) the use of satellite,
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microwave, terrestrial line, wire, wireless or other
communication media; and (ii) terminals or a complex
consisting of two or more interconnected computers or
communication device whether or not the inter-connection
is continuously maintained;”
“(l) “computer system” means a device or collection of
devices, including input and output support devices and
excluding calculators which are not programmable and
capable of being used in conjunction with external files,
which contain computer programmes, electronic
instructions, input data and output data, that performs
logic, arithmetic, data storage and retrieval,
communication control and other functions;”
“(o) “data” means a representation of information,
knowledge, facts, concepts or instructions which are being
prepared or have been prepared in a formalised manner,
and is intended to be processed, is being processed or
has been processed in a computer system or computer
network, and may be in any form (including computer
printouts magnetic or optical storage media, punched
cards, punched tapes) or stored internally in the memory
of the computer;”
“(r) “electronic form”, with reference to information, means
any information generated, sent, received or stored in
media, magnetic, optical, computer memory, micro film,
computer generated micro fiche or similar device;”
“(t) “electronic record” means data, record or data
generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro
fiche;”
18. Sections 65A and 65B occur in Chapter V of the
Evidence Act which is entitled “Of Documentary Evidence”. Section 61 of
19
the Evidence Act deals with the proof of contents of documents, and states
that the contents of documents may be proved either by primary or by
secondary evidence. Section 62 of the Evidence Act defines primary
evidence as meaning the document itself produced for the inspection of the
court. Section 63 of the Evidence Act speaks of the kind or types of
secondary evidence by which documents may be proved. Section 64 of the
Evidence Act then enacts that documents must be proved by primary
evidence except in the circumstances hereinafter mentioned. Section 65 of
the Evidence Act is important, and states that secondary evidence may be
given of “the existence, condition or contents of a document in the
following cases…”.
19. Section 65 differentiates between existence, condition
and contents of a document. Whereas “existence” goes to “admissibility” of
a document, “contents” of a document are to be proved after a document
becomes admissible in evidence. Section 65A speaks of “contents” of
electronic records being proved in accordance with the provisions of
Section 65B. Section 65B speaks of “admissibility” of electronic records
which deals with “existence” and “contents” of electronic records being
20
proved once admissible into evidence. With these prefatory observations
let us have a closer look at Sections 65A and 65B.
20. It will first be noticed that 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”.
21. 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.
22. 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
21
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.
23. 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 (see, for example, this Court’s
judgments in Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 33
1
and
1 “3. The first contention is based on an assumption that the word “any one” in Section 76
means only “one of the directors, and only one of the shareholders”. This question as regards
the interpretation of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98
to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word
“any one” should be interpreted there as “every one”. Thus under Section 76 every one of the
shareholders of a private company owning the mine, and every one of the directors of a public
22
Om Parkash v. Union of India (2010) 4 SCC 17
2
). This being the case,
the conditions mentioned in sub-section (4) must also be interpreted as
being cumulative.
24. It is now appropriate to examine the manner in which Section
65B was interpreted by this Court. In Anvar P.V. (supra), a three Judge
Bench of this Court, after setting out Sections 65A and 65B of the Evidence
Act, held:
“14. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and
65-A, can be proved only in accordance with the
procedure prescribed under Section 65-B. Section 65-B
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 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 satisfied,
company owning the mine is liable to prosecution. No question of violation of Article 14
therefore arises.”
2 “70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v. Union of
India, AIR 1987 Del 239] would clearly indicate with regard to interpretation of the word “any”
in Explanation 1 to the first proviso to Section 6 of the Act which expands the scope of stay
order granted in one case of landowners to be automatically extended to all those landowners,
whose lands are covered under the notifications issued under Section 4 of the Act, irrespective
of the fact whether there was any separate order of stay or not as regards their lands. The
logic assigned by the Full Bench, the relevant portions whereof have been reproduced
hereinabove, appear to be reasonable, apt, legal and proper.”
(emphasis added)
23
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 65-B(2).
Following are the specified conditions under Section 65-
B(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 to store or
process information for the purpose of any activity
regularly carried on over that period by 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 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 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.
15. Under Section 65-B(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 conditions are satisfied:
(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;
24
(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 65-B(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.
16. 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 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 hallmarks
pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible to
tampering, alteration, transposition, excision, etc. without
such safeguards, the whole trial based on proof of
electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms
of Section 65-B of the Evidence Act, would the question
arise as to the genuineness thereof and in that situation,
resort can be made to Section 45-A—opinion of Examiner
of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if
requirements under Section 65-B of the Evidence Act are
not complied with, as the law now stands in India.
xxx xxx xxx
20. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions
25
under the Evidence Act. The very caption of Section 65-A
of the Evidence Act, read with Sections 59 and 65-B is
sufficient to hold that the special provisions on evidence
relating to electronic record shall be governed by the
procedure prescribed under Section 65-B 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.
21. In State (NCT of Delhi) v. Navjot Sandhu 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 computerised records of
the calls pertaining to the cellphones, it was held at para
150 as follows: (SCC p. 714)
“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 original 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
26
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.”
It may be seen that it was a case where a responsible
official had duly certified the document at the time of
production itself. The signatures in the certificate were
also identified. That is apparently in compliance with the
procedure prescribed under Section 65-B of the Evidence
Act. However, it was held that irrespective of the
compliance with the requirements of Section 65-B, which
is a special provision dealing with 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
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section
65 of the Evidence Act shall yield to the same. Generalia
specialibus non derogant, special law will always prevail
over the general law. It appears, the court omitted to take
note of Sections 59 and 65-A 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 65-A and 65-B. 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, 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 65-B are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the
certificate in terms of Section 65-B obtained at the time of
27
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 65-B in respect of the CDs,
Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-
22. Therefore, the same cannot be admitted in evidence.
Thus, the whole case set up regarding the corrupt practice
using songs, 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 announcement and songs.
Had 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 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 65-
B of the Evidence Act are not satisfied. It is clarified that
notwithstanding what we have stated herein in the
preceding paragraphs on the secondary evidence of
electronic record with reference to Sections 59, 65-A and
65-B 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, without
compliance with the conditions in Section 65-B of the
Evidence Act.”
28
25. Shri Upadhyay took exception to the language of paragraph 24
in this judgment. According to the learned counsel, primary and secondary
evidence as to documents, referred to in Sections 61 to Section 65 of the
Evidence Act, should be kept out of admissibility of electronic records,
given the fact that Sections 65A and 65B are a complete code on the
subject.
26. At this juncture, it is important to note that Section 65B has its
genesis in Section 5 of the Civil Evidence Act 1968 (UK), which reads as
follows:
“Admissibility of statements produced by computers.
(1) In any civil proceedings a statement contained in a
document produced by a computer shall, subject to rules
of court, be admissible as evidence of any fact stated
therein of which direct oral evidence would be admissible,
if it is shown that the conditions mentioned in subsection
(2) below are satisfied in relation to the statement and
computer in question.
(2) The said conditions are—
(a) that the document containing the statement was
produced by the computer during a period over which the
computer was used regularly to store or process
information for the purposes of any activities regularly
carried on over that period, whether for profit or not, by
any body, whether corporate or not, or by any individual;
29
(b) that over that period there was regularly supplied to the
computer in the ordinary course of those activities
information of the kind contained in the statement or of the
kind from which the information so contained is derived;
(c) that throughout the material part of that period the
computer was operating properly or, if not, that any
respect in which it was not operating properly or was out
of operation during that part of that period was not such as
to affect the production of the document or the accuracy of
its contents; and
(d) that the information contained in the statement
reproduces or is derived from information supplied to the
computer in the ordinary course of those activities.
(3) Where over a period the function of storing or
processing information for the purposes of any activities
regularly carried on over that period as mentioned in
subsection (2)(a) above was regularly performed by
computers, whether-
(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
(d) in any other manner involving the successive 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 period
shall be treated for the purposes of this Part of this Act as
30
constituting a single computer; and references in this Part
of this Act to a computer shall be construed accordingly.
(4) In any civil proceedings where it is desired to give a
statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say—
(a) identifying the document containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that document as may be appropriate for the
purpose of showing that the document was produced by a
computer;
(c) dealing with any of the matters to which the conditions
mentioned in subsection (2) above relate,
and purporting to be signed by a person occupying a
responsible position in relation to the operation of the
relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of
any matter stated in the certificate; and for the purposes of
this subsection 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 Part of this Act—
(a) information shall be taken to be supplied to a computer
if it is supplied thereto in any appropriate form and
whether it is so supplied directly or (with or without human
intervention) by means of any appropriate equipment;
(b) where, in the course of activities carried on by any
individual or body, 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
31
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 document 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.
(6) Subject to subsection (3) above, in this Part of this Act
“computer ” means any device for storing and processing
information, and any reference to information being
derived from other information is a reference to its being
derived therefrom by calculation, comparison or any other
process.”
27. It may be noticed that sub-sections (2) to (5) of Section 65B of
the Evidence Act are a reproduction of sub-sections (2) to (5) of Section 5
of the Civil Evidence Act, 1968, with minor changes
3
. The definition of
3 Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence from
computer records in criminal proceedings. Section 69 read thus:
“69.-(1) In any proceedings, a statement in a document produced by a computer shall not be
admissible as evidence of any fact stated therein unless it is shown-
(a) that there are no reasonable grounds for believing that the statement is inaccurate
because of improper use of that computer;
(b) that at all material times the computer was operating properly, or if not, that any
respect in which it was not operating properly or was out of operation was not such as to
affect the production of the document or the accuracy of its contents; and
(c) that any relevant conditions specified in rules of court under subsection (2) below
are satisfied.
(2) Provision may be made by rules of court requiring that in any proceedings where it is
desired to give a statement in evidence by virtue of this section such information concerning the
statement as may be required by the rules shall be provided in such form and at such time as
may be so required.”
By Section 70, Sections 68 and 69 of this Act had to be read with Schedule 3 thereof, the
provisions of which had the same force in effect as Sections 68 and 69. Part I of Schedule 3
supplemented Section 68. Notwithstanding the importance of Part I of Schedule 3, we propose
to refer to only two provisions of it, namely:
32
“computer” under Section 5(6) of the Civil Evidence Act, 1968 was not,
however, adopted by Section 2(i) of the Information Technology Act, 2000,
which as noted above, is a ‘means and includes’ definition of a much more
complex and intricate nature. It is also important to note Section 6(1) and
(5) of the Civil Evidence Act, 1968, which state as follows:
“(1) Where in any civil proceedings a statement contained
in a document is proposed to be given in evidence by
virtue of section 2, 4 or 5 of this Act it may, subject to any
rules of court, be proved by the production of that
document or (whether or not that document is still in
“1. Section 68(1) above applies whether the information contained in the document was
supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom
it was supplied was acting under a duty; and applies also where the person compiling the
record is himself the person by whom the information is supplied.”
“6. Any reference in Section 68 above or this Part of this Schedule to a person acting under a
duty includes a reference to a person acting in the course of any trade, business, profession or
other occupation in which he is engaged or employed or for the purposes of any paid or unpaid
office held by him.”
Part II supplemented Section 69 in important respects. Two provisions of it are relevant,
namely-
“8. In any proceedings where it is desired to give a statement in evidence in accordance with
section 69 above, a certificate –
(a) identifying the document containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device involved in the production of that
document as may be appropriate for the purpose of showing that the document was
produced by a computer;
(c) dealing with any of the matters mentioned in Section 69(1) above; and
(d) purporting to be signed by a person occupying a reasonable position in
relation to the operation of the computer, shall be evidence of anything stated in it; and for
the purposes of this paragraph it shall be sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given of
anything of which evidence could be given by a certificate under that paragraph.”
33
existence) by the production of a copy of that document,
or of the material part thereof, authenticated in such
manner as the court may approve.
xxx xxx xxx
(5) If any person in a certificate tendered in evidence in
civil proceedings by virtue of section 5(4) of this Act wilfully
makes a statement material in those proceedings which
he knows to be false or does not believe to be true, he
shall be liable on conviction on indictment to imprisonment
for a term not exceeding two years or a fine or both.”
28. Section 6(1), in essence, maintains the dichotomy between
proof by ‘primary’ and ‘secondary’ evidence - proof by production of the
‘document’ itself being primary evidence, and proof by production of a copy
of that document, as authenticated, being secondary evidence. Section
6(5), which gives teeth to the person granting the certificate mentioned in
Section 5(4) of the Act, by punishing false statements wilfully made in the
certificate, has not been included in the Indian Evidence Act. These
sections have since been repealed by the Civil Evidence Act of 1995 (UK),
pursuant to a UK Law Commission Report published in September, 1993
(Law Com. No. 216), by which the strict rule as to hearsay evidence was
relaxed, and hearsay evidence was made admissible in the circumstances
mentioned by the Civil Evidence Act of 1995. Sections 8, 9 and 13 of this
Act are important, and are set out hereinbelow:
34
“8. Proof of statements contained in documents.
(1) Where a statement contained in a document is
admissible as evidence in civil proceedings, it may be
proved—
(a) by the production of that document, or
(b) whether or not that document is still in existence, by
the production of a copy of that document or of the
material part of it,
authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes
there are between a copy and the original.
9. Proof of records of business or public authority.
(1) A document which is shown to form part of the records
of a business or public authority may be received in
evidence in civil proceedings without further proof.
(2) A document shall be taken to form part of the records
of a business or public authority if there is produced to the
court a certificate to that effect signed by an officer of the
business or authority to which the records belong. For this
purpose—
(a) a document purporting to be a certificate signed by an
officer of a business or public authority shall be deemed to
have been duly given by such an officer and signed by
him; and
(b) a certificate shall be treated as signed by a person if it
purports to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or
public authority may be proved in civil proceedings by
affidavit of an officer of the business or authority to which
the records belong.
35
(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a
period of time, whether for profit or not, by any body
(whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible
position in relation to the relevant activities of the business
or public authority or in relation to its records; and
“public authority” includes any public or statutory
undertaking, any government department and any person
holding office under Her Majesty.
(5) The court may, having regard to the circumstances of
the case, direct that all or any of the above provisions of
this section do not apply in relation to a particular
document or record, or description of documents or
records.”
Section 13 of this Act defines “document” as follows:
“document” means anything in which information of any
description is recorded, and “copy”, in relation to a
document, means anything onto which information
recorded in the document has been copied, by whatever
means and whether directly or indirectly;”
29. Section 15(2) of this Act repeals enactments mentioned in
Schedule II therein; and Schedule II repeals Part I of the Civil Evidence
Act, 1968 - of which Sections 5 and 6 were a part. The definition of
“records” and “document” in this Act would show that electronic records are
considered to be part of “document” as defined, needing no separate
36
treatment as to admissibility or proof. It is thus clear that in UK law, as at
present, no distinction is made between computer generated evidence and
other evidence either qua the admissibility of, or the attachment of weight
to, such evidence.
30. Coming back to Section 65B of the Indian Evidence Act, sub-
section (1) needs to be analysed. The sub-section begins with a non-
obstante 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.
37
31. 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.
32. Quite obviously, the requisite certificate in sub-section (4) is
unnecessary if the original document itself is produced. This can be done
by the owner of a laptop computer, a 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”, as defined, happens to
38
be a part of a “computer system” or “computer network” (as defined in the
Information Technology Act, 2000) and it becomes impossible to physically
bring such network or system to the Court, then the only means of proving
information contained in such electronic record can be in accordance with
Section 65B(1), together with the requisite certificate under Section 65B(4).
This being the case, it is necessary to clarify what is contained in the last
sentence in paragraph 24 of Anvar P.V. (supra) which reads as “…if an
electronic record as such is used as primary evidence under Section 62 of
the Evidence Act…”. This may more appropriately be read without the
words “under Section 62 of the Evidence Act,…”. With this minor
clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not
need to be revisited.
33. In fact, in Vikram Singh and Anr. v. State of Punjab and Anr.
(2017) 8 SCC 518, a three-Judge Bench of this Court followed the law in
Anvar P.V. (supra), clearly stating that where primary evidence in
electronic form has been produced, no certificate under Section 65B would
be necessary. This was so stated as follows:
“25. The learned counsel contended that the tape-
recorded conversation has been relied on without there
being any certificate under Section 65-B of the Evidence
Act, 1872. It was contended that audio tapes are recorded
39
on magnetic media, the same could be established
through a certificate under Section 65-B and in the
absence of the certificate, the document which constitutes
electronic record, cannot be deemed to be a valid
evidence and has to be ignored from consideration.
Reliance has been placed by the learned counsel on the
judgment of this Court in Anvar P.V. v. P.K. Basheer. The
conversation on the landline phone of the complainant
situate in a shop was recorded by the complainant. The
same cassette containing conversation by which ransom
call was made on the landline phone was handed over by
the complainant in original to the police. This Court in its
judgment dated 25-1-2010 has referred to the aforesaid
fact and has noted the said fact to the following effect:
“5. The cassette on which the conversations had been
recorded on the landline was handed over by Ravi Verma
to SI Jiwan Kumar and on a replay of the tape, the
conversation was clearly audible and was heard by the
police.”
26. The tape-recorded conversation was not secondary
evidence which required certificate under Section 65-B,
since it was the original cassette by which ransom call was
tape-recorded, there cannot be any dispute that for
admission of secondary evidence of electronic record a
certificate as contemplated by Section 65-B is a
mandatory condition.”
4
34. Despite the law so declared in Anvar P.V. (supra), 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
4 The definition of “data”, “electronic form” and “electronic record” under the Information
Technology Act, 2000 (as set out hereinabove) makes it clear that “data” and “electronic form”
includes “magnetic or optical storage media”, which would include the audio tape/cassette
discussed in Vikram Singh (supra).
40
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 evidence, a discordant note was soon struck in
Tomaso Bruno (supra). In this judgment, another three Judge Bench dealt
with the admissibility of evidence in a criminal case in which CCTV footage
was sought to be relied upon in evidence. The Court held:
“24. With the advancement of information technology,
scientific temper in the individual and at the institutional
level is to pervade the methods of investigation. With the
increasing impact of technology in everyday life and as a
result, the production of electronic evidence in cases has
become relevant to establish the guilt of the accused or
the liability of the defendant. Electronic documents stricto
sensu are admitted as material evidence. With the
amendment to the Evidence Act in 2000, Sections 65-A
and 65-B were introduced into Chapter V relating to
documentary evidence. Section 65-A provides that
contents of electronic records may be admitted as
evidence if the criteria provided in Section 65-B is
complied with. The computer generated electronic records
in evidence are admissible at a trial if proved in the
manner specified by Section 65-B of the Evidence Act.
Sub-section (1) of Section 65-B makes admissible as a
document, paper printout of electronic records stored in
optical or magnetic media produced by a computer,
subject to the fulfilment of the conditions specified in sub-
section (2) of Section 65-B. Secondary evidence of
contents of document can also be led under Section 65 of
the Evidence Act. PW 13 stated that he saw the full video
recording of the fateful night in the CCTV camera, but he
has not recorded the same in the case diary as nothing
substantial to be adduced as evidence was present in it.
41
25. The production of scientific and electronic evidence in
court as contemplated under Section 65-B of the Evidence
Act is of great help to the investigating agency and also to
the prosecution. The relevance of electronic evidence is
also evident in the light of Mohd. Ajmal Amir
Kasab v. State of Maharashtra [(2012) 9 SCC 1] , wherein
production of transcripts of internet transactions helped
the prosecution case a great deal in proving the guilt of the
accused. Similarly, in State (NCT of Delhi) v. Navjot
Sandhu, the links between the slain terrorists and the
masterminds of the attack were established only through
phone call transcripts obtained from the mobile service
providers.”
35. What is clear from this judgment is that the judgment of Anvar
P.V. (supra) 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. (supra). It may also be
stated that Section 65B(4) was also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno (supra) following Navjot
Sandhu (supra) 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., (supra) and cannot
be said to be a correct statement of the law. The said view is accordingly
overruled.
42
36. We now come to the decision in Shafhi Mohammad (supra).
In this case, by an order dated 30.01.2018 made by two learned Judges of
this Court, it was stated:
“21. We have been taken through certain decisions which
may be referred to. In Ram Singh v. Ram Singh [Ram
Singh v. Ram Singh, 1985 Supp SCC 611] , a three-Judge
Bench considered the said issue. English judgments
in R. v. Maqsud Ali [R. v. Maqsud Ali, (1966) 1 QB 688]
and R. v. Robson [R. v. Robson, (1972) 1 WLR 651] and
American Law as noted in American Jurisprudence 2d
(Vol. 29) p. 494, were cited with approval to the effect that
it will be wrong to deny to the law of evidence advantages
to be gained by new techniques and new devices,
provided the accuracy of the recording can be proved.
Such evidence should always be regarded with some
caution and assessed in the light of all the circumstances
of each case. Electronic evidence was held to be
admissible subject to safeguards adopted by the Court
about the authenticity of the same. In the case of tape-
recording, it was observed that voice of the speaker must
be duly identified, accuracy of the statement was required
to be proved by the maker of the record, possibility of
tampering was required to be ruled out. Reliability of the
piece of evidence is certainly a matter to be determined in
the facts and circumstances of a fact situation. However,
threshold admissibility of an electronic evidence cannot be
ruled out on any technicality if the same was relevant.
22. In Tukaram S. Dighole v. Manikrao Shivaji
Kokate [(2010) 4 SCC 329], the same principle was
reiterated. This Court observed that new techniques and
devices are the order of the day. Though such devices are
susceptible to tampering, no exhaustive rule could be laid
down by which the admission of such evidence may be
judged. Standard of proof of its authenticity and accuracy
43
has to be more stringent than other documentary
evidence.
23. In Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178],
a three-Judge Bench observed that advancement of
information technology and scientific temper must pervade
the method of investigation. Electronic evidence was
relevant to establish facts. Scientific and electronic
evidence can be a great help to an investigating agency.
Reference was made to the decisions of this Court
in Mohd. Ajmal Amir Kasab v. State of
Maharashtra [(2012) 9 SCC 1] and State (NCT of
Delhi) v. Navjot Sandhu.
24. We may, however, also refer to the judgment of this
Court in Anvar P.V. v. P.K. Basheer, delivered by a three-
Judge Bench. In the said judgment in para 24 it was
observed that electronic evidence by way of primary
evidence was covered by Section 62 of the Evidence Act
to which procedure of Section 65-B of the Evidence Act
was not admissible. However, for the secondary evidence,
procedure of Section 65-B of the Evidence Act was
required to be followed and a contrary view taken
in Navjot Sandhu that secondary evidence of electronic
record could be covered under Sections 63 and 65 of the
Evidence Act, was not correct. There are, however,
observations in para 14 to the effect that electronic record
can be proved only as per Section 65-B of the Evidence
Act.
25. Though in view of the three-Judge Bench judgments
in Tomaso Bruno and Ram Singh [1985 Supp SCC 611] ,
it can be safely held that electronic evidence is admissible
and provisions under Sections 65-A and 65-B of the
Evidence Act are by way of a clarification and are
procedural provisions. If the electronic evidence is
authentic and relevant the same can certainly be admitted
subject to the Court being satisfied about its authenticity
44
and procedure for its admissibility may depend on fact
situation such as whether the person producing such
evidence is in a position to furnish certificate under
Section 65-B(4).
26. Sections 65-A and 65-B of the Evidence Act, 1872
cannot be held to be a complete code on the subject.
In Anvar P.V., this Court in para 24 clarified that primary
evidence of electronic record was not covered under
Sections 65-A and 65-B of the Evidence Act. Primary
evidence is the document produced before the Court and
the expression “document” is defined in Section 3 of the
Evidence Act to mean any matter expressed or described
upon any substance by means of letters, figures or marks,
or by more than one of those means, intended to be used,
or which may be used, for the purpose of recording that
matter.
27. The term “electronic record” is defined in Section 2(1)
(t) of the Information Technology Act, 2000 as follows:
“2.(1)(t) “electronic record” means data, record or data
generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro
fiche;”
28. The expression “data” is defined in Section 2(1)(o) of
the Information Technology Act as follows:
“2.(1)(o) “data” means a representation of information,
knowledge, facts, concepts or instructions which are being
prepared or have been prepared in a formalised manner,
and is intended to be processed, is being processed or
has been processed in a computer system or computer
network, and may be in any form (including computer
printouts magnetic or optical storage media, punched
cards, punched tapes) or stored internally in the memory
of the computer;”
45
29. The applicability of procedural requirement under
Section 65-B(4) of the Evidence Act of furnishing
certificate is to be applied only when such electronic
evidence is produced by a person who is in a position to
produce such certificate being in control of the said device
and not of the opposite party. In a case where electronic
evidence is produced by a party who is not in possession
of a device, applicability of Sections 63 and 65 of the
Evidence Act cannot be held to be excluded. In such case,
procedure under the said sections can certainly be
invoked. If this is not so permitted, it will be denial of
justice to the person who is in possession of authentic
evidence/witness but on account of manner of proving,
such document is kept out of consideration by the court in
the absence of certificate under Section 65-B(4) of the
Evidence Act, which party producing cannot possibly
secure. Thus, requirement of certificate under Section 65-
B(4) is not always mandatory.
30. Accordingly, we clarify the legal position on the subject
on the admissibility of the electronic evidence, especially
by a party who is not in possession of device from which
the document is produced. Such party cannot be required
to produce certificate under Section 65-B(4) of the
Evidence Act. The applicability of requirement of certificate
being procedural can be relaxed by the court wherever
interest of justice so justifies.”
37. It may be noted that the judgments referred to in paragraph 21
of Shafhi Mohammed (supra) are all judgments before the year 2000,
when Amendment Act 21 of 2000 first introduced Sections 65A and 65B
into the Evidence Act and can, therefore, be of no assistance on
interpreting the law as to admissibility into evidence of information
46
contained in electronic records. Likewise, the judgment cited in paragraph
22, namely Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) 4
SCC 329 is also a judgment which does not deal with Section 65B. In fact,
paragraph 20 of the said judgment states the issues before the Court as
follows:
“20. However, in the present case, the dispute is not
whether a cassette is a public document but the issues are
whether:
(i) the finding by the Tribunal that in the absence of any
evidence to show that the VHS cassette was obtained by
the appellant from the Election Commission, the cassette
placed on record by the appellant could not be treated as
a public document is perverse; and
(ii) a mere production of an audio cassette, assuming that
the same is a certified copy issued by the Election
Commission, is per se conclusive of the fact that what is
contained in the cassette is the true and correct recording
of the speech allegedly delivered by the respondent or his
agent?”
The second issue was answered referring to judgments which did not deal
with Section 65B at all.
38. Much succour was taken from the three Judge Bench decision
in Tomaso Bruno (supra) in paragraph 23, which, as has been stated
hereinabove, does not state the law on Section 65B correctly. Anvar P.V.
(supra) was referred to in paragraph 24, but surprisingly, in paragraph 26,
47
the Court held that Sections 65A and 65B cannot be held to be a complete
Code on the subject, directly contrary to what was stated by a three Judge
Bench in Anvar P.V. (supra). It was then “clarified” that the requirement of
a certificate under Section 64B(4), being procedural, can be relaxed by the
Court wherever the interest of justice so justifies, and one circumstance in
which the interest of justice so justifies would be where the electronic
device is produced by a party who is not in possession of such device, as a
result of which such party would not be in a position to secure the requisite
certificate.
39. Quite apart from the fact that the judgment in Shafhi
Mohammad (supra) states the law incorrectly and is in the teeth of the
judgment in Anvar P.V. (supra), following the judgment in Tomaso Bruno
(supra) - 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.
40. 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. Section 165 of the Evidence Act states as
follows:
48
“Section 165. Judge’s power to put questions or order
production.- The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of the
parties about any fact relevant or irrelevant; and may order
the production of any document or thing; and neither the
parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the
leave of the Court, to cross-examine any witness upon any
answer given in reply to any such question.
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any
Judge to compel any witness to answer any question or to
produce any document which such witness would be
entitled to refuse to answer or produce under sections 121
to 131, both inclusive, if the question were asked or the
document were called for by the adverse party; nor shall
the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor
shall he dispense with primary evidence of any document,
except in the cases hereinbefore excepted.
41. Likewise, under Order XVI of the Civil Procedure Code, 1908
(“CPC”) which deals with ‘Summoning and Attendance of Witnesses’, the
Court can issue the following orders for the production of documents:
“6. Summons to produce document.—Any person may
be summoned to produce a document, without being
summoned to give evidence; and any person summoned
merely to produce a document shall be deemed to have
complied with the summons if he causes such document
to be produced instead of attending personally to produce
the same.
49
7. Power to require persons present in Court to give
evidence or produce document.—Any person present in
Court may be required by the Court to give evidence or to
produce any document then and there in his possession or
power.
xxx xxx xxx
10. Procedure where witness fails to comply with
summons.—(1) Where a person has been issued
summons either to attend to give evidence or to produce a
document, fails to attend or to produce the document in
compliance with such summons, the Court— (a) shall, if
the certificate of the serving officer has not been verified
by the affidavit, or if service of the summons has affected
by a party or his agent, or (b) may, if the certificate of the
serving officer has been so verified, examine on oath the
serving officer or the party or his agent, as the case may
be, who has effected service, or cause him to be so
examined by any Court, touching the service or non-
service of the summons.
(2) Where the Court sees reason to believe that such
evidence or production is material, and that such person
has, without lawful excuse, failed to attend or to produce
the document in compliance with such summons or has
intentionally avoided service, it may issue a proclamation
requiring him to attend to give evidence or to produce the
document at a time and place to be named therein; and a
copy of such proclamation shall be affixed on the outer
door or other conspicuous part of the house in which he
ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or
at any time afterwards, the Court may, in its discretion,
issue a warrant, either with or without bail, for the arrest of
such person, and may make an order for the attachment
50
of his property to such amount as it thinks fit, not
exceeding the amount of the costs of attachment and of
any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an
order for the attachment of immovable property.”
42. Similarly, in the Code of Criminal Procedure, 1973 (“CrPC”),
the Judge conducting a criminal trial is empowered to issue the following
orders for production of documents:
“91. Summons to produce document or other thing.—
(1) Whenever any Court or any officer in charge of a police
station considers that the production of any document or
other thing is necessary or desirable for the purposes of
any investigation, inquiry, trial or other proceeding under
this Code by or before such Court or officer, such Court
may issue a summons, or such officer a written order, to
the person in whose possession or power such document
or thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place stated in
the summons or order.
(2) Any person required under this section merely to
produce a document or other thing shall be deemed to
have complied with the requisition if he causes such
document or thing to be produced instead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect
sections 123 and 124 of the Indian Evidence Act, 1872 (1
of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of
1891), or (b) to apply to a letter, postcard, telegram or
other document or any parcel or thing in the custody of the
postal or telegraph authority.”
51
“349. Imprisonment or committal of person refusing to
answer or produce document.—If any witness or person
called to produce a document or thing before a Criminal
Court refuses to answer such questions as are put to him
or to produce any document or thing in his possession or
power which the Court requires him to produce, and does
not, after a reasonable opportunity has been given to him
so to do, offer any reasonable excuse for such refusal,
such Court may, for reasons to be recorded in writing,
sentence him to simple imprisonment, or by warrant under
the hand of the Presiding Magistrate or Judge commit him
to the custody of an officer of the Court for any term not
exceeding seven days, unless in the meantime, such
person consents to be examined and to answer, or to
produce the document or thing and in the event of his
persisting in his refusal, he may be dealt with according to
the provisions of section 345 or section 346.”
43. Thus, it is clear that the major premise of Shafhi Mohammad
(supra) 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.
44. Resultantly, the judgment dated 03.04.2018 of a Division
Bench of this Court reported as (2018) 5 SCC 311, in following the law
incorrectly laid down in Shafhi Mohammed (supra), must also be, and is
hereby, overruled.
52
45. However, a caveat must be entered here. 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) 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
53
law is excused. This was well put by this Court in Re: Presidential Poll
(1974) 2 SCC 33 as follows:
“14. If the completion of election before the expiration of
the term is not possible because of the death of the
prospective candidate it is apparent that the election has
commenced before the expiration of the term but
completion before the expiration of the term is rendered
impossible by an act beyond the control of human agency.
The necessity for completing the election before the
expiration of the term is enjoined by the Constitution in
public and State interest to see that the governance of the
country is not paralysed by non-compliance with the
provision that there shall be a President of India.
15. The impossibility of the completion of the election to fill
the vacancy in the office of the President before the
expiration of the term of office in the case of death of a
candidate as may appear from Section 7 of the 1952 Act
does not rob Article 62(1) of its mandatory character. The
maxim of law impotentia excusat legam is intimately
connected with another maxim of law lex non cogit ad
impossibilia. Impotentia excusat legam is that when there
is a necessary or invincible disability to perform the
mandatory part of the law that impotentia excuses. The
law does not compel one to do that which one cannot
possibly perform. “Where the law creates a duty or charge,
and the party is disabled to perform it, without any default
in him, and has no remedy over it, there the law will in
general excuse him.” Therefore, when it appears that the
performance of the formalities prescribed by a statute has
been rendered impossible by circumstances over which
the persons interested had no control, like the act of God,
the circumstances will be taken as a valid excuse. Where
the act of God prevents the compliance of the words of a
statute, the statutory provision is not denuded of its
mandatory character because of supervening impossibility
54
caused by the act of God. (See Broom's Legal
Maxims 10th Edn. at pp. 162-163 and Craies on Statute
Law 6th Edn. at p. 268).”
It is important to note that the provision in question in Re Presidential Poll
(supra) was also mandatory, which could not be satisfied owing to an act of
God, in the facts of that case. These maxims have been applied by this
Court in different situations in other election cases – see Chandra Kishore
Jha v. Mahavir Prasad and Ors. (1999) 8 SCC 266 (at paragraphs 17 and
21); Special Reference 1 of 2002 (2002) 8 SCC 237 (at paragraphs 130
and 151) and Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
(2005) 3 SCC 601 (at paragraphs 13 and 14).
46. These Latin maxims have also been applied in several other
contexts by this Court. In Cochin State Power and Light Corporation v.
State of Kerala (1965) 3 SCR 187, a question arose as to the exercise of
an option of purchasing an undertaking by the State Electricity Board under
Section 6(4) of the Indian Electricity Act, 1910. The provision required a
notice of at least 18 months before the expiry of the relevant period to be
given by such State Electricity Board to the State Government. Since this
mandatory provision was impossible of compliance, it was held that the
State Electricity Board was excused from giving such notice, as follows:
55
“Sub-section (1) of Section 6 expressly vests in the State
Electricity Board the option of purchase on the expiry of
the relevant period specified in the license. But the State
Government claims that under sub-section (2) of Section 6
it is now vested with the option. Now, under sub-section
(2) of Section 6, the State Government would be vested
with the option only “where a State Electricity Board has
not been constituted, or if constituted, does not elect to
purchase the undertaking”. It is common case that the
State Electricity Board was duly constituted. But the State
Government claims that the State Electricity Board did not
elect to purchase the undertaking. For this purpose, the
State Government relies upon the deeming provisions of
sub-section (4) of Section 6, and contends that as the
Board did not send to the State Government any
intimation in writing of its intention to exercise the option
as required by the sub-section, the Board must be
deemed to have elected not to purchase the undertaking.
Now, the effect of sub-section (4) read with sub-section (2)
of Section 6 is that on failure of the Board to give the
notice prescribed by sub-section (4), the option vested in
the Board under sub-section (1) of Section 6 was liable to
be divested. Sub-section (4) of Section 6 imposed upon
the Board the duty of giving after the coming into force of
Section 6 a notice in writing of its intention to exercise the
option at least 18 months before the expiry of the relevant
period. Section 6 came into force on September 5, 1959,
and the relevant period expired on December 3, 1960. In
the circumstances, the giving of the requisite notice of 18
months in respect of the option of purchase on the expiry
of December 2, 1960, was impossible from the very
commencement of Section 6. The performance of this
impossible duty must be excused in accordance with the
maxim, lex non cogitia ad impossibilia (the law does not
compel the doing of impossibilities), and sub-section (4) of
Section 6 must be construed as not being applicable to a
case where compliance with it is impossible. We must
therefore, hold that the State Electricity Board was not
56
required to give the notice under sub-section (4) of Section
6 in respect of its option of purchase on the expiry of 25
years. It must follow that the Board cannot be deemed to
have elected not to purchase the undertaking under sub-
section (4) of Section 6. By the notice served upon the
appellant, the Board duly elected to purchase the
undertaking on the expiry of 25 years. Consequently, the
State Government never became vested with the option of
purchasing the undertaking under sub-section (2) of
Section 6. The State Government must, therefore, be
restrained from taking further action under its notice, Ex.
G, dated November 20, 1959.”
5
47. In Raj Kumar Dubey v. Tarapada Dey and Ors. (1987) 4
SCC 398, the maxim non cogit ad impossibilia was applied in the context
of the applicability of a mandatory provision of the Registration Act, 1908,
as follows:
“6. We have to bear in mind two maxims of equity which
are well settled, namely, actus curiae neminem gravabit —
An act of the Court shall prejudice no man. In
Broom's Legal Maxims, 10th Edn., 1939 at page 73 this
maxim is explained that this maxim was founded upon
justice and good sense; and afforded a safe and certain
guide for the administration of the law. The above maxim
should, however, be applied with caution. The other
maxim is lex non cogit ad impossibilia (Broom's Legal
Maxims — page 162) — The law does not compel a man
to do that which he cannot possibly perform. The law itself
and the administration of it, said Sir W. Scott, with
reference to an alleged infraction of the revenue laws,
must yield to that to which everything must bend, to
necessity; the law, in its most positive and peremptory
5 (1965) 3 SCR 187, at 193.
57
injunctions, is understood to disclaim, as it does in its
general aphorisms, all intention of compelling
impossibilities, and the administration of laws must adopt
that general exception in the consideration of all particular
cases.
7. In this case indisputably during the period from 26-7-
1978 to December 1982 there was subsisting injunction
preventing the arbitrators from taking any steps.
Furthermore, as noted before the award was in the
custody of the court, that is to say, 28-1-1978 till the return
of the award to the arbitrators on 24-11-1983, arbitrators
or the parties could not have presented the award for its
registration during that time. The award as we have noted
before was made on 28-11-1977 and before the expiry of
the four months from 28-11-1977, the award was filed in
the court pursuant to the order of the court. It was argued
that the order made by the court directing the arbitrators to
keep the award in the custody of the court was wrong and
without jurisdiction, but no arbitrator could be compelled to
disobey the order of the court and if in compliance or
obedience with court of doubtful jurisdiction, he could not
take back the award from the custody of the court to take
any further steps for its registration then it cannot be said
that he has failed to get the award registered as the law
required. The aforesaid two legal maxims — the law does
not compel a man to do that which he cannot possibly
perform and an act of the court shall prejudice no
man would, apply with full vigour in the facts of this case
and if that is the position then the award as we have noted
before was presented before the Sub-Registrar, Arambagh
on 25-11-1983 the very next one day of getting
possession of the award from the court. The Sub-Registrar
pursuant to the order of the High Court on 24-6-1985
found that the award was presented within time as the
period during which the judicial proceedings were pending
that is to say, from 28-1-1978 to 24-11-1983 should be
excluded in view of the principle laid down in Section 15 of
58
the Limitation Act, 1963. The High Court, therefore, in our
opinion, was wrong in holding that the only period which
should be excluded was from 26-7-1978 till 20-12-1982.
We are unable to accept this position. 26-7-1978 was the
date of the order of the learned Munsif directing
maintenance of status quo and 20-12-1982 was the date
when the interim injunction was vacated, but still the
award was in the custody of the court and there is ample
evidence as it would appear from the narration of events
hereinbefore made that the arbitrators had tried to obtain
the custody of the award which the court declined to give
to them.”
48. These maxims have also been applied to tenancy legislation –
see M/s B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and Anr.
(1987) 2 SCC 401 (at paragraph 12), and have also been applied to relieve
authorities of fulfilling their obligation to allot plots when such plots have
been found to be un-allottable, owing to the contravention of Central
statutes – see Hira Tikoo v. U.T., Chandigarh and Ors. (2004) 6 SCC 765
(at paragraphs 23 and 24).
49. 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.
59
50. We may hasten to add that Section 65B does not speak of the
stage at which such certificate must be furnished to the Court. In Anvar
P.V. (supra), this Court did observe that such certificate must accompany
the electronic record when the same is produced in evidence. We may only
add that 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 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.
60
51. In a recent judgment, a Division Bench of this Court in State of
Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar
P.V. (supra) held:
“16. The same view has been reiterated by a two-
Judge Bench of this Court in Union of India v. Ravindra
V. Desai [(2018) 16 SCC 273]. The Court emphasised
that non-production of a certificate under Section 65-B
on an earlier occasion is a curable defect. The Court
relied upon the earlier decision in Sonu v. State of
Haryana [(2017) 8 SCC 570], in which it was held:
“32. … The crucial test, as affirmed by this Court,
is whether the defect could have been cured at the
stage of marking the document. Applying this test to
the present case, if an objection was taken to the
CDRs being marked without a certificate, the court
could have given the prosecution an opportunity to
rectify the deficiency.”
17. Having regard to the above principle of law, the
High Court erred in coming to the conclusion that the
failure to produce a certificate under Section 65-B(4) of
the Evidence Act at the stage when the charge-sheet
was filed was fatal to the prosecution. The need for
production of such a certificate would arise when the
electronic record is sought to be produced in evidence
at the trial. It is at that stage that the necessity of the
production of the certificate would arise.”
52. It is pertinent to recollect that 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
61
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
6
. Therefore, the electronic evidence, i.e. the computer output,
has to be furnished at the latest before the trial begins. The reason is not
far to seek; this gives the accused a fair chance to prepare and defend the
charges levelled against him during the trial. The general principle in
criminal proceedings therefore, is to supply to the accused all documents
that the prosecution seeks to rely upon before the commencement of the
trial. The requirement of such full disclosure is an extremely valuable right
and an essential feature of the right to a fair trial as it enables the accused
to prepare for the trial before its commencement.
6 “Section 207. Supply to the accused of copy of police report and other documents.- In
any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of costs, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for such exclusion has been made by
the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to
in clause (iii) and considering the reasons given by the police officer for the request, direct that
a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is
voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will
only be allowed to inspect it either personally or through pleader in Court.”
62
53. 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. It is further settled law that
the prosecution ought not to be allowed to fill up any lacunae during a trial.
As recognised by this Court in Central Bureau of Investigation v. R.S.
Pai (2002) 5 SCC 82, the only exception to this general rule is if the
prosecution had ‘mistakenly’ not filed a document, the said document can
be allowed to be placed on record. The Court held as follows:
“7. From the aforesaid sub-sections, it is apparent that
normally, the investigating officer is required to produce
all the relevant documents at the time of submitting the
charge-sheet. At the same time, as there is no specific
prohibition, it cannot be held that the additional
documents cannot be produced subsequently. If some
mistake is committed in not producing the relevant
documents at the time of submitting the report or the
charge-sheet, it is always open to the investigating
officer to produce the same with the permission of the
court.”
54. 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
63
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 the case - discretion to be exercised by the
Court in accordance with law.
55. The High Court of Rajasthan in Paras Jain v. State of
Rajasthan 2015 SCC OnLine Raj 8331, decided a preliminary objection
that was raised on the applicability of Section 65B to the facts of the case.
The preliminary objection raised was framed as follows:
“3. (i) Whether transcriptions of conversations and for that
matter CDs of the same filed alongwith the charge-sheet
are not admissible in evidence even at this stage of the
proceedings as certificate as required u/Sec. 65-B of the
Evidence Act was not obtained at the time of procurement
of said CDs from the concerned service provider and it
was not produced alongwith charge-sheet in the
prescribed form and such certificate cannot be filed
subsequently.”
64
After referring to Anvar P.V. (supra), the High Court held:
“15. Although, it has been observed by Hon'ble Supreme
Court that the requisite certificate must accompany the
electronic record pertaining to which a statement is sought
to be given in evidence when the same is produced in
evidence, but in my view it does not mean that it must be
produced alongwith the charge-sheet and if it is not
produced alongwith the charge-sheet, doors of the Court
are completely shut and it cannot be produced
subsequently in any circumstance. Section 65-B of the
Evidence Act deals with admissibility of secondary
evidence in the form of electronic record and the
procedure to be followed and the requirements be fulfilled
before such an evidence can be held to be admissible in
evidence and not with the stage at which such a certificate
is to be produced before the Court. One of the principal
issues arising for consideration in the above case before
Hon'ble Court was the nature and manner of admission of
electronic records.
16. From the facts of the above case it is revealed that the
election of the respondent to the legislative assembly of
the State of Kerala was challenged by the appellant-Shri
Anwar P.V. by way of an election petition before the High
Court of Kerala and it was dismissed vide order dated
16.11.2011 by the High Court and that order was
challenged by the appellant before Hon'ble Supreme
Court. It appears that the election was challenged on the
ground of corrupt practices committed by the respondent
and in support thereof some CDs were produced
alongwith the election petition, but even during the course
of trial certificate as required under Section 65-B of the
Evidence Act was not produced and the question of
admissibility of the CDs as secondary evidence in the form
of electronic record in absence of requisite certificate was
considered and it was held that such electronic record is
not admissible in evidence in absence of the certificate. It
65
is clear from the facts of the case that the question of
stage at which such electronic record is to be produced
was not before the Hon'ble Court.
17. It is to be noted that it has been clarified by Hon'ble
Court that observations made by it are in respect of
secondary evidence of electronic record with reference to
Sections 59, 65-A and 65-B of the Evidence Act and if an
electronic record as such is used as primary evidence
under Section 62 of the Evidence Act, the same is
admissible in evidence without compliance with the
conditions in Section 65-B of the Evidence Act.
18. To consider the issue raised on behalf of the
petitioners in a proper manner, I pose a question to me
whether an evidence and more particularly evidence in the
form of a document not produced alongwith the charge-
sheet cannot be produced subsequently in any
circumstances. My answer to the question is in negative
and in my opinion such evidence can be produced
subsequently also as it is well settled legal position that
the goal of a criminal trial is to discover the truth and to
achieve that goal, the best possible evidence is to be
brought on record.
19. Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C.
provides that whenever any Court considers that the
production of any document is necessary or desirable for
the purposes of any trial under the Code by or before such
Court, such Court may issue a summons to the person in
whose possession or power such document is believed to
be, requiring him to attend and produce it or to produce it,
at the time and place stated in the summons. Thus, a wide
discretion has been conferred on the Court enabling it
during the course of trial to issue summons to a person in
whose possession or power a document is believed to be
requiring him to produce before it, if the Court considers
that the production of such document is necessary or
66
desirable for the purposes of such trial. Such power can
be exercised by the Court at any stage of the proceedings
before judgment is delivered and the Court must exercise
the power if the production of such document is necessary
or desirable for the proper decision in the case. It cannot
be disputed that such summons can also be issued to the
complainant/informer/victim of the case on whose instance
the FIR was registered. In my considered view when
under this provision Court has been empowered to issue
summons for the producment of document, there can be
no bar for the Court to permit a document to be taken on
record if it is already before it and the Court finds that it is
necessary for the proper disposal of the case irrespective
of the fact that it was not filed along with the charge-sheet.
I am of the further view that it is the duty of the Court to
take all steps necessary for the production of such a
document before it.
20. As per Sec. 311 Cr.P.C., any Court may, at any stage
of any trial under the Code, summon any person as a
witness, or examine any person in attendance, though not
summoned as a witness, or recall or re-examine any
person already examined; and the Court shall summon
and examine or recall and re-examine any such person if
his evidence appears to it to be essential to the just
decision of the case. Under this provision also wide
discretion has been conferred upon the Court to exercise
its power and paramount consideration is just decision of
the case. In my opinion under this provision it is
permissible for the Court even to order production of a
document before it if it is essential for the just decision of
the case.
21. As per Section 173(8) Cr.P.C. carrying out a further
investigation and collection of additional evidence even
after filing of charge-sheet is a statutory right of the police
and for that prior permission of the Magistrate is not
required. If during the course of such further investigation
67
additional evidence, either oral or documentary, is
collected by the Police, the same can be produced before
the Court in the form of supplementary charge-sheet. The
prime consideration for further investigation and collection
of additional evidence is to arrive at the truth and to do
real and substantial justice. The material collected during
further investigation cannot be rejected only because it
has been filed at the stage of the trial.
22. As per Section 231 Cr.P.C., the prosecution is entitled
to produce any person as a witness even though such
person is not named in the charge-sheet.
23. When legal position is that additional evidence, oral or
documentary, can be produced during the course of trial if
in the opinion of the Court production of it is essential for
the proper disposal of the case, how it can be held that the
certificate as required under Section 65-B of the Evidence
Act cannot be produced subsequently in any
circumstances if the same was not procured alongwith the
electronic record and not produced in the Court with the
charge-sheet. In my opinion it is only an irregularity not
going to the root of the matter and is curable. It is also
pertinent to note that certificate was produced alongwith
the charge-sheet but it was not in a proper form but during
the course of hearing of these petitioners, it has been
produced on the prescribed form.”
56. In Kundan Singh (supra), a Division Bench of the Delhi
High Court held:
“50. Anwar P.V. (supra) partly overruled the earlier
decision of the Supreme Court on the procedure to prove
electronic record(s) in Navjot Sandhu (supra), holding that
Section 65B is a specific provision relating to the
admissibility of electronic record(s) and, therefore,
production of a certificate under Section 65B(4) is
68
mandatory. Anwar P.V. (supra) does not state or hold that
the said certificate cannot be produced in exercise of
powers of the trial court under Section 311 Cr.P.C or, at
the appellate stage under Section 391 Cr.P.C. Evidence
Act is a procedural law and in view of the pronouncement
in Anwar P.V. (supra) partly overruling Navjot
Sandhu (supra), the prosecution may be entitled to invoke
the aforementioned provisions, when justified and
required. Of course, it is open to the court/presiding officer
at that time to ascertain and verify whether the responsible
officer could issue the said certificate and meet the
requirements of Section 65B.”
57. Subject to the caveat laid down in paragraphs 50 and 54
above, the law laid down by these two High Courts has our concurrence.
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.
58. 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
69
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).
59. We may reiterate, therefore, that 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. (supra), and
incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the
place of such certificate cannot possibly suffice as Section 65B(4) is a
mandatory requirement of the law. Indeed, the hallowed principle in Taylor
v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the
judgments of this Court, can also be applied. 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.
60. In view of the above, the decision of the Madras High Court in
K. Ramajyam (supra), which states that evidence aliunde can be given
through a person who was in-charge of a computer device in the place of
70
the requisite certificate under Section 65B(4) of the Evidence Act is also an
incorrect statement of the law and is, accordingly, overruled.
61. 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
7
. Therefore, if the police or other individuals
(interested, or party to any form of litigation) fail to secure those 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
7 See, Clause 41.17 of the ‘License Agreement for Provision of Unified Access Services’: “The
LICENSEE shall maintain all commercial records with regard to the communications
exchanged on the network. Such records shall be archived for at least one year for scrutiny by
the Licensor for security reasons and may be destroyed thereafter unless directed otherwise
by the licensor”; Clause 39.20 of the ‘License Agreement for Unified License’: “The Licensee
shall maintain all commercial records/ Call Detail Record (CDR)/ Exchange Detail Record
(EDR)/ IP Detail Record (IPDR) with regard to the 39 communications exchanged on the
network. Such records shall be archived for at least one year for scrutiny by the Licensor for
security reasons and may be destroyed thereafter unless directed otherwise by the Licensor.
Licensor may issue directions /instructions from time to time with respect to CDR/IPDR/EDR.”
71
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.
62. 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, which reads as follows:
“67C. Preservation and retention of information by
intermediaries.– (1) Intermediary shall preserve and
retain such information as may be specified for such
duration and in such manner and format as the Central
Government may prescribe.
(2) any intermediary who intentionally or knowingly
contravenes the provisions of sub-section (1) shall be
punished with an imprisonment for a term which may
extend to three years and also be liable to fine.”
72
63. It is also useful, in this context, to recollect that on 23 April
2016, the conference of the Chief Justices of the High Courts, chaired by
the Chief Justice of India, resolved to create a uniform platform and
guidelines governing the reception of electronic evidence. The Chief
Justices of Punjab and Haryana and Delhi were required to constitute a
committee to “frame Draft Rules to serve as model for adoption by High
Courts”. A five-Judge Committee was accordingly constituted on 28 July,
2018
8
. After extensive deliberations, and meetings with several police,
investigative and other agencies, the Committee finalised its report in
November 2018. The report suggested comprehensive guidelines, and
recommended their adoption for use in courts, across several categories of
proceedings. The report also contained Draft Rules for the Reception,
Retrieval, Authentication and Preservation of Electronic Records. In the
opinion of the Court, these Draft Rules should be examined by the
concerned authorities, with the object of giving them statutory force, to
guide courts in regard to preservation and retrieval of electronic evidence.
64. We turn now to the facts of the case before us. In the present
case, by the impugned judgment dated 24.11.2017, Election Petition
8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain
Raina and R.K. Gauba, JJ.
73
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.
65. However, by an order dated 08.12.2017, this Court admitted
the Election Appeal of the Appellant, and stayed the impugned judgment
and order.
66. We have heard this matter 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 before us, 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 the requisite certificate being incorrect in law, yet, considering
that the Respondent had done everything in his power to obtain the
74
requisite certificate from the appropriate authorities, including directions
from the Court to produce the requisite certificate, no such certificate was
forthcoming. The horse was directed to be taken to the water to drink - but
it refused to drink, leading to the consequence pointed out in paragraph 49
of this judgment (supra).
67. Even otherwise, apart from evidence contained in electronic
form, the High court arrived at the following conclusion:
“48. The evidence in cross examination of Smt. Mutha
shows that when Labade was sent to the passage for
collecting nomination forms, she continued to accept the
nomination forms directly from intending candidates and
their proposers in her office. Her evidence shows that on
27.9.2014 the last nomination form which was directly
presented to her was form No. 38 of Anand Mhaske. The
time of receipt of this form was mentioned in the register of
nomination forms as 2.55 p.m. In respect of subsequent
nomination forms from Sr. Nos. 39 to 64, the time of
acceptance is mentioned as 3.00 p.m. Smt. Mutha admits
that the candidates of nomination form Nos. 39 to 64 (form
No. 64 was the last form filed) were not present before her
physically at 3.00 p.m. At the cost of repetition, it needs to
be mentioned here that form numbers of RC are 43 and
44. The oral evidence and the record like register of
nomination forms does not show that form Nos. 43 and 44
were presented to RO at 2.20 p.m. of 27.9.2014. As per
the evidence of Smt. Mutha and the record, one Arvind
Chavan, a candidate having form Nos. 33, 34 and 35 was
present before her between 2.15 p.m. and 2.30 p.m. In
nomination form register, there is no entry showing that
any nomination form was received at 2.20 p.m. Form Nos.
36 and 37 of Sunil Khare were entered in the register at
75
2.40 p.m. Thus, according to Smt. Mutha, form No. 38,
which was accepted by her directly from the candidate
was tendered to her at 2.55 p.m. of 27.9.2014 and after
that she had done preliminary examination of form No. 38
and check list was given by her to that candidate. Thus, it
is not possible that form Nos. 43 and 44 were directly
handed over to Smt. Mutha by RC at 2.20 p.m. or even at
3.00 p.m. of 27.9.2014.
50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m.
of handing over the check list to RC and she showed the
time as 3.00 p.m., but this time was shown in respect of all
forms starting from Sr. Nos. 39 to 64. Thus, substantive
evidence of Smt. Mutha and the aforesaid record falsifies
the contention of the RC made in the pleading that he had
handed over the nomination forms (form Nos. 43 and 44)
directly to RO prior to 3.00 p.m., at 2.20 p.m.”
68. Thus, 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.
69. Shri Adsure, however, attacked the impugned judgment when it
held that the improper acceptance of the nomination form of the RC
himself being involved in the matter, no further pleadings and particulars on
whether the election is “materially affected” were required, as it can be
assumed that if such plea is accepted, the election would be materially
affected, as the election would then be set aside. He cited a Division
Bench judgment of this Court in Rajendra Kumar Meshram v. Vanshmani
Prasad Verma (2016) 10 SCC 715, wherein an election petition was filed
76
against the appellant, inter alia, on the ground that as the appellant - the
returned candidate - was a Government servant, his nomination had been
improperly accepted. The Court held that the requirement of Section
100(1)(d) of the Representation of People Act, 1951, being that the election
can be set aside only if such improper acceptance of the nomination has
“materially affected” the result of the election, and there being no pleading
or evidence to this effect, the election petition must fail. This Court stated:
“9. As Issues 1 and 2 extracted above, have been
answered in favour of the returned candidate and there is
no cross-appeal, it is only the remaining issues that
survive for consideration. All the said issues centre round
the question of improper acceptance of the nomination
form of the returned candidate. In this regard, Issue 6
which raises the question of material effect of the improper
acceptance of nomination of the returned candidate on the
result of the election may be specifically noticed.
10. Under Section 100(1)(d), an election is liable to be
declared void on the ground of improper acceptance of a
nomination if such improper acceptance of the nomination
has materially affected the result of the election. This is in
distinction to what is contained in Section 100(1)(c) i.e.
improper rejection of a nomination which itself is a
sufficient ground for invalidating the election without any
further requirement of proof of material effect of such
rejection on the result of the election. The above
distinction must be kept in mind. Proceeding on the said
basis, we find that the High Court did not endeavour to go
into the further question that would be required to be
determined even if it is assumed that the appellant
returned candidate had not filed the electoral roll or a
77
certified copy thereof and, therefore, had not complied
with the mandatory provisions of Section 33(5) of the 1951
Act.
11. In other words, before setting aside the election on the
above ground, the High Court ought to have carried out a
further exercise, namely, to find out whether the improper
acceptance of the nomination had materially affected the
result of the election. This has not been done
notwithstanding Issue 6 framed which is specifically to the
above effect. The High Court having failed to determine
the said issue i.e. Issue 6, naturally, it was not empowered
to declare the election of the appellant returned candidate
as void even if we are to assume that the acceptance of
the nomination of the returned candidate was improper.”
70. On the other hand, Ms. Meenakshi Arora cited a Division
Bench judgment in Mairembam Prithviraj v. Pukhrem Sharatchandra
Singh (2017) 2 SCC 487. In this judgment, several earlier judgments of
this Court were cited on the legal effect of not pleading or proving that the
election had been “materially affected” by the improper acceptance of a
nomination under Section 100(1)(d)(i) of the Representation of People Act,
1951. After referring to Durai Muthuswami v. N. Nachiappan and Ors.
1973(2) SCC 45 and Jagjit Singh v. Dharam Pal Singh 1995 Supp (1)
SCC 422, this Court then referred to a three-Judge Bench judgment in
Vashist Narain Sharma v. Dev Chandra 1955 (1) SCR 509 as under:
“25. It was held by this Court in Vashist Narain
Sharma v. Dev Chandra [(1955) 1 SCR 509] as under:
78
“9. The learned counsel for the respondents concedes that
the burden of proving that the improper acceptance of a
nomination has materially affected the result of the
election lies upon the petitioner but he argues that the
question can arise in one of three ways:
(1) where the candidate whose nomination was improperly
accepted had secured less votes than the difference
between the returned candidate and the candidate
securing the next highest number of votes,
(2) where the person referred to above secured more
votes, and
(3) where the person whose nomination has been
improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is
not materially affected because if all the wasted votes are
added to the votes of the candidate securing the highest
votes, it will make no difference to the result and the
returned candidate will retain the seat. In the other two
cases it is contended that the result is materially
affected. So far as the third case is concerned it may be
readily conceded that such would be the conclusion…”
This Court then concluded:
“26. Mere finding that there has been an improper
acceptance of the nomination is not sufficient for a
declaration that the election is void under Section 100(1)
(d). There has to be further pleading and proof that the
result of the election of the returned candidate was
materially affected. But, there would be no necessity of
any proof in the event of the nomination of a returned
candidate being declared as having been improperly
accepted, especially in a case where there are only two
candidates in the fray. If the returned candidate's
nomination is declared to have been improperly accepted
79
it would mean that he could not have contested the
election and that the result of the election of the returned
candidate was materially affected need not be proved
further…”
71. None of the earlier judgments of this Court referred to in
Mairembam Prithviraj (supra) have been adverted to in Rajendra Kumar
Meshram (supra) cited by Shri Adsure. In particular, the judgment of three
learned Judges of this Court in Vashist Narain Sharma (supra) 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 (supra), 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.
72. The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law
declared by this Court on Section 65B of the Evidence Act. The
judgment in Tomaso Bruno (supra), being per incuriam, does not lay
80
down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of
2011 reported as Shafhi Mohammad (supra) and the judgment dated
03.04.2018 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. (supra) 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
81
stated in paragraph 24 of Anvar P.V. (supra) does not need to be
revisited.
(c) The general directions issued in paragraph 62 (supra) 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.
82
73. These appeals are dismissed with costs of INR One Lakh each
to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos.
20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri
Vijay Chaudhary.
…………………..………………J.
(R. F. Nariman)
……………..……………………J.
(S. Ravindra Bhat)
……………..……………………J.
(V. Ramasubramanian)
New Delhi.
14
th
July, 2020.
83
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.2082520826 OF 2017
ARJUN PANDITRAO KHOTKAR …Appellant
Versus
KAILASH KUSHANRAO GORANTYAL AND ORS.…Respondents
WITH
CIVIL APPEAL NO.2407 OF 2018
CIVIL APPEAL NO.3696 OF 2018
J U D G M E N T
V. Ramasubramanian.J
1.While I am entirely in agreement with the opinion
penned by R. F. Nariman, J. I also wish to add a few lines
about (i) the reasons for the acrimony behind Section 65B of
the Indian Evidence Act, 1872 (hereinafter “Evidence Act”) (ii)
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how even with the existing rules of procedure, the courts
fared well, without any legislative interference, while dealing
with evidence in analogue form, and (iii) how after machines
in analogue form gave way to machines in electronic form,
certain jurisdictions of the world changed their legal
landscape, over a period of time, by suitably amending the
law, to avoid confusions and conflicts.
I. Reasons for the acrimony behind Section 65B
2.Documentary evidence, in contrast to oral evidence, is
required to pass through certain check posts, such as
(i) admissibility (ii) relevancy and (iii) proof, before it is
allowed entry into the sanctum. Many times, it is
difficult to identify which of these check posts is
required to be passed first, which to be passed next
and which to be passed later. Sometimes, at least in
practice, the sequence in which evidence has to go
through these three check posts, changes. Generally
and theoretically, admissibility depends on relevancy.
Under Section 136 of the Evidence Act, relevancy must
85
be established before admissibility can be dealt with.
Therefore if we go by Section 136, a party should first
show relevancy, making it the first check post and
admissibility the second one. But some documents,
such as those indicated in Section 68 of the Evidence
Act, which pass the first check post of relevancy and
the second check post of admissibility may be of no
value unless the attesting witness is examined. Proof of
execution of such documents, in a manner established
by law, thus constitutes the third check post. Here
again, proof of execution stands on a different footing
than proof of contents.
3.It must also be noted that whatever is relevant may not
always be admissible, if the law imposes certain
conditions. For instance, a document, whose contents
are relevant, may not be admissible, if it is a document
requiring stamping and registration, but had not been
duly stamped and registered. In other words, if
admissibility is the cart, relevancy is the horse, under
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Section 136. But certain provisions of law place the
cart before the horse and Section 65B appears to be
one of them.
4.Section 136 which confers a discretion upon the Judge
to decide as to the admissibility of evidence reads as
follows:
136. Judge to decide as to admissibility of
evidence. ––
When either party proposes to give evidence of
any fact, the Judge may ask the party
proposing to give the evidence in what manner
the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he
thinks that the fact, if proved, would be
relevant, and not otherwise.
If the fact proposed to be proved is one of which
evidence is admissible only upon proof of some
other fact, such lastmentioned fact must be
proved before evidence is given of the fact first
mentioned, unless the party undertakes to give
proof of such fact, and the Court is satisfied
with such undertaking.
If the relevancy of one alleged fact depends
upon another alleged fact being first proved,
the Judge may, in his discretion, either permit
evidence of the first fact to be given before the
second fact is proved, or require evidence to be
given of the second fact before evidence is
given of the first fact.
87
5.There are three parts to Section 136. The first part
deals with the discretion of the Judge to admit the
evidence, if he thinks that the fact sought to be proved
is relevant. The second part of Section 136 states that
if the fact proposed to be proved is one, of which
evidence is admissible only upon proof of some other
fact, such last mentioned fact must be proved before
evidence is given of the fact first mentioned. But this
rule is subject to a small concession, namely, that if
the party undertakes to produce proof of the last
mentioned fact later and the Court is satisfied
about such undertaking, the Court may proceed to
admit evidence of the first mentioned fact. The
third part of Section 136 deals with the relevancy of
one alleged fact, which depends upon another alleged
fact being first proved. The third part of Section 136
has no relevance for our present purpose.
88
6.Illustration (b) under Section 136 provides an easy
example of the second part of Section 136. Illustration
(b) reads as follows:
(b) It is proposed to prove, by a copy, the
contents of a document said to be lost.
The fact that the original is lost must be proved
by the person proposing to produce the copy,
before the copy is produced.
7.What is laid down in Section 65B as a precondition for
the admission of an electronic record, resembles what
is provided in the second part of Section 136. For
example, if a fact is sought to be proved through the
contents of an electronic record (or information
contained in an electronic record), the Judge is first
required to see if it is relevant, if the first part of
Section 136 is taken to be applicable.
8.But Section 65B makes the admissibility of the
information contained in the electronic record subject
to certain conditions, including certification. The
certification is for the purpose of proving that the
information which constitutes the computer output
89
was produced by a computer which was used regularly
to store or process information and that the
information so derived was regularly fed into the
computer in the ordinary course of the said activities.
9.In other words, if we go by the requirements of Section
136, the computer output becomes admissible if the
fact sought to be proved is relevant. But such a fact is
admissible only upon proof of some other fact namely,
that it was extracted from a computer used regularly
etc. In simple terms, what is contained in the
computer output can be equated to the first
mentioned fact and the requirement of a
certification can be equated to the last mentioned
fact, referred to in the second part of Section 136
read with Illustration (b) thereunder.
10.But Section 65B(1) starts with a nonobstante clause
excluding the application of the other provisions and it
makes the certification, a precondition for
90
admissibility. While doing so, it does not talk about
relevancy. In a way, Sections 65A and 65B, if read
together, mixup 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 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.
11.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
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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.
II. How the courts dealt with evidence in analogue form
without legislative interference and the shift
12.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.
13.It is no doubt true that 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
92
form. When someone speaks or sings, a signal is taken
directly by the microphone and laid onto a tape, if we
take the example of an analogue tape recorder. Both,
the wave from the microphone and the wave on the
tape, are analogue and the wave on the tape can be
read, amplified and sent to a speaker to produce the
sound. 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.
14.The difference between something in analogue form
and the same thing in digital form and the reason why
digital format throws more challenges, was presented
pithily in an article titled ‘Electronic evidence and
the meaning of “original”’,
9
by Stephen Mason
(Barrister and recognised authority on electronic
9 Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae
26 (2009)
93
signatures and electronic evidence). Taking the
example of a photograph in both types of form, the
learned author says the following:
For instance, a photograph taken with an
analogue camera (that is, a camera with a film)
can only remain a single object. It cannot be
merged into other photographs, and split off
again. It remains a physical object. A
photograph taken with a digital camera differs
markedly. The digital object, made up of a
series of zeros and the number one, can be,
and frequently is, manipulated and altered
(especially in fashion magazines and for
advertisements). Things can be taken out and
put in to the image, in the same way the water
droplets can merge and form a single, larger
droplet. The new, manipulated digital image
can also be divided back into its constituent
parts.
Herein lies the interesting point: when three
droplets of water fuse and then separate into
three droplets, it is to be questioned whether
the three droplets that merge from the bigger
droplet were the identical droplets that existed
before they merged. In the same way, consider
a digital object that has been manipulated and
added to, and the process is then reversed. The
original object that was used remains (unless it
was never saved independently, and the
changes made to the image were saved in the
original file), but another object, with the
identical image (or near identical, depending on
the system software and application software)
now exists. Conceptually, it is possible to argue
94
that the two digital images are different: one is
the original, the other a copy of the original that
was manipulated and returned to its original
state (whatever “original” means). But both
images are identical, apart from some
additional meta data that might, or might not
be conclusive. However, it is apparent that the
images, if viewed together, are identical – will
be identical, and the viewer will not be able to
determine which is the original, and which
image was manipulated. In this respect, the
digital images are no different from the droplets
of rain that fall, merge, then divide: there is no
telling whether the droplets that split are
identical to the droplets that came together to
form the larger droplet.
15.That courts did not have a problem with the evidence
in analogue form is established by several judicial
precedents, in U.K., which were also followed by our
courts. A device used to clandestinely record a
conversation between two individuals was allowed in
Harry Parker vs. Mason
10
in proving fraud on the part
of the plaintiff. While Harry Parker was a civil
proceeding, the principle laid down therein found
acceptance in a criminal trial in R. vs. Burr and
10 [1940] 2 KB 590
95
Sullivan.
11
The High Court of Judiciary in Scotland
admitted in evidence, the tape record of a conversation
between the complainant and a black mailer, in Hopes
and Lavery vs. H. M. Advocate.
12
A conversation
recorded in police cell overheard without any
deception, beyond setting up a tape recorder without
warning, was admitted in evidence in R. vs. Mills.
13
16.Then came R. vs. Maqsud Ali
14
where Marshall J.
drew an analogy between taperecordings and
photographs and held that just as evidence of things
seen through telescopes or binoculars have been
admitted, despite the fact that those things could
not be picked up by the naked eye, the devices
used for recording conversations could also be
admitted, provided the accuracy of the recording
11 [1956] Crim LR 442
12 [1960] Crim LR 566
13 [1962] 3 All ER 298
14 [1965] 2 All ER 464
96
can be proved and the voices recorded properly
identified.
17.Following the above precedents, this Court also held in
S. Pratap Singh vs. State of Punjab ,
15
Yusaffalli
Esmail Nagree vs. State of Maharashtra,
16
N. Sri
Rama Reddy vs. V. V. Giri,
17
R.M. Malkani vs. State
of Maharashtra,
18
Ziyauddin Burhanuddin
Bukhari vs. Brijmohan Ramdass Mehra,
19
Ram
Singh vs. Col. Ram Singh,
20
Tukaram S. Dighole vs.
Manikrao Shivaji Kokate,
21
that tape records of
conversations and speeches are admissible in evidence
under the Indian Evidence Act, subject to certain
conditions. In Ziyauddin Burhanuddin Bukhari and
Tukaram S. Dighole, this Court further held that tape
records constitute “document” within the meaning of
15 (1964) 4 SCR 753
16 (1967) 3 SCR 720
17 AIR 1972 SC 1162
18 AIR 1973 SC 157
19 (1976) 2 SCC 17
20 AIR 1986 SC 3
21 (2010) 4 SCC 329
97
the expression under Section 3 of the Evidence Act.
Thus, 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.
18.There was also an important question that bothered
the courts while dealing with evidence in analogue
form. It was as to whether such evidence was direct or
hearsay. In The Statute of Liberty, Sapporo Maru
M/S (Owners) vs. Steam Tanker Statute of Liberty
(Owners),
22
the film recording of a radar set of echoes
of ships within its range was held to be real evidence.
The court opined that there was no distinction between
a photographer operating a camera manually and the
observations of a barometer operator or its equivalent
operation by a recording mechanism. The Judge
rejected the contention that the evidence was hearsay.
22 [1968] 2 All ER 195
98
19.But when it comes to a computer output, one of the
earliest of cases where the Court of Appeal had to deal
with evidence in the form of a printout from a
computer was in R. vs. Pettigrew.
23
In that case, the
printout from a computer operated by an employee of
the Bank of England was held to be hearsay. But the
academic opinion about the correctness of the decision
was sharply divided. While Professor Smith
24
considered the evidence in this case as direct and not
hearsay, Professor Tapper
25
took the view that the
printout was partly hearsay and partly not. Professor
Seng
26
thought that both views were plausible.
20.But the underlying theory on the basis of which
academicians critiqued the above judgment is that
wherever the production of the output was made
possible without human intervention, the evidence
23 [1980] 71 Cr. App. R. 39
24 Professor Smith was a wellknown authority on criminal law and law of evidence; J.
C. Smith, The admissibility of statements by computer, Crim LR 387, 388 (1981).
25 Professor Tapper is a wellknown authority on law of evidence; Colin Tapper, Reform
of the law of evidence in relation to the output from computers, 3 IntlJ L & Info Tech 87
(1995).
26 Professor Seng is an Associate Professor at the National University of Singapore;
Daniel K B Seng, Computer output as evidence, Sing JLS 139 (1997).
99
should be taken as direct. This is how the position was
explained in Castle vs. Cross,
27
in which the printout
from the Intoximeter was held to be direct and not
hearsay, on the ground that the breath alcohol value in
the printout comprised information produced by the
Intoximeter without the data being processed through
a human brain.
21.In R vs. Robson Mitchell and Richards ,
28
a printout
of telephone calls made on a mobile telephone was
taken as evidence of the calls made and received in
association with the number. The Court held “where a
machine observes a fact and records it, that
record states a fact. It is evidence of what the
machine recorded and this was printed out. The
record was not the fact but the evidence of the
fact”.
27 [1984] 1 WLR 1372
28 [1991] Crim LR 360
100
22.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. Therefore, law makers interfered, sometimes
making things easy for courts and sometimes creating
a lot of confusion. But over a period of time, certain
jurisdictions have come up with reasonably good
solutions. Let us now take a look at them.
III. Legislative developments in U.S.A., U.K. and Canada
on the admissibility of electronic records
POSITION IN USA
23.The Federal Rules of Evidence (FRE) of the United
States of America as amended with effect from
01.12.2017 recognise the availability of more than one
option to a person seeking to produce an electronic
record. Under the amended rules, a person can follow
either the traditional route under Rule 901 or the route
of selfauthentication under Rule 902 whereunder a
101
certificate of authenticity will elevate its status. Rules
901 and 902 of FRE read as follows:
Rule 901. Authenticating or Identifying
Evidence
(a) In General. To satisfy the requirement of
authenticating or identifying an item of
evidence, the proponent must produce evidence
sufficient to support a finding that the item is
what the proponent claims it is.
(b) Examples. The following are examples only
—not a complete list—of evidence that satisfies
the requirement:
(1) Testimony of a Witness with
Knowledge. Testimony that an item is what it is
claimed to be.
(2) Non expert Opinion About Handwriting. A
non expert's opinion that handwriting is
genuine, based on a familiarity with it that was
not acquired for the current litigation.
(3) Comparison by an Expert Witness or the
Trier of Fact. A comparison with an
authenticated specimen by an expert witness
or the trier of fact.
(4) Distinctive Characteristics and the Like. The
appearance, contents, substance, internal
patterns, or other distinctive characteristics of
the item, taken together with all the
circumstances.
(5) Opinion About a Voice. An opinion
identifying a person's voice—whether heard
firsthand or through mechanical or electronic
transmission or recording—based on hearing
the voice at any time under circumstances that
connect it with the alleged speaker.
(6) Evidence About a Telephone
Conversation. For a telephone conversation,
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evidence that a call was made to the number
assigned at the time to:
(A) a particular person, if circumstances,
including selfidentification, show that the
person answering was the one called; or
(B) a particular business, if the call was made
to a business and the call related to business
reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence
that:
(A) a document was recorded or filed in a public
office as authorized by law; or
(B) a purported public record or statement is
from the office where items of this kind are
kept.
(8) Evidence About Ancient Documents or Data
Compilations. For a document or data
compilation, evidence that it:
(A) is in a condition that creates no suspicion
about its authenticity;
(B) was in a place where, if authentic, it would
likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or
System. Evidence describing a process or
system and showing that it produces an
accurate result.
(10) Methods Provided by a Statute or
Rule. Any method of authentication or
identification allowed by a federal statute or a
rule prescribed by the Supreme Court.
Rule 902. Evidence That Is Self
Authenticating
The following items of evidence are self
authenticating; they require no extrinsic
evidence of authenticity in order to be admitted:
103
(1) Domestic Public Documents That Are Sealed
and Signed. A document that bears:
(A) a seal purporting to be that of the United
States; any state, district, commonwealth,
territory, or insular possession of the United
States; the former Panama Canal Zone; the
Trust Territory of the Pacific Islands; a political
subdivision of any of these entities; or a
department, agency, or officer of any entity
named above; and
(B) a signature purporting to be an execution or
attestation.
(2) Domestic Public Documents That Are Not
Sealed but Are Signed and Certified. A
document that bears no seal if:
(A) it bears the signature of an officer or
employee of an entity named in Rule 902(1)(A);
and
(B) another public officer who has a seal and
official duties within that same entity certifies
under seal—or its equivalent—that the signer
has the official capacity and that the signature
is genuine.
(3) Foreign Public Documents. A document that
purports to be signed or attested by a person
who is authorized by a foreign country's law to
do so. The document must be accompanied by
a final certification that certifies the
genuineness of the signature and official
position of the signer or attester—or of any
foreign official whose certificate of genuineness
relates to the signature or attestation or is in a
chain of certificates of genuineness relating to
the signature or attestation. The certification
may be made by a secretary of a United States
embassy or legation; by a consul general, vice
consul, or consular agent of the United States;
or by a diplomatic or consular official of the
foreign country assigned or accredited to the
United States. If all parties have been given a
reasonable opportunity to investigate the
104
document's authenticity and accuracy, the
court may, for good cause, either:
(A) order that it be treated as presumptively
authentic without final certification; or
(B) allow it to be evidenced by an attested
summary with or without final certification.
(4) Certified Copies of Public Records. A copy of
an official record—or a copy of a document that
was recorded or filed in a public office as
authorized by law—if the copy is certified as
correct by:
(A) the custodian or another person authorized
to make the certification; or
(B) a certificate that complies with Rule 902(1),
(2), or (3), a federal statute, or a rule prescribed
by the Supreme Court.
(5) Official Publications. A book, pamphlet, or
other publication purporting to be issued by a
public authority.
(6) Newspapers and Periodicals. Printed
material purporting to be a newspaper or
periodical.
(7) Trade Inscriptions and the Like. An
inscription, sign, tag, or label purporting to have
been affixed in the course of business and
indicating origin, ownership, or control.
(8) Acknowledged Documents. A document
accompanied by a certificate of
acknowledgment that is lawfully executed by a
notary public or another officer who is
authorized to take acknowledgments.
(9) Commercial Paper and Related
Documents. Commercial paper, a signature on
it, and related documents, to the extent allowed
by general commercial law.
(10) Presumptions Under a Federal Statute. A
signature, document, or anything else that a
federal statute declares to be presumptively or
prima facie genuine or authentic.
105
(11) Certified Domestic Records of a Regularly
Conducted Activity. The original or a copy of a
domestic record that meets the requirements of
Rule 803(6)(A)–(C), as shown by a certification
of the custodian or another qualified person
that complies with a federal statute or a rule
prescribed by the Supreme Court. Before the
trial or hearing, the proponent must give an
adverse party reasonable written notice of the
intent to offer the record—and must make the
record and certification available for inspection
—so that the party has a fair opportunity to
challenge them.
(12) Certified Foreign Records of a Regularly
Conducted Activity. In a civil case, the original
or a copy of a foreign record that meets the
requirements of Rule 902(11), modified as
follows: the certification, rather than complying
with a federal statute or Supreme Court rule,
must be signed in a manner that, if falsely
made, would subject the maker to a criminal
penalty in the country where the certification is
signed. The proponent must also meet the
notice requirements of Rule 902(11).
(13) Certified Records Generated by an
Electronic Process or System. A record
generated by an electronic process or system
that produces an accurate result, as shown by
a certification of a qualified person that
complies with the certification requirements of
Rule 902(11) or (12). The proponent must also
meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic
Device, Storage Medium, or File. Data copied
from an electronic device, storage medium, or
file, if authenticated by a process of digital
identification, as shown by a certification of a
qualified person that complies with the
certification requirements of Rule 902(11) or
(12). The proponent also must meet the notice
requirements of Rule 902(11).
106
24.An important decision in the American jurisprudence
on this issue was delivered by Chief Magistrate Judge
of District of Maryland in Lorraine vs. Markel
American Insurance Co .
29
In this case, Paul Grimm,
J. while dealing with a challenge to an arbitrator’s
decision in an insurance dispute, dealt with the issue
whether emails discussing the insurance policy in
question, were admissible as evidence. The Court,
while extending the applicability of Rules 901 and 902
of FRE to electronic evidence, laid down a broad test
for admissibility of electronically stored information.
30
This decision was rendered in 2007 and the FRE were
amended in 2017.
29 241 FRD 534 (2007)
30 Paragraph 2: “Whenever ESI is offered as evidence, either at trial or in summary
judgment, the following evidence rules must be considered: (1) is the ESI relevant as
determined by Rule 401 (does it have any tendency to make some fact that is of
consequence to the litigation more or less probable than it otherwise would be); (2) if
relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show
that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it
hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules
803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original
or duplicate under the original writing rule, of if not, is there admissible secondary
evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value
of the ESI substantially outweighed by the danger of unfair prejudice or one of the other
factors identified by Rule 403, such that it should be excluded despite its relevance.”
107
25.Subrules (13) and (14) were incorporated in Rule 902
under the amendment of the year 2017. Until then, a
person seeking to produce electronic records had to fall
back mostly upon Rule 901 (except in few cases
covered by subrules (11) and (12) of Rule 902). It
means that the benefit of selfauthentication was not
available until then [until the advent of subrules (13)
and (14), except in cases covered by subrules (11) and
(12)]. Nevertheless, the introduction of subrules (13)
and (14) in Rule 902 did not completely exclude the
application of the general provisions of Rule 901.
26.Rule 901 applies to all evidence across the board. It is
a general provision. But Rule 902 is a special provision
dealing with evidence that is selfauthenticating.
Records generated by an electronic process or system
and data copied from an electronic device, storage
medium or file, are included in subrules (13) and (14)
of Rule 902 of the Federal Rules of Evidence.
108
27.But FRE 902 does not exclude the application of FRE
901. It is only when a party seeks to invoke the benefit
of selfauthentication that Rule 902 applies. If a party
chooses not to claim the benefit of selfauthentication,
he is free to come under Rule 901, even if the evidence
sought to be adduced is of an electronically stored
information (ESI).
28.In an article titled ‘EDiscovery: Authenticating
Common Types of ESI Chart’, authored by Paul W.
Grimm (the Judge who delivered the verdict in
Lorraine) and coauthored by Gregory P. Joseph and
published by Thomson Reuters (2017), the learned
authors have given a snapshot of the different methods
of authentication of various types of ESI (electronically
stored information). In a subsequent article (2018)
titled ‘Admissibility of Electronic Evidence’ published
under the caption ‘GrimmBrady Chart’ (referring to
Paul W. Grimm and Kevin F. Brady) on the website
“complexdiscovery.com”, a condensed chart is provided
109
which throws light on the different methods of
authentication of ESI. The chart is reproduced in the
form of a table, with particular reference to the relevant
subrules of Rules 901 and 902 of the Federal Rules of
Evidence as follows:
S. No.Type of ESI Potential Authentication
Methods
1. Email, Text
Messages, and
Instant Messages
Witness with personal knowledge
■
(901(b)(1))
Expert testimony or comparison
■
with authenticated examples
(901(b)(3))
Distinctive characteristics
■
including circumstantial evidence
(901(b)(4))
System or process capable of
■
proving reliable and dependable
result (901(b)(9))
Trade inscriptions (902(7))
■
Certified copies of business
■
record (902(11))
Certified records generated by an
■
electronic process or system
(902(13))
Certified data copied from an
■
electronic device, storage medium,
or file (902(14))
2. Chat Room Postings,
Blogs, Wikis, and
Other Social Media
Conversations
Witness with personal knowledge
■
(901(b)(1))
Expert testimony or comparison
■
with authenticated examples
(901(b)(3))
110
Distinctive characteristics
■
including circumstantial evidence
(901(b)(4))
System or process capable of
■
proving reliable and dependable
result (901(b)(9))
Official publications (902(5))
■
Newspapers and periodicals
■
(902(6))
Certified records generated by an
■
electronic process or system
(902(13))
Certified data copied from an
■
electronic device, storage medium,
or file (902(14))
3. Social Media Sites
(Facebook, LinkedIn,
Twitter,
Instagram, and
Snapchat)
Witness with personal knowledge
■
(901(b)(1))
Expert testimony or comparison
■
with authenticated examples
(901(b)(3))
Distinctive characteristics
■
including circumstantial evidence
(901(b)(4))
Public records (901(b)(7))
■
System or process capable of
■
proving reliable and dependable
result (901(b)(9))
Official publications (902(5))
■
Certified records generated by an
■
electronic process or system
(902(13))
Certified data copied from an
■
electronic device, storage medium,
or file (902(14))
4. Digitally Stored Data
and Internet of
Things
Witness with personal knowledge
■
(901(b)(1))
Expert testimony or comparison
■
111
with authenticated examples
(901(b)(3))
Distinctive characteristics
■
including circumstantial evidence
(901(b)(4))
System or process capable of
■
proving reliable and dependable
result (901(b)(9))
Certified records generated by an
■
electronic process or system
(902(13))
Certified data copied from an
■
electronic device, storage medium,
or file (902(14))
5. Computer Processes,
Animations,
Virtual Reality, and
Simulations
Witness with personal knowledge
■
(901(b)(1))
Expert testimony or comparison
■
with authenticated examples
(901(b)(3))
System or process capable of
■
proving reliable and dependable
result (901(b)(9))
Certified records generated by an
■
electronic process or system
(902(13))
6. Digital Photographs Witness with personal knowledge
■
(901(b)(1))
System or process capable of
■
providing reliable and dependable
result (901(b)(9))
Official publications (902(5))
■
Certified records generated by an
■
electronic process or system
(902(13))
Certified data copied from an
■
electronic device, storage medium,
or file (902(14))
112
29.It is interesting to note that while the Indian Evidence
Act is of the year 1872, the Federal Rules of Evidence
were adopted by the order of the Supreme Court of the
United States exactly 100 years later, in 1972 and they
were enacted with amendments made by the Congress
to take effect on 01.07.1975. Yet, the Rules were found
inadequate to deal with emerging situations and hence,
several amendments were made, including the one
made in 2017 that incorporated specific provisions
relating to electronic records under subrules (13) and
(14) of FRE 902. After this amendment, a lot of options
have been made available to litigants seeking to rely
upon electronically stored information, one among
them being the route provided by subrules (13) and
(14) of FRE 902. This development of law in the US
demonstrates that, unlike in India, law has kept pace
with technology to a great extent.
113
POSITION IN UK
30.As pointed out in the main opinion, Section 65B, in its
present form, is a poor reproduction of Section 5 of the
UK Civil Evidence Act, 1968. The language employed in
subsections (2), (3), (4) and (5) of Section 65B is
almost in pari materia (with minor differences) with
subsections (2) to (5) of Section 5 of the UK Civil
Evidence Act, 1968. However, subsection (1) of Section
65B is substantially different from subsection (1) of
Section 5 of the UK Civil Evidence Act, 1968. But it
also contains certain additional words in subsection
(1) namely “without further proof or production of the
original”. For easy comparison and appreciation, sub
section (1) of Section 65B of the Indian Evidence Act
and subsection (1) of Section 5 of UK Civil Evidence
Act, 1968 are presented in a tabular form as follows:
Section 65B(1), Indian
Evidence Act, 1872
Section 5(1), Civil Evidence
Act, 1968 [UK]
Notwithstanding anything
contained in this Act, any
information contained in an
In any civil proceedings a
statement contained in a
document produced by a
114
electronic record which is 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, 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.
computer shall, subject to rules of
court, be admissible as evidence
of any fact stated therein of
which direct oral evidence would
be admissible, if it is shown that
the conditions mentioned in
subsection (2) below are satisfied
in relation to the statement and
computer in question.
31.But the abovementioned Section 5 of the U.K. Act of
1968 was repealed by the Civil Evidence Act, 1995.
Section 15(2) of the Civil Evidence Act, 1995 repealed
the enactments specified in Schedule II therein. Under
Schedule II of the 1995 Act, Part I of the 1968 Act
containing Sections 110 were repealed. The effect is
that when Section 65B was incorporated in the Indian
Evidence Act, by Act 21 of 2000, by copying sub
sections (2) to (5) of Section 5 of the UK Civil Evidence
Act, 1968, Section 5 itself was not there in the U.K.
115
statute book, as a result of its repeal under the 1995
Act.
32.The repeal of Section 5 under the 1995 Act was a
sequel to the recommendations made by the Law
Commission in September 1993. Part III of the Law
Commission’s report titled ‘The Hearsay Rule in Civil
Proceedings’ noted the problems with the 1968 Act, one
of which concerned computer records. Paragraphs 3.14
to 3.21 in Part III of the Law Commission’s report read
as follows:
Computer records
3.14 A fundamental mistrust and fear of the
potential for error or mechanical failure can be
detected in the elaborate precautions governing
computer records in section 5 of the 1968 Act.
The Law Reform Committee had not
recommended special provisions for such
records, and section 5 would appear to
have been something of an afterthought
with its many safeguards inserted in order
to gain acceptance of what was then a
novel form of evidence. Twentyfive years
later, technology has developed to an extent
where computers and computergenerated
documents are relied on in every area of
business and have long been accepted in
116
banking and other important recordkeeping
fields. The conditions have been widely
criticised, and it has been said that they
are aimed at operations based on the type
of mainframe operations common in the
mid 1960s, which were primarily intended
to process in batches thousands of similar
transactions on a daily basis.
3.15 So far as the statutory conditions are
concerned, there is a heavy reliance on the
need to prove that the document has been
produced in the normal course of business and
in an uninterrupted course of activity. It is at
least questionable whether these
requirements provide any real safeguards
in relation to the reliability of the
hardware or software concerned . In
addition, they are capable of operating to
exclude wide categories of documents,
particularly those which are produced as the
result of an original or a “one off” piece of work.
Furthermore, they provide no protection against
the inaccurate inputting of data.
3.16 We have already referred to the overlap
between sections 4 and 5. If compliance with
section 5 is a prerequisite, then computer
generated documents which pass the
conditions setout in section 5(2) “shall” be
admissible, notwithstanding the fact that they
originated from a chain of human sources and
that it has not been established that the
persons in the chain acted under a duty. In
other words, the record provisions of section 4,
which exist to ensure the reliability of the core
information, are capable of being disapplied. In
the context of our proposed reforms, we do not
117
consider that this apparent discrepancy is of
any significance, save that it illustrates the fact
that section 5 was something of an
afterthought.
3.17 Computergenerated evidence falls
into two categories. First, there is the
situation envisaged by the 1968 Act,
where the computer is used to file and
store information provided to it by human
beings. Second, there is the case where the
record has itself been produced by the
computer, sometimes entirely by itself but
possibly with the involvement of some other
machine. Examples of this situation are
computers which are fed information by
monitoring devices. A particular example is
automatic stock control systems, which are
now in common use and which allow for
purchase orders to be automatically produced.
Under such systems evidence of contract
formation will lie solely in the electronic
messages automatically generated by the
seller’s and buyer’s computers. It is easy to
see how uncertainty as to how the courts
may deal with the proof and enforceability
of such contracts is likely to stifle the full
development and effective use of such
technology. Furthermore, uncertainty may
deter parties from agreeing that contracts made
in this way are to be governed by English law
and litigated in the English courts.
3.18 It is interesting to compare the technical
manner in which the admissibility of computer
generated records has developed, compared
with cases concerning other forms of
sophisticated technologically produced
118
evidence, for example radar records (See
Sapporo Maru (Owners) v. Statue of Liberty
(Owners) [1968] 1 W.L.R. 739). In the Statue of
Liberty case radar records, produced without
human involvement and reproduced in
photographic form, were held to be admissible
to establish how a collision of two ships had
occurred. It was held that this was “real”
evidence, no different in kind from a monitored
tape recording of a conversation. Furthermore,
in these cases, no extra tests of reliability need
be met and the common law rebuttable
presumption is applied, that the machine was
in order at the material time. The same
presumption has been applied to intoximeter
printouts (Castle v. Cross [1984] 1 W.L.R.
1372).
3.19 There are a number of cases which
establish the way in which courts have sought
to distinguish between types of computer
generated evidence, by finding in appropriate
cases that the special procedures are
inapplicable because the evidence is original or
direct evidence. As might be expected, case law
on computergenerated evidence is more likely
to be generated by criminal cases of theft or
fraud, where the incidence of such evidence is
high and the issue of admissibility is more
likely to be crucial to the outcome and hence
less liable to be agreed. For example, even in
the first category of cases, where human
involvement exists, a computergenerated
document may not be considered to be hearsay
if the computer has been used as a mere tool,
to produce calculations from data fed to it by
humans, no matter how complex the
calculations, or how difficult it may be for
119
humans to reproduce its work, provided the
computer was not “contributing its own
knowledge” (R v. Wood (1983) 76 Cr. App. R.
23).
3.20 There was no disagreement with the
view that the provisions relating to
computer records were outdated and that
there was no good reason for
distinguishing between different forms of
record keeping or maintaining a different
regime for the admission of computer
generated documents. This is the position in
Scotland under the 1988 Act. Furthermore, we
were informed of fears that uncertainty over the
treatment of such records in civil litigation in
the United Kingdom was a significant
hindrance to commerce and needed reform.
3.21 Consultees considered that the real
issue for concern was authenticity that
this was a matter which was best dealt
with by a vigilant attitude that
concentrated upon the weight to be
attached to the evidence, in the
circumstances of the individual case,
rather than by reformulating complex and
inflexible conditions as to admissibility.
(emphasis supplied)
33.In Part IV of the 1993 Report, titled ‘Recommendations
for Reform’, Paragraph 4.43 dealt with the
recommendations of the Law Commission in relation to
computer records. Paragraph 4.43 of the Law
120
Commission’s report along with Recommendation Nos.
13, 14 and 15 are reproduced for easy reference:
(b) Computerised records
4.43 In the light of the criticisms of the present
provisions and the response on consultation,
we have decided to recommend that no special
provisions be made in respect of computerised
records. This is the position in Scotland under
the 1988 Act and reflects the overwhelming
view of commentators, practitioners and others.
That is not to say that we do not recognise that,
as familiarity with and confidence in the
inherent reliability of computers has grown, so
has concern over the potential for misuse,
through the capacity to hack, corrupt, or alter
information, in manner which is undetectable.
We do not underestimate these dangers.
However the current provisions of section 5 do
not afford any protection and it is not possible
to legislate protectively. Nothing in our
proposals will either encourage abuse, or
prevent a proper challenge to the admissibility
of computerised records, where abuse is
suspected. Security and authentication are
problems that experts in the field are constantly
addressing and it is a fast evolving area. The
responses from experts in this field, such as the
C.B.I., stressed that, whilst computergenerated
information should be treated similarly to other
records, such evidence should be weighed
according to its reliability, with parties being
encouraged to provide information as to the
security of their systems. We have proposed a
wide definition for the word "document". This
will cover documents in any form and in
121
particular will be wide enough to cover
computergenerated information.
We therefore recommend that:
13. Documents, including those stored by
computer, which form part of the records
of a business or public authority should be
admissible as hearsay evidence under
clause 1 of our draft Bill and the ordinary
notice and weighing provisions should
apply.
14. The current provisions governing the
manner of proof of business records
should be replaced by a simpler regime
which allows, unless the court otherwise
directs, for a document to be taken to form
part of the records of a business or public
authority, if it is certified as such, and
received in evidence without being spoken
to in court. No special provisions should be
made in respect of the manner of proof of
computerized records.
15. The absence of an entry should be
capable of being formally proved by
affidavit of an officer of the business or
authority to which the records belong.
(emphasis in original)
34.The above recommendations of the Law Commission
(U.K.) made in 1993, led to the repeal of Section 5 of
the 1968 Act, under the 1995 Act. The rules of
evidence in civil cases, in so far as electronic records
122
are concerned, thus got liberated in U.K. in 1995 with
the repeal of Section 5 of the U.K. Civil Evidence
Act,1968.
35.But there is a separate enactment in the U.K.,
containing the rules of evidence in criminal
proceedings and that is the Police and Criminal
Evidence Act, 1984. Section 69 of the said Act laid
down rules for determining when a statement in a
document produced by a computer shall not be
admissible as evidence of any fact stated therein.
Section 69 of the said Act laid down three conditions
(there are too many negatives in the language employed
in Section 69). In simple terms, they require that it
must be shown (i) that there are no reasonable grounds
for believing that the statement is not inaccurate
because of improper use of the computer; (ii) that at all
material times the computer was operating properly
and (iii) that the additional conditions specified in the
rules made by the court are also satisfied.
123
36.The abovementioned Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) was repealed by
Section 60 of the Youth Justice and Criminal Evidence
Act, 1999. This repeal was also a sequel to the
recommendations made by the Law Commission in
June 1997 under its report titled “Evidence in Criminal
Proceedings: Hearsay and Related Topics”. Part 13 of
the Law Commission’s Report dealt with computer
evidence in extenso. The problems with Section 69 of
the 1984 Act, the response during the Consultative
Process and the eventual recommendations of the U.K.
Law Commission are contained in paragraphs 13.1 to
13.23. They are usefully extracted as follows:
13.1 In Minors ([1989] 1 WLR 441, 443D–E.)
Steyn J summed up the major problem posed
for the rules of evidence by computer output:
Often the only record of the
transaction, which nobody can be
expected to remember, will be in the
memory of a computer… If computer
output cannot relatively readily be
used as evidence in criminal cases,
much crime (and notably offences
involving dishonesty) would in practice
be immune from prosecution. On the
124
other hand, computers are not
infallible. They do occasionally
malfunction. Software systems often
have “bugs”. …Realistically, therefore,
computers must be regarded as
imperfect devices.
13.2 The legislature sought to deal with this
dilemma by section 69 of PACE, which imposes
important additional requirements that must be
satisfied before computer evidence is adduced
– whether it is hearsay or not (Shephard [1993]
AC 380).
13.3 In practice, a great deal of hearsay
evidence is held on computer, and so section 69
warrants careful attention. It must be examined
against the requirement that the use of
computer evidence should not be unnecessarily
impeded, while giving due weight to the
fallibility of computers.
PACE, SECTION 69
13.4 In the consultation paper we dealt in
detail with the requirements of section 69: in
essence it provides that a document produced
by a computer may not be adduced as evidence
of any fact stated in the document unless it is
shown that the computer was properly
operating and was not being improperly used.
If there is any dispute as to whether the
conditions in section 69 have been satisfied,
the court must hold a trial within the trial to
decide whether the party seeking to rely on the
document has established the foundation
requirements of section 69.
125
13.5 In essence, the party relying on computer
evidence must first prove that the computer is
reliable – or, if the evidence was generated by
more than one computer, that each of them is
reliable (Cochrane [1993] Crim LR 48). This
can be proved by tendering a written
certificate, or by calling oral evidence. It is
not possible for the party adducing the
computer evidence to rely on a presumption
that the computer is working correctly
(Shephard [1993] AC 380, 384E). It is also
necessary for the computer records themselves
to be produced to the court (Burr v DPP [1996]
Crim LR 324).
The problems with the present law
13.6 In the consultation paper we came to the
conclusion that the present law was
unsatisfactory, for five reasons.
13.7 First, section 69 fails to address the major
causes of inaccuracy in computer evidence. As
Professor Tapper has pointed out, “most
computer error is either immediately detectable
or results from error in the data entered into the
machine”.
13.8 Secondly, advances in computer
technology make it increasingly difficult
to comply with section 69: it is becoming
“increasingly impractical to examine (and
therefore certify) all the intricacies of
computer operation”. These problems existed
even before networking became common.
13.9 A third problem lies in the difficulties
confronting the recipient of a computer
produced document who wishes to tender it in
126
evidence: the recipient may be in no position to
satisfy the court about the operation of the
computer. It may well be that the recipient’s
opponent is better placed to do this.
13.10 Fourthly, it is illogical that section 69
applies where the document is tendered in
evidence (Shephard [1993] AC 380), but not
where it is used by an expert in arriving at his
or her conclusions (Golizadeh [1995] Crim LR
232), nor where a witness uses it to refresh his
or her memory (Sophocleous v Ringer [1988]
RTR 52). If it is safe to admit evidence which
relies on and incorporates the output from the
computer, it is hard to see why that output
should not itself be admissible; and conversely,
if it is not safe to admit the output, it can hardly
be safe for a witness to rely on it.
13.11 At the time of the publication of the
consultation paper there was also a problem
arising from the interpretation of section 69. It
was held by the Divisional Court in McKeown v
DPP ([1995] Crim LR 69) that computer evidence
is inadmissible if it cannot be proved that the
computer was functioning properly – even
though the malfunctioning of the computer had
no effect on the accuracy of the material
produced. Thus, in that case, computer
evidence could not be relied on because there
was a malfunction in the clock part of an
Intoximeter machine, although it had no effect
on the accuracy of the material part of the
printout (the alcohol reading). On appeal, this
interpretation has now been rejected by the
House of Lords: only malfunctions that affect
the way in which a computer processes, stores
or retrieves the information used to generate
127
the statement are relevant to section 69 (DPP v
McKeown; DPP v Jones [1997] 1 WLR 295).
13.12 In coming to our conclusion that the
present law did not work satisfactorily, we
noted that in Scotland, some Australian
states, New Zealand, the United States
and Canada, there is no separate scheme
for computer evidence, and yet no
problems appear to arise. Our provisional
view was that section 69 fails to serve any
useful purpose, and that other systems operate
effectively and efficiently without it.
13.13 We provisionally proposed that section
69 of PACE be repealed without replacement.
Without section 69, a common law presumption
comes into play (Phipson, para 2314, approved
by the Divisional Court in Castle v Cross [1984]
1 WLR 1372, 1377B):
In the absence of evidence to the
contrary, the courts will presume that
mechanical instruments were in order
at the material time.
13.14 Where a party sought to rely on the
presumption, it would not need to lead evidence
that the computer was working properly on the
occasion in question unless there was evidence
that it may not have been – in which case the
party would have to prove that it was (beyond
reasonable doubt in the case of the prosecution,
and on the balance of probabilities in the case
of the defence). The principle has been applied
to such devices as speedometers (Nicholas v
Penny [1950] 2 KB 466) and traffic lights
(Tingle Jacobs & Co v Kennedy [1964] 1 WLR
638), and in the consultation paper we saw no
reason why it should not apply to computers.
128
The response on consultation
13.15 On consultation, the vast majority of
those who dealt with this point agreed with us.
A number of those in favour said that
section 69 had caused much trouble with
little benefit.
13.16 The most cogent contrary argument
against our proposal came from David
Ormerod. In his helpful response, he contended
that the common law presumption of regularity
may not extend to cases in which computer
evidence is central. He cites the assertion of the
Privy Council in Dillon v R ([1982] AC 484) that
“it is well established that the courts will not
presume the existence of facts which are
central to an offence”. If this were literally true
it would be of great importance in cases where
computer evidence is central, such as
Intoximeter cases (R v Medway Magistrates’
Court, ex p Goddard [1995] RTR 206). But such
evidence has often been permitted to satisfy a
central element of the prosecution case. Some
of these cases were decided before section 69
was introduced (Castle v Cross [1984] 1 WLR
1372); others have been decided since its
introduction, but on the assumption (now held
to be mistaken) (Shephard [1993] AC 380) that
it did not apply because the statement
produced by the computer was not hearsay
(Spiby (1990) 91 Cr App R 186; Neville [1991]
Crim LR 288). The presumption must have been
applicable; yet the argument successfully relied
upon in Dillon does not appear to have been
raised.
129
13.17 It should also be noted that Dillon was
concerned not with the presumption regarding
machines but with the presumption of the
regularity of official action. This latter
presumption was the analogy on which the
presumption for machines was originally
based; but it is not a particularly close analogy,
and the two presumptions are now clearly
distinct.
13.18 Even where the presumption applies, it
ceases to have any effect once evidence of
malfunction has been adduced. The question is,
what sort of evidence must the defence adduce,
and how realistic is it to suppose that the
defence will be able to adduce it without any
knowledge of the working of the machine? On
the one hand the concept of the evidential
burden is a flexible one: a party cannot be
required to produce more by way of evidence
than one in his or her position could be
expected to produce. It could therefore take
very little for the presumption to be rebutted, if
the party against whom the evidence was
adduced could not be expected to produce
more. For example, in Cracknell v Willis ([1988]
AC 450) the House of Lords held that a
defendant is entitled to challenge an
Intoximeter reading, in the absence of any
signs of malfunctioning in the machine itself, by
testifying (or calling others to testify) about the
amount of alcohol that he or she had drunk.
13.19 On the other hand it may be unrealistic
to suppose that in such circumstances the
presumption would not prevail. In Cracknell v
Willis Lord Griffiths ([1988] AC 450 at p 468C–
D) said:
130
If Parliament wishes to provide that
either there is to be an irrebuttable
presumption that the breath testing
machine is reliable or that the
presumption can only be challenged by
a particular type of evidence then
Parliament must take the
responsibility of so deciding and spell
out its intention in clear language.
Until then I would hold that evidence
which, if believed, provides material
from which the inference can
reasonably be drawn that the machine
was unreliable is admissible.
But his Lordship went on:
I am myself hopeful that the good
sense of the magistrates and the
realisation by the motoring public that
approved breath testing machines are
proving reliable will combine to ensure
that few defendants will seek to
challenge a breath analysis by
spurious evidence of their consumption
of alcohol. The magistrates will
remember that the presumption of law
is that the machine is reliable and they
will no doubt look with a critical eye on
evidence such as was produced by
Hughes v McConnell ([1985] RTR 244)
before being persuaded that it is not
safe to rely upon the reading that it
produces ([1988] AC 450, 468D–E).
13.20 Lord Goff did not share Lord Griffiths’
optimism that motorists would not seek to
challenge the analysis by spurious evidence of
131
their consumption of alcohol, but did share his
confidence in
the good sense of magistrates who,
with their attention drawn to the
safeguards for defendants built into
the Act …, will no doubt give proper
scrutiny to such defences, and will be
fully aware of the strength of the
evidence provided by a printout, taken
from an approved device, of a
specimen of breath provided in
accordance with the statutory
procedure ([1988] AC 450 at p 472B–
C).
13.21 These dicta may perhaps be read as
implying that evidence which merely
contradicts the reading, without directly casting
doubt on the reliability of the device, may be
technically admissible but should rarely be
permitted to succeed. However, it is significant
that Lord Goff referred in the passage quoted to
the safeguards for defendants which are built
into the legislation creating the drinkdriving
offences. In the case of other kinds of computer
evidence, where (apart from section 69) no such
statutory safeguards exist, we think that the
courts can be relied upon to apply the
presumption in such a way as to recognise the
difficulty faced by a defendant who seeks to
challenge the prosecution’s evidence but is not
in a position to do so directly. The presumption
continues to apply to machines other than
computers (and until recently was applied to
nonhearsay statements by computers) without
the safeguard of section 69; and we are not
aware of any cases where it has caused
injustice because the evidential burden cast on
132
the defence was unduly onerous. Bearing in
mind that it is a creature of the common law,
and a comparatively modern one, we think it is
unlikely that it would be permitted to work
injustice.
13.22 Finally it should not be forgotten that
section 69 applies equally to computer evidence
adduced by the defence. A rule that prevents a
defendant from adducing relevant and cogent
evidence, merely because there is no positive
evidence that it is reliable, is in our view unfair.
Our recommendation
13.23 We are satisfied that section 69
serves no useful purpose. We are not
aware of any difficulties encountered in
those jurisdictions that have no
equivalent. We are satisfied that the
presumption of proper functioning would apply
to computers, thus throwing an evidential
burden on to the opposing party, but that that
burden would be interpreted in such a way as
to ensure that the presumption did not result in
a conviction merely because the defence had
failed to adduce evidence of malfunction which
it was in no position to adduce. We believe, as
did the vast majority of our respondents, that
such a regime would work fairly. We
recommend the repeal of section 69 of
PACE. (Recommendation 50)
(emphasis supplied)
37.Based on the above recommendations of the U.K. Law
Commission, Section 69 of the PACE, 1984, was
133
declared by Section 60 of the Youth Justice and
Criminal Evidence Act, 1999, to have ceased to have
effect. Section 60 of the 1999 Act reads as follows:
“Section 69 of the Police and Criminal Evidence
Act, 1984 (evidence from computer records
inadmissible unless conditions relating to
proper use and operation of computer shown to
be satisfied) shall cease to have effect”
38.It will be clear from the above discussion that when our
lawmakers passed the Information Technology Bill in
the year 2000, adopting the language of Section 5 of
the UK Civil Evidence Act, 1968 to a great extent, the
said provision had already been repealed by the UK
Civil Evidence Act, 1995 and even the Police and
Criminal Evidence Act, 1984 was revamped by the
1999 Act to permit hearsay evidence, by repealing
Section 69 of PACE, 1984.
POSITION IN CANADA
39.Pursuant to a proposal mooted by the Canadian Bar
Association hundred years ago, requesting all
Provincial Governments to provide for the appointment
134
of Commissioners to attend conferences organised for
the purpose of promoting uniformity of legislation
among the provinces, a meeting of the Commissioners
took place in Montreal in 1918. In the said meeting, a
Conference of Commissioners on Uniformity of Laws
throughout Canada was organised. In 1974, its name
was changed to Uniform Law Conference of Canada.
The objective of the Conference is primarily to achieve
uniformity in subjects covered by existing legislations.
The said Conference recommended a model law on
Uniform Electronic Evidence in September 1998.
40.The above recommendations of the Uniform Law
Conference later took shape in the form of
amendments to the Canada Evidence Act, 1985.
Section 31.1 of the said Act deals with authentication
of electronic documents and it reads as follows:
Authentication of electronic documents
31.1 Any person seeking to admit an electronic
document as evidence has the burden of
proving its authenticity by evidence capable of
135
supporting a finding that the electronic
document is that which it is purported to be.
41.Section 31.2 deals with the application of ‘best
evidence rule’ in relation to electronic documents and it
reads as follows:
Application of best evidence rule —
electronic documents
31.2(1) The best evidence rule in respect of an
electronic document is satisfied
(a) on proof of the integrity of the electronic
documents system by or in which the electronic
document was recorded or stored; or
(b) if an evidentiary presumption established
under section 31.4 applies.
Printouts
(2) Despite subsection (1), in the absence of
evidence to the contrary, an electronic
document in the form of a printout satisfies the
best evidence rule if the printout has been
manifestly or consistently acted on, relied on or
used as a record of the information recorded or
stored in the printout.
42.Section 31.3 indicates the method of proving the
integrity of an electronic documents system, by or in
which an electronic document is recorded or stored.
Section 31.3 reads as follows:
136
Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in
the absence of evidence to the contrary, the
integrity of an electronic documents system
by or in which an electronic document is
recorded or stored is proven
(a) by evidence capable of supporting a finding
that at all material times the computer system
or other similar device used by the electronic
documents system was operating properly or,
if it was not, the fact of its not operating
properly did not affect the integrity of the
electronic document and there are no other
reasonable grounds to doubt the integrity of the
electronic documents system;
(b) if it is established that the electronic
document was recorded or stored by a party
who is adverse in interest to the party seeking
to introduce it; or
(c) if it is established that the electronic
document was recorded or stored in the
usual and ordinary course of business by a
person who is not a party and who did not
record or store it under the control of the party
seeking to introduce it.
43.Section 31.5 is an interesting provision which permits
evidence to be presented in respect of any
standard, procedure, usage or practice concerning
the manner in which electronic documents are to
be recorded or stored. This is for the purpose of
137
determining under any rule of law whether an
electronic document is admissible. Section 31.5 reads
as follows:
Standards may be considered
31.5 For the purpose of determining under any
rule of law whether an electronic document is
admissible, evidence may be presented in
respect of any standard, procedure, usage or
practice concerning the manner in which
electronic documents are to be recorded or
stored, having regard to the type of business,
enterprise or endeavour that used, recorded or
stored the electronic document and the nature
and purpose of the electronic document.
44.Under Section 31.6(1), matters covered by Section
31.2(2), namely the printout of an electronic document,
the matters covered by Section 31.3, namely the
integrity of an electronic documents system, and
matters covered by Section 31.5, namely evidence in
respect of any standard, procedure, usage or practice,
may be established by affidavit. Section 31.6 reads as
follows:
Proof by affidavit
138
31.6(1) The matters referred to in subsection
31.2(2) and sections 31.3 and 31.5 and in
regulations made under section 31.4 may be
established by affidavit.
Crossexamination
(2) A party may crossexamine a deponent of
an affidavit referred to in subsection (1) that
has been introduced in evidence
(a) as of right, if the deponent is an adverse
party or is under the control of an adverse
party; and
(b) with leave of the court, in the case of any
other deponent.
45.Though a combined reading of Sections 31.3 and
31.6(1) of the Canada Evidence Act, 1985, gives an
impression as though a requirement similar to the one
under Section 65B of Indian Evidence Act, 1872 also
finds a place in the Canadian law, there is a very
important distinction found in the Canadian law.
Section 31.3(b) takes care of a contingency where
the electronic document was recorded or stored by
a party who is adverse in interest to the party
seeking to produce it. Similarly, Section 31.3(c)
gives leverage for the party relying upon an
139
electronic document to establish that the same
was recorded or stored in the usual and ordinary
course of business by a person who is not a party
and who did not record or store it under the
control of the party seeking to introduce it.
IV. Conclusion
46.It will be clear from the above discussion that the
major jurisdictions of the world have come to terms
with the change of times and the development of
technology and finetuned 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
140
Sandhu
31
to Anvar P.V.
32
to Tomaso Bruno
33
to
Sonu
34
to Shafhi Mohammad .
35
47.With the above note, I respectfully agree with
conclusions reached by R. F. Nariman, J. that the
appeals are to be dismissed with costs as proposed.
...…..………......................J.
(V. RAMASUBRAMANIAN)
JULY 14, 2020
NEW DELHI
31 State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600
32 Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473
33 Tomaso Bruno vs. State of UP, (2015) 7 SCC 178
34 Sonu vs. State of Haryana, (2017) 8 SCC 570
35 Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801
141
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