court is documentary evidence under Section 3 of The Indian
Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’).
The Evidence Act underwent a major amendment by Act 21 of
2000 [The Information Technology Act, 2000 (hereinafter
referred to as ‘IT Act’)]. Corresponding amendments were also
introduced in The Indian Penal Code (45 of 1860), The Bankers
Books Evidence Act, 1891, etc.
7. Section 22A of the Evidence Act reads as follows:
“22A. When oral admission as to contents of
electronic records are relevant.- Oral admissions
as to the contents of electronic records are not
relevant, unless the genuineness of the electronic
record produced is in question.”
8. Section 45A of the Evidence Act reads as follows:
“45A. Opinion of Examiner of Electronic
Evidence.-When in a proceeding, the court has to
form an opinion on any matter relating to any
information transmitted or stored in any computer
resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence
referred to in section 79A of the Information
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.”
9. Section 59 under Part II of the Evidence Act dealing with
proof, reads as follows:
“59. Proof of facts by oral evidence.—All facts,
except the contents of documents or electronic
records, may be proved by oral evidence.”
10. Section 65A reads 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.”
11. Section 65B reads as follows:
“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 of any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in
respect 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
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
(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
sub-section 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 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.”
These are the provisions under the Evidence Act relevant
to the issue under discussion.
12. In the Statement of Objects and Reasons to the IT Act, it
is stated thus:
“New communication systems and digital technology
have made drastic changes in the way we live. A
revolution is occurring in the way people transact
business.”
In fact, there is a revolution in the way the evidence is
produced before the court. Properly guided, it makes the
systems function faster and more effective. The guidance
relevant to the issue before us is reflected in the statutory
provisions extracted above.
13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure
prescribed under Section 65B. Section 65B 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, 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 65B(2). Following are the
specified conditions under Section 65B(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.
14. Under Section 65B(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;
(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 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device.
15. It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must
accompany 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.
16. Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as to
the genuineness thereof and in that situation, resort can be
made to Section 45A – opinion of examiner of electronic
evidence.
17. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if requirements
under Section 65B of the Evidence Act are not complied with,
as the law now stands in India.
18. It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
the evidential output was recording properly at the material
time. The presumption can be rebutted if evidence to the
contrary is adduced. In the United States of America, under
Federal Rule of Evidence, reliability of records normally go to
the weight of evidence and not to admissibility.
19. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the Evidence
Act, read with Sections 59 and 65B is sufficient to hold that the
special provisions on evidence relating to electronic record
shall be governed by the procedure prescribed under Section
65B 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.
20. In State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru (2005) 11 SCC 600
, a two-Judge Bench of this Court had an occasion
to consider an issue on production of electronic record asevidence. While considering the printouts of the computerized
records of the calls pertaining to the cellphones, it was held at
Paragraph-150 as follows:
“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 not filed
in the instant case, but that does not mean that
secondary evidence cannot be given even if the law
permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65.”
21. It may be seen that it was a case where a responsible
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 65B of the Evidence Act. However, it
was held that irrespective of the compliance with the
requirements of Section 65B, 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
herein before, 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 65A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 65B. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in
Navjot Sandhu case (supra), does not lay down the correct
legal position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 65B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4226 OF 2012
Reportable
Anvar P.V. Vs P.K. Basheer and others
Dated;September 18, 2014.
Citation; AIR2015SC180, 2014(6)ALLMR951, 2015(2)MhLJ135(SC), (2014)10SCC473,
1. Construction by plaintiff, destruction by defendant.
Construction by pleadings, proof by evidence; proof only by
relevant and admissible evidence. Genuineness, veracity or
reliability of the evidence is seen by the court only after the
stage of relevancy and admissibility. These are some of the first
principles of evidence. What is the nature and manner of
admission of electronic records, is one of the principal issues
arising for consideration in this appeal.
2. In the general election to the Kerala Legislative
Assembly held on 13.04.2011, the first respondent was
declared elected to 034 Eranad Legislative Assembly
Constituency. He was a candidate supported by United
Democratic Front. The appellant contested the election as an
independent candidate, allegedly supported by the Left
Democratic Front. Sixth respondent was the chief election
agent of the first respondent. There were five candidates.
Appellant was second in terms of votes; others secured only
marginal votes. He sought to set aside the election under
Section 100(1)(b) read with Section 123(2)(ii) and (4) of The
Representation of the People Act, 1951 (hereinafter referred to
as ‘the RP Act’) and also sought for a declaration in favour of
the appellant. By order dated 16.11.2011, the High Court held
that the election petition to set aside the election on the
ground under Section 123(2)(a)(ii) is not maintainable and that
is not pursued before us either. Issues (1) and (2) were on
maintainability and those were answered as preliminary, in
favour of the appellant. The contested issues read as follows:
“1) xxx xxx xxx
2) xxx xxx xxx
3) Whether Annexure A was published and
distributed in the constituency on 12.4.2011 as
alleged in paragraphs 4 and 5 of the election
2Page 3
petition and if so whether Palliparamban
Aboobacker was an agent of the first
respondent?
4) Whether any of the statements in Annexure A
publication is in relation to the personal
character and conduct of the petitioner or in
relation to the candidature and if so whether its
alleged publication will amount to commission
of corrupt practice under section 123(4) of The
Representation of the People Act?
xxx xxx xxx
6) Whether the Flex Board and posters mentioned
in Annexures D, E and E1 were exhibited on
13.4.2011 as part of the election campaign of
the first respondent as alleged in paragraphs 6
and 7 of the election petition and if so whether
the alleged exhibition of Annexures D, E and E1
will amount to commission of corrupt practice
under section 123(4) of The Representation of
the People Act?
7) Whether announcements mentioned in
paragraph 8 of the election petition were made
between 6.4.2011 and 11.4.2011, as alleged in
the above paragraph, as part of the election
propaganda of the first respondent and if so
whether the alleged announcements mentioned
in paragraph 8 will amount to commission of
corrupt practice as contemplated under section
123(4) of The Representation of the People Act?
8) Whether the songs and announcements alleged
in paragraph 9 of the election petition were
made on 8.4.2011 as alleged, in the above
paragraph, as part of the election propaganda
of the first respondent and if so whether the
publication of the alleged announcements and
songs will amount to commission of corrupt
practice under section 123(4) of The
Representation of People Act?
9) Whether Mr. Mullan Sulaiman mentioned in
paragraph 10 of the election petition did make a
speech on 9.4.2011 as alleged in the above
paragraph as part of the election propaganda of
the first respondent and if so whether the
alleged speech of Mr. Mullan Sulaiman amounts
to commission of corrupt practice under section
123(4) of The Representation of the People Act?
10) Whether the announcements mentioned in
paragraph 11 were made on 9.4.2011, as
alleged in the above paragraph, as part of the
election propaganda of the first respondent and
if so whether the alleged announcements
mentioned in paragraph 11 of the election
petition amount to commission of corrupt
practice under section 123(4) of The
Representation of the People Act?
11) Whether the announcements mentioned in
paragraph 12 of the election petition were
made, as alleged in the above paragraph, as
part of the election propaganda of the first
respondent and if so whether the alleged
announcements mentioned in paragraph 12 of
the election petition amount to commission of
corrupt practice under section 123(4) of The
Representation of the People Act?
12) Whether the alleged announcements mentioned
in paragraph 13 of the election petition were
made as alleged and if so whether it amounts to
commission of corrupt practice under section
123(4) of The Representation of the People Act?
13) Whether the alleged announcements mentioned
in paragraph 14 of the election petition were
made as alleged and if so whether it amounts to
commission of corrupt practice under section
123(4) of The Representation of the People Act.
14) Whether the election of the first respondent is
liable to be set aside for any of the grounds
mentioned in the election petition?”
3. By the impugned judgment dated 13.04.2012, the High
Court dismissed the election petition holding that corrupt
practices pleaded in the petition are not proved and, hence, the
election cannot be set aside under Section 100(1)(b) of the RP
Act; and thus the Appeal.
4. Heard Shri Vivek Chib, learned Counsel appearing for
the appellant and Shri Kapil Sibal, learned Senior Counsel
appearing for the first respondent.
5. The evidence consisted of three parts – (i) electronic
records, (ii) documentary evidence other than electronic
records, and (iii) oral evidence. As the major thrust in the
arguments was on electronic records, we shall first deal with
the same.
6. Electronic record produced for the inspection of the
court is documentary evidence under Section 3 of The Indian
Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’).
The Evidence Act underwent a major amendment by Act 21 of
2000 [The Information Technology Act, 2000 (hereinafter
referred to as ‘IT Act’)]. Corresponding amendments were also
introduced in The Indian Penal Code (45 of 1860), The Bankers
Books Evidence Act, 1891, etc.
7. Section 22A of the Evidence Act reads as follows:
“22A. When oral admission as to contents of
electronic records are relevant.- Oral admissions
as to the contents of electronic records are not
relevant, unless the genuineness of the electronic
record produced is in question.”
8. Section 45A of the Evidence Act reads as follows:
“45A. Opinion of Examiner of Electronic
Evidence.-When in a proceeding, the court has to
form an opinion on any matter relating to any
information transmitted or stored in any computer
resource or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence
referred to in section 79A of the Information
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.”
9. Section 59 under Part II of the Evidence Act dealing with
proof, reads as follows:
“59. Proof of facts by oral evidence.—All facts,
except the contents of documents or electronic
records, may be proved by oral evidence.”
6Page 7
10. Section 65A reads 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.”
11. Section 65B reads as follows:
“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 of any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section (1) in
respect 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
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;
7Page 8
(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
(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
sub-section 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 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.”
These are the provisions under the Evidence Act relevant
to the issue under discussion.
12. In the Statement of Objects and Reasons to the IT Act, it
is stated thus:
“New communication systems and digital technology
have made drastic changes in the way we live. A
revolution is occurring in the way people transact
business.”
In fact, there is a revolution in the way the evidence is
produced before the court. Properly guided, it makes the
systems function faster and more effective. The guidance
relevant to the issue before us is reflected in the statutory
provisions extracted above.
13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure
prescribed under Section 65B. Section 65B 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, 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 65B(2). Following are the
specified conditions under Section 65B(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.
14. Under Section 65B(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;
(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 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a
responsible official position in relation to the operation of
the relevant device.
15. It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must
accompany 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.
16. Only if the electronic record is duly produced in terms of
Section 65B of the Evidence Act, the question would arise as to
the genuineness thereof and in that situation, resort can be
made to Section 45A – opinion of examiner of electronic
evidence.
17. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if requirements
under Section 65B of the Evidence Act are not complied with,
as the law now stands in India.
18. It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
the evidential output was recording properly at the material
time. The presumption can be rebutted if evidence to the
contrary is adduced. In the United States of America, under
Federal Rule of Evidence, reliability of records normally go to
the weight of evidence and not to admissibility.
19. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the Evidence
Act, read with Sections 59 and 65B is sufficient to hold that the
special provisions on evidence relating to electronic record
shall be governed by the procedure prescribed under Section
65B 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.
20. In State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru (2005) 11 SCC 600
, a two-Judge Bench of this Court had an occasion
to consider an issue on production of electronic record asevidence. While considering the printouts of the computerized
records of the calls pertaining to the cellphones, it was held at
Paragraph-150 as follows:
“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 not filed
in the instant case, but that does not mean that
secondary evidence cannot be given even if the law
permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65.”
21. It may be seen that it was a case where a responsible
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 65B of the Evidence Act. However, it
was held that irrespective of the compliance with the
requirements of Section 65B, 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
herein before, 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 65A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 65B. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in
Navjot Sandhu case (supra), does not lay down the correct
legal position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section
65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 65B obtained at the time of taking the document,
without which, the secondary evidence pertaining to that
electronic record, is inadmissible.
23. The appellant admittedly has not produced any
certificate in terms of Section 65B in respect of the CDs,
Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore,
the same cannot be admitted in evidence. Thus, the whole case
set up regarding the corrupt practice using songs,
announcements and speeches fall to the ground.
18Page 19
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 65B 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 on electronic record
with reference to Section 59, 65A and 65B 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 of the conditions in Section 65B
of the Evidence Act.
19Page 20
25. Now, we shall deal with the ground on publication of
Exhibit-P1-leaflet which is also referred to as Annexure-A. To
quote relevant portion of Paragraph-4 of the election petition:
“4. On the 12th of April, 2011, the day previous to
the election, one Palliparamban Aboobacker, S/o
Ahamedkutty, Palliparamban House,
Kizhakkechathalloor, Post Chathalloor, who was
a member of the Constituency Committee of the
UDF and the Convenor of Kizhakkechathalloor
Ward Committee of the United Democratic
Front, the candidate of which was the first
respondent, falling within the Eranad Mandalam
Election Committee and was thereby the agent
of the first respondent, actively involved in the
election propaganda of the first respondent with
the consent and knowledge of the first
respondent, had got printed in the District
Panchayat Press, Kondotty, at least twenty five
thousand copies of a leaflet with the heading
“PP Manafinte Rakthasakshidhinam – Nam
Marakkathirikkuka April 13” (Martyr Day of P P
Manaf - let us not forget April 13) and in the
leaflet there is a specific reference to the
petitioner who is described as the son of the
then President of the Edavanna Panchayat Shri
P V Shaukat Ali and the allegation is that he
gave leadership to the murder of Manaf in
Cinema style. The name of the petitioner is
specifically mentioned in one part of the leaflet
which had been highlighted with a black circle
around it specifically making the allegation that
it was the petitioner under whose leadership the
murder was committed. Similarly in another
part of the leaflet the name of the petitioner is
specifically mentioned with a black border in
square. The leaflet comprises various excerpts
from newspaper reports of the year 1995
20Page 21
highlighting the comments in big letters, which
are the deliberate contribution of the
publishers. The excerpts of various newspaper
reports was so printed in the leaflet to expose
the petitioner as a murderer, by intentionally
concealing the fact that petitioner was
honourably acquitted by the Honourable Court.
…”
26. The allegation is that at least 25,000 copies of ExhibitP1-leaflet
were printed and published with the consent of the
first respondent. Exhibit-P1, it is submitted, contains a false
statement regarding involvement of the appellant in the
murder of one Manaf on 13.04.1995 and the same was made to
prejudice the prospects of the appellant’s election. Evidently,
Exhibit-P1 was got printed through Haseeb by PW-4-
Palliparamban Aboobakar and published by Kudumba Souhrida
Samithi (association of the friends of the families), though PW-4
denied the same. The same was printed at District Panchayat
Press, Kondotty with the assistance of one V. Hamza.
27. At Paragraph-4 of the election petition, it is further
averred as follows:
“4. … Since both the said Aboobakar and V. Hamza
are agents of the first respondent, who had
actively participated in the election campaign,
21Page 22
the printing, publication and distribution of
annexure-A was made with the consent and
knowledge of the first respondent as it is
gathered from Shri P V Mustafa a worker of the
petitioner that the expenses for printing have
been shown in the electoral return of the first
respondent. …”
At Paragraph-18 of the election petition, it is stated thus:
“18. … As far as the printing and publication of
annexure-A leaflet is concerned, the same was
not only done with the knowledge and
connivance of the 1st respondent, it was done
with the assistance of the his official account
agent Sri V. Hamza, who happened to be the
General Manager of the Press in which the said
leaflets were printed. ...”
28. PW-4-Palliparamban Aboobakar has completely denied
the allegations. Strangely, Shri Mustafa and Shri Hamza,
referred to above, have not been examined. Therefore,
evidence on printing of the leaflets is of PW-4-Aboobakar and
PW-42. According to PW-4, he had not seen Exhibit-P1-leaflet
before the date of his examination. He also denied that he was
a member of the election committee. According to PW-42, who
was examined to prove the printing of Exhibit-P1, the said
Hamza was never the Manager of the Press. Exhibit-X4-copy of
the order form, based on which the leaflet was printed, shows
22Page 23
that the order was placed by one Haseeb only to print 1,000
copies of a supplement and the order was given in the name of
PW-4 in whose name Exhibit-P1 was printed, Exhibit-X5-receipt
for payment of printing charges shows that the same was made
by Haseeb. The said Haseeb also was not examined. Still
further, the allegation was that at least 25,000 copies were
printed but it has come out in evidence that only 1,000 copies
were printed.
29. It is further contended that Exhibit-P1 was printed and
published with the knowledge and consent of the first
respondent. Mere knowledge by itself will not imply consent,
though, the vice-versa may be true. The requirement under
Section 123(4) of the RP Act is not knowledge but consent. For
the purpose of easy reference, we may quote the relevant
provision:
“123. Corrupt practices.—The following shall be
deemed to be corrupt practices for the purposes of
this Act:—
(1) xxx xxx xxx xxx
(2) xxx xxx xxx xxx
(3) xxx xxx xxx xxx
(4) The publication by a candidate or his agent or by
any other person with the consent of a candidate or
23Page 24
his election agent, of any statement of fact which is
false, and which he either believes to be false or
does not believe to be true, in relation to the
personal character or conduct of any candidate, or in
relation to the candidature, or withdrawal, of any
candidate, being a statement reasonably calculated
to prejudice the prospects of that candidate's
election.”
30. In the grounds for declaring election to be void under
Section 100(1)(b), the court must form an opinion “that any
corrupt practice has been committed by a returned candidate
or his election agent or by any other person with the consent of
a returned candidate or his election agent”. In other words, the
corrupt practice must be committed by (i) returned candidate,
(ii) or his election agent (iii) or any other person acting with the
consent of the returned candidate or his election agent. There
are further requirements as well. But we do not think it
necessary to deal with the same since there is no evidence to
prove that the printing and publication of Exhibit-P1-leaflet was
made with the consent of the first respondent or his election
agent, the sixth respondent. Though it was vehemently
contended by the appellant that the printing and publication
was made with the connivance of the first respondent and
hence consent should be inferred, we are afraid, the same
24Page 25
cannot be appreciated. ‘Connivance’ is different from ‘consent’.
According to the Concise Oxford English Dictionary, ‘connive’
means to secretly allow a wrong doing where as ‘consent’ is
permission. The proof required is of consent for the publication
and not connivance on publication. In Charan Lal Sahu v.
Giani Zail Singh and another2
, this Court held as under:
“30. … ‘Connivance’ may in certain situations
amount to consent, which explains why the
dictionaries give ‘consent’ as one of the meanings of
the word ‘connivance’. But it is not true to say that
‘connivance’ invariably and necessarily means or
amounts to consent, that is to say, irrespective of the
context of the given situation. The two cannot,
therefore, be equated. Consent implies that parties
are ad idem. Connivance does not necessarily imply
that parties are of one mind. They may or may not
be, depending upon the facts of the
situation. …”
31. Learned Counsel for the appellant vehemently contends
that consent needs to be inferred from the circumstances. No
doubt, on charges relating to commission of corrupt practices,
direct proof on consent is very difficult. Consent is to be
inferred from the circumstances as held by this Court in
Sheopat Singh v. Harish Chandra and another3
. The said
2
(1984) 1 SCC 390
3 AIR 1960 SC 1217
25Page 26
view has been consistently followed thereafter. However, if an
inference on consent from the circumstances is to be drawn,
the circumstances put together should form a chain which
should lead to a reasonable conclusion that the candidate or his
agent has given the consent for publication of the objectionable
material. Question is whether such clear, cogent and credible
evidence is available so as to lead to a reasonable conclusion
on the consent of the first respondent on the alleged
publication of Exhibit-P1-leaflet. As we have also discussed
above, there is no evidence at all to prove that Exhibit-P1-
leaflet was printed at the instance of the first respondent. One
Haseeb, who placed the order for printing of Exhibit-P1 is not
examined. Shri Hamza, who is said to be the Manager of the
Press at the relevant time, was not examined. Shri Mustafa,
who is said to have told the appellant that the expenses for the
printing of Exhibit-P1 were borne by the first respondent and
the same have been shown in the electoral return of the first
respondent is also not examined. No evidence of the electoral
returns pertaining to the expenditure on printing of Exhibit-P1
by the first respondent is available. The allegation in the
election petition is on printing of 25,000 copies of Exhibit-P1.
26Page 27
The evidence available on record is only with regard to printing
of 1,000 copies. According to PW-24-Sajid, 21 bundles of
Exhibit-P1 were kept in the house of first respondent as
directed by wife of the first respondent. She is also not
examined. It is significant to note that Sajid’s version, as above,
is not the case pleaded in the petition; it is an improvement in
the examination. There is further allegation that PW-7-Arjun
and PW-9-Faizal had seen bundles of Exhibit-P1 being
taken in two jeeps bearing registration nos. KL 13B 3159 and
KL 10J 5992 from the residence of first respondent. For one
thing, it has to be seen that PW-7-Arjun was an election
worker of the appellant and Panchayat Secretary of DYFI, the
youth wing of CPI(M) and the member of the local committee of
the said party of Edavanna and Faizal is his friend. PW-29 is one
Joy, driver of jeep bearing registration no. KL 10J 5992. He has
completely denied of any such material like Exhibit-P1 being
transported by him in the jeep. It is also significant to note that
neither PW-7-Arjun nor PW-9-Faizal has a case that the copies
of Exhibit-P1 were taken from the house of the first respondent.
Their only case is that the vehicles were coming from the house
of the first respondent and PW-4- Palliparamban Aboobakar
27Page 28
gave them the copies. PW-4 has denied it. It is also interesting
to note that PW-9-Faizal has stated in evidence that he was
disclosing the same for the first time in court regarding the
receipt of notice from PW-4. It is also relevant to note that in
Annexure-P3-complaint filed by the chief electoral agent of the
appellant on 13.04.2011, there is no reference to the number of
copies of Exhibit-P1-leaflet, days when the same were
distributed and the people who distributed the same, etc., and
most importantly, there is no allegation at all in Annexure-P3
that the said leaflet was printed by the first respondent or with
his consent. The only allegation is on knowledge and
connivance on the part of the first respondent. We have already
held that knowledge and connivance is different from consent.
Consent is the requirement for constituting corrupt practice
under Section 123(4) of the RP Act. In such circumstances, it
cannot be said that there is a complete chain of circumstances
which would lead to a reasonable inference on consent by the
first respondent with regard to printing of Exhibit-P1-leaflet.
Not only that there are missing links, the evidence available is
also not cogent and credible on the consent aspect of first
respondent.
28Page 29
32. Now, we shall deal with distribution of Exhibit-P1-leaflet.
Learned counsel for the appellant contends that consent has to
be inferred from the circumstances pertaining to distribution of
Exhibit-P1. Strong reliance is placed on the evidence of one
Arjun and Faizal. According to them, bundles of Exhibit-P1-
leaflet were taken in two jeeps and distributed throughout the
constituency at around 08.00 p.m. on 12.04.2011. To quote the
relevant portion from Paragraph-5 of the election petition:
“5. … Both the first respondent and all his election
agents and other persons who were working for him
knew that the contents of Annexure A which was got
printed in the manner stated above are false and
false to their knowledge and though the petitioner
was falsely implicated in the Manaf murder case he
has been honourably acquitted in the case and
declared not guilty. True copy of the judgment in S.C.
No. 453 of 2001 of the Additional Sessions Court
(Adhoc No.2), Manjeri, dated 24.9.2009 is produced
herewith and marked as Annexure B. Though this
fact is within the knowledge of the first respondent,
his agents referred to above and other persons who
were working for him in the election on the 12th of
April, 2011 at about 8 AM bundles of Annexure A
which were kept in the house of the first respondent
at Pathapiriyam, within the constituency were taken
out from that house in two jeeps bearing Nos KL13-B
3159 and KL10-J 5992 which were seen by two
electors, Sri V Arjun aged 31 years, Kottoor House,
S/o Narayana Menon, Pathapiriyam Post, Edavanna
and C.P. Faizal aged 34 years, S/o Muhammed
Cheeniyampurathu Pathapiriyam P.O., who are
residing in the very same locality of the first
respondent and the jeeps were taken around in
various parts of the Eranad Assembly Constituency
29Page 30
and Annexure A distributed throughout the
constituency from the aforesaid jeeps by the workers
and agents of the first respondent at about 8 PM that
night. The aforesaid publication also amounted to
undue influence as the said expression is understood
in Section 123(2)(a)(ii) of The Representation of the
People Act, in that it amounted to direct or indirect
interference or attempt to interfere on the part of the
first respondent or his agent and other persons who
were his agents referred to below with the consent
of the first respondent, the free exercise of the
electoral right of the voters of the Eranad
Constituency and is also a corrupt practice falling
under Section 123(4) of The Representation of the
People Act, 1951. …”
33. The allegation is on distribution of Exhibit-P1 at about
08.00 p.m. on 12.04.2011. But the evidence is on distribution of
Exhibit-P1 at various places at 08.00 a.m., 02.00 p.m., 05.00
p.m., 06.30 p.m., etc. by the UDF workers. No doubt, the details
on distribution are given at Paragraph-5 (extracted above) of
the election petition at different places, at various timings. The
appellant as PW-1 stated that copies of Exhibit-P1 were
distributed until 08.00 p.m. Though the evidence is on printing
of 1,000 copies of Exhibit-P1, the evidence on distribution is of
many thousands. In one panchayat itself, according to PW-22-
KV Muhammed around 5,000 copies were distributed near
Areakode bus stand. Another allegation is that two bundles
30Page 31
were entrusted with one Sarafulla at Areakode but he is not
examined. All this would show that there is no consistent case
with regard to the distribution of Exhibit-P1 making it difficult
for the Court to hold that there is credible evidence in that
regard.
34. All that apart, the definite case of the appellant is that
the election is to be declared void on the ground of Section
100(1)(b) of the RP Act and that too on corrupt practice
committed by the returned candidate, viz., the first respondent
and with his consent. We have already found that on the
evidence available on record, it is not possible to infer consent
on the part of the first respondent in the matter of printing and
publication of Exhibit-P1-leaflet. There is also no evidence that
the distribution of Exhibit-P1 was with the consent of first
respondent. The allegation in the election petition that bundles
of Exhibit-P1 were kept in the house of the first respondent is
not even attempted to be proved. The only connecting link is of
the two jeeps which were used by the UDF workers and not
exclusively by the first respondent. It is significant to note that
there is no case for the appellant that any corrupt practice has
been committed in the interest of the returned candidate by an
31Page 32
agent other than his election agent, as per the ground under
Section 100(1)(d)(ii) of the RP Act. The definite case is only of
Section 100(1)(b) of the RP Act.
35. In Ram Sharan Yadav v. Thakur Muneshwar Nath
Singh and others4
, a two-Judge Bench of this Court while
dealing with the issue on appreciation of evidence, held as
under:
“9. By and large, the Court in such cases while
appreciating or analysing the evidence must be guided
by the following considerations:
(1) the nature, character, respectability and
credibility of the evidence,
(2) the surrounding circumstances and the
improbabilities appearing in the case,
(3) the slowness of the appellate court to disturb a
finding of fact arrived at by the trial court who had
the initial advantage of observing the behaviour,
character and demeanour of the witnesses appearing
before it, and
(4) the totality of the effect of the entire evidence
which leaves a lasting impression regarding the
corrupt practices alleged.”
On the evidence available on record, it is unsafe if
not difficult to connect the first respondent with the
distribution of Exhibit-P1, even assuming that the
4 (1984) 4 SCC 649
32Page 33
allegation on distribution of Exhibit-P1 at various places is
true.
36. Now, we shall deal with the last ground on
announcements. The attack on this ground is based on ExhibitP10-CD.
We have already held that the CD is inadmissible in
evidence. Since the very foundation is shaken, there is no point
in discussing the evidence of those who heard the
announcements. Same is the fate of the speech of PW-4-
Palliparamban Aboobakar and PW-30-Mullan Sulaiman.
37. We do not think it necessary to deal with the aspect of
oral evidence since the main allegation of corrupt practice is of
publication of Exhibit-P1-leaflet apart from other evidence
based on CDs. Since there is no reliable evidence to reach the
irresistible inference that Exhibit-P1-leaflet was published with
the consent of the first respondent or his election agent, the
election cannot be set aside on the ground of corrupt practice
under Section 123(4) of the RP Act.
38. The ground of undue influence under Section 123(2) of
the RP Act has been given up, so also the ground on publication
of flex boards.
33Page 34
39. It is now the settled law that a charge of corrupt
practice is substantially akin to a criminal charge. A two-Judge
Bench of this Court while dealing with the said issue in Razik
Ram v. Jaswant Singh Chouhan and others5
, held as
follows:
“15. …The same evidence which may be sufficient
to regard a fact as proved in a civil suit, may be
considered insufficient for a conviction in a criminal
action. While in the former, a mere preponderance of
probability may constitute an adequate basis of
decision, in the latter a far higher degree of
assurance and judicial certitude is requisite for a
conviction. The same is largely true about proof of a
charge of corrupt practice, which cannot be
established by mere balance of probabilities, and, if,
after giving due consideration and effect to the
totality of the evidence and circumstances of the
case, the mind of the Court is left rocking with
reasonable doubt — not being the doubt of a timid,
fickle or vacillating mind — as to the veracity of the
charge, it must hold the same as not proved.”
The same view was followed by this Court P.C. Thomas
v. P.M. Ismail and others6
, wherein it was held as follows:
“42. As regards the decision of this Court in Razik
Ram and other decisions on the issue, relied upon on
behalf of the appellant, there is no quarrel with the
legal position that the charge of corrupt practice is to
be equated with criminal charge and the proof
5
(1975) 4 SCC 769
6
(2009) 10 SCC 239
34Page 35
required in support thereof would be as in a criminal
charge and not preponderance of probabilities, as in
a civil action but proof “beyond reasonable doubt”. It
is well settled that if after balancing the evidence
adduced there still remains little doubt in proving the
charge, its benefit must go to the returned
candidate. However, it is equally well settled that
while insisting upon the standard of proof beyond a
reasonable doubt, the courts are not required to
extend or stretch the doctrine to such an extreme
extent as to make it well-nigh impossible to prove
any allegation of corrupt practice. Such an approach
would defeat and frustrate the very laudable and
sacrosanct object of the Act in maintaining purity of
the electoral process. (please see S. Harcharan Singh
v. S. Sajjan Singh)”
40. Having regard to the admissible evidence available on
record, though for different reasons, we find it extremely
difficult to hold that the appellant has founded and proved
corrupt practice under Section 100(1)(b) read with Section
123(4) of the RP Act against the first respondent. In the result,
there is no merit in the appeal and the same is accordingly
dismissed.
41. There is no order as to costs.
…………....……………………CJI.
(R. M. LODHA)
.………….....……………………J.
(KURIAN JOSEPH)
35Page 36
…………......……………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
September 18, 2014.
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