Supreme Court clarifies Section 65B of the Indian Evidence Act: Admissibility of Electronic Records in Election Petitions: Arjun Panditarao Khotkar vs. Kailash Kushanrao Gorantyal (2020)

Case Background

The case originated from two election petitions filed in the Bombay High Court under Sections 80 and 81 of the Representation of the People Act, 1951. These petitions challenged the election of Shri Arjun Panditrao Khotkar, the Returned Candidate (RC), from the 101-Jalna Legislative Assembly Constituency to the Maharashtra State Legislative Assembly in November 2014. Election Petition No. 6 of 2014 was filed by Shri Kailash Kishanrao Gorantyal, the defeated Congress (I) candidate, and Election Petition No. 9 of 2014 was filed by Shri Vijay Chaudhary, an elector in the constituency. The margin of victory for the RC was a narrow 296 votes.

The primary contention of the petitioners was that the four sets of nomination papers filed by the RC suffered from substantial defects. Specifically, the late submission of Nomination Form Nos. 43 and 44 after the stipulated time of 3:00 PM on September 27, 2014, was deemed a violation of the law. To support their claim, the petitioners relied on video recordings made inside and outside the Returning Officer’s (RO) office.

A complaint was lodged by Shri Kailash Kishanrao Gorantyal with the RO on September 28, 2014, at 11:00 AM, requesting the rejection of the improperly accepted nomination forms. The RO rejected this request, stating that the nomination forms were filed within the stipulated time.

Timeline

Course of Proceedings

The Bombay High Court, on March 16, 2016, directed the Election Commission to produce the original video recordings of the nomination process, along with the necessary certificates. The Election Commission submitted the video recordings with a certificate stating that the CDs contained recordings of the nomination process on September 26 and 27, 2014. The High Court itself prepared transcripts of the video recordings.

The High Court framed issues, including whether the nomination papers at Sr. Nos. 43 and 44 were submitted before 3:00 PM on September 27, 2014, and whether the original forms A and B were submitted after 3:00 PM. The High Court answered both issues in the affirmative, concluding that the nomination papers were not presented before the deadline.

Despite the Election Commission authorities’ reluctance to provide the certificate under Section 65B of the Evidence Act, the High Court relied on the substantive evidence of the RO, Smt. Mutha, who admitted that the video cameras were regularly used and VCDs were marked of the recordings. The High Court held that the conditions of Section 65B were substantially complied with and that the information in the video recordings was admissible. Consequently, the High Court declared the election of the RC void.

Legal Framework

The case primarily revolves around Sections 65A and 65B of the Indian Evidence Act, 1872, which deal with the admissibility of electronic records.

Section 65A states, “The contents of electronic records may be proved in accordance with the provisions of section 65B.”

Section 65B of the Indian Evidence Act, 1872, titled “Admissibility of electronic records,” states:

(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.

The conditions for admissibility are specified in sub-section (2) of Section 65B, which include:

• ✓ The computer output was produced by the computer during the period it was regularly used to store or process information.
• ✓ The information was regularly fed into the computer in the ordinary course of business.
• ✓ The computer was operating properly during the material period.
• ✓ The information contained in the electronic record reproduces or is derived from the information fed into the computer.

Sub-section (4) of Section 65B requires a certificate that identifies the electronic record, describes the manner of its production, provides particulars of the device involved, and deals with the conditions mentioned in sub-section (2). This certificate must be signed by a person occupying a responsible official position.

Other relevant definitions from the Information Technology Act, 2000, include:

• ✓ “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.
• ✓ “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.

Arguments

Appellant’s Submissions:

• ✓ The Appellant argued that the High Court’s judgment was based entirely on CDs/VCDs, which were inadmissible without a certificate as required under Section 65B(4) of the Evidence Act.
• ✓ The Appellant contended that the judgment in Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473, a three-judge bench decision, was applicable, which mandates a written and signed certificate for the admissibility of electronic records.
• ✓ The Appellant submitted that the judgment in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801, a two-judge bench decision, which held that the requirement of a certificate could be done away with in the interest of justice, was contrary to the Anvar P.V. judgment and therefore, not good law.
• ✓ The Appellant also argued that the Madras High Court judgment in K. Ramajyam v. Inspector of Police (2016) Crl. LJ 1542, which allowed evidence aliunde (outside Section 65B) to make electronic records admissible, was also incorrect.

Respondent’s Submissions:

• ✓ The Respondents argued that they had made multiple attempts to obtain the necessary certificate under Section 65B from the Election Commission, but the authorities deliberately refused to provide it.
• ✓ The Respondents contended that the oral testimony of the RO, Smt. Mutha, taken down in writing and signed by her, should be considered as substantial compliance with Section 65B(4).
• ✓ The Respondents stated that the High Court also relied upon other documentary and oral evidence, independent of the CDs/VCDs, to conclude that the nomination forms were submitted after 3:00 PM.
• ✓ The Respondents supported the decision in Shafhi Mohammad, arguing that Section 65B is a procedural provision and should not be used to deny crucial evidence when a certificate is impossible to obtain.

Intervenor’s Submissions:

• ✓ The Intervenor argued that Section 65B does not specify when the certificate should be furnished and that it could be provided at a subsequent stage of the proceedings.
• ✓ The Intervenor contended that Anvar P.V. required clarification to the extent that Sections 65A and 65B are a complete code for the admissibility of electronic records, and the concepts of primary and secondary evidence should not be applied.

Submissions Table

Issues Framed by the Supreme Court

• ✓ Whether the High Court was correct in admitting the electronic evidence (CDs/VCDs) without a certificate under Section 65B(4) of the Evidence Act?
• ✓ Whether the judgment in Shafhi Mohammad, which allows for relaxation of the certificate requirement, is valid?
• ✓ Whether the judgment in Tomaso Bruno, which allows secondary evidence of electronic records under Section 65 of the Evidence Act, is valid?

The Court also dealt with the sub-issue as to whether the High Court was correct in holding 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.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered several authorities while deciding the case, which are categorized by the legal point they relate to:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• ✓ Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473*: The court upheld the law laid down in this case, clarifying that the certificate under Section 65B(4) is mandatory for admissibility of electronic records.
• ✓ Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801*: The court overruled this judgment, stating that the requirement of a certificate under Section 65B(4) cannot be relaxed in the interest of justice.
• ✓ Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178*: The court overruled this judgment, stating that secondary evidence of electronic records cannot be led under Section 65 of the Evidence Act.
• ✓ K. Ramajyam v. Inspector of Police (2016) Crl. LJ 1542*: The court overruled this judgment, stating that evidence aliunde cannot be given through a person who was in-charge of a computer device in place of the requisite certificate under Section 65B(4).
• ✓ Vikram Singh and Anr. v. State of Punjab and Anr. (2017) 8 SCC 518*: The court followed this authority, holding that where primary evidence in electronic form has been produced, no certificate under Section 65B would be necessary.
• ✓ Vashist Narain Sharma v. Dev Chandra 1955 (1) SCR 509*: The court followed this authority, holding 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”.
• ✓ Rajendra Kumar Meshram v. Vanshmani Prasad Verma (2016) 10 SCC 715*: The court did not follow this judgment, holding that it did not take into account the judgment in Vashist Narain Sharma, and therefore, could not be said to have declared the law correctly.
• ✓ Mairembam Prithviraj v. Pukhrem Sharatchandra Singh (2017) 2 SCC 487*: The court followed this authority. The court held that 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.

What weighed in the mind of the Court?

The Supreme Court emphasized the mandatory nature of Section 65B(4) of the Evidence Act, highlighting that electronic records are susceptible to tampering and alteration. The Court recognized the need for safeguards to ensure the authenticity of such evidence. The Court also took note of the fact that the authorities deliberately refused to supply the certificate required under Section 65B despite being directed by the High Court. The court also considered the fact that the Respondent had done everything in his power to obtain the requisite certificate from the appropriate authorities.

Fact:Law Ratio:

Logical Reasoning

Issue 1: Admissibility of electronic evidence without a certificate under Section 65B(4)

Issue 2: Validity of Shafhi Mohammad judgment

Issue 3: Validity of Tomaso Bruno judgment

Key Takeaways

• ✓ A certificate under Section 65B(4) of the Indian Evidence Act is mandatory for the admissibility of electronic records as secondary evidence.
• ✓ Oral evidence cannot substitute the requirement of a certificate under Section 65B(4).
• ✓ The judgment in Shafhi Mohammad, which allowed for relaxation of the certificate requirement, has been overruled.
• ✓ The judgment in Tomaso Bruno, which allowed secondary evidence of electronic records under Section 65, has been overruled.
• ✓ The original electronic record can be produced as primary evidence without the need for a certificate under Section 65B(4).
• ✓ In situations where the certificate is impossible to obtain, the court can summon the person responsible to produce it.
• ✓ The court can allow for the certificate to be produced at a later stage of the trial, as long as the hearing is not yet over.
• ✓ The court directed cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period.

Directions

The Supreme Court issued general directions to cellular companies and internet service providers to maintain Call Detail Records (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.

Development of Law

The ratio decidendi of this case is that a certificate under Section 65B(4) of the Indian Evidence Act is mandatory for the admissibility of electronic records as secondary evidence. The court clarified that original electronic records can be produced as primary evidence without the need for a certificate. The court overruled the previous positions of law in Shafhi Mohammad and Tomaso Bruno, which had diluted the mandatory requirement of a certificate.

Conclusion

The Supreme Court’s judgment in Arjun Panditarao Khotkar v. Kailash Kushanrao Gorantyal clarifies the law on admissibility of electronic records under Section 65B of the Indian Evidence Act, 1872. The court emphasized the mandatory nature of the certificate under Section 65B(4) while allowing for exceptions in certain circumstances where the certificate is impossible to obtain. The court overruled previous judgments that had diluted this requirement. The court also gave directions to cellular companies and internet service providers to maintain CDRs and other relevant records in a segregated and secure manner.