//
you're reading...
legal issues

Electronic Records – Admissibility -Secondary Evidence ? – Primary Evidence ? – Apex court held that 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. 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.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. = CIVIL APPEAL NO. 4226 OF 2012 Anvar P.V. … Appellant (s) Versus P.K. Basheer and others … Respondent (s) = 2014 – Sept. Month – http://judis.nic.in/supremecourt/imgst.aspx?filename=41931

Electronic Records – Admissibility – Secondary Evidence ? – Primary Evidence ? -Apex court held that 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. 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.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. =

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. =


 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.=

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.=
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.

The guidance relevant to the issue before us is reflected in  the

statutory provisions extracted above.=

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.=

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.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4226 OF 2012

Anvar P.V. … Appellant (s)

Versus

P.K. Basheer and others … Respondent (s)

J U D G M E N T
KURIAN, J.:

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.

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 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?”

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.

Heard Shri Vivek Chib, learned Counsel appearing for the appellant and Shri
Kapil Sibal, learned Senior Counsel appearing for the first respondent.

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.

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.

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.”

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.”

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.”

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[1], a two-Judge
Bench of this Court had an occasion to consider an issue on production of
electronic record as evidence. While considering the printouts of the
computerized records of the calls pertaining to the cellphones, it was held
at 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.”
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.

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.

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.

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.

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
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. …”

The allegation is that at least 25,000 copies of Exhibit-P1-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.

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, 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. …”

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 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.

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 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.”

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 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 another[2], 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. …”

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 another[3]. The said view has been
consistently followed thereafter. However, if an inference on consent from
the circumstances is to be drawn, the circumstances put together should
form a chain which should lead to a reasonable conclusion that the
candidate or his agent has given the consent for publication of the
objectionable material. Question is whether such clear, cogent and credible
evidence is available so as to lead to a reasonable conclusion 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. 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 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.

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 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. …”

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 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.

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 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.

In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and others[4], 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:
[pic](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 allegation on distribution of Exhibit-P1 at various
places is true.

Now, we shall deal with the last ground on announcements. The attack on
this ground is based on Exhibit-P10-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.

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.

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.

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
others[5], 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
others[6], 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 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)”

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.

There is no order as to costs.

…………….……………………CJI.
(R. M. LODHA)

.……………..……………………J.
(KURIAN JOSEPH)

……………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
September 18, 2014.
———————–
[1]
(2005) 11 SCC 600
[2] (1984) 1 SCC 390
[3] AIR 1960 SC 1217
[4] (1984) 4 SCC 649
[5] (1975) 4 SCC 769
[6] (2009) 10 SCC 239

———————–
REPORTABLE
———————–
35

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,729,188 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,854 other followers

Follow advocatemmmohan on WordPress.com