ARJUN PANDITRAO KHOTKAR versus KAILASH KUSHANRAO GORANTYAL AND ORS.

[2020] 7 S.C.R.

ARJUN PANDITRAO KHOTKAR

KAILASH KUSHANRAO GORANTYAL AND ORS.

(Civil Appeal Nos. 20825-20826 of 2017)

JULY 14, 2020

[R.F. NARIMAN, S. RAVINDRA BHAT ANDV. RAMASUBRAMANIAN, JJ.]

Evidence Act, 1872 – ss.3, 22A, 45A, 61-65, 65A, 65B, 136 –CInterpretation of s.65B – Electronic records – Admissibility of –Appellant’s election challenged on the ground that his nominationpapers having been filed after the stipulated time ought to havebeen rejected – Respondents relied on video camera recordings ofthe office of Returning Officer (RO) – Video recordings producedby Election Commission without requisite certificate u/s.65-B(4) –DHowever, admitted in evidence by High Court, relying upon oralevidence of RO in cross examination – Election of the appellantdeclared void – Matter referred to three judges stating that in viewof Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three JudgeBench), Division Bench judgment in Shafhi Mohammad v. State ofEHimachal Pradesh (2018) 2 SCC 801 may need reconsideration – Held:Per R.F. Nariman, J. (for himself, S. Ravindra Bhat andV. Ramasubramanian, JJ.) Special provisions of ss.65A and 65Bare complete Code in themselves when it comes to admissibility ofevidence of information contained in electronic records – writtencertificate u/s.65B(4) is sine qua non for admissibility of suchFevidence – Oral evidence in place of such certificate cannot sufficeas s.65B(4) is mandatory – However, on facts, the respondentshaving done everything possible to obtain the necessary certificateare relieved of the mandatory obligation – Moreover, apart fromelectronic record, other evidence was also relied upon by High Court

to arrive at the same conclusion – Impugned judgment not faultedG– Further, certificate u/s.65B(4) is unnecessary if the originaldocument itself is produced – Anvar P.V., as clarified, is the law ons.65B – Shafhi Mohammad and the judgment dtd. 03.04.18 reportedas [2018] 3 SCR 1096 are overruled – Per V. Ramasubramanian J.(Supplementing) Major jurisdictions of the world have come toH

terms with the development of technology and fine-tuned theirlegislations – Need for relook at s.65B – Information TechnologyAct, 2000 – ss.2(i), (j), (l), (o), (r) & (t) – Representation of thePeople Act, 1951 – Interpretation of Statutes – Civil Evidence Act,1968(UK) – ss.5, s.6(1) – Civil Evidence Act, 1995(UK) – ss.8, 9,13 and 15(2) – Criminal Law.

Information Technology Act, 2000 – s.67C – Held: Generaldirections issued to cellular companies & internet service providers,to be followed by courts dealing with electronic evidence, till rulesand directions u/s.67(C) are formulated for compliance by telecomand service providers – Evidence Act, 1872 – ss.39, 45A and 65B.

Evidence Act, 1872 – s.65B – Acrimony behind – Reason for– Held: Per V. Ramasubramanian J. (Supplementing) s.65B(1) startswith non-obstante clause excluding the application of the otherprovisions and makes the certification precondition foradmissibility – Such admissibility as the first check post, coupledwith the fact that number of ‘computer systems’ (defined in s.2(l),2000 Act) owned by different individuals, may get involved in theproduction of an electronic record, with the ‘originator’ (defined ins.2(za), 2000 Act) being different from the recipients or the sharers,has created lot of acrimony behind s.65B – Information TechnologyAct, 2000 – ss.2(l), (za) – Federal Rules of Evidence (USA) – rr.901,902 – UK Civil Evidence Act, 1968 – s.5 – Civil Evidence Act,1995(UK) – Police and Criminal Evidence Act, 1984 (UK) – s.69 –Youth Justice and Criminal Evidence Act, 1999 – s.60 – CanadaEvidence Act, 1985 – s.31.1-31.3, 31.5 & 31.6.

Evidence Act, 1872 – s.65B(4) – Certificate under – Whenunnecessary – Discussed.

Evidence Act, 1872 – ss.65B(2)(a) to (d) and 65B(4) –Conditions mentioned under – Held: Conditions mentioned in sub-sections 2(a) to 2(d) of s.65B must be satisfied cumulatively – Further,conditions mentioned in sub-section (4) are also cumulative.

Evidence Act, 1872 – s.65B(1) – Non-obstante clause – Purportof – Discussed.

Maxims – lex non cogit ad impossibilia; impotentia excusat legem– Application of – Discussed – Evidence Act, 1872 – s.65B(4).

Evidence Act, 1872 – s.65B(4) – Certificate under – Stage ofproduction – Held: So long as the hearing in trial is not yet over,the requisite certificate can be directed to be produced by the Judgeat any stage – Criminal Law – Criminal Trial – Stage of admittingevidence – Code of Criminal Procedure, 1973 – ss.91, 207, 311.

BWords & Expressions –”doing any of the following things” –Held: Aforesaid expression must be read as doing allof the followingthings – “any” can mean “all” given the context – Interpretation ofStatutes – Evidence Act, 1872 – s.65B(4).

Evidence Act, 1872 – ss.65B(4), 165 – Certificate under –CProduction of – Inability of persons not in possession of – Held:Major premise of Shafhi Mohammad v. State of Himachal Pradesh(2018) 2 SCC 801 that such certificate cannot be secured by personswho are not in possession of an electronic device is wholly incorrect– An application can always be made to Judge for production ofsuch certificate from the requisite person u/s.65B(4) in cases inDwhich such person refuses to give it – Code of Civil Procedure,1908 – Or.XVI – Code of Criminal Procedure, 1973 – s.91.

Evidence Act, 1872 – s.65B(1) – Deeming fiction – Operationof – Held: Sub-s. (1) of s.65B begins with non-obstante clause andthen mentions information contained in an electronic recordEproduced by computer, which is made “document” by deemingfiction – This deeming fiction only takes effect if the furtherconditions mentioned in the section are satisfied in relation to boththe information and the computer in question – If such conditionsare met, the “document” shall then be admissible in any proceedings.F

Representation of the People Act, 1951 – s.100(1)(d)(i) – Held:Where the person whose nomination has been improperly acceptedis the returned candidate himself, the conclusion has to be that theresult of the election would be “materially affected”, without therebeing any necessity to plead and prove the same.

GAnswering the reference and dismissing the appeals withcosts, the Court

HELD: Per R.F. Nariman, J. (for himself, S. Ravindra Bhatand V. Ramasubramanian, JJ.)

1.1 The subject matter of Sections 65A and 65B of theEvidence Act is proof of information contained in electronicrecords. The marginal note to Section 65A indicates that “specialprovisions” as to evidence relating to electronic records are laiddown in this provision. The marginal note to Section 65B thenrefers to “admissibility of electronic records”. Section 65B(1)opens with non-obstante clause, and makes it clear that anyinformation that is contained in an electronic record which isprinted on paper, stored, recorded or copied in optical ormagnetic media produced by computer shall be deemed to be adocument, and shall be admissible in any proceedings withoutfurther proof of production of the original, as evidence of thecontents of the original or of any facts stated therein of whichdirect evidence would be admissible. The deeming fiction is forthe reason that “document” as defined by Section 3 of theEvidence Act does not include electronic records. Section 65B(2)then refers to the conditions that must be satisfied in respect ofa computer output, and states that the test for being included inconditions 65B(2(a)) to 65(2(d)) is that the computer be regularlyused to store or process information for purposes of activitiesregularly carried on in the period in question. The conditionsmentioned in sub-sections 2(a) to 2(d) must be satisfiedcumulatively. [Paras 20-22][209-A-E]1.2 Under Sub-section (4), certificate is to be producedthat identifies the electronic record containing the statement anddescribes the manner in which it is produced, or gives particularsof the device involved in the production of the electronic recordto show that the electronic record was produced by computer,by either person occupying responsible official position inrelation to the operation of the relevant device; or person whois in the management of “relevant activities” – whichever isappropriate. What is also of importance is that it shall be sufficientfor such matter to be stated to the “best of the knowledge andbelief of the person stating it”. Here, “doing anyof the followingthings…” must be read as doing allof the following things, itbeing well settled that the expression “any” can mean “all” giventhe context. This being the case, the conditions mentioned insub-section (4) must also be interpreted as being cumulative.[Para 23][209-E-G; 210-A]

184SUPREME COURT REPORTS

[2020] 7 S.C.R.

ABansilal Agarwalla v. State of Bihar [1962] 1 SCR 33;Om Parkash v. Union of India (2010) 4 SCC 17 : [2010]2 SCR 447 – relied on.

1.3 The sub-section (1) of Section 65B begins with non-obstante clause, and then goes on to mention informationBcontained in an electronic record produced by computer, whichis, by deeming fiction, then made “document”. This deemingfiction only takes effect if the further conditions mentioned in theSection are satisfied in relation to both the information and thecomputer in question; and if such conditions are met, the“document” shall then be admissible in any proceedings. TheCwords “…without further proof or production of the original…”make it clear that once the deeming fiction is given effect by thefulfilment of the conditions mentioned in the Section, the “deemeddocument” now becomes admissible in evidence without furtherproof or production of the originalas evidence of any contents of

Dthe original, or of any fact stated therein of which direct evidencewould be admissible. The non-obstante clause in sub-section (1)makes it clear that when it comes to information contained in anelectronic record, admissibility and proof thereof must follow thedrill of Section 65B, which is special provision in this behalf -Sections 62 to 65 being irrelevant for this purpose. However,ESection 65B(1) clearly differentiates between the “original”document - which would be the original “electronic record”contained in the “computer” in which the original information isfirst stored - and the computer output containing such information,which then may be treated as evidence of the contents of theF“original” document. All this necessarily shows that Section 65Bdifferentiates between the original information contained in the“computer” itself and copies made therefrom – the former beingprimary evidence, and the latter being secondary evidence.[Paras 30, 31][220-G-H; 221-A-D]

G1.4 Despite the law so declared in Anvar P.V., wherein thisCourt made it clear that the special provisions of Sections 65Aand 65B of the Evidence Act are complete Code in themselveswhen it comes to admissibility of evidence of informationcontained in electronic records, and also that written certificateunder Section 65B(4) is sine qua non for admissibility of suchH

evidence, discordant note was soon struck in Tomaso Bruno.The judgment of Anvar P.V. was not referred to at all. In fact, thejudgment in State v. Navjot Sandhu (2005) 11 SCC 600 wasadverted to, which was judgment specifically overruled by AnvarP.V. Section 65B(4) was also not at all adverted to by this judgment.Hence, the declaration of law in Tomaso Bruno following NavjotSandhu that secondary evidence of the contents of documentcan also be led under Section 65 of the Evidence Act to makeCCTV footage admissible would be in the teeth of Anvar P.V.,and cannot be said to be correct statement of the law. The saidview is accordingly overruled. [Paras 34, 35][222-G; 223-A-B;224-B-C]Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)

7 SCC 178 : [2015] 1 SCR 721 – overruled.

1.5 Quite apart from the fact that the judgment in ShafhiMohammad states the law incorrectly and is in the teeth of thejudgment in Anvar P.V., following the judgment in Tomaso Bruno- which has been held to be per incuriam hereinabove - theunderlying reasoning of the difficulty of producing certificate bya party who is not in possession of an electronic device is alsowholly incorrect. As matter of fact, Section 165 of the EvidenceAct empowers Judge to order production of any document orthing in order to discover or obtain proof of relevant facts.Likewise, under Order XVI of the Civil Procedure Code, 1908which deals with ‘Summoning and Attendance of Witnesses’, theCourt can issue orders for the production of documents. Similarly,in the Code of Criminal Procedure, 1973, the Judge conductinga criminal trial is empowered to issue the orders for productionof documents. Thus, it is clear that the major premise of ShafhiMohammad that such certificate cannot be secured by personswho are not in possession of an electronic device is whollyincorrect. An application can always be made to Judge forproduction of such certificate from the requisite person underSection 65B(4) in cases in which such person refuses to give it.[Paras 39-43][228-C-E; 229-B; 230-C; 231-C]

1.6 The facts of the present case show that despite all effortsmade by the Respondents, both through the High Court andotherwise, to get the requisite certificate under Section 65B(4)

Aof the Evidence Act from the authorities concerned, yet theauthorities concerned wilfully refused, on some pretext or theother, to give such certificate. In fact-circumstance where therequisite certificate has been applied for from the person or theauthority concerned, and the person or authority either refusesto give such certificate, or does not reply to such demand, theBparty asking for such certificate can apply to the Court for itsproduction under the provisions aforementioned of the EvidenceAct, CPC or CrPC. Once such application is made to the Court,and the Court then orders or directs that the requisite certificatebe produced by person to whom it sends summons to produceCsuch certificate, the party asking for the certificate has done allthat he can possibly do to obtain the requisite certificate. TwoLatin maxims become important at this stage. The first is lexnon cogit ad impossibilia i.e. the law does not demand theimpossible, and impotentia excusat legem i.e. when there is

disability that makes it impossible to obey the law, the allegedDdisobedience of the law is excused. On an application of theaforesaid maxims to the present case, it is clear that thoughSection 65B(4) is mandatory, yet, on the facts of this case, theRespondents, having done everything possible to obtain thenecessary certificate, which was to be given by third-party overEwhom the Respondents had no control, must be relieved of themandatory obligation contained in the said sub-section.[Paras 45, 49][231-E-H; 236-C-D]

Re: Presidential Poll (1974) 2 SCC 33; ChandraKishore Jha v. Mahavir Prasad and Ors. (1999) 8 SCCF266 : [1999] 2 Suppl. SCR 754; Special Reference 1 of2002 (2002) 8 SCC 237 : [2002] 3 Suppl. SCR 366;Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.(2005) 3 SCC 601 : [2005] 2 SCR 670 – relied on.

2.1 Section 65B does not speak of the stage at which suchGcertificate must be furnished to the Court. In Anvar P.V., thisCourt did observe that such certificate must accompany theelectronic record when the same is produced in evidence. Thisis so in cases where such certificate could be procured by theperson seeking to rely upon an electronic record. However, incases where either defective certificate is given, or in casesH

where such certificate has been demanded and is not given bythe concerned person, the Judge conducting the trial mustsummon the person/persons referred to in Section 65B(4) of theEvidence Act, and require that such certificate be given by suchperson/persons. This, the trial Judge ought to do when theelectronic record is produced in evidence before him withoutthe requisite certificate in the circumstances aforementioned. Thisis, of course, subject to discretion being exercised in civil casesin accordance with law, and in accordance with the requirementsof justice on the facts of each case. When it comes to criminaltrials, it is important to keep in mind the general principle thatthe accused must be supplied all documents that the prosecutionseeks to rely upon before commencement of the trial, under therelevant sections of the CrPC. The stage of admitting documentaryevidence in criminal trial is the filing of the charge-sheet. Whena criminal court summons the accused to stand trial, copies of alldocuments which are entered in the charge-sheet/final report haveto be given to the accused. Section 207 of the CrPC, which readsas follows, is mandatory. Therefore, the electronic evidence, i.e.the computer output, has to be furnished at the latest before thetrial begins. In criminal trial, it is assumed that the investigationis completed and the prosecution has, as such, concretised itscase against an accused before commencement of the trial. Theprosecution ought not to be allowed to fill up any lacunae duringa trial. Therefore, in terms of general procedure, the prosecutionis obligated to supply all documents upon which reliance may beplaced to an accused before commencement of the trial. Thus,the exercise of power by the courts in criminal trials in permittingevidence to be filed at later stage should not result in seriousor irreversible prejudice to the accused. balancing exercise inrespect of the rights of parties has to be carried out by the court,in examining any application by the prosecution under Sections91 or 311 of the CrPC or Section 165 of the Evidence Act.Depending on the facts of each case, and the Court exercisingdiscretion after seeing that the accused is not prejudiced by wantof fair trial, the Court may in appropriate cases allow theprosecution to produce such certificate at later point in time. Ifit is the accused who desires to produce the requisite certificateas part of his defence, this again will depend upon the justice of

Athe case - discretion to be exercised by the Court in accordancewith law. [Paras 50, 52-54][236-D-G; 237-E-F; 238-C, F;239-A-B]

2.2 So long as the hearing in trial is not yet over, therequisite certificate can be directed to be produced by the learnedBJudge at any stage, so that information contained in electronicrecord form can then be admitted, and relied upon in evidence.It may also be seen that the person who gives this certificate canbe anyone out of several persons who occupy ‘responsible officialposition’ in relation to the operation of the relevant device, asalso the person who may otherwise be in the ‘management ofCrelevant activities’ spoken of in Sub-section (4) of Section 65B.Considering that such certificate may also be given long afterthe electronic record has actually been produced by the computer,Section 65B(4) makes it clear that it is sufficient that such persongives the requisite certificate to the “best of his knowledge andbelief” (Obviously, the word “and” between knowledge and beliefDin Section 65B(4) must be read as “or”, as person cannot testifyto the best of his knowledge and belief at the same time). Thecertificate required under Section 65B(4) is condition precedentto the admissibility of evidence by way of electronic record, ascorrectly held in Anvar P.V., and incorrectly “clarified” in ShafhiEMohammed. Oral evidence in the place of such certificate cannotpossibly suffice as Section 65B(4) is mandatory requirement ofthe law. Section 65B(4) of the Evidence Act clearly states thatsecondary evidence is admissible only if lead in the manner statedand not otherwise. To hold otherwise would render Section 65B(4)otiose. [Paras 57-59][243-B-G]F

Taylor v. Taylor (1876) 1 Ch.D 426 – referred to.

3. While on the subject, it is relevant to note that theDepartment of Telecommunication’s license conditions [i.e. underthe ‘License for Provision of Unified Access Services’ framed in2007, as also the subsequent ‘License Agreement for UnifiedGLicense’ and the ‘License Agreement for provision of internetservice’] generally oblige internet service providers andproviders of mobile telephony to preserve and maintain electroniccall records and records of logs of internet users for limitedduration of one year. Therefore, if the police or other individualsH(interested, or party to any form of litigation) fail to secure those

records - or secure the records but fail to secure the certificate -within that period, the production of post-dated certificate (i.e.one issued after commencement of the trial) would in allprobability render the data unverifiable. This places the accusedin perilous position, as, in the event the accused wishes tochallenge the genuineness of this certificate by seeking the opinionof the Examiner of Electronic Evidence under Section 45A of theEvidence Act, the electronic record (i.e. the data as to call logsin the computer of the service provider) may be missing. Toobviate this, general directions are issued to cellular companiesand internet service providers to maintain CDRs and otherrelevant records for the concerned period (in tune with Section39 of the Evidence Act) in segregated and secure manner if aparticular CDR or other record is seized during investigation inthe said period. Concerned parties can then summon such recordsat the stage of defence evidence, or in the event such data isrequired to cross-examine particular witness. This directionshall be applied, in criminal trials, till appropriate directions areissued under relevant terms of the applicable licenses, or underSection 67C of the Information Technology Act. [Paras 61,62][244-A-F]3.1 In the present case, by the impugned judgment dated24.11.2017, Election Petition 6/2014 and Election Petition 9/2014have been allowed and partly allowed respectively, the electionof the RC being declared to be void under Section 100 of theRepresentation of the People Act, 1951, inter alia, on the groundthat as nomination papers at serial numbers 43 and 44 were notpresented by the RC before 3.00 p.m. on 27.09.2014, suchnomination papers were improperly accepted. However, by anorder dated 08.12.2017, this Court admitted the Election Appealof the Appellant, and stayed the impugned judgment and order.This matter has been heard after the five year LegislativeAssembly term is over in November 2019. This being the case,ordinarily, it would be unnecessary to decide on the merits of thecase, as the term of the Legislative Assembly is over. However,having read the impugned judgment, it is clear that the learnedSingle Judge was anguished by the fact that the ElectionCommission authorities behaved in partisan manner by openlyfavouring the Appellant. Despite the fact that the reason given of“substantial compliance” with Section 65B(4) in the absence of

Athe requisite certificate being incorrect in law, yet, consideringthat the Respondent had done everything in his power to obtainthe requisite certificate from the appropriate authorities, includingdirections from the Court to produce the requisite certificate, nosuch certificate was forthcoming. [Paras 64-66][245-A-G;246-A-C]B

3.2 It is clear that apart from the evidence in the form ofelectronic record, other evidence was also relied upon to arriveat the same conclusion. The High Court’s judgment thereforecannot be faulted. None of the earlier judgments of this Courtreferred to in Mairembam Prithviraj have been adverted to inCRajendra Kumar Meshram cited by Shri Adsure. In particular,the judgment of three learned Judges of this Court in VashistNarain Sharma has specifically held that where the person whosenomination has been improperly accepted is the returnedcandidate himself, it may be readily conceded that the conclusionDhas to be that the result of the election would be “materiallyaffected”, without there being any necessity to plead and provethe same. The judgment in Rajendra Kumar Meshram, not havingreferred to these earlier judgments of larger strength bindingupon it, cannot be said to have declared the law correctly. As aresult thereof, the impugned judgment of the High Court is rightEin its conclusion on this point also. [Paras 68, 71][247-D; 249-H;250-A-C]

Rajendra Kumar Meshram v. Vanshmani Prasad Verma(2016) 10 SCC 715 : [2016] 9 SCR 74 – held notcorrect law.FMairembam Prithviraj v. Pukhrem Sharatchandra Singh(2017) 2 SCC 487 : [2016] 9 SCR 687; DuraiMuthuswami v. N. Nachiappan and Ors. (1973) 2 SCC45 : [1974] 1 SCR 40 – referred to.

4. The reference is answered by stating that:G

(a) Anvar P.V., as clarified hereinabove, is the law declaredby this Court on Section 65B of the Evidence Act. The judgmentin Tomaso Bruno, being per incuriam, does not lay down the lawcorrectly. Also, the judgment in SLP (Crl.) No. 9431 of 2011reported as Shafhi Mohammad and the judgment dated 03.04.2018H

reported as (2018) 5 SCC 311, do not lay down the law correctlyand are therefore overruled.

b. The clarification referred to above is that the requiredcertificate under Section 65B(4) is unnecessary if the originaldocument itself is produced. This can be done by the owner of alaptop computer, computer tablet or even mobile phone, bystepping into the witness box and proving that the concerneddevice, on which the original information is first stored, is ownedand/or operated by him. In cases where the “computer” happensto be part of “computer system” or “computer network” andit becomes impossible to physically bring such system or networkto the Court, then the only means of providing informationcontained in such electronic record can be in accordance withSection 65B(1), together with the requisite certificate underSection 65B(4). The last sentence in Anvar P.V. which reads as“…if an electronic record as such is used as primary evidenceunder Section 62 of the Evidence Act…” is thus clarified; it is tobe read without the words “under Section 62 of the EvidenceAct,…” With this clarification, the law stated in paragraph 24 ofAnvar P.V. does not need to be revisited.

c. The general directions issued in paragraph 62 shallhereafter be followed by courts that deal with electronic evidence,to ensure their preservation, and production of certificate at theappropriate stage. These directions shall apply in all proceedings,till rules and directions under Section 67C of the InformationTechnology Act and data retention conditions are formulated forcompliance by telecom and internet service providers.

d. Appropriate rules and directions should be framed inexercise of the Information Technology Act, by exercising powerssuch as in Section 67C, and also framing suitable rules for theretention of data involved in trial of offences, their segregation,rules of chain of custody, stamping and record maintenance, forthe entire duration of trials and appeals, and also in regard topreservation of the meta data to avoid corruption. Likewise,appropriate rules for preservation, retrieval and production ofelectronic record, should be framed as indicated earlier, afterconsidering the report of the Committee constituted by the ChiefJustice’s Conference in April, 2016. [Para 72][250-C-H;251-A-C]

AShafhi Mohammad v. State of Himachal Pradesh (2018)2 SCC 801; Shafhi Mohammad v. State of HimachalPradesh (2018) 5 SCC 311 : [2018] 3 SCR 1096; K.Ramajyam v. Inspector of Police (2016) Crl. LJ 1542 –overruled.

BAnvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :[2014] 11 SCR 399 – clarified.

Kundan Singh v. State 2015 SCC OnLine Del 13647;Paras Jain v. State of Rajasthan 2015 SCC OnLineRaj 8331 – approved.

Cochin State Power and Light Corporation v. State ofKerala [1965] 3 SCR 187; Raj Kumar Dubey v.Tarapada Dey and Ors. (1987) 4 SCC 398 : [1988] 1SCR 118; M/s B.P. Khemka Pvt. Ltd. v. Birendra KumarBhowmick and Anr. (1987) 2 SCC 401; Hira Tikoo v.DU.T., Chandigarh and Ors. (2004) 6 SCC 765 : [2004]1 Suppl. SCR 65; State of Karnataka v. M.R. Hiremath(2019) 7 SCC 515 : [2019] 8 SCR 713; Vashist NarainSharma v. Dev Chandra [1955] 1 SCR 509 – reliedon.

EVikram Singh and Anr. v. State of Punjab and Anr. (2017)8 SCC 518 : [2017] 8 SCR 177; State v. Navjot Sandhu(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; TukaramS. Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC329 : [2010] 2 SCR 396; Central Bureau ofInvestigation v. R.S. Pai (2002) 5 SCC 82 : [2002] 2FSCR 889; Jagjit Singh v. Dharam Pal Singh (1995)Supp (1) SCC 422 – referred to.

Per V. Ramasubramanian, J. (Supplementing)

1.1 Section 65B(1), Indian Evidence Act, 1872 starts witha non-obstante clause excluding the application of the otherGprovisions and it makes the certification, precondition foradmissibility. While doing so, it does not talk about relevancy. Ina way, Sections 65A and 65B, if read together, mix-up both proofand admissibility, but not talk about relevancy. Section 65A refersto the procedure prescribed in Section 65B, for the purpose ofHproving the contents of electronic records, but Section 65B

speaks entirely about the preconditions for admissibility. As aresult, Section 65B places admissibility as the first or theoutermost check post, capable of turning away even at the border,any electronic evidence, without any enquiry, if the conditionsstipulated therein are not fulfilled. The placement by Section 65B,of admissibility as the first or the border check post, coupledwith the fact that number of ‘computer systems’ (as defined inSection 2(l) of the Information Technology Act, 2000) owned bydifferent individuals, may get involved in the production of anelectronic record, with the ‘originator’ (as defined in Section 2(za)of the Information Technology Act, 2000) being different fromthe recipients or the sharers, has created lot of acrimony behindSection 65B, which is evident from the judicial opinion swinginglike pendulum. [Paras 10, 11][254-B-E]

1.2 It is matter of fact and record that courts all over theworld were quick to adapt themselves to evidence in analogueform, within the framework of archaic, centuries old rules ofevidence. It was not as if evidence in analogue form was incapableof being manipulated. But the courts managed the show well byapplying time tested rules for sifting the actual from themanipulated. The felicity with which courts adapted themselvesto appreciating evidence in analogue form was primarily due tothe fact that in analogue technology, one is able to see and/ orperceive something that is happening. In analogue technology, awave is recorded or used in its original form. In digital technology,the analogue wave is sampled at some interval and then turnedinto numbers that are stored in digital device. Therefore, whatare stored, are in terms of numbers and they are, in turn,converted into voltage waves to produce what was stored. Further,Without looking up to the law makers to come up with necessaryamendments from time to time, the courts themselves developedcertain rules, over period of time, to test the authenticity ofthese documents in analogue form and these rules have in fact,worked well. But the facility of operating in anonymity in the cyberspace has made electronic records more prone to manipulationand consequently to greater degree of suspicion. Over periodof time, certain jurisdictions have come up with reasonably goodsolutions. [Paras 12, 13, 17 and 22][254-F-H; 255-A-B; 257-C;258-E]

A1.3 Conclusion-

The major jurisdictions of the world have come to termswith the change of times and the development of technology andfine-tuned their legislations. Therefore, it is the need of the hourthat there is relook at Section 65B of the Indian Evidence Act,Bintroduced 20 years ago, by Act 21 of 2000, and which has createda huge judicial turmoil, with the law swinging from one extremeto the other in the past 15 years from Navjot Sandhu to AnvarP.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. [Para 46][282-D-E]

State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC600 : [2005] 2 Suppl. SCR 79; Anvar P.V. v. P.K. Basheer,(2014) 10 SCC 473 : [2014] 11 SCR 399; Tomaso Brunovs. State of UP (2015) 7 SCC 178 : [2015] 1 SCR 721;Sonu v. State of Haryana (2017) 8 SCC 570 : [2017] 8SCR 151; Shafhi Mohammad v. The State of HimachalPradesh (2018) 2 SCC 801 : S. Pratap Singh v. State ofPunjab [1964] 4 SCR 753; Yusaffalli Esmail Nagree v.State of Maharashtra [1967] 3 SCR 720; N. Sri RamaReddy v. V. V. Giri AIR 1972 SC 1162; R.M. Malkani v.State of Maharashtra AIR 1973 SC 157 : [1973] 2 SCR417; Ziyauddin Burhanuddin Bukhari v. BrijmohanRamdass Mehra (1976) 2 SCC 17 : [1975] Suppl. SCR281; Ram Singh v. Col. Ram Singh AIR 1986 SC 3 :[1985] Suppl. SCR 399; Tukaram S. Dighole v.Manikrao Shivaji Kokate (2010) 4 SCC 329 : [2010] 2SCR 396 – referred to.

Harry Parker v. Mason [1940] 2 KB 590; R. v. Burrand Sullivan [1956] Crim LR 442; Hopes and Laveryv. H. M. Advocate [1960] Crim LR 566; R. v. Mills[1962] 3 All ER 298; R. v. Maqsud Ali [1965] 2 All ER464; The Statute of Liberty, Sapporo Maru M/S (Owners)v. Steam Tanker Statute of Liberty (Owners) [1968] 2All ER 195; R. v. Pettigrew [1980] 71 Cr. App. R. 39;Castle v. Cross [1984] 1 WLR 1372; R v. RobsonMitchell and Richards [1991] Crim LR 360; Lorrainev. Markel American Insurance Co. 241 FRD 534 (2007)– referred to.

ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAOGORANTYAL & ORS.

Case Law Reference

In the judgment of R.F. Nariman, J. (for himself, S. RavindraBhat and V. Ramasubramanian, JJ.)

DCIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 20825-20826 of 2017.

From the Judgment and Order dated 24.11.2017 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Election Petition Nos.6 of 2014 and 9 of 2014.E

With

Civil Appeal Nos. 2407 and 3696 of 2018.

Ms. Meenakshi Arora, Pravin M. Shah, Sr. Advs., RavindraKeshavrao Adsure, Haribhau Damodar Zol, Pratik Arvind Bhosle,FPrashant Ramakant Katneshwarkar, Ait Babanrao Kale, Sagar N.Pahune Patil, Shashibhushan P. Adgaonkar, Aditya Sikchi, Jakalwar,Gagandeep Sharma, Gautam Talukdar, Vikas Upadhyay, Ashwin KumarNair, Advs. for the appearing parties.

The Judgments of the Court were delivered byG

R. F. NARIMAN, J.

1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-20826 of 2017 is allowed.

2. These Civil Appeals have been referred to Bench of threeHhonourable Judges of this Court by Division Bench reference order

dated 26.07.2019, dealing with the interpretation of Section 65B of theIndian Evidence Act, 1872 (“Evidence Act”) by two judgments of thisCourt. In the reference order, after quoting from Anvar P.V. v. P.K.Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision ofthis Court), it was found that Division Bench judgment in SLP (Crl.)No. 9431 of 2011 reported as Shafhi Mohammad v. State of HimachalPradesh (2018) 2 SCC 801 may need reconsideration by Bench of alarger strength.

3. The brief facts necessary to appreciate the controversy in thepresent case, as elucidated in Civil Appeals 20825-20826 of 2017, are asfollows:

i.Two election petitions were filed by the present Respondentsbefore the Bombay High Court under Sections 80 and 81 ofthe Representation of the People Act, 1951, challenging theelection of the present Appellant, namely, Shri Arjun PanditraoKhotkar (who is the Returned Candidate [hereinafter referredto as the “RC”]belonging to the Shiv Sena partyfrom 101-Jalna Legislative Assembly Constituency) to the MaharashtraState Legislative Assembly for the term commencingNovember, 2014. Election Petition No.6 of 2014 was filed bythe defeated Congress (I) candidate Shri Kailash KishanraoGorantyal, whereas Election Petition No.9 of 2014 was filedby one Shri Vijay Chaudhary, an elector in the saidconstituency. The margin of victory for the RC was extremelynarrow, namely 296 votes- the RC having secured 45,078votes, whereas Shri Kailash Kishanrao Gorantyal secured44,782 votes.

ii.The entirety of the case before the High Court had revolvedaround four sets of nomination papers that had been filed bythe RC. It was the case of the present Respondents that eachset of nomination papers suffered from defects of substantialnature and that, therefore, all four sets of nomination papers,having been improperly accepted by the Returning Officer ofthe Election Commission, one Smt. Mutha, (hereinafter referredto as the “RO”), the election of the RC be declared void.Inparticular, it was the contention of the present Respondentsthat the late presentation of Nomination Form Nos. 43 and 44by the RC - inasmuch as they were filed bythe RC after the stipulated time of 3.00 p.m. on 27.09.2014 -

198SUPREME COURT REPORTS

Arendered such nomination forms not being filed in accordancewith the law, and ought to have been rejected.

iii. In order to buttress this submission, the Respondents soughtto rely upon video-camera arrangements that were made bothinside and outside the office of the RO. According to theBRespondents, the nomination papers were only offered at 3.53p.m.(i.e. beyond 3.00 p.m.), as result of which it was clearthat they had been filed out of time. specific complaint makingthis objection was submitted by Shri Kailash KishanraoGorantyal before the RO on 28.09.2014 at 11.00 a.m., in whichit was requested that the RO reject the nomination forms thatChad been improperly accepted.This request was rejected bythe RO on the same day, stating that the nomination formshad, in fact, been filed within time.

4. Given the fact that allegations and counter allegations weremade as to the time at which the nomination forms were given to theDRO, and that videography was available, the High Court, by its orderdated 16.03.2016, ordered the Election Commission and the concernedofficers to produce the entire record of the election of this Constituency,including the original video recordings. specific order was made thatthis electronic record needs to be produced along with the ‘necessarycertificates’.E

5. In compliance with this order, such video recordings wereproduced by the Election Commission, together with acertificate issuedwith regard to the CDs/VCDs, which read as follows:

“Certificate

FThis is to certify that the CDs in respect of video recording doneon two days of filing nomination forms of date 26.9.2014 and27.9.2014 which were present in the record are produced.

Sd/-Returning OfficerG101 Jalna Legislative AssemblyConstituency/Tahsildar Jalna”

Sd/-Asst. ReturningOfficer101 Jalna LegislativeAssemblyConstituency/Tahsildar Jalna

6. Transcripts of the contents of these CDs/VCDs were preparedby the High Court itself. Issue nos. 6 and 7 as framed by the High Court(and its answers to these issues) are important, and are set out in theimpugned judgment dated 24.11.2017, and extracted hereinbelow:

“Issues

Findings

6. Whether the petitioner proves that the Affirmative. (nomination papers at nomination papers at Sr.Nos. 43 and 44 were Sr. Nos. 43 and 44 were not not presented by respondent/ Returned presented by RC before 3.00 p.m. of 27.9.2014.)candidate before 3.00 p.m. on 27/09/2014 ?

7. Whether the petitioner proves that the respondent /Returned candidate submitted original forms and along with nomination paper only on 27/09/2014 after 3.00 p.m. and along with nomination paper at Sr.No. 44 ?

Affirmative. (A, forms were presented after 3.00 p.m. of 27.9.2014)”

7. In answering issues 6 and 7, the High Court recorded:

“60. Many applications were given by the petitioner of ElectionPetition No. 6/2014 to get the copies of electronic record in respectof aforesaid incidents with certificate as provided in section 65-Bof the Evidence Act. The correspondence made with them showthat even after leaving of the office by Smt. Mutha, theGovernment machinery, incharge of the record, intentionallyavoided to give certificate as mentioned in section 65-B of theEvidence Act. After production of the record in the Court in thisregard, this Court had allowed to Election Commission by orderto give copies of such record to applicants, but after that also theauthority avoided to give copies by giving lame excuses. It needsto be kept in mind that the RC is from political party which hasalliance with ruling party, BJP, not only in the State, but also at thecenter. It is unfortunate that the machinery which is expected tobe fair did not act fairly in the present matter. The circumstancesof the present matter show that the aforesaid two officers tried tocover up their mischief. However the material gives only oneinference that nomination forms Nos. 43 and 44 with A, formswere presented before the RO by RC after 3.00 p.m. of 27.9.2014and they were not handed over prior to 3.00 p.m. In view ofobjection of the learned counsels of the RC to using the informationcontained in aforesaid VCDs, marked as Article A1 to A6, this

ACourt had made order on 11.7.2017 that the objections will beconsidered in the judgment itself. This VCDs are already exhibitedby this Court as Exhs. 70 to 75. Thus, if the contents of theaforesaid VCDs can be used in the evidence, then the petitionersare bound to succeed in the present matters.”

B8. The High Court then set out Sections 65-A and 65-B of theEvidence Act, and referred to this Court’s judgment in Anvar P.V. (supra).The Court held in paragraph 65 of the impugned judgment that the CDsthat were produced by the Election Commission could not be treated asan original record and would, therefore, have to be proved by means ofsecondary evidence. Finding that no written certificate as is required byCSection 65-B(4) of the Evidence Act was furnished by any of the electionofficials, and more particularly, the RO, the High Court then held:“69. In substantive evidence, in the cross examination of Smt.Mutha, it is brought on the record that there was no complaintwith regard to working of video cameras used by the office. SheDhas admitted that the video cameras were regularly used in theoffice for recording the aforesaid incidents and daily VCDs werecollected of the recording by her office. This record was createdas the record of the activities of the Election Commission. It isbrought on the record that on the first floor of the building,Earrangement was made by keeping electronic gazettes like VCRplayers etc. and arrangement was made for viewing the recording.It is already observed that under her instructions, the VCDs weremarked of this recording. Thus, on the basis of her substantiveevidence, it can be said that the conditions mentioned in section65-B of the Evidence Act are fulfilled and she is certifying theFelectronic record as required by section 65-B (4) of the EvidenceAct. It can be said that Election Commission, the machineryavoided to give certificate in writing as required by section 65-B(4) of the Evidence Act. But, substantive evidence is brought onrecord of competent officer in that regard. When the certificateGexpected is required to be issued on the basis of best of knowledgeand belief, there is evidence on oath about it of Smt. Mutha. Thus,there is something more than the contents of certificate mentionedin section 65-B (4) of the Evidence Act in the present matters.Such evidence is not barred by the provisions of section 65-B ofthe Evidence Act as that evidence is only on certification made

by the responsible official position like RO. She was incharge ofthe management of the relevant activities and so her evidencecan be used and needs to be used as the compliance of theprovision of section 65-B of the Evidence Act. This Court holdsthat there is compliance of the provision of section 65-B of theEvidence Act in the present matter in respect of aforesaidelectronic record and so, the information contained in the recordcan be used in the evidence.”

Based, therefore, on “substantial compliance” of the requirementof giving certificate under Section 65B of the Evidence Act, it washeld that the CDs/VCDs were admissible in evidence, and based uponthis evidence it was found that, as matter of fact, the nomination formsby the RC had been improperly accepted. The election of the RC wastherefore was declared void in the impugned judgment.

9. Shri Ravindra Adsure, learned advocate appearing on behalf ofthe Appellant, submitted that the judgment in Anvar P.V. (supra) coveredthe case before us. He argued that without the necessary certificate inwriting and signed under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not havebeen admitted in evidence. He referred to Tomaso Bruno and Anr. v.State of Uttar Pradesh (2015) 7 SCC 178, and argued that the saidjudgment did not notice either Section 65B or Anvar P.V. (supra), andwas therefore per incuriam. He also argued that Shafhi Mohammad(supra), being two-Judge Bench of this Court, could not have arrivedat finding contrary to Anvar P.V. (supra), which was the judgment ofthree Hon’ble Judges of this Court. In particular, he argued that it couldnot have been held in Shafhi Mohammad (supra) that whenever theinterest of justice required, the requirement of certificate could bedone away with under Section 65B(4). Equally, this Court’s judgmentdated 03.04.2018, reported as (2018) 5 SCC 311, which merely followedthe law laid down in Shafhi Mohammad (supra), being contrary to thelarger bench judgment in Anvar P.V. (supra), should also be held as nothaving laid down good law. He further argued that the Madras HighCourt judgment in K. Ramajyam v. Inspector of Police (2016) Crl.LJ 1542, being contrary to Anvar P.V. (supra), also does not lay downthe law correctly, in that it holds that evidence aliunde, that is outsideSection 65B, can be taken in order to make electronic records admissible.In the facts of the present case, he contended that since it was clear that

Athe requisite certificate had not been issued, no theory of “substantialcompliance” with the provisions of Section 65B(4), as was held by theimpugned judgment, could possibly be sustained in law.

10. Ms. Meenakshi Arora, learned Senior Advocate appearing onbehalf of the Respondents, has taken us in copious detail through theBfacts of this case, and has argued that the High Court has directed theElection Commission to produce before the Court the original CDs/VCDsof the video-recording done at the office of the RO, along with thenecessary certificate. An application dated 16.08.2016 was also madeto the District Election Commission and RO as well as the Assistant ROfor the requisite certificate under Section 65B. reply was given onC14.09.2016,that this certificate could not be furnished since the matterwas sub-judice. Despite this, later on, on 26.07.2017 her client wrote tothe authorities again requesting for issuance of certificate under Section65B, but by replies dated 31.07.2017 and 02.08.2017, no such certificatewas forthcoming. Finally, after having run from pillar to post, her clientDapplied on 26.08.2017 to the Chief Election Commissioner, New Delhi,stating that the authorities were refusing to give her client the necessarycertificate under Section 65B and that the Chief Election Commissionershould therefore ensure that it be given to them. To this communication,no reply was forthcoming from the Chief Election Commissioner, NewDelhi. Given this, the High Court at several places had observed in theEcourse of the impugned judgment that the authorities deliberately refused,despite being directed, to supply the requisite certificate under Section65B, as result of which the impugned judgment correctly relied uponthe oral testimony of the RO herself. According to Ms. Arora, such oraltestimony taken down in the form of writing, which witness statement isFsigned by the RO, would itself amount to the requisite certificate beingissued under Section 65B(4) in the facts of this case, as was correctlyheld by the High Court. Quite apart from this, Ms. Arora also stated that- independent of the finding given by the High Court by relying uponCDs/VCDs - the High Court also relied upon other documentary andoral evidence to arrive at the finding that the RC had not handed overGnomination forms directly to the RO at 2.20 p.m (i.e. before 3pm). Infact, it was found on the basis of this evidence that the nomination formswere handed over and accepted by the RO only after 3.00 p.m. andwere therefore improperly accepted, as result of which, the election ofthe Appellant was correctly set aside.

11. On law, Ms. Arora argued that it must not be forgotten thatSection 65B is procedural provision, and it cannot be the law that evenwhere certificate is impossible to get, the absence of such certificateshould result in the denial of crucial evidence which would point at thetruth or falsehood of given set of facts.She, therefore, supported thedecision in Shafhi Mohammad (supra), stating that Anvar P.V. (supra)could be considered to be good law only in situations where it was possiblefor the party to produce the requisite certificate.In cases where thisbecomes difficult or impossible, the interest of justice would require thata procedural provision be not exalted to such level that vital evidencewould be shut out, resulting in manifest injustice.12. Shri Vikas Upadhyay,appearing on behalf of the Intervenor,took us through the various provisions of the Information TechnologyAct, 2000 along with Section 65B of the Evidence Act, and argued thatSection 65B does not refer to the stage at which the certificate underSection 65B(4) ought to be furnished. He relied upon judgment of theHigh Court of Rajasthan as well as the High Court of Bombay, in additionto Kundan Singh v. State 2015 SCC OnLine Del 13647 of the DelhiHigh Court, to argue that the requisite certificate need not necessarilybe given at the time of tendering of evidence but could be at subsequentstage of the proceedings, as in cases where the requisite certificate isnot forthcoming due to no fault of the party who tried to produce it, butwho had to apply to Judge for its production. He also argued thatAnvar P.V. (supra) required to be clarified to the extent that Sections65A and 65B being complete code as to admissibility of electronicrecords, the “baggage” of Primary and Secondary Evidence containedin Sections 62 and 65 of the Evidence Act should not at all be advertedto, and that the drill of Section 65A and 65B alone be followed when itcomes to admissibility of information contained in electronic records.

13. It is now necessary to set out the relevant provisions of theEvidence Act and the Information Technology Act, 2000. Section 3 ofthe Evidence Act defines “document” as follows:

“Document.— “Document” means any matter expressed ordescribed upon any substance by means of letters, figures or marks,or by more than one of those means, intended to be used, or whichmay be used, for the purpose of recording that matter.”

A“Evidence” in Section 3 is defined as follows:

“Evidence.”— “Evidence” means and includes—(1) allstatements which the Court permits or requires to be made beforeit by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence;B(2) all documents including electronic records produced for theinspection of the Court; such documents are called documentaryevidence.”

The Evidence Act also declares that the expressions “CertifyingCAuthority”, “electronic signature”, “Electronic Signature Certificate”,“electronic form”, “electronic records”, “information”, “secure electronicrecord”, “secure digital signature” and “subscriber” shall have themeanings respectively assigned to them in the Information TechnologyAct.

14. Section 22-A of the Evidence Act, which deals with theDrelevance of oral admissions as to contents of electronic records, readsas follows:

“22A. When oral admission as to contents of electronicrecords are relevant. — Oral admissions as to the contents ofelectronic records are not relevant, unless the genuineness of theEelectronic record produced is in question.”

15. Section 45A of the Evidence Act, on the opinion of the Examinerof Electronic Evidence, then states:

“45A. Opinion of Examiner of Electronic Evidence.— WhenFin proceeding, the court has to form an opinion on any matterrelating to any information transmitted or stored in any computerresource or any other electronic or digital form, the opinion of theExaminer of Electronic Evidence referred to in section 79A ofthe Information Technology Act, 2000 (21 of 2000), is relevantfact.G

Explanation.— For the purposes of this section, an Examiner ofElectronic Evidence shall be an expert.”

16. Sections 65-A and 65-B of the Evidence Act read as follows:

“65A. Special provisions as to evidence relating toelectronic record.—The contents of electronic records may beproved in accordance with the provisions of section 65B.”

“65B. Admissibility of electronic records.- (1) Notwithstandinganything contained in this Act, any information contained in anelectronic record which is printed on paper, stored, recorded orcopied in optical or magnetic media produced by computer(hereinafter referred to as the computer output) shall be deemedto be also document, if the conditions mentioned in this sectionare satisfied in relation to the information and computer in questionand shall be admissible in any proceedings, without further proofor production of the original, as evidence or any contents of theoriginal or of any fact stated therein of which direct evidencewould be admissible.

(2) The conditions referred to in sub-section (1) in respect of acomputer output shall be the following, namely:

(a) the computer output containing the information was producedby the computer during the period over which the computer wasused regularly to store or process information for the purposes ofany activities regularly carried on over that period by the personhaving lawful control over the use of the computer;

(b) during the said period, information of the kind contained in theelectronic record or of the kind from which the information socontained is derived was regularly fed into the computer in theordinary course of the said activities;

(c) throughout the material part of the said period, the computerwas operating properly or, if not, then in respect of any period inwhich it was not operating properly or was out of operation duringthat part of the period, was not such as to affect the electronicrecord or the accuracy of its contents; and

(d) the information contained in the electronic record reproducesor is derived from such information fed into the computer in theordinary course of the said activities.

(3) Where over any period, the function of storing or processinginformation for the purposes of any activities regularly carried onover that period as mentioned in clause (a) of sub-section (2) wasregularly performed by computers, whether-

(a) by 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 successionover that period; or

(d) in any other manner involving the successive operation overthat period, in whatever order, of one or more computers and oneor more combinations of computers,

all the computers used for that purpose during that period shall betreated for the purposes of this section as constituting singlecomputer; and references in this section to computer shall beconstrued accordingly.

(4) In any proceedings where it is desired to give statement inevidence by virtue of this section, certificate doing any of thefollowing things, that is to say, -

(a) identifying the electronic record containing the statement anddescribing the manner in which it was produced;

(b) giving such particulars of any device involved in the productionof that electronic record as may be appropriate for the purpose ofEshowing that the electronic record was produced by computer;

(c) dealing with any of the matters to which the conditionsmentioned in sub-section (2) relate,

and purporting to be signed by person occupying responsibleofficial position in relation to the operation of the relevant deviceor the management of the relevant activities (whichever isappropriate) shall be evidence of any matter stated in thecertificate; and for the purposes of this subsection it shall besufficient for matter to be stated to the best of the knowledgeand belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to computer if it issupplied thereto in any appropriate form and whether it is sosupplied directly or (with or without human intervention) by meansof any appropriate equipment; —

(b) whether in the course of activities carried on by any official,information is supplied with view to its being stored or processedfor the purposes of those activities by computer operatedotherwise than in the course of those activities, that information,if duly supplied to that computer, shall be taken to be supplied to itin the course of those activities;

(c) computer output shall be taken to have been produced by acomputer whether it was produced by it directly or (with or withouthuman intervention) by means of any appropriate equipment.

Explanation. — For the purposes of this section any referenceto information being derived from other information shall be areference to its being derived therefrom by calculation, comparisonor any other process.”

17. The following definitions as contained in Section 2 of theInformation Technology Act, 2000 are also relevant:

“(i) “computer” means any electronic, magnetic, optical or otherhigh-speed data processing device or system which performslogical, arithmetic, and memory functions by manipulations ofelectronic, magnetic or optical impulses, and includes all input,output, processing, storage, computer software or communicationfacilities which are connected or related to the computer in acomputer system or computer network;”

“(j) “computer network” means the inter-connection of one ormore computers or computer systems or communication devicethrough– (i) the use of satellite, microwave, terrestrial line, wire,wireless or other communication media; and (ii) terminals or acomplex consisting of two or more interconnected computers orcommunication device whether or not the inter-connection iscontinuously maintained;”

“(l) “computer system” means device or collection of devices,including input and output support devices and excluding calculatorswhich are not programmable and capable of being used inconjunction with external files, which contain computerprogrammes, electronic instructions, input data and output data,that performs logic, arithmetic, data storage and retrieval,communication control and other functions;”

A“(o) “data” means representation of information, knowledge,facts, concepts or instructions which are being prepared or havebeen prepared in formalised manner, and is intended to beprocessed, is being processed or has been processed in computersystem or computer network, and may be in any form (includingcomputer printouts magnetic or optical storage media, punchedBcards, punched tapes) or stored internally in the memory of thecomputer;”

“(r) “electronic form”, with reference to information, means anyinformation generated, sent, received or stored in media, magnetic,optical, computer memory, micro film, computer generated microCfiche or similar device;”

“(t) “electronic record” means data, record or data generated,image or sound stored, received or sent in an electronic form ormicro film or computer generated micro fiche;”

D18. Sections 65A and 65B occur in Chapter V of the EvidenceAct which is entitled “Of Documentary Evidence”. Section 61 of theEvidence Act deals with the proof of contents of documents, and statesthat the contents of documents may be proved either by primary or bysecondary evidence. Section 62 of the Evidence Act defines primaryevidence as meaning the document itself produced for the inspection ofEthe court. Section 63 of the Evidence Act speaks of the kind or types ofsecondary evidence by which documents may be proved. Section 64 ofthe Evidence Act then enacts that documents must be proved by primaryevidence except in the circumstances hereinafter mentioned. Section 65of the Evidence Act is important, and states that secondary evidenceFmay be given of “the existence, condition or contents of documentin the following cases…”.

19. Section 65 differentiates between existence, condition andcontents of document.Whereas “existence” goes to “admissibility” ofa document,”contents” of document are to be proved after documentGbecomes admissible in evidence.Section 65A speaks of “contents” ofelectronic records being proved in accordance with the provisions ofSection 65B. Section 65B speaks of “admissibility” of electronic recordswhich deals with “existence” and “contents” of electronic records beingproved once admissible into evidence.With these prefatory observationslet us have closer look at Sections 65A and 65B.H

20. It will first be noticed that the subject matter of Sections 65Aand 65B of the Evidence Act is proof of information contained in electronicrecords. The marginal note to Section 65A indicates that “specialprovisions” as to evidence relating to electronic records are laid down inthis provision.The marginal note to Section 65B then refers to“admissibility of electronic records”.

21. Section 65B(1) opens with non-obstante clause, and makesit clear that any information that is contained in an electronic recordwhich is printed on paper, stored, recorded or copied in optical ormagnetic media produced by computer shall be deemed to be adocument, and shall be admissible in any proceedings without furtherproof of production of the original, as evidence of the contents of theoriginal or of any facts stated therein of which direct evidence would beadmissible. The deeming fiction is for the reason that “document” asdefined by Section 3 of the Evidence Act does not include electronicrecords.

22. Section 65B(2) then refers to the conditions that must be satisfiedin respect of computer output, and states that the test for being includedin conditions 65B(2(a)) to 65(2(d)) is that the computer be regularlyused to store or process information for purposes of activities regularlycarried on in the period in question. The conditions mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively.

23. Under Sub-section (4), certificate is to be produced thatidentifies the electronic record containing the statement and describesthe manner in which it is produced, or gives particulars of the deviceinvolved in the production of the electronic record to show that theelectronic record was produced by computer, by either personoccupying responsible official position in relation to the operation ofthe relevant device; or person who is in the management of “relevantactivities” – whichever is appropriate. What is also of importance is thatit shall be sufficient for such matter to be stated to the “best of theknowledge and belief of the person stating it”. Here, “doing anyof thefollowing things…” must be read as doing allof the following things, itbeing well settled that the expression “any” can mean “all” given thecontext (see, for example, this Court’s judgments in Bansilal Agarwallav. State of Bihar (1962) 1 SCR 33[1] and Om Parkash v. Union of

1 “3. The first contention is based on an assumption that the word “any one” in Section

76 means only “one of the directors, and only one of the shareholders”. This question

AIndia (2010) 4 SCC 17[2]. This being the case, the conditions mentionedin sub-section (4) must also be interpreted as being cumulative.

24. It is now appropriate to examine the manner in which Section65B was interpreted by this Court. In Anvar P.V. (supra), three JudgeBench of this Court, after setting out Sections 65A and 65B of theBEvidence Act, held:

“14. Any documentary evidence by way of an electronic recordunder the Evidence Act, in view of Sections 59 and 65-A, canbe proved only in accordance with the procedure prescribedunder Section 65-B. Section 65-B deals with the admissibilityCof the electronic record. The purpose of these provisions is tosanctify secondary evidence in electronic form, generated bya computer. It may be noted that the section starts with nonobstante clause. Thus, notwithstanding anything contained inthe Evidence Act, any information contained in an electronicrecord which is printed on paper, stored, recorded or copiedDin optical or magnetic media produced by computer shall bedeemed to be document only if the conditions mentioned undersub-section (2) are satisfied, without further proof or productionof the original. The very admissibility of such document i.e.electronic record which is called as computer output, dependsEon the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

as regards the interpretation of the word “any one” in Section 76 was raised in CriminalFAppeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) decided there that the word “any one” should be interpreted there as “every oneand it has been”. Thusunder Section 76 every one of the shareholders of private company owning the mine,and every one of the directors of public company owning the mine is liable toprosecution. No question of violation of Article 14 therefore arises.”

2 “70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v.Union of India, AIR 1987 Del 239] would clearly indicate with regard to interpretationGof the word “any” in Explanation 1 to the firstproviso to Section 6of the Act whichexpands the scope of stay order granted in one case of landowners to be automaticallyextended to all those landowners, whose lands are covered under the notificationsissued under Section 4 of the Act, irrespective of the fact whether there was anyseparate order of stay or not as regards their lands. The logic assigned by the FullBench, the relevant portions whereof have been reproduced hereinabove, appear to beHreasonable, apt, legal and proper.”

(i) The electronic record containing the information should havebeen produced by the computer during the period over which thesame was regularly used to store or process information for thepurpose of any activity regularly carried on over that period bythe person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record orof the kind from which the information is derived was regularlyfed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer wasoperating properly and that even if it was not operating properlyfor some time, the break or breaks had not affected either therecord or the accuracy of its contents; and

(iv) The information contained in the record should be areproduction or derivation from the information fed into thecomputer in the ordinary course of the said activity.

15. Under Section 65-B(4) of the Evidence Act, if it is desired togive statement in any proceedings pertaining to an electronicrecord, it is permissible provided the following conditions aresatisfied:

(a) There must be certificate which identifies the electronicrecord containing the statement;

(b) The certificate must describe the manner in which theelectronic record was produced;

(c) The certificate must furnish the particulars of the deviceinvolved in the production of that record;

(d) The certificate must deal with the applicable conditionsmentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by person occupying aresponsible official position in relation to the operation of therelevant device.

16. It is further clarified that the person need only to state in thecertificate that the same is to the best of his knowledge and belief.Most importantly, such certificate must accompany the electronicrecord like computer printout, compact disc (CD), video compactdisc (VCD), pen drive, etc., pertaining to which statement is

sought to be given in evidence, when the same is produced inevidence. All these safeguards are taken to ensure the sourceand authenticity, which are the two hallmarks pertaining toelectronic record sought to be used as evidence. Electronic recordsbeing more susceptible to tampering, alteration, transposition,excision, etc. without such safeguards, the whole trial based onproof of electronic records can lead to travesty of justice.

17. Only if the electronic record is duly produced in terms ofSection 65-B of the Evidence Act, would the question arise as tothe genuineness thereof and in that situation, resort can be madeto Section 45-A—opinion of Examiner of Electronic Evidence.

18. The Evidence Act does not contemplate or permit the proofof an electronic record by oral evidence if requirements underSection 65-B of the Evidence Act are not complied with, as thelaw now stands in India.

xxx xxx xxx

20. Proof of electronic record is special provision introduced bythe IT Act amending various provisions under the Evidence Act.The very caption of Section 65-A of the Evidence Act, read withSections 59 and 65-B is sufficient to hold that the special provisionson evidence relating to electronic record shall be governed by theprocedure prescribed under Section 65-B of the Evidence Act.That is complete code in itself. Being special law, the generallaw under Sections 63 and 65 has to yield.

21. In State (NCT of Delhi) v. Navjot Sandhu two-Judge Benchof this Court had an occasion to consider an issue on productionof electronic record as evidence. While considering the printoutsof the computerised records of the calls pertaining to thecellphones, it was held at para 150 as follows: (SCC p. 714)

“150. According to Section 63, “secondary evidence” means andincludes, among other things, ‘copies made from the original bymechanical processes which in themselves insure the accuracyof the copy, and copies compared with such copies’. Section 65enables secondary evidence of the contents of document to beadduced if the original is of such nature as not to be easilymovable. It is not in dispute that the information contained in thecall records is stored in huge servers which cannot be easily moved

and produced in the court. That is what the High Court has alsoobserved at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by responsible officialof the service-providing company can be led in evidence througha witness who can identify the signatures of the certifying officeror otherwise speak of the facts based on his personal knowledge.Irrespective of the compliance with the requirements of Section65-B, which is provision dealing with admissibility of electronicrecords, there is no bar to adducing secondary evidence underthe other provisions of the Evidence Act, namely, Sections 63 and65. 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 thatdoes not mean that secondary evidence cannot be given even ifthe law permits such evidence to be given in the circumstancesmentioned in the relevant provisions, namely, Sections 63 and 65.”

It may be seen that it was case where responsible official hadduly certified the document at the time of production itself. Thesignatures in the certificate were also identified. That is apparentlyin compliance with the procedure prescribed under Section 65-Bof the Evidence Act. However, it was held that irrespective of thecompliance with the requirements of Section 65-B, which is aspecial provision dealing with admissibility of the electronic record,there is no bar in adducing secondary evidence, under Sections63 and 65, of an electronic record.”22. The evidence relating to electronic record, as notedhereinbefore, being special provision, the general law onsecondary evidence under Section 63 read with Section 65 of theEvidence Act shall yield to the same. Generalia specialibus nonderogant, special law will always prevail over the general law. Itappears, the court omitted to take note of Sections 59 and 65-Adealing with the admissibility of electronic record. Sections 63and 65 have no application in the case of secondary evidence byway of electronic record; the same is wholly governed by Sections65-A and 65-B. To that extent, the statement of law on admissibilityof secondary evidence pertaining to electronic record, as statedby this Court in Navjot Sandhu case, does not lay down thecorrect legal position. It requires to be overruled and we do so.An electronic record by way of secondary evidence shall not be

ABC

admitted in evidence unless the requirements under Section 65-Bare satisfied. Thus, in the case of CD, VCD, chip, etc., the sameshall be accompanied by the certificate in terms of Section 65-Bobtained at the time of taking the document, without which, thesecondary evidence pertaining to that electronic record, isinadmissible.

23. The appellant admittedly has not produced any certificate interms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9,P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same cannotbe admitted in evidence. Thus, the whole case set up regardingthe corrupt practice using songs, announcements and speechesfall to the ground.

24. The situation would have been different had the appellantadduced primary evidence, by making available in evidence, theCDs used for announcement and songs. Had those CDs used forobjectionable songs or announcements been duly got seized throughthe police or Election Commission and had the same been used asprimary evidence, the High Court could have played the same incourt to see whether the allegations were true. That is not thesituation in this case. The speeches, songs and announcementswere recorded using other instruments and by feeding them into acomputer, CDs were made therefrom which were produced incourt, without due certification. Those CDs cannot be admitted inevidence since the mandatory requirements of Section 65-B ofthe Evidence Act are not satisfied. It is clarified thatnotwithstanding what we have stated herein in the precedingparagraphs on the secondary evidence of electronic record withreference to Sections 59, 65-A and 65-B of the Evidence Act, ifan electronic record as such is used as primary evidence underSection 62 of the Evidence Act, the same is admissible in evidence,without compliance with the conditions in Section 65-B of theEvidence Act.”

25. Shri Upadhyay took exception to the language of paragraph24 in this judgment. According to the learned counsel, primary andsecondary evidence as to documents, referred to in Sections 61 to Section65 of the Evidence Act, should be kept out of admissibility of electronicrecords, given the fact that Sections 65A and 65B are complete codeHon the subject.

26. At this juncture, it is important to note that Section 65B has itsgenesis in Section 5 of the Civil Evidence Act 1968 (UK), which readsas follows:

“Admissibility of statements produced by computers.

(1) In any civil proceedings statement contained in documentproduced by computer shall, subject to rules of court, beadmissible as evidence of any fact stated therein of which directoral evidence would be admissible, if it is shown that the conditionsmentioned in sub section (2) below are satisfied in relation to thestatement and computer in question.

(2) The said conditions are—

(a) that the document containing the statement was produced bythe computer during period over which the computer was usedregularly to store or process information for the purposes of anyactivities regularly carried on over that period, whether for profitor not, by any body, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to thecomputer in the ordinary course of those activities information ofthe kind contained in the statement or of the kind from which theinformation so contained is derived;

(c) that throughout the material part of that period the computerwas operating properly or, if not, that any respect in which it wasnot operating properly or was out of operation during that part ofthat period was not such as to affect the production of thedocument or the accuracy of its contents; and

(d) that the information contained in the statement reproduces oris derived from information supplied to the computer in the ordinarycourse of those activities.

(3) Where over period the function of storing or processinginformation for the purposes of any activities regularly carried onover that period as mentioned in subsection (2)(a) above wasregularly performed by computers, whether-

(a) by combination of computers operating over that period; or(b) by different computers operating in succession over that period;or

A(c) by different combinations of computers operating in successionover that period; or

(d) in any other manner involving the successive operation overthat period, in whatever order, of one or more computers and oneor more combinations of computers,

all the computers used for that purpose during that period shall betreated for the purposes of this Part of this Act as constituting asingle computer; and references in this Part of this Act to acomputer shall be construed accordingly.

(4) In any civil proceedings where it is desired to give statementCin evidence by virtue of this section, certificate doing any of thefollowing things, that is to say—

(a) identifying the document containing the statement and describingthe manner in which it was produced;

D(b) giving such particulars of any device involved in the productionof that document as may be appropriate for the purpose of showingthat the document was produced by computer;

(c) dealing with any of the matters to which the conditionsmentioned in subsection (2) above relate,

Eand purporting to be signed by person occupying responsibleposition in relation to the operation of the relevant device or themanagement of the relevant activities (whichever is appropriate)shall be evidence of any matter stated in the certificate; and forthe purposes of this subsection it shall be sufficient for matter tobe stated to the best of the knowledge and belief of the personFstating it.

(5) For the purposes of this Part of this Act—

(a) information shall be taken to be supplied to computer if it issupplied thereto in any appropriate form and whether it is soGsupplied directly or (with or without human intervention) by meansof any appropriate equipment;

(b) where, in the course of activities carried on by any individualor body, information is supplied with view to its being stored orprocessed for the purposes of those activities by computerHoperated otherwise than in the course of those activities, that

information, if duly supplied to that computer, shall be taken to besupplied to it in the course of those activities;

(c) document shall be taken to have been produced by computerwhether it was produced by it directly or (with or without humanintervention) by means of any appropriate equipment.

(6) Subject to subsection (3) above, in this Part of this Act“computer “ means any device for storing and processinginformation, and any reference to information being derived fromother information is reference to its being derived therefrom bycalculation, comparison or any other process.”

27. It may be noticed that sub-sections (2) to (5) of Section 65Bof the Evidence Act are reproduction of sub-sections (2) to (5) ofSection 5 of the Civil Evidence Act, 1968, with minor changes[3]. Thedefinition of “computer” under Section 5(6) of the Civil Evidence Act,1968 was not, however, adopted by Section 2(i) of the InformationTechnology Act, 2000, which as noted above, is ‘means and includes’definition of much more complex and intricate nature. It is also importantto note Section 6(1) and (5) of the Civil Evidence Act, 1968, which stateas follows:

“(1) Where in any civil proceedings statement contained in adocument is proposed to be given in evidence by virtue of section2, 4 or 5 of this Act it may, subject to any rules of court, be provedby the production of that document or (whether or not thatdocument is still in existence) by the production of copy of thatdocument, or of the material part thereof, authenticated in suchmanner as the court may approve.

xxx xxx xxx

(5) If any person in certificate tendered in evidence in civilproceedings by virtue of section 5(4) of this Act wilfully makes astatement material in those proceedings which he knows to befalse or does not believe to be true, he shall be liable on conviction

3 Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence fromcomputer records in criminal proceedings. Section 69 read thus:

“69.-(1) In any proceedings, statement in document produced by computer shallnot be admissible as evidence of any fact stated therein unless it is shown-

(a) that there are no reasonable grounds for believing that the statement isinaccurate because of improper use of that computer;

Aon indictment to imprisonment for term not exceeding two years

or fine or both.”

28. Section 6(1), in essence, maintains the dichotomy betweenproof by ‘primary’ and ‘secondary’ evidence - proof by production ofthe ‘document’ itself being primary evidence, and proof by production ofBa copy of that document, as authenticated, being secondary evidence.

(b) that at all material times the computer was operating properly, or if not, thatany respect in which it was not operating properly or was out of operation wasnot such as to affect the production of the document or the accuracy of itscontents; and

(c) that any relevant conditions specified in rules of court under subsection (2)Cbelow are satisfied.

(2) Provision may be made by rules of court requiring that in any proceedings where itis desired to give statement in evidence by virtue of this section such informationconcerning the statement as may be required by the rules shall be provided in such formand at such time as may be so required.”

By Section 70, Sections 68 and 69 of this Act had to be read with Schedule 3 thereof, theDprovisions of which had the same force in effect as Sections 68 and 69. Part I ofSchedule 3 supplemented Section 68. Notwithstanding the importance of Part I ofSchedule 3, we propose to refer to only two provisions of it, namely:

“1. Section 68(1) above applies whether the information contained in the document wassupplied directly or indirectly but, if it was supplied indirectly, only if each personthrough whom it was supplied was acting under duty; and applies also where theperson compiling the record is himself the person by whom the information is supplied.”E“6. Any reference in Section 68 above or this Part of this Schedule to person actingunder duty includes reference to person acting in the course of any trade, business,profession or other occupation in which he is engaged or employed or for the purposesof any paid or unpaid office held by him.”

Part II supplemented Section 69 in important respects. Two provisions of it are relevant,namely-F“8. In any proceedings where it is desired to give statement in evidence in accordancewith section 69 above, certificate–

(a) identifying the document containing the statement and describing the manner inwhich it was produced;

(b) giving such particulars of any device involved in the production of that document asmay be appropriate for the purpose of showing that the document was produced byGa computer;

(c) dealing with any of the matters mentioned in Section 69(1) above; and

(d) purporting to be signed by person occupying reasonable position in relation tothe operation of the computer, shall be evidence of anything stated in it; and for thepurposes of this paragraph it shall be sufficient for matter to be stated to the bestof the knowledge and belief of the person stating it.

9. Notwithstanding paragraph 8 above, court may require oral evidence to be givenHof anything of which evidence could be given by certificate under that paragraph.”

Section 6(5), which gives teeth to the person granting the certificatementioned in Section 5(4) of the Act, by punishing false statementswilfully made in the certificate, has not been included in the IndianEvidence Act.These sections have since been repealed by the CivilEvidence Act of 1995 (UK), pursuant to UK Law Commission Reportpublished in September, 1993(Law Com. No. 216), by which the strictrule as to hearsay evidence was relaxed, and hearsay evidence wasmadeadmissible in the circumstances mentioned by the Civil Evidence Act of1995.Sections 8, 9 and 13 of this Act are important, and are set outhereinbelow:

“8. Proof of statements contained in documents.

(1) Where statement contained in document is admissible asevidence in civil proceedings, it may be proved—

(a) by the production of that document, or

(b) whether or not that document is still in existence, by theproduction of copy of that document or of the material part of it,authenticated in such manner as the court may approve.

(2) It is immaterial for this purpose how many removes there arebetween copy and the original.

9. Proof of records of business or public authority.

(1) document which is shown to form part of the records of abusiness or public authority may be received in evidence in civilproceedings without further proof.

(2) document shall be taken to form part of the records of abusiness or public authority if there is produced to the court acertificate to that effect signed by an officer of the business orauthority to which the records belong. For this purpose—

(a) document purporting to be certificate signed by an officerof business or public authority shall be deemed to have beenduly given by such an officer and signed by him; and

(b) certificate shall be treated as signed by person if it purportsto bear facsimile of his signature.

(3) The absence of an entry in the records of business or publicauthority may be proved in civil proceedings by affidavit of anofficer of the business or authority to which the records belong.

A(4) In this section—

“records” means records in whatever form;

“business” includes any activity regularly carried on over periodof time, whether for profit or not, by any body (whether corporateor not) or by an individual;

“officer” includes any person occupying responsible position inrelation to the relevant activities of the business or public authorityor in relation to its records; and

“public authority” includes any public or statutory undertaking,any government department and any person holding office underHer Majesty.

(5) The court may, having regard to the circumstances of thecase, direct that all or any of the above provisions of this sectiondo not apply in relation to particular document or record, ordescription of documents or records.”

Section 13 of this Act defines “document” as follows:

“document” means anything in which information of any descriptionis recorded, and “copy”, in relation to document, means anythingonto which information recorded in the document has been copied,Eby whatever means and whether directly or indirectly;”

29. Section 15(2) of this Act repeals enactments mentioned inSchedule II therein; and Schedule II repeals Part I of the Civil EvidenceAct, 1968 - of which Sections 5 and 6 were part. The definition of“records” and “document” in this Act would show that electronic recordsare considered to be part of “document” as defined, needing no separatetreatment as to admissibility or proof. It is thus clear that in UK law, asat present, no distinction is made between computer generated evidenceand other evidence either qua the admissibility of, or the attachment ofweight to, such evidence.

30. Coming back to Section 65B of the Indian Evidence Act, sub-section (1) needs to be analysed. The sub-section begins with anon-obstante clause, and then goes on to mention information contained inan electronic record produced by computer, which is, by deemingfiction, then made “document”. This deeming fiction only takes effectif the further conditions mentioned in the Section are satisfied in relation

to both the information and the computer in question; and if such conditionsare met, the “document” shall then be admissible in any proceedings.Thewords “…without further proof or production of the original…”make it clear that once the deeming fiction is given effect by the fulfilmentof the conditions mentioned in the Section, the “deemed document” nowbecomes admissible in evidence without further proof or production ofthe originalas evidence of any contents of the original, or of any factstated therein of which direct evidence would be admissible.

31. The non-obstante clause in sub-section (1) makes it clearthat when it comes to information contained in an electronic record,admissibility and proof thereof must follow the drill of Section 65B, whichis special provision in this behalf - Sections 62 to 65 being irrelevant forthis purpose. However, Section 65B(1) clearly differentiates betweenthe “original” document - which would be the original “electronic record”contained in the “computer” in which the original information is firststored- and the computer output containing such information, which thenmay be treated as evidence of the contents of the “original” document.Allthis necessarily shows that Section 65B differentiates between theoriginal information contained in the “computer” itself and copies madetherefrom – the former being primary evidence, and the latter beingsecondary evidence.32. Quite obviously, the requisite certificate in sub-section (4) isunnecessary if the original document itself is produced. This can bedone by the owner of laptop computer, computer tablet or even amobile phone, by stepping into the witness box and proving that theconcerned device, on which the original information is first stored, isowned and/or operated by him. In cases where “the computer”, asdefined, happens to be part of “computer system” or “computernetwork”(as defined in the Information Technology Act, 2000) and itbecomes impossible to physically bring such network or system to theCourt, then the only means of proving information contained in suchelectronic record can be in accordance with Section 65B(1), togetherwith the requisite certificate under Section 65B(4). This being the case,it is necessary to clarify what is contained in the last sentence in paragraph24 of Anvar P.V. (supra) which reads as “…if an electronic record assuch is used as primary evidence under Section 62 of the EvidenceAct…”. This may more appropriately be read without the words “underSection 62 of the Evidence Act,…”. With this minor clarification, thelaw stated in paragraph 24 of Anvar P.V. (supra) does not need to berevisited.

A33. In fact, in Vikram Singh and Anr. v. State of Punjab andAnr.(2017) 8 SCC 518, three-Judge Bench of this Court followed thelaw in Anvar P.V. (supra), clearly stating that where primary evidencein electronic form has been produced, no certificate under Section 65Bwould be necessary. This was so stated as follows:B“25. The learned counsel contended that the tape-recordedconversation has been relied on without there being any certificateunder Section 65-B of the Evidence Act, 1872. It was contendedthat audio tapes are recorded on magnetic media, the same couldbe established through certificate under Section 65-B and in theabsence of the certificate, the document which constitutesCelectronic record, cannot be deemed to be valid evidence andhas to be ignored from consideration. Reliance has been placedby the learned counsel on the judgment of this Court in AnvarP.V. v. P.K. Basheer. The conversation on the landline phone ofthe complainant situate in shop was recorded by the complainant.The same cassette containing conversation by which ransom callDwas made on the landline phone was handed over by thecomplainant in original to the police. This Court in its judgmentdated 25-1-2010 has referred to the aforesaid fact and has notedthe said fact to the following effect:

“5. The cassette on which the conversations had been recordedEon the landline was handed over by Ravi Verma to SI Jiwan Kumarand on replay of the tape, the conversation was clearly audibleand was heard by the police.”

26. The tape-recorded conversation was not secondary evidencewhich required certificate under Section 65-B, since it was theForiginal cassette by which ransom call was tape-recorded, therecannot be any dispute that for admission of secondary evidenceof electronic record certificate as contemplated by Section 65-B is mandatory condition.”[4]

34. Despite the law so declared in Anvar P.V. (supra), whereinGthis Court made it clear that the special provisions of Sections 65A and65B of the Evidence Act are complete Code in themselves when it

4 The definition of “data”, “electronic form” and “electronic record” under the InformationTechnology Act, 2000 (as set out hereinabove) makes it clear that “data” and “electronicform” includes “magnetic or optical storage media”, which would include the audioHtape/cassette discussed in Vikram Singh (supra).

comes to admissibility of evidence of information contained in electronicrecords, and also that written certificate under Section 65B(4) is asine qua non for admissibility of such evidence, discordant note wassoon struck in Tomaso Bruno (supra).In this judgment, another threeJudge Bench dealt with the admissibility of evidence in criminal casein which CCTV footage was sought to be relied upon in evidence. TheCourt held:

“24. With the advancement of information technology, scientifictemper in the individual and at the institutional level is to pervadethe methods of investigation. With the increasing impact oftechnology in everyday life and as result, the production ofelectronic evidence in cases has become relevant to establish theguilt of the accused or the liability of the defendant. Electronicdocuments stricto sensu are admitted as material evidence. Withthe amendment to the Evidence Act in 2000, Sections 65-A and65-B were introduced into Chapter V relating to documentaryevidence. Section 65-A provides that contents of electronic recordsmay be admitted as evidence if the criteria provided in Section65-B is complied with. The computer generated electronic recordsin evidence are admissible at trial if proved in the mannerspecified by Section 65-B of the Evidence Act. Sub-section (1) ofSection 65-B makes admissible as document, paper printout ofelectronic records stored in optical or magnetic media producedby computer, subject to the fulfilment of the conditions specifiedin sub-section (2) of Section 65-B. Secondary evidence of contentsof document can also be led under Section 65 of the EvidenceAct. PW 13 stated that he saw the full video recording of thefateful night in the CCTV camera, but he has not recorded thesame in the case diary as nothing substantial to be adduced asevidence was present in it.

25. The production of scientific and electronic evidence in courtas contemplated under Section 65-B of the Evidence Act is ofgreat help to the investigating agency and also to the prosecution.The relevance of electronic evidence is also evident in the light ofMohd. Ajmal Amir Kasab v. State of Maharashtra [(2012) 9SCC 1] , wherein production of transcripts of internet transactionshelped the prosecution case great deal in proving the guilt of theaccused. Similarly, in State (NCT of Delhi) v. Navjot Sandhu,

224SUPREME COURT REPORTS

Athe links between the slain terrorists and the masterminds of theattack were established only through phone call transcripts obtainedfrom the mobile service providers.”

35. What is clear from this judgment is that the judgment of AnvarP.V. (supra) was not referred to at all. In fact, the judgment in State v.BNavjot Sandhu (2005) 11 SCC 600 was adverted to, which was ajudgment specifically overruled by Anvar P.V. (supra). It may also bestated that Section 65B(4) was also not at all adverted to by this judgment.Hence, the declaration of law in Tomaso Bruno (supra) followingNavjot Sandhu (supra) that secondary evidence of the contents of adocument can also be led under Section 65 of the Evidence Act to makeCCCTV footage admissible would be in the teeth of Anvar P.V., (supra)and cannot be said to be correct statement of the law. The said view isaccordingly overruled.

36. We now come to the decision in Shafhi Mohammad (supra).In this case, by an order dated 30.01.2018 made by two learned JudgesDof this Court, it was stated:

“21. We have been taken through certain decisions which maybe referred to. In Ram Singh v. Ram Singh [Ram Singh v. RamSingh, 1985 Supp SCC 611], three-Judge Bench considered thesaid issue. English judgments in R. v. Maqsud Ali [R. v. MaqsudEAli, (1966) 1 QB 688] and R. v. Robson [R. v. Robson, (1972) 1WLR 651] and American Law as noted in AmericanJurisprudence 2d (Vol. 29) p. 494, were cited with approval tothe effect that it will be wrong to deny to the law of evidenceadvantages to be gained by new techniques and new devices,Fprovided the accuracy of the recording can be proved. Suchevidence should always be regarded with some caution andassessed in the light of all the circumstances of each case.Electronic evidence was held to be admissible subject to safeguardsadopted by the Court about the authenticity of the same. In thecase of tape-recording, it was observed that voice of the speakerGmust be duly identified, accuracy of the statement was requiredto be proved by the maker of the record, possibility of tamperingwas required to be ruled out. Reliability of the piece of evidenceis certainly matter to be determined in the facts andcircumstances of fact situation. However, threshold admissibilityHof an electronic evidence cannot be ruled out on any technicalityif the same was relevant.

22. In Tukaram S. Dighole v. Manikrao Shivaji Kokate [(2010)4 SCC 329], the same principle was reiterated. This Courtobserved that new techniques and devices are the order of theday. Though such devices are susceptible to tampering, noexhaustive rule could be laid down by which the admission ofsuch evidence may be judged. Standard of proof of its authenticityand accuracy has to be more stringent than other documentaryevidence.

23. In Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178], athree-Judge Bench observed that advancement of informationtechnology and scientific temper must pervade the method ofinvestigation. Electronic evidence was relevant to establish facts.Scientific and electronic evidence can be great help to aninvestigating agency. Reference was made to the decisions ofthis Court in Mohd. Ajmal Amir Kasab v. State of Maharashtra[(2012) 9 SCC 1] and State (NCT of Delhi) v. Navjot Sandhu.

24. We may, however, also refer to the judgment of this Court inAnvar P.V. v. P.K. Basheer, delivered by three-Judge Bench.In the said judgment in para 24 it was observed that electronicevidence by way of primary evidence was covered by Section 62of the Evidence Act to which procedure of Section 65-B of theEvidence Act was not admissible. However, for the secondaryevidence, procedure of Section 65-B of the Evidence Act wasrequired to be followed and contrary view taken in NavjotSandhu that secondary evidence of electronic record could becovered under Sections 63 and 65 of the Evidence Act, was notcorrect. There are, however, observations in para 14 to the effectthat electronic record can be proved only as per Section 65-B ofthe Evidence Act.

25. Though in view of the three-Judge Bench judgments in TomasoBruno and Ram Singh [1985 Supp SCC 611] , it can be safelyheld that electronic evidence is admissible and provisions underSections 65-A and 65-B of the Evidence Act are by way of aclarification and are procedural provisions. If the electronicevidence is authentic and relevant the same can certainly beadmitted subject to the Court being satisfied about its authenticityand procedure for its admissibility may depend on fact situationsuch as whether the person producing such evidence is in positionto furnish certificate under Section 65-B(4).

226SUPREME COURT REPORTS

26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot beheld to be complete code on the subject. In Anvar P.V., thisCourt in para 24 clarified that primary evidence of electronic recordwas not covered under Sections 65-A and 65-B of the EvidenceAct. Primary evidence is the document produced before the CourtBand the expression “document” is defined in Section 3 of theEvidence Act to mean any matter expressed or described uponany substance by means of letters, figures or marks, or by morethan one of those means, intended to be used, or which may beused, for the purpose of recording that matter.

27. The term “electronic record” is defined in Section 2(1)(t) ofCthe Information Technology Act, 2000 as follows:

“2.(1)(t) “electronic record” means data, record or data generated,image or sound stored, received or sent in an electronic form ormicro film or computer generated micro fiche;”

D28. The expression “data” is defined in Section 2(1)(o) of theInformation Technology Act as follows:

“2.(1)(o) “data” means representation of information, knowledge,facts, concepts or instructions which are being prepared or havebeen prepared in formalised manner, and is intended to beEprocessed, is being processed or has been processed in computersystem or computer network, and may be in any form (includingcomputer printouts magnetic or optical storage media, punchedcards, punched tapes) or stored internally in the memory of thecomputer;”

F29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be appliedonly when such electronic evidence is produced by person whois in position to produce such certificate being in control of thesaid device and not of the opposite party. In case whereelectronic evidence is produced by party who is not in possessionGof device, applicability of Sections 63 and 65 of the EvidenceAct cannot be held to be excluded. In such case, procedure underthe said sections can certainly be invoked. If this is not so permitted,it will be denial of justice to the person who is in possession ofauthentic evidence/witness but on account of manner of proving,Hsuch document is kept out of consideration by the court in the

absence of certificate under Section 65-B(4) of the Evidence Act,which party producing cannot possibly secure. Thus, requirementof certificate under Section 65-B(4) is not always mandatory.

30. Accordingly, we clarify the legal position on the subject on theadmissibility of the electronic evidence, especially by party whois not in possession of device from which the document isproduced. Such party cannot be required to produce certificateunder Section 65-B(4) of the Evidence Act. The applicability ofrequirement of certificate being procedural can be relaxed by thecourt wherever interest of justice so justifies.”

37. It may be noted that the judgments referred to in paragraph21 of Shafhi Mohammed (supra) are all judgments before the year2000, when Amendment Act 21 of 2000 first introduced Sections 65Aand 65B into the Evidence Act and can, therefore, be of no assistanceon interpreting the law as to admissibility into evidence of informationcontained in electronic records. Likewise, the judgment cited in paragraph22, namely Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010)4 SCC 329 is also judgment which does not deal with Section 65B. Infact, paragraph 20 of the said judgment states the issues before theCourt as follows:

“20. However, in the present case, the dispute is not whether acassette is public document but the issues are whether:

(i) the finding by the Tribunal that in the absence of any evidenceto show that the VHS cassette was obtained by the appellantfrom the Election Commission, the cassette placed on record bythe appellant could not be treated as public document is perverse;and

(ii) mere production of an audio cassette, assuming that thesame is certified copy issued by the Election Commission, is perse conclusive of the fact that what is contained in the cassette isthe true and correct recording of the speech allegedly deliveredby the respondent or his agent?”

The second issue was answered referring to judgments which didnot deal with Section 65B at all.

38. Much succour was taken from the three Judge Bench decisionin Tomaso Bruno (supra) in paragraph 23, which, as has been stated

Ahereinabove, does not state the law on Section 65B correctly. AnvarP.V. (supra) was referred to in paragraph 24, but surprisingly, in paragraph26, the Court held that Sections 65A and 65B cannot be held to be acomplete Code on the subject, directly contrary to what was stated by athree Judge Bench in Anvar P.V. (supra). It was then “clarified” thatthe requirement of certificate under Section 64B(4), being procedural,Bcan be relaxed by the Court wherever the interest of justice so justifies,and one circumstance in which the interest of justice so justifies wouldbe where the electronic device is produced by party who is not inpossession of such device, as result of which such party would not bein position to secure the requisite certificate.

39. Quite apart from the fact that the judgment in ShafhiMohammad (supra) states the law incorrectly and is in the teeth of thejudgment in Anvar P.V. (supra), following the judgment in TomasoBruno (supra) - which has been held to be per incuriam hereinabove -the underlying reasoning of the difficulty of producing certificate by aDparty who is not in possession of an electronic device is also whollyincorrect.

40. As matter of fact, Section 165 of the Evidence Act empowersa Judge to order production of any document or thing in order to discoveror obtain proof of relevant facts. Section 165 of the Evidence Act statesEas follows:

“Section 165. Judge’s power to put questions or orderproduction.- The Judge may, in order to discover or to obtainproper proof of relevant facts, ask any question he pleases, in anyform, at any time, of any witness, or of the parties about any factFrelevant or irrelevant; and may order the production of anydocument or thing; and neither the parties nor their agents shallbe entitled to make any objection to any such question or order,nor, without the leave of the Court, to cross-examine any witnessupon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared byGthis Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge tocompel any witness to answer any question or to produce anydocument which such witness would be entitled to refuse to answeror produce under sections 121 to 131, both inclusive, if the questionHwere asked or the document were called for by the adverse party;

nor shall the Judge ask any question which it would be improperfor any other person to ask under section 148 or 149; nor shall hedispense with primary evidence of any document, except in thecases hereinbefore excepted.

41. Likewise, under Order XVI of the Civil Procedure Code, 1908(“CPC”) which deals with ‘Summoning and Attendance of Witnesses’,the Court can issue the following orders for the production of documents:

“6. Summons to produce document.—Any person may besummoned to produce document, without being summoned togive evidence; and any person summoned merely to produce adocument shall be deemed to have complied with the summons ifhe causes such document to be produced instead of attendingpersonally to produce the same.

7. Power to require persons present in Court to giveevidence or produce document.—Any person present in Courtmay be required by the Court to give evidence or to produce anydocument then and there in his possession or power.

xxx xxx xxx

10. Procedure where witness fails to comply withsummons.—(1) Where person has been issued summons eitherto attend to give evidence or to produce document, fails to attendor to produce the document in compliance with such summons,the Court— (a) shall, if the certificate of the serving officer hasnot been verified by the affidavit, or if service of the summonshas affected by party or his agent, or (b) may, if the certificateof the serving officer has been so verified, examine on oath theserving officer or the party or his agent, as the case may be, whohas effected service, or cause him to be so examined by anyCourt, touching the service or non-service of the summons.

(2) Where the Court sees reason to believe that such evidence orproduction is material, and that such person has, without lawfulexcuse, failed to attend or to produce the document in compliancewith such summons or has intentionally avoided service, it mayissue proclamation requiring him to attend to give evidence or toproduce the document at time and place to be named therein;and copy of such proclamation shall be affixed on the outerdoor or other conspicuous part of the house in which he ordinarilyresides.

A(3) In lieu of or at the time of issuing such proclamation, or at anytime afterwards, the Court may, in its discretion, issue warrant,either with or without bail, for the arrest of such person, and maymake an order for the attachment of his property to such amountas it thinks fit, not exceeding the amount of the costs of attachmentand of any fine which may be imposed under rule 12:B

Provided that no Court of Small Causes shall make an order forthe attachment of immovable property.”

42. Similarly, in the Code of Criminal Procedure, 1973 (“CrPC”),the Judge conducting criminal trial is empowered to issue the followingCorders for production of documents:

“91. Summons to produce document or other thing.—(1)Whenever any Court or any officer in charge of police stationconsiders that the production of any document or other thing isnecessary or desirable for the purposes of any investigation,Dinquiry, trial or other proceeding under this Code by or beforesuch Court or officer, such Court may issue summons, or suchofficer written order, to the person in whose possession or powersuch document or thing is believed to be, requiring him to attendand produce it, or to produce it, at the time and place stated in thesummons or order.

(2) Any person required under this section merely to produce adocument or other thing shall be deemed to have complied withthe requisition if he causes such document or thing to be producedinstead of attending personally to produce the same.

(3) Nothing in this section shall be deemed— (a) to affect sections123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or theBankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to applyto letter, postcard, telegram or other document or any parcel orthing in the custody of the postal or telegraph authority.”

“349. Imprisonment or committal of person refusing toGanswer or produce document.—If any witness or person calledto produce document or thing before Criminal Court refusesto answer such questions as are put to him or to produce anydocument or thing in his possession or power which the Courtrequires him to produce, and does not, after reasonableHopportunity has been given to him so to do, offer any reasonable

excuse for such refusal, such Court may, for reasons to be recordedin writing, sentence him to simple imprisonment, or by warrantunder the hand of the Presiding Magistrate or Judge commit himto the custody of an officer of the Court for any term not exceedingseven days, unless in the meantime, such person consents to beexamined and to answer, or to produce the document or thing andin the event of his persisting in his refusal, he may be dealt withaccording to the provisions of section 345 or section 346.”

43. Thus, it is clear that the major premise of Shafhi Mohammad(supra) that such certificate cannot be secured by persons who are notin possession of an electronic device is wholly incorrect. An applicationcan always be made to Judge for production of such certificate fromthe requisite person under Section 65B(4) in cases in which such personrefuses to give it.

44. Resultantly, the judgment dated 03.04.2018 of Division Benchof this Court reported as (2018) 5 SCC 311, in following the law incorrectlylaid down in Shafhi Mohammed (supra), must also be, and is hereby,overruled.

45. However, caveat must be entered here. The facts of thepresent case show that despite all efforts made by the Respondents,both through the High Court and otherwise, to get the requisite certificateunder Section 65B(4) of the Evidence Act from the authorities concerned,yet the authorities concerned wilfully refused, on some pretext or theother, to give such certificate. In fact-circumstance where the requisitecertificate has been applied for from the person or the authorityconcerned, and the person or authority either refuses to give suchcertificate, or does not reply to such demand, the party asking for suchcertificate can apply to the Court for its production under the provisionsaforementioned of the Evidence Act, CPCor CrPC. Once suchapplication is made to the Court, and the Court then orders or directsthat the requisite certificate be produced by person to whom it sends asummons to produce such certificate, the party asking for the certificatehas done all that he can possibly do to obtain the requisite certificate.TwoLatin maxims become important at this stage. The first is lex non cogitad impossibilia i.e. the law does not demand the impossible, andimpotentia excusat legem i.e. when there is disability that makes itimpossible to obey the law, the alleged disobedience of the law is excused.This was well put by this Court in Re: Presidential Poll (1974) 2 SCC33 as follows:

“14. If the completion of election before the expiration of theterm is not possible because of the death of the prospectivecandidate it is apparent that the election has commenced beforethe expiration of the term but completion before the expiration ofthe term is rendered impossible by an act beyond the control ofhuman agency. The necessity for completing the election beforethe expiration of the term is enjoined by the Constitution in publicand State interest to see that the governance of the country is notparalysed by non-compliance with the provision that there shallbe President of India.

15. The impossibility of the completion of the election to fill theCvacancy in the office of the President before the expiration of theterm of office in the case of death of candidate as may appearfrom Section 7 of the 1952 Act does not rob Article 62(1) of itsmandatory character. The maxim of law impotentia excusat legamis intimately connected with another maxim of law lex non cogitDad impossibilia. Impotentia excusat legam is that when there is anecessary or invincible disability to perform the mandatory partof the law that impotentia excuses. The law does not compel oneto do that which one cannot possibly perform. “Where the lawcreates duty or charge, and the party is disabled to perform it,without any default in him, and has no remedy over it, there theElaw will in general excuse him.” Therefore, when it appears thatthe performance of the formalities prescribed by statute hasbeen rendered impossible by circumstances over which the personsinterested had no control, like the act of God, the circumstanceswill be taken as valid excuse. Where the act of God preventsFthe compliance of the words of statute, the statutory provision isnot denuded of its mandatory character because of superveningimpossibility caused by the act of God. (See Broom’s Legal Maxims10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. atp. 268).”

It is important to note that the provision in question in RePresidential Poll (supra) was also mandatory, which could not besatisfied owing to an act of God, in the facts of that case. These maximshave been applied by this Court in different situations in other electioncases – see Chandra Kishore Jha v. Mahavir Prasad and Ors.(1999) 8 SCC 266 (at paragraphs 17 and 21); Special Reference 1 of

2002 (2002) 8 SCC 237 (at paragraphs 130 and 151) and Raj KumarYadav v. Samir Kumar Mahaseth and Ors. (2005) 3 SCC 601 (atparagraphs 13 and 14).

46. These Latin maxims have also been applied in several othercontexts by this Court. In Cochin State Power and Light Corporationv. State of Kerala (1965) 3 SCR 187, question arose as to the exerciseof an option of purchasing an undertaking by the State Electricity Boardunder Section 6(4) of the Indian Electricity Act, 1910. The provisionrequired notice of at least 18 months before the expiry of the relevantperiod to be given by such State Electricity Board to the StateGovernment.Since this mandatory provision was impossible ofcompliance, it was held that the State Electricity Board was excusedfrom giving such notice, as follows:“Sub-section (1) of Section 6 expressly vests in the State ElectricityBoard the option of purchase on the expiry of the relevant periodspecified in the license. But the State Government claims thatunder sub-section (2) of Section 6 it is now vested with the option.Now, under sub-section (2) of Section 6, the State Governmentwould be vested with the option only “where State ElectricityBoard has not been constituted, or if constituted, does not elect topurchase the undertaking”. It is common case that the StateElectricity Board was duly constituted. But the State Governmentclaims that the State Electricity Board did not elect to purchasethe undertaking. For this purpose, the State Government reliesupon the deeming provisions of sub-section (4) of Section 6, andcontends that as the Board did not send to the State Governmentany intimation in writing of its intention to exercise the option asrequired by the sub-section, the Board must be deemed to haveelected not to purchase the undertaking. Now, the effect of sub-section (4) read with sub-section (2) of Section 6 is that on failureof the Board to give the notice prescribed by sub-section (4), theoption vested in the Board under sub-section (1) of Section 6 wasliable to be divested. Sub-section (4) of Section 6 imposed uponthe Board the duty of giving after the coming into force of Section6 notice in writing of its intention to exercise the option at least18 months before the expiry of the relevant period. Section 6came into force on September 5, 1959, and the relevant periodexpired on December 3, 1960. In the circumstances, the giving of

Athe requisite notice of 18 months in respect of the option of purchaseon the expiry of December 2, 1960, was impossible from the verycommencement of Section 6. The performance of this impossibleduty must be excused in accordance with the maxim, lex noncogitia ad impossibilia (the law does not compel the doing ofimpossibilities), and sub-section (4) of Section 6 must be construedBas not being applicable to case where compliance with it isimpossible. We must therefore, hold that the State Electricity Boardwas not required to give the notice under sub-section (4) of Section6 in respect of its option of purchase on the expiry of 25 years. Itmust follow that the Board cannot be deemed to have elected notCto purchase the undertaking under sub-section (4) of Section 6.By the notice served upon the appellant, the Board duly elected topurchase the undertaking on the expiry of 25 years. Consequently,the State Government never became vested with the option ofpurchasing the undertaking under sub-section (2) of Section 6.The State Government must, therefore, be restrained from takingDfurther action under its notice, Ex. G, dated November 20, 1959.”[5]

47. In Raj Kumar Dubey v. Tarapada Dey and Ors. (1987) 4SCC 398, the maxim non cogit ad impossibilia was applied in thecontext of the applicability of mandatory provision of the RegistrationAct, 1908, as follows:E

“6. We have to bear in mind two maxims of equity which are wellsettled, namely, actus curiae neminem gravabit — An act of theCourt shall prejudice no man. In Broom’s Legal Maxims, 10thEdn., 1939 at page 73 this maxim is explained that this maximwas founded upon justice and good sense; and afforded safeFand certain guide for the administration of the law. The abovemaxim should, however, be applied with caution. The other maximis lex non cogit ad impossibilia (Broom’s Legal Maxims — page162) — The law does not compel man to do that which hecannot possibly perform. The law itself and the administration ofGit, said Sir W. Scott, with reference to an alleged infraction of therevenue laws, must yield to that to which everything must bend,to necessity; the law, in its most positive and peremptory injunctions,is understood to disclaim, as it does in its general aphorisms, allintention of compelling impossibilities, and the administration of

H5 (1965) 3 SCR 187, at 193.

laws must adopt that general exception in the consideration of allparticular cases.

7. In this case indisputably during the period from 26-7-1978 toDecember 1982 there was subsisting injunction preventing thearbitrators from taking any steps. Furthermore, as noted beforethe award was in the custody of the court, that is to say, 28-1-1978 till the return of the award to the arbitrators on 24-11-1983,arbitrators or the parties could not have presented the award forits registration during that time. The award as we have notedbefore was made on 28-11-1977 and before the expiry of the fourmonths from 28-11-1977, the award was filed in the court pursuantto the order of the court. It was argued that the order made by thecourt directing the arbitrators to keep the award in the custody ofthe court was wrong and without jurisdiction, but no arbitratorcould be compelled to disobey the order of the court and if incompliance or obedience with court of doubtful jurisdiction, hecould not take back the award from the custody of the court totake any further steps for its registration then it cannot be saidthat he has failed to get the award registered as the law required.The aforesaid two legal maxims — the law does not compel aman to do that which he cannot possibly perform and an act ofthe court shall prejudice no man would, apply with full vigour inthe facts of this case and if that is the position then the award aswe have noted before was presented before the Sub-Registrar,Arambagh on 25-11-1983 the very next one day of gettingpossession of the award from the court. The Sub-Registrarpursuant to the order of the High Court on 24-6-1985 found thatthe award was presented within time as the period during whichthe judicial proceedings were pending that is to say, from 28-1-1978 to 24-11-1983 should be excluded in view of the principlelaid down in Section 15 of the Limitation Act, 1963. The HighCourt, therefore, in our opinion, was wrong in holding that theonly period which should be excluded was from 26-7-1978 till 20-12-1982. We are unable to accept this position. 26-7-1978 wasthe date of the order of the learned Munsif directing maintenanceof status quo and 20-12-1982 was the date when the interiminjunction was vacated, but still the award was in the custody ofthe court and there is ample evidence as it would appear from thenarration of events hereinbefore made that the arbitrators had

DEFGH

[2020] 7 S.C.R.

Atried to obtain the custody of the award which the court declinedto give to them.”

48. These maxims have also been applied to tenancy legislation –see M/s B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmickand Anr. (1987) 2 SCC 401 (at paragraph 12), and have also been appliedBto relieve authorities of fulfilling their obligation to allot plots when suchplots have been found to be un-allottable, owing to the contravention ofCentral statutes – see Hira Tikoo v. U.T., Chandigarh and Ors.(2004) 6 SCC 765 (at paragraphs 23 and 24).

49. On an application of the aforesaid maxims to the present case,Cit is clear that though Section 65B(4) is mandatory, yet, on the facts ofthis case, the Respondents, having done everything possible to obtainthe necessary certificate, which was to be given by third-party overwhom the Respondents had no control, must be relieved of the mandatoryobligation contained in the said sub-section.

D50. We may hasten to add that Section 65B does not speak of thestage at which such certificate must be furnished to the Court. In AnvarP.V. (supra), this Court did observe that such certificate must accompanythe electronic record when the same is produced in evidence. We mayonly add that this is so in cases where such certificate could be procuredby the person seeking to rely upon an electronic record. However, inEcases where either defective certificate is given, or in cases wheresuch certificate has been demanded and is not given by the concernedperson, the Judge conducting the trial must summon the person/personsreferred to in Section 65B(4) of the Evidence Act, and require that suchcertificate be given by such person/persons. This, the trial Judge oughtFto do when the electronic recordis produced in evidence before himwithout the requisite certificate in the circumstances aforementioned.Thisis, of course, subject to discretion being exercised in civil cases inaccordance with law, and in accordance with the requirements of justiceon the facts of each case. When it comes to criminal trials, it is importantto keep in mind the general principle that the accused must be suppliedGall documents that the prosecution seeks to rely upon beforecommencement of the trial, under the relevant sections of the CrPC.

51. In recent judgment, Division Bench of this Court in Stateof Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring toAnvar P.V. (supra) held:H

“16. The same view has been reiterated by two-Judge Benchof this Court in Union of India v. Ravindra V. Desai [(2018) 16SCC 273]. The Court emphasised that non-production of acertificate under Section 65-B on an earlier occasion is curabledefect. The Court relied upon the earlier decision in Sonu v. Stateof Haryana [(2017) 8 SCC 570], in which it was held:

“32. … The crucial test, as affirmed by this Court, is whether thedefect could have been cured at the stage of marking thedocument. Applying this test to the present case, if an objectionwas taken to the CDRs being marked without certificate,the court could have given the prosecution an opportunity torectify the deficiency.”

17. Having regard to the above principle of law, the High Courterred in coming to the conclusion that the failure to produce acertificate under Section 65-B(4) of the Evidence Act at the stagewhen the charge-sheet was filed was fatal to the prosecution.The need for production of such certificate would arise whenthe electronic record is sought to be produced in evidence at thetrial. It is at that stage that the necessity of the production of thecertificate would arise.”

52. It is pertinent to recollect that the stage of admittingdocumentary evidence in criminal trial is the filing of the charge-sheet.When criminal court summons the accused to stand trial, copies of alldocuments which are entered in the charge-sheet/final report have to begiven to the accused. Section 207 of the CrPC, which reads as follows,ismandatory[6]. Therefore, the electronic evidence, i.e. the computer output,has to be furnished at the latest before the trial begins. The reason is not

6 Section 207. Supply to the accused of copy of police report and other documents.- Inany case where the proceeding has been instituted on police report, the Magistrateshall without delay furnish to the accused, free of costs, copy of each of the following:-

(i)the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whomthe prosecution proposes to examine as its witnesses, excluding therefrom any partin regard to which request for such exclusion has been made by the police officerunder sub-section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

DEF

Afar to seek; this gives the accused fair chance to prepare and defendthe charges levelled against him during the trial. The general principle incriminal proceedings therefore, is to supply to the accused all documentsthat the prosecution seeks to rely upon before the commencement ofthe trial. The requirement of such full disclosure is an extremely valuableright and an essential feature of the right to fair trial as it enables theBaccused to prepare for the trial before its commencement.

53. In criminal trial, it is assumed that the investigation iscompleted and the prosecution has, as such, concretised its case againstan accused before commencement of the trial. It is further settled lawthat the prosecution ought not to be allowed to fill up any lacunae duringCa trial. As recognised by this Court in Central Bureau of Investigationv. R.S. Pai (2002) 5 SCC 82, the only exception to this general rule is ifthe prosecution had ‘mistakenly’ not filed document, the said documentcan be allowed to be placed on record. The Court held as follows:

“7. From the aforesaid sub-sections, it is apparent that normally,Dthe investigating officer is required to produce all the relevantdocuments at the time of submitting the charge-sheet. At the sametime, as there is no specific prohibition, it cannot be held that theadditional documents cannot be produced subsequently. If somemistake is committed in not producing the relevant documents atEthe time of submitting the report or the charge-sheet, it is alwaysopen to the investigating officer to produce the same with thepermission of the court.”

54. Therefore, in terms of general procedure, the prosecution isobligated to supply all documents upon which reliance may be placed toFan accused before commencement of the trial. Thus, the exercise ofpower by the courts in criminal trials in permitting evidence to be filed at

(v) any other document or relevant extract thereof forwarded to the Magistrate with thepolice report under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of statement as isGreferred to in clause (iii) and considering the reasons given by the police officer for therequest, direct that copy of that part of the statement or of such portion thereof as theMagistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to inclause (v) is voluminous, he shall, instead of furnishing the accused with copy thereof,direct that he will only be allowed to inspect it either personally or through pleader inHCourt.”

later stage should not result in serious or irreversible prejudice to theaccused. balancing exercise in respect of the rights of parties has tobe carried out by the court, in examining any application by the prosecutionunder Sections 91 or 311 of the CrPC or Section 165 of the EvidenceAct. Depending on the facts of each case, and the Court exercisingdiscretion after seeing that the accused is not prejudiced by want of afair trial, the Court may in appropriate cases allow the prosecution toproduce such certificate at later point in time.If it is the accused whodesires to produce the requisite certificate as part of his defence, thisagain will depend upon the justice of the case - discretion to be exercisedby the Court in accordance with law.

55. The High Court of Rajasthan in Paras Jain v. State ofRajasthan 2015 SCC OnLine Raj 8331, decided preliminary objectionthat was raised on the applicability of Section 65B to the facts of thecase. The preliminary objection raised was framed as follows:

“3. (i) Whether transcriptions of conversations and for that matterCDs of the same filed alongwith the charge-sheet are notadmissible in evidence even at this stage of the proceedings ascertificate as required u/Sec. 65-B of the Evidence Act was notobtained at the time of procurement of said CDs from theconcerned service provider and it was not produced alongwithcharge-sheet in the prescribed form and such certificate cannotbe filed subsequently.”

After referring to Anvar P.V. (supra), the High Court held:

“15. Although, it has been observed by Hon’ble Supreme Courtthat the requisite certificate must accompany the electronic recordpertaining to which statement is sought to be given in evidencewhen the same is produced in evidence, but in my view it does notmean that it must be produced alongwith the charge-sheet and ifit is not produced alongwith the charge-sheet, doors of the Courtare completely shut and it cannot be produced subsequently inany circumstance. Section 65-B of the Evidence Act deals withadmissibility of secondary evidence in the form of electronic recordand the procedure to be followed and the requirements be fulfilledbefore such an evidence can be held to be admissible in evidenceand not with the stage at which such certificate is to be producedbefore the Court. One of the principal issues arising for

consideration in the above case before Hon’ble Court was thenature and manner of admission of electronic records.

16. From the facts of the above case it is revealed that the electionof the respondent to the legislative assembly of the State of Keralawas challenged by the appellant-Shri Anwar P.V. by way of anelection petition before the High Court of Kerala and it wasdismissed vide order dated 16.11.2011 by the High Court and thatorder was challenged by the appellant before Hon’ble SupremeCourt. It appears that the election was challenged on the groundof corrupt practices committed by the respondent and in supportthereof some CDs were produced alongwith the election petition,but even during the course of trial certificate as required underSection 65-B of the Evidence Act was not produced and thequestion of admissibility of the CDs as secondary evidence in theform of electronic record in absence of requisite certificate wasconsidered and it was held that such electronic record is notadmissible in evidence in absence of the certificate. It is clearfrom the facts of the case that the question of stage at whichsuch electronic record is to be produced was not before the Hon’bleCourt.

17. It is to be noted that it has been clarified by Hon’ble Courtthat observations made by it are in respect of secondary evidenceof electronic record with reference to Sections 59, 65-A and 65-B of the Evidence Act and if an electronic record as such is usedas primary evidence under Section 62 of the Evidence Act, thesame is admissible in evidence without compliance with theconditions in Section 65-B of the Evidence Act.

18. To consider the issue raised on behalf of the petitioners in aproper manner, I pose question to me whether an evidence andmore particularly evidence in the form of document not producedalongwith the charge-sheet cannot be produced subsequently inany circumstances. My answer to the question is in negative andin my opinion such evidence can be produced subsequently alsoas it is well settled legal position that the goal of criminal trial isto discover the truth and to achieve that goal, the best possibleevidence is to be brought on record.

19. Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. providesHthat whenever any Court considers that the production of any

document is necessary or desirable for the purposes of any trialunder the Code by or before such Court, such Court may issue asummons to the person in whose possession or power suchdocument is believed to be, requiring him to attend and produce itor to produce it, at the time and place stated in the summons.Thus, wide discretion has been conferred on the Court enablingit during the course of trial to issue summons to person in whosepossession or power document is believed to be requiring him toproduce before it, if the Court considers that the production ofsuch document is necessary or desirable for the purposes of suchtrial. Such power can be exercised by the Court at any stage ofthe proceedings before judgment is delivered and the Court mustexercise the power if the production of such document is necessaryor desirable for the proper decision in the case. It cannot bedisputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR wasregistered. In my considered view when under this provision Courthas been empowered to issue summons for the producment ofdocument, there can be no bar for the Court to permit documentto be taken on record if it is already before it and the Court findsthat it is necessary for the proper disposal of the case irrespectiveof the fact that it was not filed along with the charge-sheet. I amof the further view that it is the duty of the Court to take all stepsnecessary for the production of such document before it.

20. As per Sec. 311 Cr.P.C., any Court may, at any stage of anytrial under the Code, summon any person as witness, or examineany person in attendance, though not summoned as witness, orrecall or re-examine any person already examined; and the Courtshall summon and examine or recall and re-examine any suchperson if his evidence appears to it to be essential to the justdecision of the case. Under this provision also wide discretion hasbeen conferred upon the Court to exercise its power and paramountconsideration is just decision of the case. In my opinion under thisprovision it is permissible for the Court even to order productionof document before it if it is essential for the just decision of thecase.

21. As per Section 173(8) Cr.P.C. carrying out furtherinvestigation and collection of additional evidence even after filing

ABC

of charge-sheet is statutory right of the police and for that priorpermission of the Magistrate is not required. If during the courseof such further investigation additional evidence, either oral ordocumentary, is collected by the Police, the same can be producedbefore the Court in the form of supplementary charge-sheet. Theprime consideration for further investigation and collection ofadditional evidence is to arrive at the truth and to do real andsubstantial justice. The material collected during furtherinvestigation cannot be rejected only because it has been filed atthe stage of the trial.

22. As per Section 231 Cr.P.C., the prosecution is entitled toproduce any person as witness even though such person is notnamed in the charge-sheet.

23. When legal position is that additional evidence, oral ordocumentary, can be produced during the course of trial if in theopinion of the Court production of it is essential for the properdisposal of the case, how it can be held that the certificate asrequired under Section 65-B of the Evidence Act cannot beproduced subsequently in any circumstances if the same was notprocured alongwith the electronic record and not produced in theCourt with the charge-sheet. In my opinion it is only an irregularitynot going to the root of the matter and is curable. It is also pertinentto note that certificate was produced alongwith the charge-sheetbut it was not in proper form but during the course of hearing ofthese petitioners, it has been produced on the prescribed form.”

56. In Kundan Singh(supra), Division Bench of the Delhi HighFCourt held:

“50. Anwar P.V. (supra) partly overruled the earlier decision ofthe Supreme Court on the procedure to prove electronic record(s)in Navjot Sandhu (supra), holding that Section 65B is specificprovision relating to the admissibility of electronic record(s) and,therefore, production of certificate under Section 65B(4) ismandatory. Anwar P.V. (supra) does not state or hold that the saidcertificate cannot be produced in exercise of powers of the trialcourt under Section 311 Cr.P.C or, at the appellate stage underSection 391 Cr.P.C. Evidence Act is procedural law and in viewof the pronouncement in Anwar P.V. (supra) partly overruling

Navjot Sandhu (supra), the prosecution may be entitled to invokethe aforementioned provisions, when justified and required. Ofcourse, it is open to the court/presiding officer at that time toascertain and verify whether the responsible officer could issuethe said certificate and meet the requirements of Section 65B.”

57. Subject to the caveat laid down in paragraphs 50 and 54 above,the law laid down by these two High Courts has our concurrence. Solong as the hearing in trial is not yet over, the requisite certificate canbe directed to be produced by the learned Judge at any stage, so thatinformation contained in electronic record form can then be admitted,and relied upon in evidence.

58. It may also be seen that the person who gives this certificatecan be anyone out of several persons who occupy ‘responsible officialposition’ in relation to the operation of the relevant device, as also theperson who may otherwise be in the ‘management of relevant activities’spoken of in Sub-section (4) of Section 65B. Considering that suchcertificate may also be given long after the electronic record has actuallybeen produced by the computer, Section 65B(4) makes it clear that it issufficient that such person gives the requisite certificate to the “best ofhis knowledge and belief” (Obviously, the word “and” betweenknowledge and belief in Section 65B(4) must be read as “or”, as personcannot testify to the best of his knowledge and belief at the same time).59. We may reiterate, therefore, that the certificate required underSection 65B(4) is condition precedent to the admissibility of evidenceby way of electronic record, as correctly held in Anvar P.V. (supra), andincorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence inthe place of such certificate cannot possibly suffice as Section 65B(4) isa mandatory requirement of the law. Indeed, the hallowed principle inTaylor v. Taylor (1876) 1 Ch.D 426, which has been followed in anumber of the judgments of this Court, can also be applied. Section65B(4) of the Evidence Act clearly states that secondary evidence isadmissible only if lead in the manner stated and not otherwise. To holdotherwise would render Section 65B(4) otiose.

60. In view of the above, the decision of the Madras High Courtin K. Ramajyam (supra), which states that evidence aliunde can begiven through person who was in-charge of computer device in theplace of the requisite certificate under Section 65B(4) of the EvidenceAct is also an incorrect statement of the law and is, accordingly, overruled.

A61. While on the subject, it is relevant to note that the Departmentof Telecommunication’s license conditions [i.e. under the ‘License forProvision of Unified Access Services’ framed in 2007, as also thesubsequent ‘License Agreement for Unified License’and the ‘LicenseAgreement for provision of internet service’] generally oblige internetservice providers and providers of mobile telephony to preserve andBmaintain electronic call records and records of logs of internet users fora limited duration of one year[7]. Therefore, if the police or other individuals(interested, or party to any form of litigation) fail to secure those records- or secure the records but fail to secure the certificate - within thatperiod, the production of post-dated certificate (i.e. one issued afterCcommencement of the trial) would in all probability render the dataunverifiable. This places the accusedin perilous position, as, in theevent the accused wishes to challenge the genuineness of this certificateby seeking the opinion of the Examiner of Electronic Evidence underSection 45A of the Evidence Act, the electronic record (i.e. the data asto call logs in the computer of the service provider) may be missing.D

62. To obviate this, general directions are issued to cellularcompanies and internet service providers to maintain CDRs and otherrelevant records for the concerned period (in tune with Section 39 of theEvidence Act) in segregated and secure manner if particular CDRor other record is seized during investigation in the said period. ConcernedEparties can then summon such records at the stage of defence evidence,or in the event such data is required to cross-examine particular witness.This direction shall be applied, in criminal trials, till appropriate directionsare issued under relevant terms of the applicable licenses, or under Section67C of the Information Technology Act, which reads as follows:F“67C. Preservation and retention of information byintermediaries.–(1) Intermediary shall preserve and retain such

7See, Clause 41.17 of the ‘License Agreement for Provision of Unified Access Services’:“The LICENSEE shall maintain all commercial records with regard to thecommunications exchanged on the network. Such records shall be archived for at leastGone year for scrutiny by the Licensor for security reasons and may be destroyed thereafterunless directed otherwise by the licensor”; Clause 39.20 of the ‘License Agreement forUnified License’: “The Licensee shall maintain all commercial records/ Call DetailRecord (CDR)/ Exchange Detail Record (EDR)/ IP Detail Record (IPDR) with regard tothe 39 communications exchanged on the network. Such records shall be archived forat least one year for scrutiny by the Licensor for security reasons and may be destroyedthereafter unless directed otherwise by the Licensor. Licensor may issue directions /Hinstructions from time to time with respect to CDR/IPDR/EDR.”ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAOGORANTYAL & ORS. [R. F. NARIMAN, J.]

information as may be specified for such duration and in suchmanner and format as the Central Government may prescribe.

(2) any intermediary who intentionally or knowingly contravenesthe provisions of sub-section (1) shall be punished with animprisonment for term which may extend to three years andalso be liable to fine.”

63. It is also useful, in this context, to recollect that on 23 April2016, the conference of the Chief Justices of the High Courts, chairedby the Chief Justice of India, resolved to create uniform platform andguidelines governing the reception of electronic evidence. The ChiefJustices of Punjab and Haryana and Delhi were required to constitute acommittee to “frame Draft Rules to serve as model for adoption byHigh Courts”. five-Judge Committee was accordingly constituted on28 July, 2018[8]. After extensive deliberations, and meetings with severalpolice, investigative and other agencies, the Committee finalised its reportin November 2018. The report suggested comprehensive guidelines, andrecommended their adoption for use in courts, across several categoriesof proceedings. The report also contained Draft Rules for the Reception,Retrieval, Authentication and Preservation of Electronic Records. Inthe opinion of the Court, these Draft Rules should be examined by theconcerned authorities, with the object of giving them statutory force, toguide courts in regard to preservation and retrieval of electronic evidence.

64. We turn now to the facts of the case before us. In the presentcase, by the impugned judgment dated 24.11.2017, Election Petition6/2014 and Election Petition 9/2014 have been allowed and partly allowedrespectively, the election of the RC being declared to be void underSection 100 of the Representation of the People Act, 1951, inter alia,on the ground that as nomination papers at serial numbers 43 and 44were not presented by the RC before 3.00 p.m. on 27.09.2014, suchnomination papers were improperly accepted.

65. However, by an order dated 08.12.2017, this Court admittedthe Election Appeal of the Appellant, and stayed the impugned judgmentand order.

66. We have heard this matter after the five year LegislativeAssembly term is over in November 2019.This being the case, ordinarily,

8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, RajivNarain Raina and R.K. Gauba, JJ.

Ait would be unnecessary to decide on the merits of the case before us, asthe term of the Legislative Assembly is over.However, having read theimpugned judgment, it is clear that the learned Single Judge was anguishedby the fact that the Election Commission authorities behaved in partisanmanner by openly favouring the Appellant. Despite the fact that theBreason given of “substantial compliance” with Section 65B(4) in theabsence of the requisite certificate being incorrect in law, yet, consideringthat the Respondent had done everything in his power to obtain therequisite certificate from the appropriate authorities, including directionsfrom the Court to produce the requisite certificate, no such certificatewas forthcoming.The horse was directed to be taken to the water toCdrink - but it refused to drink, leading to the consequence pointed out inparagraph 49 of this judgment (supra).

67. Even otherwise, apart from evidence contained in electronicform, the High court arrived at the following conclusion:

“48.The evidence in cross examination of Smt. Mutha shows thatDwhen Labade was sent to the passage for collecting nominationforms, she continued to accept the nomination forms directly fromintending candidates and their proposers in her office. Her evidenceshows that on 27.9.2014 the last nomination form which wasdirectly presented to her was form No. 38 of Anand Mhaske.EThe time of receipt of this form was mentioned in the register ofnomination forms as 2.55 p.m. In respect of subsequent nominationforms from Sr. Nos. 39 to 64, the time of acceptance is mentionedas 3.00 p.m. Smt. Mutha admits that the candidates of nominationform Nos. 39 to 64 (form No. 64 was the last form filed) were notpresent before her physically at 3.00 p.m. At the cost of repetition,Fit needs to be mentioned here that form numbers of RC are 43and 44. The oral evidence and the record like register of nominationforms does not show that form Nos. 43 and 44 were presented toRO at 2.20 p.m. of 27.9.2014. As per the evidence of Smt. Muthaand the record, one Arvind Chavan, candidate having form Nos.G33, 34 and 35 was present before her between 2.15 p.m. and 2.30p.m. In nomination form register, there is no entry showing thatany nomination form was received at 2.20 p.m. Form Nos. 36and 37 of Sunil Khare were entered in the register at 2.40 p.m.Thus, according to Smt. Mutha, form No. 38, which was acceptedby her directly from the candidate was tendered to her at 2.55H

p.m. of 27.9.2014 and after that she had done preliminaryexamination of form No. 38 and check list was given by her tothat candidate. Thus, it is not possible that form Nos. 43 and 44were directly handed over to Smt. Mutha by RC at 2.20 p.m. oreven at 3.00 p.m. of 27.9.2014.

50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m. ofhanding over the check list to RC and she showed the time as3.00 p.m., but this time was shown in respect of all forms startingfrom Sr. Nos. 39 to 64. Thus, substantive evidence of Smt. Muthaand the aforesaid record falsifies the contention of the RC madein the pleading that he had handed over the nomination forms(form Nos. 43 and 44) directly to RO prior to 3.00 p.m., at 2.20

68. Thus, it is clear that apart from the evidence in the form ofelectronic record, other evidence was also relied upon to arrive at thesame conclusion. The High Court’s judgment therefore cannot be faulted.

69. Shri Adsure, however, attacked the impugned judgment whenit held that the improper acceptance of the nomination form of the RChimself being involved in the matter, no further pleadings and particularson whether the election is “materially affected”were required, as it canbe assumed that if such plea is accepted, the election would be materiallyaffected,as the election would then be set aside. He cited DivisionBench judgment of this Court in Rajendra Kumar Meshram v.Vanshmani Prasad Verma (2016) 10 SCC 715,wherein an electionpetition was filed against the appellant, inter alia, on the ground that asthe appellant - the returned candidate - was Government servant, hisnomination had been improperly accepted. The Court held that therequirement of Section 100(1)(d) of the Representation of People Act,1951, being that the election can be set aside only if such improperacceptance of the nomination has “materially affected” the result of theelection, and there being no pleading or evidence to this effect, the electionpetition must fail. This Court stated:

“9. As Issues 1 and 2 extracted above, have been answered infavour of the returned candidate and there is no cross-appeal, it isonly the remaining issues that survive for consideration. All thesaid issues centre round the question of improper acceptance ofthe nomination form of the returned candidate. In this regard,Issue 6 which raises the question of material effect of the improper

Aacceptance of nomination of the returned candidate on the resultof the election may be specifically noticed.

10. Under Section 100(1)(d), an election is liable to be declaredvoid on the ground of improper acceptance of nomination ifsuch improper acceptance of the nomination has materiallyBaffected the result of the election. This is in distinction to what iscontained in Section 100(1)(c) i.e. improper rejection of anomination which itself is sufficient ground for invalidating theelection without any further requirement of proof of material effectof such rejection on the result of the election. The above distinctionmust be kept in mind. Proceeding on the said basis, we find thatCthe High Court did not endeavour to go into the further questionthat would be required to be determined even if it is assumed thatthe appellant returned candidate had not filed the electoral roll ora certified copy thereof and, therefore, had not complied with themandatory provisions of Section 33(5) of the 1951 Act.

11. In other words, before setting aside the election on the aboveground, the High Court ought to have carried out further exercise,namely, to find out whether the improper acceptance of thenomination had materially affected the result of the election. Thishas not been done notwithstanding Issue 6 framed which isEspecifically to the above effect. The High Court having failed todetermine the said issue i.e. Issue 6, naturally, it was not empoweredto declare the election of the appellant returned candidate as voideven if we are to assume that the acceptance of the nominationof the returned candidate was improper.”

F70. On the other hand, Ms. Meenakshi Arora cited DivisionBench judgment in Mairembam Prithviraj v. Pukhrem SharatchandraSingh (2017) 2 SCC 487. In this judgment, several earlier judgments ofthis Court were cited on the legal effect of not pleading or proving thatthe election had been “materially affected” by the improper acceptanceof nomination under Section 100(1)(d)(i) of the Representation ofGPeople Act, 1951. After referring to Durai Muthuswami v. N.Nachiappan and Ors. 1973(2) SCC 45 and Jagjit Singh v. DharamPal Singh 1995 Supp (1) SCC 422, this Court then referred to three-Judge Bench judgment in Vashist Narain Sharma v. Dev Chandra1955 (1) SCR 509 as under:

“25. It was held by this Court in Vashist Narain Sharma v. DevChandra [(1955) 1 SCR 509] as under:

“9. The learned counsel for the respondents concedes that theburden of proving that the improper acceptance of nominationhas materially affected the result of the election lies upon thepetitioner but he argues that the question can arise in one of threeways:

(1) where the candidate whose nomination was improperlyaccepted had secured less votes than the difference between thereturned candidate and the candidate securing the next highestnumber of votes,

(2) where the person referred to above secured more votes, and

(3) where the person whose nomination has been improperlyaccepted is the returned candidate himself.

It is agreed that in the first case the result of the election is notmaterially affected because if all the wasted votes are added tothe votes of the candidate securing the highest votes, it will makeno difference to the result and the returned candidate will retainthe seat. In the other two cases it is contended that the result ismaterially affected. So far as the third case is concerned itmay be readily conceded that such would be the conclusion…”

This Court then concluded:

“26. Mere finding that there has been an improper acceptance ofthe nomination is not sufficient for declaration that the electionis void under Section 100(1)(d). There has to be further pleadingand proof that the result of the election of the returned candidatewas materially affected. But, there would be no necessity of anyproof in the event of the nomination of returned candidate beingdeclared as having been improperly accepted, especially in casewhere there are only two candidates in the fray. If the returnedcandidate’s nomination is declared to have been improperlyaccepted it would mean that he could not have contested theelection and that the result of the election of the returned candidatewas materially affected need not be proved further…”

71. None of the earlier judgments of this Court referred to inMairembam Prithviraj (supra) have been adverted to in Rajendra

AKumar Meshram (supra) cited by Shri Adsure. In particular, thejudgment of three learned Judges of this Court in Vashist Narain Sharma(supra)has specifically held that where the person whose nominationhas been improperly accepted is the returned candidate himself, it maybe readily conceded that the conclusion has to be that the result of theelection would be “materially affected”, without there being any necessityBto pleadand prove the same. The judgment in Rajendra KumarMeshram (supra), not having referred to these earlier judgments of alarger strength binding upon it, cannot be said to have declared the lawcorrectly. As result thereof, the impugned judgment of the High Courtis right in its conclusion on this point also.C72. The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove,is the lawdeclared by this Court on Section 65B of the Evidence Act.The judgmentin Tomaso Bruno (supra), being per incuriam, does not lay down thelaw correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reportedDas Shafhi Mohammad (supra) and the judgment dated 03.04.2018reported as (2018) 5 SCC 311, do not lay down the law correctly and aretherefore overruled.

(b) The clarification referred to above is that the requiredcertificate under Section 65B(4) is unnecessary if the original documentEitself is produced. This can be done by the owner of laptop computer,computer tablet or even mobile phone, by stepping into the witness boxand proving that the concerned device, on which the original informationis first stored, is owned and/or operated by him. In cases where the“computer” happens to be part of “computer system” or “computerFnetwork” and it becomes impossible to physically bring such system ornetwork to the Court, then the only means of providing informationcontained in such electronic record can be in accordance with Section65B(1), together with the requisite certificate under Section 65B(4). Thelast sentence in Anvar P.V. (supra) which reads as “…if an electronicrecord as such is used as primary evidence under Section 62 of theGEvidence Act…” is thus clarified; it is to be read without the words“under Section 62 of the Evidence Act,…” With this clarification, thelaw stated in paragraph 24 of Anvar P.V. (supra) does not need to berevisited.

(c) The general directions issued in paragraph 62 (supra) shallHhereafter be followed by courts that deal with electronic evidence, to

ensure their preservation, and production of certificate at the appropriatestage. These directions shall apply in all proceedings, till rules anddirections under Section 67C of the Information Technology Act anddata retention conditions are formulated for compliance by telecom andinternet service providers.

(d) Appropriate rules and directions should be framed in exerciseof the Information Technology Act, by exercising powers such as inSection 67C, and also framing suitable rules for the retention of datainvolved in trial of offences, their segregation, rules of chain of custody,stamping and record maintenance, for the entire duration of trials andappeals, and also in regard to preservation of the meta data to avoidcorruption. Likewise, appropriate rules for preservation, retrieval andproduction of electronic record, should be framed as indicated earlier,after considering the report of the Committee constituted by the ChiefJustice’s Conference in April, 2016.

73. These appealsare dismissed with costs of INR One Lakheach to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant inC.A. Nos. 20825-20826 of 2017) to both Shri Kailash KushanraoGorantyal and Shri Vijay Chaudhary.

V. RAMASUBRAMANIAN, J.

1. While I am entirely in agreement with the opinion penned byR. F. Nariman, J. I also wish to add few lines about (i) the reasons forthe acrimony behind Section 65B of the Indian Evidence Act, 1872(hereinafter “Evidence Act”) (ii) how even with the existing rules ofprocedure, the courts fared well, without any legislative interference,while dealing with evidence in analogue form, and (iii) how after machinesin analogue form gave way to machines in electronic form, certainjurisdictions of the world changed their legal landscape, over period oftime, by suitably amending the law, to avoid confusions and conflicts.

I. Reasons for the acrimony behind Section 65B

2. Documentary evidence, in contrast to oral evidence, is requiredto pass through certain check posts, such as (i) admissibility (ii) relevancyand (iii) proof, before it is allowed entry into the sanctum. Many times, itis difficult to identify which of these check posts is required to be passedfirst, which to be passed next and which to be passed later. Sometimes,

Aat least in practice, the sequence in which evidence has to go throughthese three check posts, changes. Generally and theoretically, admissibilitydepends on relevancy. Under Section 136 of the Evidence Act, relevancymust be established before admissibility can be dealt with. Therefore ifwe go by Section 136, party should first show relevancy, making it thefirst check post and admissibility the second one. But some documents,Bsuch as those indicated in Section 68 of the Evidence Act, which passthe first check post of relevancy and the second check post of admissibilitymay be of no value unless the attesting witness is examined. Proof ofexecution of such documents, in manner established by law, thusconstitutes the third check post. Here again, proof of execution standsCon different footing than proof of contents.

3. It must also be noted that whatever is relevant may not alwaysbe admissible, if the law imposes certain conditions. For instance, adocument, whose contents are relevant, may not be admissible, if it is adocument requiring stamping and registration, but had not been dulyDstamped and registered. In other words, if admissibility is the cart,relevancy is the horse, under Section 136. But certain provisions of lawplace the cart before the horse and Section 65B appears to be one ofthem.

4. Section 136 which confers discretion upon the Judge to decideEas to the admissibility of evidence reads as follows:

136. Judge to decide as to admissibility of evidence. ––

When either party proposes to give evidence of any fact, theJudge may ask the party proposing to give the evidence inwhat manner the alleged fact, if proved, would be relevant;Fand the Judge shall admit the evidence if he thinks that thefact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence isadmissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given ofGthe fact first-mentioned, unless the party undertakes to giveproof of such fact, and the Court is satisfied with suchundertaking.

If the relevancy of one alleged fact depends upon anotheralleged fact being first proved, the Judge may, in hisHdiscretion, either permit evidence of the first fact to be given

before the second fact is proved, or require evidence to begiven of the second fact before evidence is given of the firstfact.

5. There are three parts to Section 136. The first part deals withthe discretion of the Judge to admit the evidence, if he thinks that thefact sought to be proved is relevant. The second part of Section 136states that if the fact proposed to be proved is one, of which evidence isadmissible only upon proof of some other fact, such last mentioned factmust be proved before evidence is given of the fact first mentioned. Butthis rule is subject to small concession, namely, that if the partyundertakes to produce proof of the last mentioned fact later and theCourt is satisfied about such undertaking, the Court may proceedto admit evidence of the first mentioned fact. The third part of Section136 deals with the relevancy of one alleged fact, which depends uponanother alleged fact being first proved. The third part of Section 136 hasno relevance for our present purpose.

6. Illustration (b) under Section 136 provides an easy example ofthe second part of Section 136. Illustration (b) reads as follows:

(b) It is proposed to prove, by copy, the contents of adocument said to be lost.

The fact that the original is lost must be proved by the personproposing to produce the copy, before the copy is produced.

7. What is laid down in Section 65B as precondition for theadmission of an electronic record, resembles what is provided in thesecond part of Section 136. For example, if fact is sought to be provedthrough the contents of an electronic record (or information contained inan electronic record), the Judge is first required to see if it is relevant, ifthe first part of Section 136 is taken to be applicable.

8. But Section 65B makes the admissibility of the informationcontained in the electronic record subject to certain conditions, includingcertification. The certification is for the purpose of proving that theinformation which constitutes the computer output was produced by acomputer which was used regularly to store or process information andthat the information so derived was regularly fed into the computer inthe ordinary course of the said activities.

9. In other words, if we go by the requirements of Section 136,the computer output becomes admissible if the fact sought to be proved

ABC

Ais relevant. But such fact is admissible only upon proof of some otherfact namely, that it was extracted from computer used regularly etc.In simple terms, what is contained in the computer output can beequated to the first mentioned fact and the requirement of acertification can be equated to the last mentioned fact, referred toin the second part of Section 136 read with Illustration (b) thereunder.B

10. But Section 65B(1) starts with non-obstante clause excludingthe application of the other provisions and it makes the certification, aprecondition for admissibility. While doing so, it does not talk aboutrelevancy. In way, Sections 65A and 65B, if read together, mix-up bothproof and admissibility, but not talk about relevancy. Section 65A refersCto the procedure prescribed in Section 65B, for the purpose of provingthe contents of electronic records, but Section 65B speaks entirelyabout the preconditions for admissibility. As result, Section 65Bplaces admissibility as the first or the outermost check post, capable ofturning away even at the border, any electronic evidence, without anyDenquiry, if the conditions stipulated therein are not fulfilled.

11. The placement by Section 65B, of admissibility as the first orthe border check post, coupled with the fact that number of ‘computersystems’ (as defined in Section 2(l) of the Information Technology Act,2000) owned by different individuals, may get involved in the productionEof an electronic record, with the ‘originator’ (as defined in Section 2(za)of the Information Technology Act, 2000) being different from therecipients or the sharers, has created lot of acrimony behind Section65B, which is evident from the judicial opinion swinging like pendulum.

II. How the courts dealt with evidence in analogue form

Fwithout legislative interference and the shift

12. It is matter of fact and record that courts all over the worldwere quick to adapt themselves to evidence in analogue form, within theframework of archaic, centuries old rules of evidence. It was not as ifevidence in analogue form was incapable of being manipulated. But theGcourts managed the show well by applying time tested rules for siftingthe actual from the manipulated.

13. It is no doubt true that the felicity with which courts adaptedthemselves to appreciating evidence in analogue form was primarily dueto the fact that in analogue technology, one is able to see and/ or perceivesomething that is happening. In analogue technology, wave is recordedH

or used in its original form. When someone speaks or sings, signal istaken directly by the microphone and laid onto tape, if we take theexample of an analogue tape recorder. Both, the wave from themicrophone and the wave on the tape, are analogue and the wave on thetape can be read, amplified and sent to speaker to produce the sound.In digital technology, the analogue wave is sampled at some interval andthen turned into numbers that are stored in digital device. Therefore,what are stored, are in terms of numbers and they are, in turn, convertedinto voltage waves to produce what was stored.

14. The difference between something in analogue form and thesame thing in digital form and the reason why digital format throwsmore challenges, was presented pithily in an article titled ‘Electronicevidence and the meaning of “original”’,[1] by Stephen Mason(Barrister and recognised authority on electronic signatures and electronicevidence). Taking the example of photograph in both types of form,the learned author says the following:

For instance, photograph taken with an analogue camera(that is, camera with film) can only remain single object.It cannot be merged into other photographs, and split offagain. It remains physical object. photograph taken witha digital camera differs markedly. The digital object, madeup of series of zeros and the number one, can be, andfrequently is, manipulated and altered (especially in fashionmagazines and for advertisements). Things can be taken outand put in to the image, in the same way the water dropletscan merge and form single, larger droplet. The new,manipulated digital image can also be divided back into itsconstituent parts.

Herein lies the interesting point: when three droplets of waterfuse and then separate into three droplets, it is to be questionedwhether the three droplets that merge from the bigger dropletwere the identical droplets that existed before they merged. Inthe same way, consider digital object that has beenmanipulated and added to, and the process is then reversed.The original object that was used remains (unless it was neversaved independently, and the changes made to the image were

1 Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae26 (2009)

Asaved in the original file), but another object, with the identicalimage (or near identical, depending on the system softwareand application software) now exists. Conceptually, it ispossible to argue that the two digital images are different:one is the original, the other copy of the original that wasmanipulated and returned to its original state (whateverB“original” means). But both images are identical, apart fromsome additional meta data that might, or might not beconclusive. However, it is apparent that the images, if viewedtogether, are identical – will be identical, and the viewer willnot be able to determine which is the original, and whichCimage was manipulated. In this respect, the digital images areno different from the droplets of rain that fall, merge, thendivide: there is no telling whether the droplets that split areidentical to the droplets that came together to form the largerdroplet.

15. That courts did not have problem with the evidence inDanalogue form is established by several judicial precedents, in U.K.,which were also followed by our courts. device used to clandestinelyrecord conversation between two individuals was allowed in HarryParker vs. Mason[2 ]in proving fraud on the part of the plaintiff. WhileHarry Parker was civil proceeding, the principle laid down thereinEfound acceptance in criminal trial in R. vs. Burr and Sullivan.[3] TheHigh Court of Judiciary in Scotland admitted in evidence, the tape recordof conversation between the complainant and black mailer, in Hopesand Lavery vs. H. M. Advocate.[4] conversation recorded in policecell overheard without any deception, beyond setting up tape recorderwithout warning, was admitted in evidence in R. vs. Mills.[5]F

16. Then came R. vs. Maqsud Ali[6 ]where Marshall J. drew ananalogy between tape-recordings and photographs and held that just asevidence of things seen through telescopes or binoculars have beenadmitted, despite the fact that those things could not be picked upby the naked eye, the devices used for recording conversations couldGalso be admitted, provided the accuracy of the recording can beproved and the voices recorded properly identified.

2 [1940] 2 KB 590

3 [1956] Crim LR 4424 [1960] Crim LR 5665 [1962] 3 All ER 298H6 [1965] 2 All ER 464

17. Following the above precedents, this Court also held in S.Pratap Singh vs. State of Punjab,[7]Yusaffalli Esmail Nagree vs. Stateof Maharashtra,[8 ]N. Sri Rama Reddy vs. V. V. Giri,[9 ]R.M. Malkanivs. State of Maharashtra,[10 ]Ziyauddin Burhanuddin Bukhari vs.Brijmohan Ramdass Mehra,[11 ]Ram Singh vs. Col. Ram Singh,[12]Tukaram S. Dighole vs. Manikrao Shivaji Kokate,[13] that tape recordsof conversations and speeches are admissible in evidence under theIndian Evidence Act, subject to certain conditions. In ZiyauddinBurhanuddin Bukhari and Tukaram S. Dighole, this Court furtherheld that tape records constitute “document” within the meaning of theexpression under Section 3 of the Evidence Act. Thus, without lookingup to the law makers to come up with necessary amendments from timeto time, the courts themselves developed certain rules, over period oftime, to test the authenticity of these documents in analogue form andthese rules have in fact, worked well.

18. There was also an important question that bothered the courtswhile dealing with evidence in analogue form. It was as to whether suchevidence was direct or hearsay. In The Statute of Liberty, SapporoMaru M/S (Owners) vs. Steam Tanker Statute of Liberty (Owners),[14]the film recording of radar set of echoes of ships within its range washeld to be real evidence. The court opined that there was no distinctionbetween photographer operating camera manually and theobservations of barometer operator or its equivalent operation by arecording mechanism. The Judge rejected the contention that the evidencewas hearsay.

19. But when it comes to computer output, one of the earliest ofcases where the Court of Appeal had to deal with evidence in the formof printout from computer was in R. vs. Pettigrew.[15 ]In that case,the printout from computer operated by an employee of the Bank ofEngland was held to be hearsay. But the academic opinion about the

7 (1964) 4 SCR 7538 (1967) 3 SCR 7209 AIR 1972 SC 116210 AIR 1973 SC 15711 (1976) 2 SCC 1712 AIR 1986 SC 313 (2010) 4 SCC 32914 [1968] 2 All ER 19515 [1980] 71 Cr. App. R. 39

Acorrectness of the decision was sharply divided. While Professor Smith[16]considered the evidence in this case as direct and not hearsay, ProfessorTapper[17] took the view that the printout was partly hearsay and partlynot. Professor Seng[18] thought that both views were plausible.

20. But the underlying theory on the basis of which academiciansBcritiqued the above judgment is that wherever the production of the outputwas made possible without human intervention, the evidence should betaken as direct. This is how the position was explained in Castle vs.Cross,[19] in which the printout from the Intoximeter was held to be directand not hearsay, on the ground that the breath alcohol value in the printoutcomprised information produced by the Intoximeter without the dataCbeing processed through human brain.

21. In R vs. Robson Mitchell and Richards,[20] printout oftelephone calls made on mobile telephone was taken as evidence ofthe calls made and received in association with the number. The Courtheld “where machine observes fact and records it, that recordDstates fact. It is evidence of what the machine recorded and thiswas printed out. The record was not the fact but the evidence of thefact”.

22. But the facility of operating in anonymity in the cyber space,has made electronic records more prone to manipulation and consequentlyEto greater degree of suspicion. Therefore, law makers interfered,sometimes making things easy for courts and sometimes creating lotof confusion. But over period of time, certain jurisdictions have comeup with reasonably good solutions. Let us now take look at them.

III. Legislative developments in U.S.A., U.K. and CanadaFon the admissibility of electronic recordsPOSITION IN USA

16 Professor Smith was well-known authority on criminal law and law of evidence; J.G17C. Smith, Professor Tapper is well-known authority on law of evidence; Colin Tapper,The admissibility of statements by computer, Crim LR 387, 388 (1981).Reform of the law of evidence in relation to the output from computers, 3 IntlJ L & InfoTech 87 (1995).

18 Professor Seng is an Associate Professor at the National University of Singapore;Daniel K Seng, Computer output as evidence, Sing JLS 139 (1997).

19 [1984] 1 WLR 1372H20 [1991] Crim LR 360

23. The Federal Rules of Evidence (FRE) of the United States ofAmerica as amended with effect from 01.12.2017 recognise theavailability of more than one option to person seeking to produce anelectronic record. Under the amended rules, person can follow eitherthe traditional route under Rule 901 or the route of self-authenticationunder Rule 902 whereunder certificate of authenticity will elevate itsstatus. Rules 901 and 902 of FRE read as follows:

Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticatingor identifying an item of evidence, the proponent must produceevidence sufficient to support finding that the item is whatthe proponent claims it is.

(b) Examples. The following are examples only—not acomplete list—of evidence that satisfies the requirement:

(1) Testimony of Witness with Knowledge. Testimony thatan item is what it is claimed to be.

(2) Non expert Opinion About Handwriting. non expert’sopinion that handwriting is genuine, based on familiaritywith it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. Acomparison with an authenticated specimen by an expertwitness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance,contents, substance, internal patterns, or other distinctivecharacteristics of the item, taken together with all thecircumstances.

(5) Opinion About Voice. An opinion identifying person’svoice—whether heard firsthand or through mechanical orelectronic transmission or recording—based on hearing thevoice at any time under circumstances that connect it with thealleged speaker.

(6) Evidence About Telephone Conversation. For atelephone conversation, evidence that call was made to thenumber assigned at the time to:

[2020] 7 S.C.R.

A(A) particular person, if circumstances, including self-identification, show that the person answering was the onecalled; or

(B) particular business, if the call was made to businessand the call related to business reasonably transacted overBthe telephone.

(7) Evidence About Public Records. Evidence that:

(A) document was recorded or filed in public office asauthorized by law; or

C(B) purported public record or statement is from the officewhere items of this kind are kept.

(8) Evidence About Ancient Documents or DataCompilations. For document or data compilation, evidencethat it:

D(A) is in condition that creates no suspicion about itsauthenticity;

(B) was in place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

E(9) Evidence About Process or System. Evidence describinga process or system and showing that it produces an accurateresult.

(10) Methods Provided by Statute or Rule. Any method ofauthentication or identification allowed by federal statuteFor rule prescribed by the Supreme Court.Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; theyrequire no extrinsic evidence of authenticity in order to beadmitted:

G(1) Domestic Public Documents That Are Sealed and Signed. Adocument that bears:

(A) seal purporting to be that of the United States; anystate, district, commonwealth, territory, or insular possessionof the United States; the former Panama Canal Zone; the Trust

Territory of the Pacific Islands; political subdivision of anyof these entities; or department, agency, or officer of anyentity named above; and

(B) signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but AreSigned and Certified. document that bears no seal if:

(A) it bears the signature of an officer or employee of anentity named in Rule 902(1)(A); and

(B) another public officer who has seal and official dutieswithin that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signatureis genuine.

(3) Foreign Public Documents. document that purports tobe signed or attested by person who is authorized by aforeign country’s law to do so. The document must beaccompanied by final certification that certifies thegenuineness of the signature and official position of the signeror attester—or of any foreign official whose certificate ofgenuineness relates to the signature or attestation or is in achain of certificates of genuineness relating to the signatureor attestation. The certification may be made by secretaryof United States embassy or legation; by consul general,vice consul, or consular agent of the United States; or by adiplomatic or consular official of the foreign country assignedor accredited to the United States. If all parties have beengiven reasonable opportunity to investigate the document’sauthenticity and accuracy, the court may, for good cause,either:

(A) order that it be treated as presumptively authentic withoutfinal certification; or

(B) allow it to be evidenced by an attested summary with orwithout final certification.

(4) Certified Copies of Public Records. copy of an officialrecord—or copy of document that was recorded or filedin public office as authorized by law—if the copy is certifiedas correct by:

(A) the custodian or another person authorized to make thecertification; or

(B) certificate that complies with Rule 902(1), (2), or (3), afederal statute, or rule prescribed by the Supreme Court.

(5) Official Publications. book, pamphlet, or otherBpublication purporting to be issued by public authority.

(6) Newspapers and Periodicals. Printed material purportingto be newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag,or label purporting to have been affixed in the course ofCbusiness and indicating origin, ownership, or control.

(8) Acknowledged Documents. document accompanied bya certificate of acknowledgment that is lawfully executed bya notary public or another officer who is authorized to takeacknowledgments.

(9) Commercial Paper and Related Documents. Commercialpaper, signature on it, and related documents, to the extentallowed by general commercial law.

(10) Presumptions Under Federal Statute. signature,document, or anything else that federal statute declares tobe presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of Regularly ConductedActivity. The original or copy of domestic record that meetsthe requirements of Rule 803(6)(A)–(C), as shown by acertification of the custodian or another qualified person thatFcomplies with federal statute or rule prescribed by theSupreme Court. Before the trial or hearing, the proponentmust give an adverse party reasonable written notice of theintent to offer the record—and must make the record andcertification available for inspection—so that the party has aGfair opportunity to challenge them.

(12) Certified Foreign Records of Regularly ConductedActivity. In civil case, the original or copy of foreignrecord that meets the requirements of Rule 902(11), modifiedas follows: the certification, rather than complying with afederal statute or Supreme Court rule, must be signed in

manner that, if falsely made, would subject the maker to acriminal penalty in the country where the certification issigned. The proponent must also meet the notice requirementsof Rule 902(11).

(13) Certified Records Generated by an Electronic Processor System. record generated by an electronic process orsystem that produces an accurate result, as shown by acertification of qualified person that complies with thecertification requirements of Rule 902(11) or (12). Theproponent must also meet the notice requirements of Rule902(11).

(14) Certified Data Copied from an Electronic Device, StorageMedium, or File. Data copied from an electronic device,storage medium, or file, if authenticated by process of digitalidentification, as shown by certification of qualified personthat complies with the certification requirements of Rule902(11) or (12). The proponent also must meet the noticerequirements of Rule 902(11).

24. An important decision in the American jurisprudence on this

issue was delivered by Chief Magistrate Judge of District of Marylandin Lorraine vs. Markel American Insurance Co.[21] In this case, PaulGrimm, J. while dealing with challenge to an arbitrator’s decision in aninsurance dispute, dealt with the issue whether emails discussing theinsurance policy in question, were admissible as evidence. The Court,while extending the applicability of Rules 901 and 902 of FRE to electronicevidence, laid down broad test for admissibility of electronically storedinformation.[22] This decision was rendered in 2007 and the FRE wereamended in 2017.

21 241 FRD 534 (2007)

22 Paragraph 2: “Whenever ESI is offered as evidence, either at trial or in summaryjudgment, the following evidence rules must be considered: (1) is the ESI relevant asdetermined by Rule 401 (does it have any tendency to make some fact that is of consequenceto the litigation more or less probable than it otherwise would be); (2) if relevant under401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI iswhat it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay asdefined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804and 807); (4) is the form of the ESI that is being offered as evidence an original orduplicate under the original writing rule, of if not, is there admissible secondary evidenceto prove the content of the ESI (Rules 1001–1008); and (5) is the probative value of theESI substantially outweighed by the danger of unfair prejudice or one of the otherfactors identified by Rule 403, such that it should be excluded despite its relevance.”

A25. Sub-rules (13) and (14) were incorporated in Rule 902 underthe amendment of the year 2017. Until then, person seeking to produceelectronic records had to fall back mostly upon Rule 901 (except in fewcases covered by sub-rules (11) and (12) of Rule 902). It means that thebenefit of self-authentication was not available until then [until the adventof sub-rules (13) and (14), except in cases covered by sub-rules (11)Band (12)]. Nevertheless, the introduction of sub-rules (13) and (14) inRule 902 did not completely exclude the application of the generalprovisions of Rule 901.

26. Rule 901 applies to all evidence across the board. It is generalprovision. But Rule 902 is special provision dealing with evidence thatCis self-authenticating. Records generated by an electronic process orsystem and data copied from an electronic device, storage medium orfile, are included in sub-rules (13) and (14) of Rule 902 of the FederalRules of Evidence.

27. But FRE 902 does not exclude the application of FRE 901. Itis only when party seeks to invoke the benefit of self-authenticationDthat Rule 902 applies. If party chooses not to claim the benefit of self-authentication, he is free to come under Rule 901, even if the evidencesought to be adduced is of an electronically stored information (ESI).

28. In an article titled ‘E-Discovery: Authenticating Common Typesof ESI Chart’, authored by Paul W. Grimm (the Judge who deliveredEthe verdict in Lorraine) and co-authored by Gregory P. Joseph andpublished by Thomson Reuters (2017), the learned authors have given asnapshot of the different methods of authentication of various types ofESI (electronically stored information). In subsequent article (2018)titled ‘Admissibility of Electronic Evidence’ published under the caption‘Grimm-Brady Chart’ (referring to Paul W. Grimm and Kevin F. Brady)Fon the website “complexdiscovery.com”, condensed chart is providedwhich throws light on the different methods of authentication of ESI.The chart is reproduced in the form of table, with particular referenceto the relevant sub-rules of Rules 901 and 902 of the Federal Rules ofEvidence as follows:

GS.No.Type of ESIPotential Authentication Methods1.Email, Text Messages, and�Witness with personal knowledge (901(b)(1))Instant Messages�Expert testimony or comparison with authenticatedexamples (901(b)(3))�Distinctive characteristics including circumstantialevidence (901(b)(4))�System or process capable of proving reliable anddependable result (901(b)(9))H

ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO265GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]�Trade inscriptions (902(7))A�Certified copies of business record (902(11))�Certified records generated by an electronic process orsystem (902(13))�Certified data copied from an electronic device, storagemedium,or file(902(14))2.Chat Room Postings,�Witness with personal knowledge (901(b)(1))Blogs, Wikis, and�Expert testimony or comparison with authenticatedOther Social Mediaexamples (901(b)(3))BConversations�Distinctive characteristics including circumstantialevidence (901(b)(4))�System or process capable of proving reliable anddependable result (901(b)(9))�Official publications (902(5))�Newspapers and periodicals (902(6))�Certified records generated by an electronic process orsystem (902(13))�Certified data copied from an electronic device, storageCmedium, or file (902(14))3.Social Media Sites�Witness with personal knowledge (901(b)(1))(Facebook, LinkedIn,�Expert testimony or comparison with authenticatedTwitter,examples (901(b)(3))Instagram, and Snapchat)�Distinctive characteristics including circumstantialevidence (901(b)(4))�Public records (901(b)(7))�System or process capable of proving reliable andDdependable result (901(b)(9))�Official publications(902(5))�Certified records generated by an electronic process orsystem (902(13))�Certified data copied from an electronic device, storagemedium, or file (902(14))4.Digitally Stored Data and�Witness with personal knowledge (901(b)(1))Internet of Things�Expert testimony or comparison with authenticatedEexamples (901(b)(3))�Distinctive characteristics including circumstantialevidence (901(b)(4))�System or process capable of proving reliable anddependable result (901(b)(9))�Certified records generated by an electronic process orsystem (902(13))�Certified data copied from an electronic device, storageFmedium, or file (902(14))5.Computer Processes,�Witness with personal knowledge (901(b)(1))Animations, Virtual�Expert testimony or comparison with authenticatedReality, and Simulationsexamples (901(b)(3))�System or process capable of proving reliable anddependable result (901(b)(9))�Certified records generated by an electronic process orsystem (902(13))G6..Digital Photographs�Witness with personal knowledge (901(b)(1))�System or process capable of providing reliable anddependable result (901(b)(9))�Official publications (902(5))�Certified records generated by an electronic process orsystem (902(13))�Certified data copied from an electronic device, storagemedium, or file (902(14))H

A29. It is interesting to note that while the Indian Evidence Act is ofthe year 1872, the Federal Rules of Evidence were adopted by the orderof the Supreme Court of the United States exactly 100 years later, in1972 and they were enacted with amendments made by the Congress totake effect on 01.07.1975. Yet, the Rules were found inadequate to dealwith emerging situations and hence, several amendments were made,Bincluding the one made in 2017 that incorporated specific provisionsrelating to electronic records under sub-rules (13) and (14) of FRE 902.After this amendment, lot of options have been made available tolitigants seeking to rely upon electronically stored information, one amongthem being the route provided by sub-rules (13) and (14) of FRE 902.CThis development of law in the US demonstrates that, unlike in India,law has kept pace with technology to great extent.POSITION IN UK30. As pointed out in the main opinion, Section 65B, in its presentform, is poor reproduction of Section 5 of the UK Civil Evidence Act,D1968. The language employed in sub-sections (2), (3), (4) and (5) ofSection 65B is almost in pari materia (with minor differences) withsub-sections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968.However, sub-section (1) of Section 65B is substantially different fromsub-section (1) of Section 5 of the UK Civil Evidence Act, 1968. But itEalso contains certain additional words in sub-section (1) namely “withoutfurther proof or production of the original”. For easy comparisonand appreciation, sub-section (1) of Section 65B of the Indian EvidenceAct and sub-section (1) of Section 5 of UK Civil Evidence Act, 1968 arepresented in tabular form as follows:

31. But the abovementioned Section 5 of the U.K. Act of 1968was repealed by the Civil Evidence Act, 1995. Section 15(2) of the CivilEvidence Act, 1995 repealed the enactments specified in Schedule IItherein. Under Schedule II of the 1995 Act, Part I of the 1968 Actcontaining Sections 1-10 were repealed. The effect is that when Section65B was incorporated in the Indian Evidence Act, by Act 21 of 2000, bycopying sub-sections (2) to (5) of Section 5 of the UK Civil EvidenceAct, 1968, Section 5 itself was not there in the U.K. statute book, as aresult of its repeal under the 1995 Act.

32. The repeal of Section 5 under the 1995 Act was sequel tothe recommendations made by the Law Commission in September 1993.Part III of the Law Commission’s report titled ‘The Hearsay Rule inCivil Proceedings’ noted the problems with the 1968 Act, one of whichconcerned computer records. Paragraphs 3.14 to 3.21 in Part III of theLaw Commission’s report read as follows:

Computer records

3.14 fundamental mistrust and fear of the potential for erroror mechanical failure can be detected in the elaborateprecautions governing computer records in section 5 of the1968 Act. The Law Reform Committee had not recommendedspecial provisions for such records, and section 5 wouldappear to have been something of an afterthought with itsmany safeguards inserted in order to gain acceptance of whatwas then novel form of evidence. Twenty-five years later,technology has developed to an extent where computers andcomputer-generated documents are relied on in every area ofbusiness and have long been accepted in banking and otherimportant record-keeping fields. The conditions have beenwidely criticised, and it has been said that they are aimed atoperations based on the type of mainframe operations commonin the mid 1960s, which were primarily intended to processin batches thousands of similar transactions on daily basis.

3.15 So far as the statutory conditions are concerned, thereis heavy reliance on the need to prove that the documenthas been produced in the normal course of business and inan uninterrupted course of activity. It is at least questionablewhether these requirements provide any real safeguards inrelation to the reliability of the hardware or software

concerned. In addition, they are capable of operating toexclude wide categories of documents, particularly thosewhich are produced as the result of an original or “oneoff” piece of work. Furthermore, they provide no protectionagainst the inaccurate inputting of data.

3.16 We have already referred to the overlap between sections4 and 5. If compliance with section 5 is prerequisite, thencomputer-generated documents which pass the conditionssetout in section 5(2) “shall” be admissible, notwithstandingthe fact that they originated from chain of human sourcesand that it has not been established that the persons in thechain acted under duty. In other words, the record provisionsof section 4, which exist to ensure the reliability of the coreinformation, are capable of being disapplied. In the contextof our proposed reforms, we do not consider that this apparentdiscrepancy is of any significance, save that it illustrates thefact that section 5 was something of an afterthought.

3.17 Computer-generated evidence falls into two categories.First, there is the situation envisaged by the 1968 Act, wherethe computer is used to file and store information provided toit by human beings. Second, there is the case where the recordhas itself been produced by the computer, sometimes entirelyEby itself but possibly with the involvement of some othermachine. Examples of this situation are computers which arefed information by monitoring devices. particular exampleis automatic stock control systems, which are now in commonuse and which allow for purchase orders to be automaticallyFproduced. Under such systems evidence of contract formationwill lie solely in the electronic messages automaticallygenerated by the seller’s and buyer’s computers. It is easy tosee how uncertainty as to how the courts may deal with theproof and enforceability of such contracts is likely to stifle thefull development and effective use of such technology.GFurthermore, uncertainty may deter parties from agreeing thatcontracts made in this way are to be governed by English lawand litigated in the English courts.

3.18 It is interesting to compare the technical manner in whichthe admissibility of computer-generated records has

developed, compared with cases concerning other forms ofsophisticated technologically produced evidence, for exampleradar records (See Sapporo Maru (Owners) v. Statue of Liberty(Owners) [1968] 1 W.L.R. 739). In the Statue of Liberty caseradar records, produced without human involvement andreproduced in photographic form, were held to be admissibleto establish how collision of two ships had occurred. It washeld that this was “real” evidence, no different in kind from amonitored tape recording of conversation. Furthermore, inthese cases, no extra tests of reliability need be met and thecommon law rebuttable presumption is applied, that themachine was in order at the material time. The samepresumption has been applied to intoximeter printouts (Castlev. Cross [1984] 1 W.L.R. 1372).3.19 There are number of cases which establish the way inwhich courts have sought to distinguish between types ofcomputer-generated evidence, by finding in appropriate casesthat the special procedures are inapplicable because theevidence is original or direct evidence. As might be expected,case law on computer-generated evidence is more likely tobe generated by criminal cases of theft or fraud, where theincidence of such evidence is high and the issue ofadmissibility is more likely to be crucial to the outcome andhence less liable to be agreed. For example, even in the firstcategory of cases, where human involvement exists, acomputer-generated document may not be considered to behearsay if the computer has been used as mere tool, toproduce calculations from data fed to it by humans, no matterhow complex the calculations, or how difficult it may be forhumans to reproduce its work, provided the computer wasnot “contributing its own knowledge” (R v. Wood (1983) 76Cr. App. R. 23).

3.20 There was no disagreement with the view that theprovisions relating to computer records were outdated andthat there was no good reason for distinguishing betweendifferent forms of record keeping or maintaining differentregime for the admission of computer-generated documents.This is the position in Scotland under the 1988 Act.

Furthermore, we were informed of fears that uncertainty overthe treatment of such records in civil litigation in the UnitedKingdom was significant hindrance to commerce and neededreform.

3.21 Consultees considered that the real issue for concernBwas authenticity that this was matter which was best dealtwith by vigilant attitude that concentrated upon the weightto be attached to the evidence, in the circumstances of theindividual case, rather than by reformulating complex andinflexible conditions as to admissibility.

(emphasis supplied)

33. In Part IV of the 1993 Report, titled ‘Recommendations forReform’, Paragraph 4.43 dealt with the recommendations of the LawCommission in relation to computer records. Paragraph 4.43 of the LawCommission’s report along with Recommendation Nos. 13, 14 and 15Dare reproduced for easy reference:

(b) Computerised records

4.43 In the light of the criticisms of the present provisionsand the response on consultation, we have decided torecommend that no special provisions be made in respect ofEcomputerised records. This is the position in Scotland underthe 1988 Act and reflects the overwhelming view ofcommentators, practitioners and others. That is not to saythat we do not recognise that, as familiarity with andconfidence in the inherent reliability of computers has grown,so has concern over the potential for misuse, through theFcapacity to hack, corrupt, or alter information, in mannerwhich is undetectable. We do not underestimate these dangers.However the current provisions of section 5 do not affordany protection and it is not possible to legislate protectively.Nothing in our proposals will either encourage abuse, orGprevent proper challenge to the admissibility of computerisedrecords, where abuse is suspected. Security and authenticationare problems that experts in the field are constantly addressingand it is fast evolving area. The responses from experts inthis field, such as the C.B.I., stressed that, whilst computer-generated information should be treated similarly to other

records, such evidence should be weighed according to itsreliability, with parties being encouraged to provideinformation as to the security of their systems. We haveproposed wide definition for the word “document”. Thiswill cover documents in any form and in particular will bewide enough to cover computer-generated information.

We therefore recommend that:

13. Documents, including those stored by computer, whichform part of the records of business or public authority shouldbe admissible as hearsay evidence under clause 1 of our draftBill and the ordinary notice and weighing provisions shouldapply.

14. The current provisions governing the manner of proof ofbusiness records should be replaced by simpler regime whichallows, unless the court otherwise directs, for document tobe taken to form part of the records of business or publicauthority, if it is certified as such, and received in evidencewithout being spoken to in court. No special provisions shouldbe made in respect of the manner of proof of computerizedrecords.

15. The absence of an entry should be capable of beingformally proved by affidavit of an officer of the business orauthority to which the records belong.

(emphasis in original)

34. The above recommendations of the Law Commission (U.K.)made in 1993, led to the repeal of Section 5 of the 1968 Act, under the1995 Act. The rules of evidence in civil cases, in so far as electronicrecords are concerned, thus got liberated in U.K. in 1995 with the repealof Section 5 of the U.K. Civil Evidence Act,1968.

35. But there is separate enactment in the U.K., containing therules of evidence in criminal proceedings and that is the Police andCriminal Evidence Act, 1984. Section 69 of the said Act laid down rulesfor determining when statement in document produced by computershall not be admissible as evidence of any fact stated therein. Section 69of the said Act laid down three conditions (there are too many negativesin the language employed in Section 69). In simple terms, they require

Athat it must be shown (i) that there are no reasonable grounds for believingthat the statement is not inaccurate because of improper use of thecomputer; (ii) that at all material times the computer was operatingproperly and (iii) that the additional conditions specified in the rules madeby the court are also satisfied.

B36. The abovementioned Section 69 of the Police and CriminalEvidence Act, 1984 (PACE) was repealed by Section 60 of the YouthJustice and Criminal Evidence Act, 1999. This repeal was also sequelto the recommendations made by the Law Commission in June 1997under its report titled “Evidence in Criminal Proceedings: Hearsay andRelated Topics”. Part 13 of the Law Commission’s Report dealt withCcomputer evidence in extenso. The problems with Section 69 of the1984 Act, the response during the Consultative Process and the eventualrecommendations of the U.K. Law Commission are contained inparagraphs 13.1 to 13.23. They are usefully extracted as follows:

13.1 In Minors ([1989] 1 WLR 441, 443D–E.) Steyn J summedDup the major problem posed for the rules of evidence bycomputer output:

Often the only record of the transaction, which nobodycan be expected to remember, will be in the memory of acomputer… If computer output cannot relatively readilyEbe used as evidence in criminal cases, much crime (andnotably offences involving dishonesty) would in practicebe immune from prosecution. On the other hand, computersare not infallible. They do occasionally malfunction.Software systems often have “bugs”. …Realistically,Ftherefore, computers must be regarded as imperfect devices.

13.2 The legislature sought to deal with this dilemma by section69 of PACE, which imposes important additional requirementsthat must be satisfied before computer evidence is adduced –whether it is hearsay or not (Shephard [1993] AC 380).

G13.3 In practice, great deal of hearsay evidence is held oncomputer, and so section 69 warrants careful attention. It mustbe examined against the requirement that the use of computerevidence should not be unnecessarily impeded, while givingdue weight to the fallibility of computers.

PACE, SECTION 69

13.4 In the consultation paper we dealt in detail with therequirements of section 69: in essence it provides that adocument produced by computer may not be adduced asevidence of any fact stated in the document unless it is shownthat the computer was properly operating and was not beingimproperly used. If there is any dispute as to whether theconditions in section 69 have been satisfied, the court musthold trial within the trial to decide whether the party seekingto rely on the document has established the foundationrequirements of section 69.

13.5 In essence, the party relying on computer evidence mustfirst prove that the computer is reliable – or, if the evidencewas generated by more than one computer, that each of themis reliable (Cochrane [1993] Crim LR 48). This can be provedby tendering written certificate, or by calling oral evidence.It is not possible for the party adducing the computer evidenceto rely on presumption that the computer is working correctly(Shephard [1993] AC 380, 384E). It is also necessary for thecomputer records themselves to be produced to the court (Burrv DPP [1996] Crim LR 324).

The problems with the present law

13.6 In the consultation paper we came to the conclusionthat the present law was unsatisfactory, for five reasons.

13.7 First, section 69 fails to address the major causes ofinaccuracy in computer evidence. As Professor Tapper haspointed out, “most computer error is either immediatelydetectable or results from error in the data entered into themachine”.

13.8 Secondly, advances in computer technology make itincreasingly difficult to comply with section 69: it is becoming“increasingly impractical to examine (and therefore certify)all the intricacies of computer operation”. These problemsexisted even before networking became common.

13.9 third problem lies in the difficulties confronting therecipient of computer-produced document who wishes to

tender it in evidence: the recipient may be in no position tosatisfy the court about the operation of the computer. It maywell be that the recipient’s opponent is better placed to dothis.

13.10 Fourthly, it is illogical that section 69 applies wherethe document is tendered in evidence (Shephard [1993] AC380), but not where it is used by an expert in arriving at hisor her conclusions (Golizadeh [1995] Crim LR 232), norwhere witness uses it to refresh his or her memory(Sophocleous v Ringer [1988] RTR 52). If it is safe to admitevidence which relies on and incorporates the output fromthe computer, it is hard to see why that output should notitself be admissible; and conversely, if it is not safe to admitthe output, it can hardly be safe for witness to rely on it.

13.11 At the time of the publication of the consultation paperthere was also problem arising from the interpretation ofDsection 69. It was held by the Divisional Court in McKeown vDPP ([1995] Crim LR 69) that computer evidence isinadmissible if it cannot be proved that the computer wasfunctioning properly – even though the malfunctioning of thecomputer had no effect on the accuracy of the materialEproduced. Thus, in that case, computer evidence could notbe relied on because there was malfunction in the clockpart of an Intoximeter machine, although it had no effect onthe accuracy of the material part of the printout (the alcoholreading). On appeal, this interpretation has now been rejectedby the House of Lords: only malfunctions that affect the wayFin which computer processes, stores or retrieves theinformation used to generate the statement are relevant tosection 69 (DPP v McKeown; DPP v Jones [1997] 1 WLR295).

13.12 In coming to our conclusion that the present law didnot work satisfactorily, we noted that in Scotland, someAustralian states, New Zealand, the United States andCanada, there is no separate scheme for computer evidence,and yet no problems appear to arise. Our provisional viewwas that section 69 fails to serve any useful purpose, andthat other systems operate effectively and efficiently withoutit.

13.13 We provisionally proposed that section 69 of PACE berepealed without replacement. Without section 69, commonlaw presumption comes into play (Phipson, para 23-14,approved by the Divisional Court in Castle v Cross [1984] 1WLR 1372, 1377B):

In the absence of evidence to the contrary, the courts willpresume that mechanical instruments were in order at thematerial time.

13.14 Where party sought to rely on the presumption, itwould not need to lead evidence that the computer wasworking properly on the occasion in question unless therewas evidence that it may not have been – in which case theparty would have to prove that it was (beyond reasonabledoubt in the case of the prosecution, and on the balance ofprobabilities in the case of the defence). The principle hasbeen applied to such devices as speedometers (Nicholas vPenny [1950] 2 KB 466) and traffic lights (Tingle Jacobs &Co v Kennedy [1964] 1 WLR 638), and in the consultationpaper we saw no reason why it should not apply to computers.

The response on consultation

13.15 On consultation, the vast majority of those who dealtwith this point agreed with us. number of those in favoursaid that section 69 had caused much trouble with little benefit.

13.16 The most cogent contrary argument against ourproposal came from David Ormerod. In his helpful response,he contended that the common law presumption of regularitymay not extend to cases in which computer evidence is central.He cites the assertion of the Privy Council in Dillon v R([1982] AC 484) that “it is well established that the courtswill not presume the existence of facts which are central to anoffence”. If this were literally true it would be of greatimportance in cases where computer evidence is central, suchas Intoximeter cases (R v Medway Magistrates’ Court, ex pGoddard [1995] RTR 206). But such evidence has often beenpermitted to satisfy central element of the prosecution case.Some of these cases were decided before section 69 wasintroduced (Castle v Cross [1984] 1 WLR 1372); others have

BCD

Abeen decided since its introduction, but on the assumption(now held to be mistaken) (Shephard [1993] AC 380) that itdid not apply because the statement produced by the computerwas not hearsay (Spiby (1990) 91 Cr App R 186; Neville[1991] Crim LR 288). The presumption must have beenapplicable; yet the argument successfully relied upon in DillonBdoes not appear to have been raised.

13.17 It should also be noted that Dillon was concerned notwith the presumption regarding machines but with thepresumption of the regularity of official action. This latterpresumption was the analogy on which the presumption forCmachines was originally based; but it is not particularlyclose analogy, and the two presumptions are now clearlydistinct.

13.18 Even where the presumption applies, it ceases to haveany effect once evidence of malfunction has been adduced.DThe question is, what sort of evidence must the defence adduce,and how realistic is it to suppose that the defence will be ableto adduce it without any knowledge of the working of themachine? On the one hand the concept of the evidential burdenis flexible one: party cannot be required to produce moreEby way of evidence than one in his or her position could beexpected to produce. It could therefore take very little for thepresumption to be rebutted, if the party against whom theevidence was adduced could not be expected to produce more.For example, in Cracknell v Willis ([1988] AC 450) the Houseof Lords held that defendant is entitled to challenge anFIntoximeter reading, in the absence of any signs ofmalfunctioning in the machine itself, by testifying (or callingothers to testify) about the amount of alcohol that he or shehad drunk.

13.19 On the other hand it may be unrealistic to suppose thatin such circumstances the presumption would not prevail. InCracknell v Willis Lord Griffiths ([1988] AC 450 at p 468C–D) said:

If Parliament wishes to provide that either there is to be anirrebuttable presumption that the breath testing machine isHreliable or that the presumption can only be challenged by

particular type of evidence then Parliament must takethe responsibility of so deciding and spell out its intentionin clear language. Until then I would hold that evidencewhich, if believed, provides material from which theinference can reasonably be drawn that the machine wasunreliable is admissible.

But his Lordship went on:

I am myself hopeful that the good sense of the magistratesand the realisation by the motoring public that approvedbreath testing machines are proving reliable will combineto ensure that few defendants will seek to challenge abreath analysis by spurious evidence of their consumptionof alcohol. The magistrates will remember that thepresumption of law is that the machine is reliable and theywill no doubt look with critical eye on evidence such aswas produced by Hughes v McConnell ([1985] RTR 244)before being persuaded that it is not safe to rely upon thereading that it produces ([1988] AC 450, 468D–E).

13.20 Lord Goff did not share Lord Griffiths’ optimism thatmotorists would not seek to challenge the analysis by spuriousevidence of their consumption of alcohol, but did share hisconfidence in

the good sense of magistrates who, with their attentiondrawn to the safeguards for defendants built into the Act…, will no doubt give proper scrutiny to such defences,and will be fully aware of the strength of the evidenceprovided by printout, taken from an approved device, ofa specimen of breath provided in accordance with thestatutory procedure ([1988] AC 450 at p 472B–C).

13.21 These dicta may perhaps be read as implying thatevidence which merely contradicts the reading, without directlycasting doubt on the reliability of the device, may betechnically admissible but should rarely be permitted tosucceed. However, it is significant that Lord Goff referred inthe passage quoted to the safeguards for defendants whichare built into the legislation creating the drink-drivingoffences. In the case of other kinds of computer evidence,

where (apart from section 69) no such statutory safeguardsexist, we think that the courts can be relied upon to apply thepresumption in such way as to recognise the difficulty facedby defendant who seeks to challenge the prosecution’sevidence but is not in position to do so directly. Thepresumption continues to apply to machines other thancomputers (and until recently was applied to non-hearsaystatements by computers) without the safeguard of section69; and we are not aware of any cases where it has causedinjustice because the evidential burden cast on the defencewas unduly onerous. Bearing in mind that it is creature ofthe common law, and comparatively modern one, we thinkit is unlikely that it would be permitted to work injustice.

13.22 Finally it should not be forgotten that section 69 appliesequally to computer evidence adduced by the defence. rulethat prevents defendant from adducing relevant and cogentevidence, merely because there is no positive evidence that itis reliable, is in our view unfair.

Our recommendation

13.23 We are satisfied that section 69 serves no useful purpose.We are not aware of any difficulties encountered in thosejurisdictions that have no equivalent. We are satisfied that thepresumption of proper functioning would apply to computers,thus throwing an evidential burden on to the opposing party,but that that burden would be interpreted in such way as toensure that the presumption did not result in convictionmerely because the defence had failed to adduce evidence ofmalfunction which it was in no position to adduce. We believe,as did the vast majority of our respondents, that such regimewould work fairly. We recommend the repeal of section 69 ofPACE. (Recommendation 50)

(emphasis supplied)

37. Based on the above recommendations of the U.K. LawCommission, Section 69 of the PACE, 1984, was declared by Section 60of the Youth Justice and Criminal Evidence Act, 1999, to have ceased tohave effect. Section 60 of the 1999 Act reads as follows:

“Section 69 of the Police and Criminal Evidence Act, 1984(evidence from computer records inadmissible unlessconditions relating to proper use and operation of computershown to be satisfied) shall cease to have effect”

38. It will be clear from the above discussion that when ourlawmakers passed the Information Technology Bill in the year 2000,adopting the language of Section 5 of the UK Civil Evidence Act, 1968to great extent, the said provision had already been repealed by theUK Civil Evidence Act, 1995 and even the Police and Criminal EvidenceAct, 1984 was revamped by the 1999 Act to permit hearsay evidence,by repealing Section 69 of PACE, 1984.

POSITION IN CANADA

39. Pursuant to proposal mooted by the Canadian Bar Associationhundred years ago, requesting all Provincial Governments to provide forthe appointment of Commissioners to attend conferences organised forthe purpose of promoting uniformity of legislation among the provinces,a meeting of the Commissioners took place in Montreal in 1918. In thesaid meeting, Conference of Commissioners on Uniformity of Lawsthroughout Canada was organised. In 1974, its name was changed toUniform Law Conference of Canada. The objective of the Conferenceis primarily to achieve uniformity in subjects covered by existinglegislations. The said Conference recommended model law on UniformElectronic Evidence in September 1998.

40. The above recommendations of the Uniform Law Conferencelater took shape in the form of amendments to the Canada EvidenceAct, 1985. Section 31.1 of the said Act deals with authentication ofelectronic documents and it reads as follows:

Authentication of electronic documents

31.1 Any person seeking to admit an electronic document asevidence has the burden of proving its authenticity by evidencecapable of supporting finding that the electronic documentis that which it is purported to be.

41. Section 31.2 deals with the application of ‘best evidence rule’in relation to electronic documents and it reads as follows:

DEF

AApplication of best evidence rule — electronic documents

31.2(1) The best evidence rule in respect of an electronicdocument is satisfied

(a) on proof of the integrity of the electronic documents systemby or in which the electronic document was recorded or stored;Bor

(b) if an evidentiary presumption established under section31.4 applies.

Printouts

(2) Despite subsection (1), in the absence of evidence to thecontrary, an electronic document in the form of printoutsatisfies the best evidence rule if the printout has beenmanifestly or consistently acted on, relied on or used as arecord of the information recorded or stored in the printout.

42. Section 31.3 indicates the method of proving the integrity ofan electronic documents system, by or in which an electronic documentis recorded or stored. Section 31.3 reads as follows:

Presumption of integrity

31.3 For the purposes of subsection 31.2(1), in the absenceof evidence to the contrary, the integrity of an electronicdocuments system by or in which an electronic documentis recorded or stored is proven

(a) by evidence capable of supporting finding that at allmaterial times the computer system or other similar deviceFused by the electronic documents system was operatingproperly or, if it was not, the fact of its not operating properlydid not affect the integrity of the electronic document andthere are no other reasonable grounds to doubt the integrityof the electronic documents system;

(b) if it is established that the electronic document wasrecorded or stored by party who is adverse in interest to theparty seeking to introduce it; or

(c) if it is established that the electronic document wasrecorded or stored in the usual and ordinary course of

business by person who is not party and who did notrecord or store it under the control of the party seeking tointroduce it.

43. Section 31.5 is an interesting provision which permits evidenceto be presented in respect of any standard, procedure, usage orpractice concerning the manner in which electronic documents areto be recorded or stored. This is for the purpose of determining underany rule of law whether an electronic document is admissible. Section31.5 reads as follows:

Standards may be considered

31.5 For the purpose of determining under any rule of lawwhether an electronic document is admissible, evidence maybe presented in respect of any standard, procedure, usageor practice concerning the manner in which electronicdocuments are to be recorded or stored, having regard to thetype of business, enterprise or endeavour that used, recordedor stored the electronic document and the nature and purposeof the electronic document.

44. Under Section 31.6(1), matters covered by Section 31.2(2),namely the printout of an electronic document, the matters covered bySection 31.3, namely the integrity of an electronic documents system,and matters covered by Section 31.5, namely evidence in respect of anystandard, procedure, usage or practice, may be established by affidavit.Section 31.6 reads as follows:

Proof by affidavit

31.6(1) The matters referred to in subsection 31.2(2) andsections 31.3 and 31.5 and in regulations made under section31.4 may be established by affidavit.

Cross-examination

(2) party may cross-examine deponent of an affidavitreferred to in subsection (1) that has been introduced inevidence

(a) as of right, if the deponent is an adverse party or is underthe control of an adverse party; and

(b) with leave of the court, in the case of any other deponent.

A45. Though combined reading of Sections 31.3 and 31.6(1) ofthe Canada Evidence Act, 1985, gives an impression as though arequirement similar to the one under Section 65B of Indian EvidenceAct, 1872 also finds place in the Canadian law, there is very importantdistinction found in the Canadian law. Section 31.3(b) takes care of acontingency where the electronic document was recorded or storedBby party who is adverse in interest to the party seeking to produceit. Similarly, Section 31.3(c) gives leverage for the party relyingupon an electronic document to establish that the same was recordedor stored in the usual and ordinary course of business by personwho is not party and who did not record or store it under theCcontrol of the party seeking to introduce it.

IV. Conclusion

46. It will be clear from the above discussion that the majorjurisdictions of the world have come to terms with the change of timesand the development of technology and fine-tuned their legislations.DTherefore, it is the need of the hour that there is relook at Section 65Bof the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000,and which has created huge judicial turmoil, with the law swingingfrom one extreme to the other in the past 15 years from Navjot Sandhu[23]to Anvar P.V.[24 ]to Tomaso Bruno[25 ]to Sonu[26 ]to Shafhi Mohammad.[27]

E47. With the above note, I respectfully agree with conclusionsreached by R. F. Nariman, J. that the appeals are to be dismissed withcosts as proposed.

Divya Pandey

Appeals dismissed.

23 State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600

24 Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

25 Tomaso Bruno vs. State of UP, (2015) 7 SCC 178

26 Sonu vs. State of Haryana, (2017) 8 SCC 570

27 Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801