ARJUN P. KHOTKAR V. KAILASH K. GORANTYAL & ORS.
CIVIL APPEAL NO. 20825-20826 OF 2017
- Sections 65A and 65B of the Evidence Act constitute a complete code on the admissibility of evidence of electronic records.
- Certificate under Section 65B (4) is essential for admissibility of electronic records in nature of secondary evidence and can be sought at any stage, including at any stage of the trial.
- In case of inability to produce certificate, parties can file an application seeking direction to concerned persons to furnish certificate under Section 65-B (4).
Two election petitions were filed before the Bombay High Court challenging the election of Arjun Panditrao Khotkar, the Returned Candidate to the Maharashtra Legislative Assembly for the term commencing November 2014. One election petition was filed by the defeated candidate Kailash Kishanrao Gorantyal, whereas the other was filed by Chaudhary, an elector. The Respondents relying on video camera footage contended that the election was void due to delay in presentation of nomination forms. The Bombay High Court admitted the electronic evidence, even in the absence of the requisite Certificate, as the party was in ‘substantial compliance’ of the
The issue relating to furnishing of the Certificate under Section 65B (4) has come up before the Supreme Court on several occasions in the past. In Anvar PV v. PK Basheer (2014), the Supreme Court held that any documentary evidence by way of an electronic record can be proved only in accordance with the procedure prescribed under Section 65B of the Act. Section 65B deals with the admissibility of the electronic record to determine the veracity or reliability of the evidence and is mandatory. Later, in 2018, a Division Bench of the Supreme Court in Shafhi Mohammad v. State of Himachal Pradesh held that requirement of a certificate under Section 65 B (4) is procedural and can be relaxed in the interest of justice provided a party is not in possession of the device.
The Supreme Court was faced with two major questions in the present case.
- Ascertaining the validity of the Appellant’s election.
- Settling the position of law relating to furnishing of Certificate for electronic evidence under Section 65B of the Act due to its conflicting rulings on the issue.
- The Supreme Court upheld the Impugned Judgment as Bombay High Court relied upon other evidence as well, apart from the evidence in the form of an electronic record, to arrive at the conclusion.
- The Supreme Court held that Certificate under Section 65B is a condition precedent to the admissibility of evidence by way of electronic record, thereby upholding the judgment in Anvar P.V. and overruling the ‘clarification’ in Shafhi Mohammed.
- The Supreme Court stated that Section 65B (1) differentiates between (i) ‘original document’ - which is the original electronic record contained in the computer in which the original information is first stored; and (ii) the computer output containing such information, which then may be treated as evidence of the contents of the ‘original document’. This differentiation is appreciated in legal terms in the manner of the categorization of evidence. The Supreme Court clarified that Certificate is not necessary if the ‘original document’ itself is produced (as primary evidence).
- The Supreme Court also dealt with the issue of inability of a party in producing a certificate who is not in possession of the electronic device. An application can always be made for production of such Certificate in cases in which there is a refusal to grant the Certificate. Such party is said to have completed his legal obligations to procure the Certificate. The Court perused the following maxims - lex non cogit ad impossibilia i.e. ‘the law does not demand the impossible’, and impotentia excusat legem i.e. ‘when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused’.
- The Supreme Court held that electronic evidence has to be furnished at the latest before the trial begins. However, the exercise of power by courts in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused in a criminal trial.
- The Supreme Court also issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. This is directed to be applicable to all criminal trials.
- The Bench also held that pursuant to Section 67C of the Information Technology Act, suitable rules for the retention of data involved in trial of offenses, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the metadata should be framed to avoid corruption.
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