Facts

Two election petitions were filed by the Respondents before the Bombay High Court under Sections 80 and 81 of the Representation of the People Act, 1951, challenging election of the Appellant on the ground that the nomination papers were filed after the stipulated time of 03.00 p.m. on 27.09.2014. Petitioners had relied upon electronic record of video-camera arrangements (CDs/VCDs), both inside and outside the office of the Returning Officer of the Election Commission,  to prove that the nomination papers were offered only at3.53 p.m. (i.e. beyond

3.00 p.m.). Though there was no written certificate as required by Section 65B(4)  of the Evidence Act, the statement given by the Returning Officer in her cross examination, was taken as a certificate u/s 65B(4). Based on this, it was held that the CDs/VCDs were admissible in evidence, and based upon this evidence it was found that, as a matter of fact, the nomination forms by the Appellant had been improperly accepted. The election of the Appellant was therefore declared void     in the impugned judgment of the High Court.

 

Issue

Section 65B of the Indian Evidence Act, 1872 provides for furnishing of a certificate by the person who relies upon electronic records as evidence; which should be issued by the official who is responsible for operating the relevant devise in order to admit the said electronic record as documentary evidence. The issue before the Apex Court was whether the requirement of certificate under Section 65B(4) of Indian Evidence Act is mandatory for production of electronic evidence?

 

Views

In Anvar P. V . v. P. K. Basheer (2014) 10 SCC 473, Hon’ble Supreme Court held  that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements of furnishing certificate under section 65B are satisfied.

However, in Shafhi Mohammad v. The State of Himachal Pradesh (2018) 2 SCC 801 it was held that requirement of a certificate under section 65B was merely procedural and could be relaxed by the court in cases where party wanting to

 

 

produce secondary electronic record is unable to obtain the necessary certificate because of non-possession of relevant device.

 

Held

On account of the above mentioned conflicting pronouncements; matter in the present case was referred to the larger bench by the two judge bench.

The Hon’ble Court observed that the three Judge Bench decision in Tomaso Bruno

1973. State of U.P. [(2015) 7 SCC 178, which was relied upon heavily in case of Shafhi Mohammad v. The State of HimachalPradesh (supra), was per incuriam. The major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device was wholly incorrect. All the efforts should be made to obtain the requisite certificate by  the party u/s. 65B and if still the concerned authority refuses to provide such certificate or does not reply, then in such case the party can approach the court seeking production of such certificate from the concerned authority. Once such application is made to the court or when defective certificate is issued; the court will order/direct the concerned authority through summon to issue the requisite certificate. An application can always be made to a Judge for production of such     a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. Recourse can be had to section 165 of the Indian Evidence Act,  1872 or Order XVI of the Civil Procedure Code, 1908 or section 91  of the Code of Criminal Procedure, 1973.

It was held that the certificate required under Section 65B(4) of the Indian Evidence Act, 1872 is a condition precedent to the admissibility of evidence by  way of electronic record.

The law laid down in Anvar P. V. v. P. K. Basheer (Supra) was held as  the correct legal position and decision in case of Shafhi Mohammad v. The State of Himachal Pradesh (supra) was overruled.

It was clarified that requirement of certificate under section 65B is not necessary when the original document (primary evidence) itself is produced.

Section 67C of the Information Technology Act, 2000 provides for Preservation  and retention of information and the Hon’ble Court directed that appropriate rules and directions should be framed relating to retention of data involved in   trial of offences, their segregation, rules of chain of custody, stamping and record maintenance for the entire duration of trials and appeals and also in case of preservation of meta-data to avoid any corruption of data.

In a separate but concurring judgement, Justice V. Ramasubramanian also observed that with ever-changing developments in technology and considering amendments

 

 

made by various legislations of the world, there is need to relook at Section 65B     of the Indian Evidence Act.

Editorial: Use of digital means of record is common and the judgment is a good guide for retention and production of evidence in digital format before the Hon’ble Courts.

“Self-respect knows no considerations.”

– Mahatma Gandhi