Evidence Act, 1872 – ss.3, 22A, 45A, 61-65, 65A, 65B, 136 –
Interpretation of s.65B – Electronic records – Admissibility of –
Appellant’s election challenged on the ground that his nomination
papers having been filed after the stipulated time ought to have
been rejected – Respondents relied on video camera recordings of
the office of Returning Officer (RO) – Video recordings produced
by Election Commission without requisite certificate u/s.65-B(4) –
However, admitted in evidence by High Court, relying upon oral
evidence of RO in cross examination – Election of the appellant
declared void – Matter referred to three judges stating that in view
of Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three Judge
Bench), Division Bench judgment in Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801 may need reconsideration – Held:
Per R.F. Nariman, J. (for himself, S. Ravindra Bhat and
V. Ramasubramanian, JJ.) Special provisions of ss.65A and 65B
are a complete Code in themselves when it comes to admissibility of
evidence of information contained in electronic records – A written
certificate u/s.65B(4) is a sine qua non for admissibility of such
evidence – Oral evidence in place of such certificate cannot suffice
as s.65B(4) is mandatory – However, on facts, the respondents
having done everything possible to obtain the necessary certificate
are relieved of the mandatory obligation – Moreover, apart from
electronic record, other evidence was also relied upon by High Court
to arrive at the same conclusion – Impugned judgment not faulted
– Further, certificate u/s.65B(4) is unnecessary if the original
document itself is produced – Anvar P.V., as clarified, is the law on
s.65B – Shafhi Mohammad and the judgment dtd. 03.04.18 reported
as [2018] 3 SCR 1096 are overruled – Per V. Ramasubramanian J.
(Supplementing) Major jurisdictions of the world have come to
[2020] 7 S.C.R. 180
180
A
B
C
D
E
F
G
H
181
terms with the development of technology and fine-tuned their
legislations – Need for a relook at s.65B – Information Technology
Act, 2000 – ss.2(i), (j), (l), (o), (r) & (t) – Representation of the
People 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: General
directions issued to cellular companies & internet service providers,
to be followed by courts dealing with electronic evidence, till rules
and directions u/s.67(C) are formulated for compliance by telecom
and 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) starts
with a non-obstante clause excluding the application of the other
provisions and makes the certification a precondition for
admissibility – Such admissibility as the first check post, coupled
with the fact that a number of ‘computer systems’ (defined in s.2(l),
2000 Act) owned by different individuals, may get involved in the
production of an electronic record, with the ‘originator’ (defined in
s.2(za), 2000 Act) being different from the recipients or the sharers,
has created lot of acrimony behind s.65B – Information Technology
Act, 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 – Canada
Evidence Act, 1985 – s.31.1-31.3, 31.5 & 31.6.
Evidence Act, 1872 – s.65B(4) – Certificate under – When
unnecessary – Discussed.
Evidence Act, 1872 – ss.65B(2)(a) to (d) and 65B(4) –
Conditions mentioned under – Held: Conditions mentioned in subsections 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 – Purport
of – Discussed.
Maxims – lex non cogit ad impossibilia; impotentia excusat legem
– Application of – Discussed – Evidence Act, 1872 – s.65B(4).
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL
A
B
C
D
E
F
G
H
182 SUPREME COURT REPORTS [2020] 7 S.C.R.
Evidence Act, 1872 – s.65B(4) – Certificate under – Stage of
production – Held: So long as the hearing in a trial is not yet over,
the requisite certificate can be directed to be produced by the Judge
at any stage – Criminal Law – Criminal Trial – Stage of admitting
evidence – Code of Criminal Procedure, 1973 – ss.91, 207, 311.
Words & Expressions –”doing any of the following things” –
Held: Aforesaid expression must be read as doing all of the following
things – “any” can mean “all” given the context – Interpretation of
Statutes – Evidence Act, 1872 – s.65B(4).
Evidence Act, 1872 – ss.65B(4), 165 – Certificate under –
Production 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 persons
who are not in possession of an electronic device is wholly incorrect
– An application can always be made to a Judge for production of
such a certificate from the requisite person u/s.65B(4) in cases in
which 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 – Operation
of – Held: Sub-s. (1) of s.65B begins with a non-obstante clause and
then mentions information contained in an electronic record
produced by a computer, which is made a “document” by a deeming
fiction – This deeming fiction only takes effect if the further
conditions mentioned in the section are satisfied in relation to both
the information and the computer in question – If such conditions
are met, the “document” shall then be admissible in any proceedings.
Representation of the People Act, 1951 – s.100(1)(d)(i) – Held:
Where the person whose nomination has been improperly accepted
is the returned candidate himself, the conclusion has to be that the
result of the election would be “materially affected”, without there
being any necessity to plead and prove the same.
No comments:
Post a Comment