Anvar P.V. v. P.K. Basheer

Supreme Court of India · 18 September 2014 · 3 judges

Secondary evidence of an electronic record is admissible only with a certificate under Section 65B(4) of the Evidence Act; Navjot Sandhu was overruled on this point, and the election petition based on uncertified CDs failed.

Facts

The first respondent was declared elected to the Eranad constituency in the Kerala Legislative Assembly election held on 13.04.2011. The appellant, an independent candidate who came second, filed an election petition under Section 100(1)(b) read with Section 123(4) of the Representation of the People Act, 1951. He alleged corrupt practices through a leaflet accusing him of a murder of which he had been acquitted, and through songs, announcements and speeches. The songs, announcements and speeches were recorded on other instruments, fed into a computer, and CDs made from them were produced in court without any certificate under Section 65B. The High Court dismissed the petition, holding that the corrupt practices were not proved. The appellant appealed to the Supreme Court.

Questions before the Court

How is an electronic record to be proved and admitted in evidence under the Evidence Act?
Can secondary evidence of an electronic record be given under Sections 63 and 65 without the certificate required by Section 65B(4)?
Was the corrupt practice under Section 123(4) of the Representation of the People Act, 1951 proved against the returned candidate?

What the Court held

In view of Sections 59 and 65A, documentary evidence by way of an electronic record can be proved only in accordance with the procedure in Section 65B. Section 65B is a complete code; being a special law, the general provisions of Sections 63 and 65 must yield to it.
A certificate under Section 65B(4) must identify the record, describe how it was produced, give particulars of the device, deal with the conditions in Section 65B(2), and be signed by a responsible official. It must accompany the electronic record, such as a CD, VCD or pen drive, when the record is produced in evidence.
Navjot Sandhu, so far as it held that secondary evidence of an electronic record may be adduced under Sections 63 and 65 irrespective of Section 65B, does not lay down the correct law and is overruled. Proof of an electronic record by oral evidence is not permitted if Section 65B is not complied with.
If an electronic record itself is used as primary evidence under Section 62, it is admissible without complying with Section 65B. Only after a record is duly produced under Section 65B does a question of genuineness arise, for which Section 45A may be used.
The CDs here carried no Section 65B certificate and were inadmissible. Section 123(4) requires consent, not mere knowledge or connivance, and no consent of the returned candidate to the leaflet was proved. The appeal was dismissed.

Why it matters

The judgment lays down that Sections 65A and 65B form a complete code for secondary evidence of electronic records and that the Section 65B(4) certificate is a condition of admissibility. It overrules State (NCT of Delhi) v. Navjot Sandhu on the point that such evidence may be led under Sections 63 and 65. It also separates admissibility from genuineness and recognises that an original electronic record produced as primary evidence needs no certificate.

In the Court's words

Copied from the official judgment; each passage links to its page.

“Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.”

Kurian Joseph, J.Page 11 of the judgment

“Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.”

Kurian Joseph, J.Page 14 of the judgment

“Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied.”

Kurian Joseph, J.Page 18 of the judgment

“It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act.”

Kurian Joseph, J.Page 19 of the judgment

Provisions interpreted

Section 65B, Indian Evidence Act, 1872Now: BSA 63 (NCRB correspondence table)
Section 65A, Indian Evidence Act, 1872Now: BSA 62 (NCRB correspondence table)
Section 59, Indian Evidence Act, 1872Now: BSA 54 (NCRB correspondence table)
Section 63, Indian Evidence Act, 1872Now: BSA 58 (NCRB correspondence table)
Section 65, Indian Evidence Act, 1872Now: BSA 60 (NCRB correspondence table)
Section 62, Indian Evidence Act, 1872Now: BSA 57 (NCRB correspondence table)
Section 45A, Indian Evidence Act, 1872Now: BSA 39(2) (NCRB correspondence table)
Section 123(4) read with Section 100(1)(b), Representation of the People Act, 1951

Related judgments

Overrules State (NCT of Delhi) v. Navjot Sandhu (2005)“the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so.” (page 18)
Explained in Shafhi Mohammad v. State of Himachal Pradesh (2018)
Explained in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020)

Case and bench

Parties: Anvar P.V. v. P.K. Basheer
Case: Civil Appeal No. 4226 of 2012
Decided: 18 September 2014
Bench: R. M. Lodha, CJI, Kurian Joseph, J., Rohinton Fali Nariman, J.
Opinions: Unanimous. The judgment was written by Kurian Joseph, J. and signed by R. M. Lodha, CJI and Rohinton Fali Nariman, J.

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