Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

Supreme Court of India · 14 July 2020 · 3 judges

A certificate under Section 65B(4), Evidence Act is a condition precedent to admitting secondary evidence of an electronic record; Anvar P.V. was affirmed as clarified, and Shafhi Mohammad and Tomaso Bruno were held not to state the law correctly.

Facts

The appellant won a Maharashtra Legislative Assembly seat from the Jalna constituency in 2014 by 296 votes. The respondents filed election petitions in the Bombay High Court alleging that two of his nomination forms were presented after the 3.00 p.m. deadline on 27.09.2014 and were improperly accepted. They relied on video recordings made at the Returning Officer's office. The High Court ordered the Election Commission to produce the recordings with the necessary certificates, but no proper certificate under Section 65B(4) was furnished. The High Court declared the election void. A Division Bench of the Supreme Court referred the appeals to three Judges, doubting Shafhi Mohammad v. State of Himachal Pradesh in light of Anvar P.V. v. P.K. Basheer.

Questions before the Court

Is a certificate under Section 65B(4) of the Evidence Act mandatory for admitting secondary evidence of an electronic record, or can it be relaxed or replaced by oral evidence?
At what stage must the certificate be produced, and what if the party cannot obtain it from the person who must give it?
Was the election rightly set aside on the evidence in this case?

What the Court held

The certificate under Section 65B(4) is a condition precedent to the admissibility of an electronic record as secondary evidence, as held in Anvar P.V. Oral evidence cannot take its place. Shafhi Mohammad and the 2018 judgment following it were overruled, and Tomaso Bruno, being per incuriam, does not lay down the law correctly.
No certificate is needed if the original document is produced, for example by the owner of a laptop or mobile phone proving the device in the witness box. Where the computer is part of a system or network that cannot be brought to court, Section 65B(1) with the certificate is the only route. Anvar P.V. was clarified accordingly.
Section 65B does not fix the stage for the certificate. It can be directed to be produced at any stage while the trial is not over; in criminal trials the court must ensure the accused is not prejudiced. A party unable to get the certificate may apply to the court to order its production.
On the facts, the respondents had done everything possible to obtain the certificate from a third party they could not control, so they were relieved of the obligation; the High Court also relied on other evidence. The appeals were dismissed with costs.
General directions were issued to preserve call records and other electronic records seized during investigation, and rules under Section 67C of the Information Technology Act were recommended.

Why it matters

A three-Judge Bench settled the conflict over Section 65B by affirming Anvar P.V., overruling Shafhi Mohammad and declaring Tomaso Bruno per incuriam. It holds the certificate mandatory for secondary electronic evidence, explains when no certificate is needed because the original is produced, allows the certificate to be produced at a later stage of the trial, and issues directions on retention of electronic records.

In the Court's words

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

“We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.”

R.F. Nariman, J.Page 70 of the judgment

“The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him.”

R.F. Nariman, J.Page 81 of the judgment

“Thus, it is clear that the major premise of Shafhi Mohammad (supra) 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 under Section 65B(4) in cases in which such person refuses to give it.”

R.F. Nariman, J.Page 52 of the judgment

“So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence.”

R.F. Nariman, J.Page 69 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 62, Indian Evidence Act, 1872Now: BSA 57 (NCRB correspondence table)
Section 165, Indian Evidence Act, 1872Now: BSA 168 (NCRB correspondence table)
Section 67C, Information Technology Act, 2000
Section 100(1)(d), Representation of the People Act, 1951

Related judgments

Overrules Shafhi Mohammad v. State of Himachal Pradesh (2018)“Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.” (page 81)
Explains Anvar P.V. v. P.K. Basheer (2014)“Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act.” (page 80)

Case and bench

Parties: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal
Case: Civil Appeal Nos. 20825-20826 of 2017, with Civil Appeal No. 2407 of 2018 and Civil Appeal No. 3696 of 2018
Decided: 14 July 2020
Bench: R.F. Nariman, S. Ravindra Bhat, V. Ramasubramanian
Opinions: Unanimous. Judgment by R.F. Nariman, J., signed by all three Judges; V. Ramasubramanian, J. wrote a separate concurring opinion, agreeing entirely with Nariman, J. and adding a note calling for a relook at Section 65B.

Questions on this case

7 questions in live Law Maker papers mention this case. A few from free papers:

Question 1 · Legal Current Affairs: July 2026
With reference to Himanshu Chordia v. State of Rajasthan (31 July 2026), consider the following statements: 1. The Court restated that the exception in Section 125(4) CrPC does not cover a divorced woman. 2. On the aspect of private investigation, the Court directed that a copy of the judgment be sent to the Secretary, Ministry of Law and Justice, and the Chairman, Law Commission of India. 3. The Court held that photographs and videos collected by a private investigator are admissible without any certificate under Section 65B of the Indian Evidence Act, 1872. Which of the statements given above is/are correct?
1. A. 1 and 2 only
2. B. 1, 2 and 3
3. C. 2 and 3 only
4. D. 2 only
Show the answer
A. 1 and 2 only
Statement 1 restates Vanamala v. H.M. Ranganatha Bhatta, cited in the judgment. Statement 2 reflects the closing direction. Statement 3 is wrong: the Court said such material must be examined on the anvil of Section 65B and referred to Arjun Panditrao Khotkar on the certificate requirement; it remanded the matter to the trial court.