Anavar Pv V. Pk Basheer (2014) – Admissibility Of Electronic Evidence

• Bench: Kurian Joseph, Rohinton Fali Nariman
• Appellant: Anvar PV
• Respondent: PK Basheer & Ors

Issues

• Whether the respondent’s election to the Eranad Legislative Assembly could be set aside?
• Whether the electronic evidence provided by the appellant is admissible under the Indian Evidence Act?
• Whether the High Court was right in rejecting the election petition?

Facts

• This case relates to the election held to the constituency of Eranad Legislative Assembly.
• In this election, the respondent who was supported by the United Democratic Front had won.
• The appellant who was contesting elections independently and was supported by the Left had secured the second highest number of votes.
• However, the appellant had filed an election petition afterwards to declare that the rightly elected candidate was the appellant for the Eranad Legislative Assembly and to set aside the election of the respondent.
• This election petition sought this declaration under sections 100(1)(b), 123(2)(ii) & 123(4) of the Representation of Peoples Act.
• The High Court of Kerala, however, rejected this election petition as the allegations could not be proved beyond reasonable doubt.
• Hence, this appeal got filed before the Supreme Court of India.

Appellant’s contentions

The appellant’s contentions were as follows:

• The election of the respondent to the Eranad Legislative Assembly is void under section 100(1)(b) of the Representation of People Act.
• The respondent had indulged in corrupt election practices.
• The respondent is also liable under sections 123(2)(iii) ans 123(4) of the Representation of People Act due to the printing of Annexure A in the election publicities.

Respondent’s contentions

The respondent contended the following:

• His election to the Eranad Legislative Assembly is not void under section 100(1)(b) of the Representation of People Act.
• The electronic evidence submitted by the appellant does not fulfill the requirements of section 65A and 65B of the Indian Evidence Act.
• He only knew about the Annexure and did not give consent for its printing and that there was no proper evidence to prove that he did.
• There is no proper evidence to prove that he indulged in corrupt practices.

Judgment

It was held in this case that the election of the respondent could not be set aside as the appeal brought before the Court has not merit. The case was dismissed on the ground that the fulfillment of the requirements of section 65B is essential for the admissibility of the electronic evidence. The electronic evidence provided by the appellant does not fulfill those requirements.

Relevant Paragraphs

“New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business.” In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.

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. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. 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. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A – opinion of examiner of electronic evidence.

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India

The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.