Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors
(2020) 7 SCC 1 : (2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587
In the Supreme Court of India
Civil Appeal 20825-20826/2017, 2407/2018, 3696/2018
Before Justice R.F. Nariman, Justice S. Ravindra Bhat, and Justice V. Ramasubramanian
Decided on July 14, 2020

Relevancy of the Case: Admissibility of electronic records as secondary evidence and the requirement of Section 65B certificate

Statutes and Provisions Involved

• The Indian Evidence Act, 1872 (Section 14, 22A, 62, 65A, 65B, 136, 165,
• The Information Technology Act, 2000 (Section 39, 45, 67C)
• The Code of Criminal Procedure, 1973 (Section 91, 207, 311)
• The Representation of the People Act, 1951 (Section 80, 81, 100)
• The Civil Procedure Code, 1908 (Order XVI Rule 6, 7, 10)

Relevant Facts of the Case

• The respondents filed two appeals before the High Court under Sections 80 and 81 of the Representation of the People Act, 1951. These appeals challenged the election of the present appellant.
• The appellant had filed four sets of nomination papers before the Returning Officer. The respondents claimed that these nomination papers suffered from severe defects. The Returning Officer improperly accepted the nominations, the court must declare the appellant’s election void.
• The respondents claim the appellant submitted his nomination papers after the stipulated time. However, the appellant clearly disputed this claim.
• On March 16, 2016, the High Court ordered the Election Commission to produce the entire election record, including original video recordings with necessary certificates.
• In the impugned judgement, the High Court held that CDs produced by the Election Commission could not be treated as an original record. The Returning Officer, or the Commission, did not produce a written certificate, as required by Section 65B of the Indian Evidence Act, 1872.
• The High Court further relied on the cross-examination of the Returning Officer. She stated that there were no complaints regarding the working of video cameras used in her office. The High Court considered the Returning Officer’s oath on evidence equivalent to fulfilling Section 65B requirements.

Prominent Argument by the Advocates

The appellant’s counsel:

• He submitted that the Anvar P.V. judgement covers the issue before the court. In Tomaso Bruno v. State of Uttar Pradesh (2015) 7 SCC 178, the court did not notice Section 65B nor the judgement in the Anvar P.V. case.
• In the Shafhi Mohammad case, the bench was a two-judge bench. This bench could not have arrived at a finding contradictory to the three-judge bench decision in the Anvar P.V. case.

The respondents’ counsel:

• She argued that the High Court had directed the Election Commission to produce original CDs of the video recordings from the Returning Officer’s office. The respondents also applied to the District Election Commission for a Section 65B certificate.
• In one of the responses, the authorities responded that they could not issue the certificate since the matter was sub-judice. The oral testimony of the returning officer can amount to the requisite certificate under Section 65B. The High Court, in the impugned judgement, noted multiple times how authorities deliberately refused to give the Section 65B certificate.
• Section 65B is a procedural provision. When a certificate is impossible to get, this should not result in the denial of crucial evidence. She further submitted that the Anvar P.V. case can be a good law only when a party can produce the certificate.

Opinion of the Bench

• A court cannot admit electronic records by way of secondary evidence without satisfying Section 65B requirements. The special provisions of Sections 65A and 65B are a complete code regarding the admissibility of electronic records.
• In the Tomaso Bruno case, the court held per incuriam that secondary evidence of a document’s contents can be led under Section 65 to make CCTV footage admissible. The court did not rely on the observations made in the case of Anvar P.V. v. PK Basheer while deciding this case. The Tomaso Bruno case continued to advert the findings of State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. However, the three-judge bench in the Anvar P.V. case expressly overruled the findings of the Navjot Sandhu case.
• As for the observations in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801, a person, who is not in possession of an electronic device, can make an application before a judge for the production of a Section 65B certificate from the requisite person. Section 65B does not specify the stage at which a party must submit the certificate to the court. However, in this situation, or when the certificate is defective, the court can summon the concerned person, under Section 165, to produce the certificate.
• In the case of criminal trials, the prosecution must apply all the documents before the trial starts. The only exception to this general rule is that such evidence does not result in severe or irreversible prejudice to the accused. For this, the court relied on CBI v. R.S. Pai, (2002) 5 SCC 82.
• In the present case, the respondents have made all possible efforts to get the requisite certificate under Section 65B. However, the authorities have wilfully refused to give the certificate under one pretext or another.
• Justice V. Ramasubramanian, in his supplementing judgement, discusses how Section 65B as a precondition is similar to the second part of Section 136. He also elaborated on the legislative developments in USA, UK, and Canada on the admissibility of electronic records.

Final Decision

• The court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records in line with Section 39 of the Indian Evidence Act, 1872. These directions shall be applicable till necessary directions under Section 67C of the Information Technology Act, 2000 are issued.
• The court overruled the judgements of Tomaso Bruno and Shafhi Mohammad cases and upheld the findings of the Anvar P.V. case.