Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal And Ors. (Supreme Court of India)
(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as 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.
(b) The clarification referred to above is that the required certificate under Section 65B(4) of of the Evidence Act 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. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.
Iit is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu to Anvar P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 20825-20826 OF 2017
ARJUN PANDITRAO KHOTKAR …Appellant
Versus
KAILASH KUSHANRAO GORANTYAL AND ORS. …Respondents
WITH
CIVIL APPEAL NO.2407 OF 2018
CIVIL APPEAL NO.3696 OF 2018
J U D G M E N T
R.F. Nariman, J.
1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-20826 of 2017 is allowed.
2. These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 (“Evidence Act”) by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength.
3. The brief facts necessary to appreciate the controversy in the present case, as elucidated in Civil Appeals 20825-20826 of 2017, are as follows:
i. Two election petitions were filed by the present Respondents before the Bombay High Court under Sections 80 and 81 of the Representation of the People Act, 1951, challenging the election of the present Appellant, namely, Shri Arjun Panditrao Khotkar (who is the Returned Candidate [hereinafter referred to as the “RC”] belonging to the Shiv Sena party from 101-Jalna Legislative Assembly Constituency) to the Maharashtra State Legislative Assembly for the term commencing November, 2014. Election Petition No.6 of 2014 was filed by the defeated Congress (I) candidate Shri Kailash Kishanrao Gorantyal, whereas Election Petition No.9 of 2014 was filed by one Shri Vijay Chaudhary, an elector in the said constituency. The margin of victory for the RC was extremely narrow, namely 296 votes – the RC having secured 45,078 votes, whereas Shri Kailash Kishanrao Gorantyal secured 44,782 votes.
ii. The entirety of the case before the High Court had revolved around four sets of nomination papers that had been filed by the RC. It was the case of the present Respondents that each set of nomination papers suffered from defects of a substantial nature and that, therefore, all four sets of nomination papers, having been improperly accepted by the Returning Officer of the Election Commission, one Smt. Mutha, (hereinafter referred to as the “RO”), the election of the RC be declared void. In particular, it was the contention of the present Respondents that the late presentation of Nomination Form Nos. 43 and 44 by the RC – inasmuch as they were filed by the RC after the stipulated time of 3.00 p.m. on 27.09.2014 – rendered such nomination forms not being filed in accordance with the law, and ought to have been rejected.
iii. In order to buttress this submission, the Respondents sought to rely upon video-camera arrangements that were made both inside and outside the office of the RO. According to the Respondents, the nomination papers were only offered at 3.53 p.m. (i.e. beyond 3.00 p.m.), as a result of which it was clear that they had been filed out of time. A specific complaint making this objection was submitted by Shri Kailash Kishanrao Gorantyal before the RO on 28.09.2014 at 11.00 a.m., in which it was requested that the RO reject the nomination forms that had been improperly accepted. This request was rejected by the RO on the same day, stating that the nomination forms had, in fact, been filed within time.
4. Given the fact that allegations and counter allegations were made as to the time at which the nomination forms were given to the RO, and that videography was available, the High Court, by its order dated 16.03.2016, ordered the Election Commission and the concerned officers to produce the entire record of the election of this Constituency, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the ‘necessary certificates’.
5. In compliance with this order, such video recordings were produced by the Election Commission, together with a certificate issued with regard to the CDs/VCDs, which read as follows:
“Certificate
This is to certify that the CDs in respect of video recording done on two days of filing nomination forms of date 26.9.2014 and 27.9.2014 which were present in the record are produced.
6. Sd/-
Asst. Returning Officer
101 Jalna Legislative Assembly
Constituency/Tahsildar
Jalna
Sd/-
Returning Officer
101 Jalna Legislative Assembly
Constituency/Tahsildar
Jalna”
Transcripts of the contents of these CDs/VCDs were prepared by the High Court itself. Issue nos.6 and 7 as framed by the High Court (and its answers to these issues) are important, and are set out in the impugned judgment dated 24.11.2017, and extracted hereinbelow:
