ARJUN PANDITRAO KHOTKAR vs. KAILASH KUSHANRAO GORANTYAL

Full Judgment Text

ARJUN PA<br>KAILASH<br>R.F. Narim<br>.<br>20826 of 20<br>.<br>honourable<br>ture Not Verified<br>26.07.2019,<br>ly signed by<br>MA KUMARI<br>2020.07.14<br>15 IST<br>n:	REPORTABLE<br>IN THE SUPREME COURT OF INDIA<br>CIVIL APPELLATE JURISDICTION<br>CIVIL APPEAL NOS. 20825-20826 OF 2017<br>NDITRAO KHOTKAR …Appellant<br>Versus<br>KUSHANRAO GORANTYAL AND ORS. …Respondents<br>WITH<br>CIVIL APPEAL NO.2407 OF 2018<br>CIVIL APPEAL NO.3696 OF 2018<br>J U D G M E N T<br>an, J.<br>I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-<br>17 is allowed.<br>These Civil Appeals have been referred to a Bench of three<br>Judges of this Court by a Division Bench reference order dated<br>dealing with the interpretation of Section 65B of the Indian<br>1	REPORTABLE

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 2 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 3 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 4

Thi<br>don<br>26.<br>are<br>Sd/-<br>Asst.<br>101 J<br>Cons<br>Jalna<br>pts of<br>VCDs<br>d by t<br>re set<br>nbelow		s is to certify that the CDs in respect of video recording<br>e on two days of filing nomination forms of date<br>9.2014 and 27.9.2014 which were present in the record<br>produced.
“Issu	“Issu	es	Findings
6. W<br>that t<br>Nos.<br>prese<br>Retur<br>p.m. o		hether the petitioner proves<br>he nomination papers at Sr.<br>43 and 44 were not<br>nted by respondent/<br>ned candidate before 3.00<br>n 27/09/2014 ?	Affirmative. (nomination<br>papers at Sr. Nos. 43<br>and 44 were not<br>presented by RC before<br>3.00 p.m. of 27.9.2014.)

		Sd/-<br>Returning Officer<br>101 Jalna Legislative Assembly<br>Constituency/Tahsildar<br>Jalna”
Sd/-<br>Asst.<br>101 J<br>Cons<br>Jalna	Returning Officer<br>alna Legislative Assembly<br>tituency/Tahsildar	S<br>R<br>1<br>C<br>J

6. 5

7. W<br>that<br>candi<br>forms<br>nomin<br>27/09<br>along<br>Sr. No	hether the petitioner proves<br>the respondent /Returned<br>date submitted original<br>A and B along with<br>ation paper only on<br>/2014 after 3.00 p.m. and<br>with nomination paper at<br>. 44 ?	Affirmative. (A, B forms<br>were presented after<br>3.00 p.m. of 27.9.2014)”
“60<br>Ele<br>rec<br>pro<br>cor<br>lea<br>ma<br>giv<br>Evi<br>this<br>by<br>afte<br>givi<br>RC<br>par<br>unf<br>did<br>of t<br>trie<br>onl<br>with<br>3.0<br>prio<br>cou<br>afo<br>had<br>con

“60 Ele rec pro cor lea ma giv Evi this by afte givi RC par unf did of t trie onl with 3.0 prio cou afo had con

. Many applications were given by the petitioner of ction Petition No. 6/2014 to get the copies of electronic ord in respect of aforesaid incidents with certificate as vided in section 65-B of the Evidence Act. The respondence made with them show that even after ving of the office by Smt. Mutha, the Government chinery, incharge of the record, intentionally avoided to e certificate as mentioned in section 65-B of the dence Act. After production of the record in the Court in regard, this Court had allowed to Election Commission order to give copies of such record to applicants, but r that also the authority avoided to give copies by ng lame excuses. It needs to be kept in mind that the is from political party which has alliance with ruling ty, BJP, not only in the State, but also at the center. It is ortunate that the machinery which is expected to be fair not act fairly in the present matter. The circumstances he present matter show that the aforesaid two officers d to cover up their mischief. However the material gives y one inference that nomination forms Nos. 43 and 44 A, B forms were presented before the RO by RC after 0 p.m. of 27.9.2014 and they were not handed over r to 3.00 p.m. In view of objection of the learned nsels of the RC to using the information contained in resaid VCDs, marked as Article A1 to A6, this Court made order on 11.7.2017 that the objections will be sidered in the judgment itself. This VCDs are already

exh<br>con<br>evi<br>pre	ibited by this Court as Exhs. 70 to 75. Thus, if the<br>tents of the aforesaid VCDs can be used in the<br>dence, then the petitioners are bound to succeed in the<br>sent matters.”
e A<br>rt h<br>e pr<br>rec<br>ry<br>65-<br>and
“69<br>Sm<br>com<br>by<br>wer<br>afo<br>rec<br>rec<br>bro<br>arra<br>like<br>vie<br>her<br>Thu<br>sai<br>Evi<br>ele	. In substantive evidence, in the cross examination of<br>t. Mutha, it is brought on the record that there was no<br>plaint with regard to working of video cameras used<br>the office. She has admitted that the video cameras<br>e regularly used in the office for recording the<br>resaid incidents and daily VCDs were collected of the<br>ording by her office. This record was created as the<br>ord of the activities of the Election Commission. It is<br>ught on the record that on the first floor of the building,<br>ngement was made by keeping electronic gazettes<br>VCR players etc. and arrangement was made for<br>wing the recording. It is already observed that under<br>instructions, the VCDs were marked of this recording.<br>s, on the basis of her substantive evidence, it can be<br>d that the conditions mentioned in section 65-B of the<br>dence Act are fulfilled and she is certifying the<br>ctronic record as required by section 65-B (4) of the

Evi ma by evi reg issu is e som in ma sec on like rele nee sec the Evi ele rec

dence Act. It can be said that Election Commission, the chinery avoided to give certificate in writing as required section 65-B (4) of the Evidence Act. But, substantive dence is brought on record of competent officer in that ard. When the certificate expected is required to be ed on the basis of best of knowledge and belief, there vidence on oath about it of Smt. Mutha. Thus, there is ething more than the contents of certificate mentioned section 65-B (4) of the Evidence Act in the present tters. Such evidence is not barred by the provisions of tion 65-B of the Evidence Act as that evidence is only certification made by the responsible official position RO. She was incharge of the management of the vant activities and so her evidence can be used and ds to be used as the compliance of the provision of tion 65-B of the Evidence Act. This Court holds that re is compliance of the provision of section 65-B of the dence Act in the present matter in respect of aforesaid ctronic record and so, the information contained in the ord can be used in the evidence.”

her ate Ds nd t pro voi ella b

writing and<br>CDs/VCDs<br>been admitt	signed under Section 65B(4) of the Evidence Act, the<br>upon which the entirety of the judgment rested could not have<br>ed in evidence. He referred to Tomaso Bruno and Anr. v.
State of U	ttar Pradesh	(2015) 7 SCC 178, and argued that the said
	d not notice either Section 65B or Anvar P.V. (supra), and was<br>r incuriam. He also argued that Shafhi Mohammad (supra),<br>-Judge Bench of this Court, could not have arrived at a finding<br>Anvar P.V. (supra), which was the judgment of three Hon’ble<br>his Court. In particular, he argued that it could not have been<br>fhi Mohammad (supra) that whenever the interest of justice<br>e requirement of a certificate could be done away with under<br>(4). Equally, this Court’s judgment dated 03.04.2018, reported<br>SCC 311, which merely followed the law laid down in Shafhi<br>(supra), being contrary to the larger bench judgment in Anvar<br>, should also be held as not having laid down good law. He<br>ed that the Madras High Court judgment in K. Ramajyam v.<br>f Police (2016) Crl. LJ 1542, being contrary to Anvar P.V.<br>o does not lay down the law correctly, in that it holds that<br>iunde, that is outside Section 65B, can be taken in order to<br>9
judgment di	d not notice either Section 65B or
therefore pe<br>being a two<br>contrary to<br>Judges of t<br>held in Sha<br>required, th<br>Section 65B<br>as (2018) 5<br>Mohammad<br>P.V. (supra)<br>further argu<br>Inspector o<br>(supra), als<br>evidence al

make electronic records admissible. In the facts of the present case, he contended that since it was clear that the requisite certificate had not been issued, no theory of “substantial compliance” with the provisions of Section 65B(4), as was held by the impugned judgment, could possibly be sustained in law. 10. Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the Respondents, has taken us in copious detail through the facts of this case, and has argued that the High Court has directed the Election Commission to produce before the Court the original CDs/VCDs of the video-recording done at the office of the RO, along with the necessary certificate. An application dated 16.08.2016 was also made to the District Election Commission and RO as well as the Assistant RO for the requisite certificate under Section 65B. A reply was given on 14.09.2016, that this certificate could not be furnished since the matter was sub-judice. Despite this, later on, on 26.07.2017 her client wrote to the authorities again requesting for issuance of certificate under Section 65B, but by replies dated 31.07.2017 and 02.08.2017, no such certificate was forthcoming. Finally, after having run from pillar to post, her client applied on 26.08.2017 to the Chief Election Commissioner, New Delhi, stating that the authorities 10 were refusing to give her client the necessary certificate under Section 65B and that the Chief Election Commissioner should therefore ensure that it be given to them. To this communication, no reply was forthcoming from the Chief Election Commissioner, New Delhi. Given this, the High Court at several places had observed in the course of the impugned judgment that the authorities deliberately refused, despite being directed, to supply the requisite certificate under Section 65B, as a result of which the impugned judgment correctly relied upon the oral testimony of the RO herself. According to Ms. Arora, such oral testimony taken down in the form of writing, which witness statement is signed by the RO, would itself amount to the requisite certificate being issued under Section 65B(4) in the facts of this case, as was correctly held by the High Court. Quite apart from this, Ms. Arora also stated that - independent of the finding given by the High Court by relying upon CDs/VCDs - the High Court also relied upon other documentary and oral evidence to arrive at the finding that the RC had not handed over nomination forms directly to the RO at 2.20 p.m (i.e. before 3pm). In fact, it was found on the basis of this evidence that the nomination forms were handed over and accepted by the RO only after 3.00 p.m. and 11 were therefore improperly accepted, as a result of which, the election of the Appellant was correctly set aside. 11. On law, Ms. Arora argued that it must not be forgotten that Section 65B is a procedural provision, and it cannot be the law that even where a certificate is impossible to get, the absence of such certificate should result in the denial of crucial evidence which would point at the truth or falsehood of a given set of facts. She, therefore, supported the decision in Shafhi Mohammad (supra), stating that Anvar P.V. (supra) could be considered to be good law only in situations where it was possible for the party to produce the requisite certificate. In cases where this becomes difficult or impossible, the interest of justice would require that a procedural provision be not exalted to such a level that vital evidence would be shut out, resulting in manifest injustice. 12. Shri Vikas Upadhyay, appearing on behalf of the Intervenor, took us through the various provisions of the Information Technology Act, 2000 along with Section 65B of the Evidence Act, and argued that Section 65B does not refer to the stage at which the certificate under Section 65B(4) ought to be furnished. He relied upon a judgment of the High Court of Rajasthan as well as the High Court of Bombay, in addition to Kundan 12

. St<br>at t<br>rin<br>ngs<br>o fa<br>for<br>rifi<br>to a<br>ry<br>ot<br>foll<br>c re<br>e A<br>e Ac		ate 2015 SCC OnLine Del 13647 of the Delhi High Court, to<br>he requisite certificate need not necessarily be given at the time<br>g of evidence but could be at a subsequent stage of the<br>, as in cases where the requisite certificate is not forthcoming<br>ult of the party who tried to produce it, but who had to apply to<br>its production. He also argued that Anvar P.V. (supra) required<br>ed to the extent that Sections 65A and 65B being a complete<br>dmissibility of electronic records, the “baggage” of Primary and<br>Evidence contained in Sections 62 and 65 of the Evidence Act<br>at all be adverted to, and that the drill of Section 65A and 65B<br>owed when it comes to admissibility of information contained in<br>cords.<br>It is now necessary to set out the relevant provisions of the<br>ct and the Information Technology Act, 2000. Section 3 of the<br>t defines “document” as follows:<br>cument.-- "Document" means any matter expressed<br>described upon any substance by means of letters,<br>res or marks, or by more than one of those means,<br>nded to be used, or which may be used, for the<br>pose of recording that matter.”<br>n Section 3 is defined as follows:<br>13
“	Do	cument.	-- "Document" means any matter expressed
or		described upon any substance by means of letters,
figu		res or marks, or by more than one of those means,
inte		nded to be used, or which may be used, for the
pur		pose of recording that matter.”

e” i

“	Ev	idence."
sta		tements which the Court permits or requires to be
ma		de before it by witnesses, in relation to matters of fact
und		er inquiry;

suc		h statements are called oral evidence;

(2)		all documents including electronic records produced for
the		inspection of the Court; such documents are called
doc		umentary evidence.”
ide<br>”, “<br>ic<br>“se<br>ely<br>e o
“	22	A. When oral admission as to contents of
ele		ctronic records are relevant.	-- Oral admissions as to
the		contents of electronic records are not relevant, unless
the		genuineness of the electronic record produced is in
que		stion.”

r o

follows: 14

“	45	A. Opinion of Examiner of Electronic Evidence.
Wh		en in a proceeding, the court has to form an opinion on
any		matter relating to any information transmitted or stored
in a		ny computer resource or any other electronic or digital
for		m, the opinion of the Examiner of Electronic Evidence
refe		rred to in section 79A of the Information Technology
Act		, 2000 (21 of 2000), is a relevant fact.

Exp		lanation	.-- For the purposes of this section, an
Exa		miner of Electronic Evidence shall be an expert.”


“	65	A. Special provisions as to evidence relating to
ele		ctronic record.		--The contents of electronic records
ma		y be proved in accordance with the provisions of
sec		tion 65B.”

“	65	B. Admissibility of electronic records.-			(1)
Not		withstanding anything contained in this Act, any
info		rmation contained in an electronic record which is
prin		ted on a paper, stored, recorded or copied in optical or
ma		gnetic media produced by a computer (hereinafter
refe		rred to as the computer output) shall be deemed to be
als		o a document, if the conditions mentioned in this
sec		tion are satisfied in relation to the information and
com		puter in question and shall be admissible in any
pro		ceedings, without further proof or production of the
orig		inal, as evidence or any contents of the original or of
any		fact stated therein of which direct evidence would be
ad		missible.

(2)		The conditions referred to in sub-section (1) in respect
of a		computer output shall be the following, namely:

(a)		the computer output containing the information was
pro		duced by the computer during the period over which
the		computer was used regularly to store or process

info	rmation for the purposes of any activities regularly
car	ried on over that period by the person having lawful
con	trol over the use of the computer;

(b)	during the said period, information of the kind
con	tained in the electronic record or of the kind from which
the	information so contained is derived was regularly fed
into	the computer in the ordinary course of the said
acti	vities;

(c)	throughout the material part of the said period, the
com	puter was operating properly or, if not, then in respect
of a	ny period in which it was not operating properly or was
out	of operation during that part of the period, was not
suc	h as to affect the electronic record or the accuracy of
its	contents; and

(d)	the information contained in the electronic record
rep	roduces or is derived from such information fed into the
com	puter in the ordinary course of the said activities.

(3)	Where over any period, the function of storing or
pro	cessing information for the purposes of any activities
reg	ularly carried on over that period as mentioned in
cla	use (a) of sub-section (2) was regularly performed by
com	puters, whether-

(a)	by a combination of computers operating over that
per	iod; or

(b)	by different computers operating in succession over
tha	t period; or

(c)	by different combinations of computers operating in
suc	cession over that period; or

(d)	in any other manner involving the successive operation
ove	r that period, in whatever order, of one or more
com	puters and one or more combinations of computers,

all t	he computers used for that purpose during that period
sha	ll be treated for the purposes of this section as
con	stituting a single computer; and references in this
sec	tion to a computer shall be construed accordingly.

(4)	In any proceedings where it is desired to give a
stat	ement in evidence by virtue of this section, a certificate
doi	ng any of the following things, that is to say, -

(a)	identifying the electronic record containing the
stat	ement and describing the manner in which it was
pro	duced;

(b)	giving such particulars of any device involved in the
pro	duction of that electronic record as may be appropriate
for	the purpose of showing that the electronic record was
pro	duced by a computer;

(c)	dealing with any of the matters to which the conditions
me	ntioned in sub-section (2) relate,

and	purporting to be signed by a person occupying a
res	ponsible official position in relation to the operation of
the	relevant device or the management of the relevant
acti	vities (whichever is appropriate) shall be evidence of
any	matter stated in the certificate; and for the purposes of
this	subsection it shall be sufficient for a matter to be
stat	ed to the best of the knowledge and belief of the
per	son stating it.

(5)	For the purposes of this section,

(a)	information shall be taken to be supplied to a computer
if i	t is supplied thereto in any appropriate form and

wh	ether it is so supplied directly or (with or without human
inte	rvention) by means of any appropriate equipment; --

(b)	whether in the course of activities carried on by any
offi	cial, information is supplied with a view to its being
stor	ed or processed for the purposes of those activities by
a c	omputer operated otherwise than in the course of those
acti	vities, that information, if duly supplied to that
com	puter, shall be taken to be supplied to it in the course
of t	hose activities;

(c)	a computer output shall be taken to have been
pro	duced by a computer whether it was produced by it
dire	ctly or (with or without human intervention) by means
of a	ny appropriate equipment.

Exp	lanation.	-- For the purposes of this section any
refe	rence to information being derived from other
info	rmation shall be a reference to its being derived
the	refrom by calculation, comparison or any other
pro	cess.”

on
“(i)<br>oth<br>per<br>ma<br>and<br>com<br>con<br>sys	“computer” means any electronic, magnetic, optical or<br>er high-speed data processing device or system which<br>forms logical, arithmetic, and memory functions by<br>nipulations of electronic, magnetic or optical impulses,<br>includes all input, output, processing, storage,<br>puter software or communication facilities which are<br>nected or related to the computer in a computer<br>tem or computer network;”

“(j)<br>or<br>com	“computer network” means the inter-connection of one<br>more computers or computer systems or<br>munication device through– (i) the use of satellite,

mic<br>com<br>con<br>com<br>is c	rowave, terrestrial line, wire, wireless or other<br>munication media; and (ii) terminals or a complex<br>sisting of two or more interconnected computers or<br>munication device whether or not the inter-connection<br>ontinuously maintained;”

“(l)<br>dev<br>exc<br>cap<br>whi<br>inst<br>logi<br>com	“computer system” means a device or collection of<br>ices, including input and output support devices and<br>luding calculators which are not programmable and<br>able of being used in conjunction with external files,<br>ch contain computer programmes, electronic<br>ructions, input data and output data, that performs<br>c, arithmetic, data storage and retrieval,<br>munication control and other functions;”

“(o)<br>kno<br>pre<br>and<br>has<br>net<br>prin<br>car<br>of t	“data” means a representation of information,<br>wledge, facts, concepts or instructions which are being<br>pared or have been prepared in a formalised manner,<br>is intended to be processed, is being processed or<br>been processed in a computer system or computer<br>work, and may be in any form (including computer<br>touts magnetic or optical storage media, punched<br>ds, punched tapes) or stored internally in the memory<br>he computer;”

“(r)<br>any<br>me<br>com	“electronic form”, with reference to information, means<br>information generated, sent, received or stored in<br>dia, magnetic, optical, computer memory, micro film,<br>puter generated micro fiche or similar device;”

“(t)<br>gen<br>ele<br>fich	“electronic record” means data, record or data<br>erated, image or sound stored, received or sent in an<br>ctronic form or micro film or computer generated micro<br>e;”

e A

19 the Evidence Act deals with the proof of contents of documents, and states that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act defines primary evidence as meaning the document itself produced for the inspection of the court. Section 63 of the Evidence Act speaks of the kind or types of secondary evidence by which documents may be proved. Section 64 of the Evidence Act then enacts that documents must be proved by primary evidence except in the circumstances hereinafter mentioned. Section 65 of the Evidence Act is important, and states that secondary evidence may be given of “ the existence, condition or contents of a document in the following cases …”. 19. Section 65 differentiates between existence, condition and contents of a document. Whereas “existence” goes to “admissibility” of a document, “contents” of a document are to be proved after a document becomes admissible in evidence. Section 65A speaks of “contents” of electronic records being proved in accordance with the provisions of Section 65B. Section 65B speaks of “admissibility” of electronic records which deals with “existence” and “contents” of electronic records being 20 proved once admissible into evidence. With these prefatory observations let us have a closer look at Sections 65A and 65B. 20. It will first be noticed that the subject matter of Sections 65A and 65B of the Evidence Act is proof of information contained in electronic records. The marginal note to Section 65A indicates that “special provisions” as to evidence relating to electronic records are laid down in this provision. The marginal note to Section 65B then refers to “admissibility of electronic records”. 21. Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is 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, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records. 22. Section 65B(2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being 21

ncluded in<br>egularly us<br>egularly ca<br>sub-section<br>dentifies th<br>manner in w<br>n the produ<br>was produc<br>official posi<br>person who<br>appropriate.<br>matter to be<br>stating it”.<br>doing all of<br>any” can<br>udgments i<br>1 “3. The first			conditions 65B(2(a)) to 65(2(d)) is that the computer be<br>ed to store or process information for purposes of activities<br>rried on in the period in question. The conditions mentioned in<br>s 2(a) to 2(d) must be satisfied cumulatively.<br>Under Sub-section (4), a certificate is to be produced that<br>e electronic record containing the statement and describes the<br>hich it is produced, or gives particulars of the device involved<br>ction of the electronic record to show that the electronic record<br>ed by a computer, by either a person occupying a responsible<br>tion in relation to the operation of the relevant device; or a<br>is in the management of “relevant activities” – whichever is<br>What is also of importance is that it shall be sufficient for such<br>stated to the “best of the knowledge and belief of the person<br>Here, “doing any of the following things…” must be read as<br>the following things, it being well settled that the expression<br>mean “all” given the context (see, for example, this Court’s<br>n Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 331 and
	3.	The first	contention is based on an assumption that the word “any one” in Section 76
means only “o			ne of the directors, and only one of the shareholders”. This question as regards
the interpretati			on of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98
to 106 of 195			9 (Chief Inspector of Mines, etc.)	and it has been decided there that the word
“any one” sho			uld be interpreted there as “every one”. Thus under Section 76 every one of the
shareholders o			f a private company owning the mine, and every one of the directors of a public
			22

Om Parkas<br>he conditio<br>being cumul<br>65B was in<br>Bench of thi<br>Act, held:<br>“14<br>rec<br>65-<br>pro<br>dea<br>pur<br>evi<br>ma<br>cla<br>Evi<br>rec<br>cop<br>com<br>con				h v. Union of India (2010) 4 SCC 172). This being the case,<br>ns mentioned in sub-section (4) must also be interpreted as<br>ative.<br>It is now appropriate to examine the manner in which Section<br>terpreted by this Court. In Anvar P.V. (supra), a three Judge<br>s Court, after setting out Sections 65A and 65B of the Evidence<br>. Any documentary evidence by way of an electronic<br>ord under the Evidence Act, in view of Sections 59 and<br>A, can be proved only in accordance with the<br>cedure prescribed under Section 65-B. Section 65-B<br>ls with the admissibility of the electronic record. The<br>pose of these provisions is to sanctify secondary<br>dence in electronic form, generated by a computer. It<br>y be noted that the section starts with a non obstante<br>use. Thus, notwithstanding anything contained in the<br>dence Act, any information contained in an electronic<br>ord which is printed on a paper, stored, recorded or<br>ied in optical or magnetic media produced by a<br>puter shall be deemed to be a document only if the<br>ditions mentioned under sub-section (2) are satisfied,
company own				ing the mine is liable to prosecution. No question of violation of Article 14
therefore arise				s.”
2 “70. Perusal
	70.		Perusal	of the opinion of the Full Bench in			B.R. Gupta-I	[Balak Ram Gupta		v.	Union of
India		, AIR 198		7 Del 239] would clearly		indicate with regard to interpretation of the word “any”
in Explanation				1 to the first	proviso to Section 6		of the Act which expands the scope of stay
order granted i				n one case of landowners to be automatically extended to all those landowners,
whose lands a				re covered under the notifications issued under Section 4 of the Act					, irrespective
of the fact wh				ether there was any separate order of stay or not as regards their lands. The
logic assigned				by the Full Bench, the relevant portions whereof have been reproduced
hereinabove, a				ppear to be reasonable, apt, legal and proper.”

“14 rec 65- pro dea pur evi ma cla Evi rec cop com con

. Any documentary evidence by way of an electronic ord under the Evidence Act, in view of Sections 59 and A, can be proved only in accordance with the cedure prescribed under Section 65-B. Section 65-B ls with the admissibility of the electronic record. The pose of these provisions is to sanctify secondary dence in electronic form, generated by a computer. It y be noted that the section starts with a non obstante use. Thus, notwithstanding anything contained in the dence Act, any information contained in an electronic ord which is printed on a paper, stored, recorded or ied in optical or magnetic media produced by a puter shall be deemed to be a document only if the ditions mentioned under sub-section (2) are satisfied,

	(emphasis added)

with<br>ad<br>whi<br>sati<br>Foll<br>B(2	out further proof or production of the original. The very<br>missibility of such a document i.e. electronic record<br>ch is called as computer output, depends on the<br>sfaction of the four conditions under Section 65-B(2).<br>owing are the specified conditions under Section 65-<br>) of the Evidence Act:

(i)<br>hav<br>ove<br>pro<br>reg<br>law	The electronic record containing the information should<br>e been produced by the computer during the period<br>r which the same was regularly used to store or<br>cess information for the purpose of any activity<br>ularly carried on over that period by the person having<br>ful control over the use of that computer;

(ii)<br>rec<br>wa<br>of t	The information of the kind contained in electronic<br>ord or of the kind from which the information is derived<br>s regularly fed into the computer in the ordinary course<br>he said activity;

(iii)<br>com<br>not<br>had<br>con	During the material part of the said period, the<br>puter was operating properly and that even if it was<br>operating properly for some time, the break or breaks<br>not affected either the record or the accuracy of its<br>tents; and

(iv)<br>rep<br>com	The information contained in the record should be a<br>roduction or derivation from the information fed into the<br>puter in the ordinary course of the said activity.

15.<br>des<br>to<br>foll	Under Section 65-B(4) of the Evidence Act, if it is<br>ired to give a statement in any proceedings pertaining<br>an electronic record, it is permissible provided the<br>owing conditions are satisfied:

(a)<br>ele	There must be a certificate which identifies the<br>ctronic record containing the statement;
(b)<br>ele	The certificate must describe the manner in which the<br>ctronic record was produced;

(c)<br>inv	The certificate must furnish the particulars of the device<br>olved in the production of that record;
(d)<br>me	The certificate must deal with the applicable conditions<br>ntioned under Section 65-B(2) of the Evidence Act; and
(e)<br>res<br>the	The certificate must be signed by a person occupying a<br>ponsible official position in relation to the operation of<br>relevant device.

16.	It is further clarified that the person need only to state
in	the certificate that the same is to the best of his
kno	wledge and belief. Most importantly, such a certificate
mu	st accompany the electronic record like computer
prin	tout, 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
evi	dence. All these safeguards are taken to ensure the
sou	rce and authenticity, which are the two hallmarks
per	taining to electronic record sought to be used as
evi	dence. Electronic records being more susceptible to
tam	pering, alteration, transposition, excision, etc. without
suc	h safeguards, the whole trial based on proof of
ele	ctronic records can lead to travesty of justice.

17.	Only if the electronic record is duly produced in terms
of	Section 65-B of the Evidence Act, would the question
aris	e as to the genuineness thereof and in that situation,
res	ort can be made to Section 45-A—opinion of Examiner
of E	lectronic Evidence.

18.	The Evidence Act does not contemplate or permit the
pro	of of an electronic record by oral evidence if
req	uirements under Section 65-B of the Evidence Act are
not	complied with, as the law now stands in India.

xxx	xxx xxx

20.	Proof of electronic record is a special provision
intr	oduced by the IT Act amending various provisions

und	er the Evidence Act. The very caption of Section 65-A
of t	he Evidence Act, read with Sections 59 and 65-B is
suff	icient to hold that the special provisions on evidence
rela	ting to electronic record shall be governed by the
pro	cedure prescribed under Section 65-B of the Evidence
Act	. That is a complete code in itself. Being a special law,
the	general law under Sections 63 and 65 has to yield.

21.<br>Ben<br>on<br>con<br>the<br>150	In State (NCT of Delhi) v. Navjot Sandhu a two-Judge<br>ch of this Court had an occasion to consider an issue<br>production of electronic record as evidence. While<br>sidering the printouts of the computerised records of<br>calls pertaining to the cellphones, it was held at para<br>as follows: (SCC p. 714)

“15<br>me<br>fro<br>the<br>com<br>sec<br>add<br>eas<br>con<br>whi<br>Tha<br>276<br>by<br>offi<br>evi<br>sig<br>the<br>the<br>whi<br>rec<br>und<br>Sec<br>con	0. According to Section 63, “secondary evidence”<br>ans and includes, among other things, ‘copies made<br>m the original by mechanical processes which in<br>mselves insure the accuracy of the copy, and copies<br>pared with such copies’. Section 65 enables<br>ondary evidence of the contents of a document to be<br>uced if the original is of such a nature as not to be<br>ily movable. It is not in dispute that the information<br>tained in the call records is stored in huge servers<br>ch cannot be easily moved and produced in the court.<br>t is what the High Court has also observed at para<br>. Hence, printouts taken from the computers/servers<br>mechanical process and certified by a responsible<br>cial of the service-providing company can be led in<br>dence through a witness who can identify the<br>natures of the certifying officer or otherwise speak of<br>facts based on his personal knowledge. Irrespective of<br>compliance with the requirements of Section 65-B,<br>ch is a provision dealing with admissibility of electronic<br>ords, there is no bar to adducing secondary evidence<br>er the other provisions of the Evidence Act, namely,<br>tions 63 and 65. It may be that the certificate<br>taining the details in sub-section (4) of Section 65-B is

not<br>sec<br>per<br>me<br>and	filed in the instant case, but that does not mean that<br>ondary evidence cannot be given even if the law<br>mits such evidence to be given in the circumstances<br>ntioned in the relevant provisions, namely, Sections 63<br>65.”

It m<br>offi<br>pro<br>als<br>pro<br>Act<br>com<br>is<br>ele<br>evi<br>rec	ay be seen that it was a case where a responsible<br>cial had duly certified the document at the time of<br>duction itself. The signatures in the certificate were<br>o identified. That is apparently in compliance with the<br>cedure prescribed under Section 65-B of the Evidence<br>. However, it was held that irrespective of the<br>pliance with the requirements of Section 65-B, which<br>a special provision dealing with admissibility of the<br>ctronic record, there is no bar in adducing secondary<br>dence, under Sections 63 and 65, of an electronic<br>ord.”

22.	The evidence relating to electronic record, as noted
her	einbefore, being a special provision, the general law on
sec	ondary evidence under Section 63 read with Section
65	of the Evidence Act shall yield to the same.				Generalia
spe	cialibus non derogant		, special law will always prevail
ove	r the general law. It appears, the court omitted to take
not	e of Sections 59 and 65-A dealing with the admissibility
of	electronic record. Sections 63 and 65 have no
app	lication in the case of secondary evidence by way of
ele	ctronic record; the same is wholly governed by
Sec	tions 65-A and 65-B. To that extent, the statement of
law	on admissibility of secondary evidence pertaining to
ele	ctronic record, as stated by this Court in			Navjot Sandhu
cas	e	, does not lay down the correct legal position. It
req	uires to be overruled and we do so. An electronic
rec	ord by way of secondary evidence shall not be
ad	mitted in evidence unless the requirements under
Sec	tion 65-B are satisfied. Thus, in the case of CD, VCD,
chi	p, etc., the same shall be accompanied by the
cer	tificate in terms of Section 65-B obtained at the time of

taki	ng the document, without which, the secondary
evi	dence pertaining to that electronic record, is
ina	dmissible.

23.	The appellant admittedly has not produced any
cer	tificate in terms of Section 65-B in respect of the CDs,
Ext	s. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-
22.	Therefore, the same cannot be admitted in evidence.
Thu	s, the whole case set up regarding the corrupt practice
usi	ng songs, announcements and speeches fall to the
gro	und.

24.	The situation would have been different had the
app	ellant adduced primary evidence, by making available
in e	vidence, the CDs used for announcement and songs.
Ha	d those CDs used for objectionable songs or
ann	ouncements been duly got seized through the police or
Ele	ction Commission and had the same been used as
pri	mary evidence, the High Court could have played the
sam	e in court to see whether the allegations were true.
Tha	t is not the situation in this case. The speeches, songs
and	announcements were recorded using other
inst	ruments and by feeding them into a computer, CDs
wer	e made therefrom which were produced in court,
with	out due certification. Those CDs cannot be admitted in
evi	dence since the mandatory requirements of Section 65-
B o	f the Evidence Act are not satisfied. It is clarified that
not	withstanding what we have stated herein in the
pre	ceding paragraphs on the secondary evidence of
ele	ctronic record with reference to Sections 59, 65-A and
65-	B of the Evidence Act, if an electronic record as such is
use	d as primary evidence under Section 62 of the
Evi	dence Act, the same is admissible in evidence, without
com	pliance with the conditions in Section 65-B of the
Evi	dence Act.”

dgm<br>as<br>e A<br>e f<br>in	Shri Upadhyay took exception to the language of paragraph 24<br>ent. According to the learned counsel, primary and secondary<br>to documents, referred to in Sections 61 to Section 65 of the<br>ct, should be kept out of admissibility of electronic records,<br>act that Sections 65A and 65B are a complete code on the<br>At this juncture, it is important to note that Section 65B has its<br>Section 5 of the Civil Evidence Act 1968 (UK), which reads as<br>missibility of statements produced by computers.<br>In any civil proceedings a statement contained in a<br>ument produced by a computer shall, subject to rules<br>court, be admissible as evidence of any fact stated<br>rein of which direct oral evidence would be admissible,<br>is shown that the conditions mentioned in subsection<br>below are satisfied in relation to the statement and<br>puter in question.<br>The said conditions are—<br>that the document containing the statement was<br>duced by the computer during a period over which the<br>puter was used regularly to store or process<br>rmation for the purposes of any activities regularly<br>ried on over that period, whether for profit or not, by<br>body, whether corporate or not, or by any individual;<br>29
“Ad	missibility of statements produced by computers.

(1)<br>doc<br>of<br>the<br>if it<br>(2)<br>com	In any civil proceedings a statement contained in a<br>ument produced by a computer shall, subject to rules<br>court, be admissible as evidence of any fact stated<br>rein of which direct oral evidence would be admissible,<br>is shown that the conditions mentioned in subsection<br>below are satisfied in relation to the statement and<br>puter in question.

(2)	The said conditions are—

(a)<br>pro<br>com<br>info<br>car<br>any	that the document containing the statement was<br>duced by the computer during a period over which the<br>puter was used regularly to store or process<br>rmation for the purposes of any activities regularly<br>ried on over that period, whether for profit or not, by<br>body, whether corporate or not, or by any individual;

subject. follows:

(b)<br>com<br>info<br>kin	that over that period there was regularly supplied to the<br>puter in the ordinary course of those activities<br>rmation of the kind contained in the statement or of the<br>d from which the information so contained is derived;

(c)<br>com<br>res<br>of o<br>to a<br>its	that throughout the material part of that period the<br>puter was operating properly or, if not, that any<br>pect in which it was not operating properly or was out<br>peration during that part of that period was not such as<br>ffect the production of the document or the accuracy of<br>contents; and

(d)<br>rep<br>com	that the information contained in the statement<br>roduces or is derived from information supplied to the<br>puter in the ordinary course of those activities.

(3)<br>pro<br>reg<br>sub<br>com	Where over a period the function of storing or<br>cessing information for the purposes of any activities<br>ularly carried on over that period as mentioned in<br>section (2)(a) above was regularly performed by<br>puters, whether-

(a)<br>per	by a combination of computers operating over that<br>iod; or

(b)<br>tha	by different computers operating in succession over<br>t period; or

(c)<br>suc	by different combinations of computers operating in<br>cession over that period; or

(d)<br>ove<br>com	in any other manner involving the successive operation<br>r that period, in whatever order, of one or more<br>puters and one or more combinations of computers,

all t<br>sha	he computers used for that purpose during that period<br>ll be treated for the purposes of this Part of this Act as

con<br>of t	stituting a single computer; and references in this Part<br>his Act to a computer shall be construed accordingly.

(4)<br>stat<br>doi	In any civil proceedings where it is desired to give a<br>ement in evidence by virtue of this section, a certificate<br>ng any of the following things, that is to say—

(a)<br>des	identifying the document containing the statement and<br>cribing the manner in which it was produced;

(b)<br>pro<br>pur<br>com	giving such particulars of any device involved in the<br>duction of that document as may be appropriate for the<br>pose of showing that the document was produced by a<br>puter;

(c)<br>me	dealing with any of the matters to which the conditions<br>ntioned in subsection (2) above relate,

and<br>res<br>rele<br>acti<br>any<br>this<br>stat<br>per	purporting to be signed by a person occupying a<br>ponsible position in relation to the operation of the<br>vant device or the management of the relevant<br>vities (whichever is appropriate) shall be evidence of<br>matter stated in the certificate; and for the purposes of<br>subsection it shall be sufficient for a matter to be<br>ed to the best of the knowledge and belief of the<br>son stating it.

(5)	For the purposes of this Part of this Act—

(a)<br>if i<br>wh<br>inte	information shall be taken to be supplied to a computer<br>t is supplied thereto in any appropriate form and<br>ether it is so supplied directly or (with or without human<br>rvention) by means of any appropriate equipment;

(b)<br>indi<br>bei<br>acti	where, in the course of activities carried on by any<br>vidual or body, information is supplied with a view to its<br>ng stored or processed for the purposes of those<br>vities by a computer operated otherwise than in the

cou<br>to t<br>cou	rse of those activities, that information, if duly supplied<br>hat computer, shall be taken to be supplied to it in the<br>rse of those activities;

(c)<br>com<br>with<br>equ	a document shall be taken to have been produced by a<br>puter whether it was produced by it directly or (with or<br>out human intervention) by means of any appropriate<br>ipment.

(6)<br>“co<br>info<br>der<br>der<br>pro	Subject to subsection (3) above, in this Part of this Act<br>mputer ” means any device for storing and processing<br>rmation, and any reference to information being<br>ived from other information is a reference to its being<br>ived therefrom by calculation, comparison or any other<br>cess.”
enc<br>ivil<br>69 o<br>cord<br>any<br>as e<br>that<br>se o<br>that<br>ct in<br>the<br>that<br>tisfi<br>on<br>ive<br>s m<br>equi<br>n 70<br>of w<br>ed S<br>nly t

er”<br>, ad<br>no<br>an<br>Ci	under Section 5(6) of the Civil Evidence Act, 1968 was not,<br>opted by Section 2(i) of the Information Technology Act, 2000,<br>ted above, is a ‘means and includes’ definition of a much more<br>d intricate nature. It is also important to note Section 6(1) and<br>vil Evidence Act, 1968, which state as follows:<br>Where in any civil proceedings a statement contained<br>a document is proposed to be given in evidence by<br>ue of section 2, 4 or 5 of this Act it may, subject to any<br>s of court, be proved by the production of that<br>ument or (whether or not that document is still in<br>8(1) above applies whether the information contained in the document was<br>or indirectly but, if it was supplied indirectly, only if each person through whom<br>was acting under a duty; and applies also where the person compiling the<br>f the person by whom the information is supplied.”<br>ce in Section 68 above or this Part of this Schedule to a person acting under a<br>reference to a person acting in the course of any trade, business, profession or<br>n in which he is engaged or employed or for the purposes of any paid or unpaid<br>m.”<br>mented Section 69 in important respects. Two provisions of it are relevant,<br>ceedings where it is desired to give a statement in evidence in accordance with<br>e, a certificate –<br>identifying the document containing the statement and describing the<br>hich it was produced;<br>giving such particulars of any device involved in the production of that<br>s may be appropriate for the purpose of showing that the document was<br>a computer;<br>dealing with any of the matters mentioned in Section 69(1) above; and<br>purporting to be signed by a person occupying a reasonable position in<br>e operation of the computer, shall be evidence of anything stated in it; and for<br>s of this paragraph it shall be sufficient for a matter to be stated to the best of<br>ge and belief of the person stating it.<br>ding paragraph 8 above, a court may require oral evidence to be given of<br>h evidence could be given by a certificate under that paragraph.”<br>33
“(1)<br>in<br>virt<br>rule<br>doc	Where in any civil proceedings a statement contained<br>a document is proposed to be given in evidence by<br>ue of section 2, 4 or 5 of this Act it may, subject to any<br>s of court, be proved by the production of that<br>ument or (whether or not that document is still in
on 6<br>ectly<br>lied<br>msel<br>eren<br>s a<br>atio<br>y hi<br>pple<br>pro<br>bov<br>in w<br>nt a<br>d by<br>to th<br>ose<br>wled<br>stan<br>whic

er” , ad no an Ci

under Section 5(6) of the Civil Evidence Act, 1968 was not, opted by Section 2(i) of the Information Technology Act, 2000, ted above, is a ‘means and includes’ definition of a much more d intricate nature. It is also important to note Section 6(1) and vil Evidence Act, 1968, which state as follows: Where in any civil proceedings a statement contained a document is proposed to be given in evidence by ue of section 2, 4 or 5 of this Act it may, subject to any s of court, be proved by the production of that ument or (whether or not that document is still in 8(1) above applies whether the information contained in the document was or indirectly but, if it was supplied indirectly, only if each person through whom was acting under a duty; and applies also where the person compiling the f the person by whom the information is supplied.” ce in Section 68 above or this Part of this Schedule to a person acting under a reference to a person acting in the course of any trade, business, profession or n in which he is engaged or employed or for the purposes of any paid or unpaid m.” mented Section 69 in important respects. Two provisions of it are relevant, ceedings where it is desired to give a statement in evidence in accordance with e, a certificate – identifying the document containing the statement and describing the hich it was produced; giving such particulars of any device involved in the production of that s may be appropriate for the purpose of showing that the document was a computer; dealing with any of the matters mentioned in Section 69(1) above; and purporting to be signed by a person occupying a reasonable position in e operation of the computer, shall be evidence of anything stated in it; and for s of this paragraph it shall be sufficient for a matter to be stated to the best of ge and belief of the person stating it. ding paragraph 8 above, a court may require oral evidence to be given of h evidence could be given by a certificate under that paragraph.” 33

“(1) in virt rule doc

Where in any civil proceedings a statement contained a document is proposed to be given in evidence by ue of section 2, 4 or 5 of this Act it may, subject to any s of court, be proved by the production of that ument or (whether or not that document is still in

on 6 ectly lied msel eren s a atio y hi pple pro bov in w nt a d by to th ose wled stan whic

exi<br>or<br>ma	stence) by the production of a copy of that document,<br>of the material part thereof, authenticated in such<br>nner as the court may approve.
xxx	xxx xxx
(5)<br>civi<br>ma<br>he<br>sha<br>for	If any person in a certificate tendered in evidence in<br>l proceedings by virtue of section 5(4) of this Act wilfully<br>kes a statement material in those proceedings which<br>knows to be false or does not believe to be true, he<br>ll be liable on conviction on indictment to imprisonment<br>a term not exceeding two years or a fine or both.”
‘pr<br>nt’ i<br>doc<br>ich<br>5(4)<br>e,<br>ha<br>to<br>m.<br>and<br>ed b<br>mp

“8.	Proof of statements contained in documents.
(1)<br>ad<br>pro	Where a statement contained in a document is<br>missible as evidence in civil proceedings, it may be<br>ved—
(a)	by the production of that document, or
(b)<br>the<br>ma	whether or not that document is still in existence, by<br>production of a copy of that document or of the<br>terial part of it,
aut	henticated in such manner as the court may approve.
(2)<br>the	It is immaterial for this purpose how many removes<br>re are between a copy and the original.
9. P	roof of records of business or public authority.
(1)<br>of<br>evi	A document which is shown to form part of the records<br>a business or public authority may be received in<br>dence in civil proceedings without further proof.
(2)<br>of a<br>cou<br>bus<br>pur	A document shall be taken to form part of the records<br>business or public authority if there is produced to the<br>rt a certificate to that effect signed by an officer of the<br>iness or authority to which the records belong. For this<br>pose—
(a)<br>offi<br>hav<br>him	a document purporting to be a certificate signed by an<br>cer of a business or public authority shall be deemed to<br>e been duly given by such an officer and signed by<br>; and
(b)<br>pur	a certificate shall be treated as signed by a person if it<br>ports to bear a facsimile of his signature.
(3)<br>pub<br>affi<br>the	The absence of an entry in the records of a business or<br>lic authority may be proved in civil proceedings by<br>davit of an officer of the business or authority to which<br>records belong.

(4)	In this section—
“rec	ords” means records in whatever form;
“bu<br>per<br>(wh	siness” includes any activity regularly carried on over a<br>iod of time, whether for profit or not, by any body<br>ether corporate or not) or by an individual;
“off<br>pos<br>or p	icer” includes any person occupying a responsible<br>ition in relation to the relevant activities of the business<br>ublic authority or in relation to its records; and
“pu<br>und<br>hol	blic authority” includes any public or statutory<br>ertaking, any government department and any person<br>ding office under Her Majesty.
(5)<br>the<br>this<br>doc<br>rec	The court may, having regard to the circumstances of<br>case, direct that all or any of the above provisions of<br>section do not apply in relation to a particular<br>ument or record, or description of documents or<br>ords.”
13 o
“do<br>des<br>doc<br>rec<br>me	cument” means anything in which information of any<br>cription is recorded, and “copy”, in relation to a<br>ument, means anything onto which information<br>orded in the document has been copied, by whatever<br>ans and whether directly or indirectly;”
e II<br>8 -<br>” an<br>ed

36 treatment as to admissibility or proof. It is thus clear that in UK law, as at present, no distinction is made between computer generated evidence and other evidence either qua the admissibility of, or the attachment of weight to, such evidence. 30. Coming back to Section 65B of the Indian Evidence Act, sub- section (1) needs to be analysed. The sub-section begins with a non- obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a “document”. This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the “document” shall then be admissible in any proceedings. The words “… without further proof or production of the original …” make it clear that once the deeming fiction is given effect by the fulfilment of the conditions mentioned in the Section, the “deemed document” now becomes admissible in evidence without further proof or production of the original as evidence of any contents of the original, or of any fact stated therein of which direct evidence would be admissible. 37 31. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the “original” document - which would be the original “electronic record” contained in the “computer” in which the original information is first stored - and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence, and the latter being secondary evidence. 32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a 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”, as defined, happens to 38

t of<br>on<br>ch n<br>on<br>65B<br>ng t<br>e in<br>c re<br>enc<br>und<br>on,<br>be r<br>SC<br>P.V.<br>c fo<br>ssar	a “computer system” or “computer network” (as defined in the<br>Technology Act, 2000) and it becomes impossible to physically<br>etwork or system to the Court, then the only means of proving<br>contained in such electronic record can be in accordance with<br>(1), together with the requisite certificate under Section 65B(4).<br>he case, it is necessary to clarify what is contained in the last<br>paragraph 24 of Anvar P.V. (supra) which reads as “…if an<br>cord as such is used as primary evidence under Section 62 of<br>e Act…”. This may more appropriately be read without the<br>er Section 62 of the Evidence Act,…”. With this minor<br>the law stated in paragraph 24 of Anvar P.V. (supra) does not<br>evisited.<br>In fact, in Vikram Singh and Anr. v. State of Punjab and Anr.<br>C 518, a three-Judge Bench of this Court followed the law in<br>(supra), clearly stating that where primary evidence in<br>rm has been produced, no certificate under Section 65B would<br>y. This was so stated as follows:<br>. The learned counsel contended that the tape-<br>orded conversation has been relied on without there<br>ng any certificate under Section 65-B of the Evidence<br>, 1872. It was contended that audio tapes are recorded<br>39
“25<br>rec<br>bei<br>Act	. The learned counsel contended that the tape-<br>orded conversation has been relied on without there<br>ng any certificate under Section 65-B of the Evidence<br>, 1872. It was contended that audio tapes are recorded

t of on ch n on 65B ng t e in c re enc und on, be r SC P.V. c fo ssar

a “computer system” or “computer network” (as defined in the Technology Act, 2000) and it becomes impossible to physically etwork or system to the Court, then the only means of proving contained in such electronic record can be in accordance with (1), together with the requisite certificate under Section 65B(4). he case, it is necessary to clarify what is contained in the last paragraph 24 of Anvar P.V. (supra) which reads as “…if an cord as such is used as primary evidence under Section 62 of e Act…”. This may more appropriately be read without the er Section 62 of the Evidence Act,…”. With this minor the law stated in paragraph 24 of Anvar P.V. (supra) does not evisited. In fact, in Vikram Singh and Anr. v. State of Punjab and Anr. C 518, a three-Judge Bench of this Court followed the law in (supra), clearly stating that where primary evidence in rm has been produced, no certificate under Section 65B would y. This was so stated as follows: . The learned counsel contended that the tape- orded conversation has been relied on without there ng any certificate under Section 65-B of the Evidence , 1872. It was contended that audio tapes are recorded 39

“25 rec bei Act

. The learned counsel contended that the tape- orded conversation has been relied on without there ng any certificate under Section 65-B of the Evidence , 1872. It was contended that audio tapes are recorded

on<br>thro<br>abs<br>ele<br>evi<br>Rel<br>jud<br>con<br>situ<br>sam<br>call<br>the<br>jud<br>fact	magnetic media, the same could be established<br>ugh a certificate under Section 65-B and in the<br>ence of the certificate, the document which constitutes<br>ctronic record, cannot be deemed to be a valid<br>dence and has to be ignored from consideration.<br>iance has been placed by the learned counsel on the<br>gment of this Court in Anvar P.V. v. P.K. Basheer. The<br>versation on the landline phone of the complainant<br>ate in a shop was recorded by the complainant. The<br>e cassette containing conversation by which ransom<br>was made on the landline phone was handed over by<br>complainant in original to the police. This Court in its<br>gment dated 25-1-2010 has referred to the aforesaid<br>and has noted the said fact to the following effect:

“5.<br>rec<br>to<br>con<br>poli	The cassette on which the conversations had been<br>orded on the landline was handed over by Ravi Verma<br>SI Jiwan Kumar and on a replay of the tape, the<br>versation was clearly audible and was heard by the<br>ce.”

26.	The tape-recorded conversation was not secondary
evi	dence which required certificate under Section 65-B,
sin	ce it was the original cassette by which ransom call was
tap	e-recorded, there cannot be any dispute that for
ad	mission of secondary evidence of electronic record a
cer	tificate as contemplated by Section 65-B is a
ma	ndatory condition.”	4

ade<br>enc<br>nitio<br>Act,<br>agn<br>n Vik

admissibility<br>also that a<br>admissibility	of evidence of information contained in electronic records, and<br>written certificate under Section 65B(4) is a sine qua non for<br>of such evidence, a discordant note was soon struck in<br>uno (supra). In this judgment, another three Judge Bench dealt<br>issibility of evidence in a criminal case in which CCTV footage<br>to be relied upon in evidence. The Court held:<br>With the advancement of information technology,<br>ntific temper in the individual and at the institutional<br>l is to pervade the methods of investigation. With the<br>easing impact of technology in everyday life and as a<br>ult, the production of electronic evidence in cases has<br>ome relevant to establish the guilt of the accused or<br>liability of the defendant. Electronic documents stricto<br>su are admitted as material evidence. With the<br>endment to the Evidence Act in 2000, Sections 65-A<br>65-B were introduced into Chapter V relating to<br>umentary evidence. Section 65-A provides that<br>tents of electronic records may be admitted as<br>ence if the criteria provided in Section 65-B is<br>plied with. The computer generated electronic records<br>evidence are admissible at a trial if proved in the<br>nner specified by Section 65-B of the Evidence Act.<br>-section (1) of Section 65-B makes admissible as a<br>ument, paper printout of electronic records stored in<br>cal or magnetic media produced by a computer,<br>ject to the fulfilment of the conditions specified in sub-<br>tion (2) of Section 65-B. Secondary evidence of<br>tents of document can also be led under Section 65 of<br>Evidence Act. PW 13 stated that he saw the full video<br>ording of the fateful night in the CCTV camera, but he<br>not recorded the same in the case diary as nothing<br>stantial to be adduced as evidence was present in it.<br>41
Tomaso Br	uno	(supra)
with the adm<br>was sought<br>“24.<br>scie<br>leve<br>incr<br>res<br>bec<br>the<br>sen<br>am<br>and<br>doc<br>con<br>evid<br>com<br>in<br>ma<br>Sub<br>doc<br>opti<br>sub<br>sec<br>con<br>the<br>rec<br>has<br>sub

“	24.		With the advancement of information technology,
scie		ntific temper in the individual and at the institutional
leve		l is to pervade the methods of investigation. With the
incr		easing impact of technology in everyday life and as a
res		ult, the production of electronic evidence in cases has
bec		ome relevant to establish the guilt of the accused or
the		liability of the defendant. Electronic documents stricto
sen		su are admitted as material evidence. With the
am		endment to the Evidence Act in 2000, Sections 65-A
and		65-B were introduced into Chapter V relating to
doc		umentary evidence. Section 65-A provides that
con		tents of electronic records may be admitted as
evid		ence if the criteria provided in Section 65-B is
com		plied with. The computer generated electronic records
in		evidence are admissible at a trial if proved in the
ma		nner specified by Section 65-B of the Evidence Act.
Sub		-section (1) of Section 65-B makes admissible as a
doc		ument, paper printout of electronic records stored in
opti		cal or magnetic media produced by a computer,
sub		ject to the fulfilment of the conditions specified in sub-
sec		tion (2) of Section 65-B. Secondary evidence of
con		tents of document can also be led under Section 65 of
the		Evidence Act. PW 13 stated that he saw the full video
rec		ording of the fateful night in the CCTV camera, but he
has		not recorded the same in the case diary as nothing
sub		stantial to be adduced as evidence was present in it.


25.	The production of scientific and electronic evidence in
cou	rt as contemplated under Section 65-B of the Evidence
Act	is of great help to the investigating agency and also to
the	prosecution. The relevance of electronic evidence is
als	o evident in the light of						Mohd. Ajmal Amir
Kas	ab	v.		State of Maharashtra		[(2012) 9 SCC 1] , wherein
pro	duction of transcripts of internet transactions helped
the	prosecution case a great deal in proving the guilt of the
acc	used. Similarly, in				State (NCT of Delhi)			v.	Navjot
San	dhu		, the links between the slain terrorists and the
ma	sterminds of the attack were established only through
pho	ne call transcripts obtained from the mobile service
pro	viders.”

pra)<br>San<br>t s<br>at<br>he<br>(su<br>be<br>adm<br>to b<br>d.

se,<br>rt, it			We now come to the decision in Shafhi Mohammad (supra).<br>by an order dated 30.01.2018 made by two learned Judges of<br>was stated:<br>We have been taken through certain decisions which<br>y be referred to. In Ram Singh v. Ram Singh [Ram<br>gh v. Ram Singh, 1985 Supp SCC 611] , a three-Judge<br>ch considered the said issue. English judgments<br>. v. Maqsud Ali [R. v. Maqsud Ali, (1966) 1 QB 688]<br>R. v. Robson [R. v. Robson, (1972) 1 WLR 651] and<br>erican Law as noted in American Jurisprudence 2d<br>l. 29) p. 494, were cited with approval to the effect that<br>ill be wrong to deny to the law of evidence advantages<br>be gained by new techniques and new devices,<br>vided the accuracy of the recording can be proved.<br>h evidence should always be regarded with some<br>tion and assessed in the light of all the circumstances<br>each case. Electronic evidence was held to be<br>issible subject to safeguards adopted by the Court<br>ut the authenticity of the same. In the case of tape-<br>ording, it was observed that voice of the speaker must<br>duly identified, accuracy of the statement was required<br>be proved by the maker of the record, possibility of<br>pering was required to be ruled out. Reliability of the<br>e of evidence is certainly a matter to be determined in<br>facts and circumstances of a fact situation. However,<br>shold admissibility of an electronic evidence cannot be<br>d out on any technicality if the same was relevant.<br>In Tukaram S. Dighole v. Manikrao Shivaji<br>ate [(2010) 4 SCC 329], the same principle was<br>erated. This Court observed that new techniques and<br>ices are the order of the day. Though such devices are<br>ceptible to tampering, no exhaustive rule could be laid<br>n by which the admission of such evidence may be<br>ged. Standard of proof of its authenticity and accuracy<br>43
“	21.			We have been taken through certain decisions which
ma			y be referred to. In												Ram Singh					v.	Ram Singh	[	Ram
Sin			gh		v	.	Ram Singh				, 1985 Supp SCC 611] , a three-Judge
Ben			ch considered the said issue. English judgments
in		R	.		v.	Maqsud Ali					[	R.		v.	Maqsud Ali				, (1966) 1 QB 688]
and				R.		v.		Robson	[	R.			v.	Robson			, (1972) 1 WLR 651] and
Am			erican Law as noted in													American Jurisprudence								2d
(Vo			l. 29) p. 494, were cited with approval to the effect that
it w			ill be wrong to deny to the law of evidence advantages
to			be gained by new techniques and new devices,
pro			vided the accuracy of the recording can be proved.
Suc			h evidence should always be regarded with some
cau			tion and assessed in the light of all the circumstances
of			each case. Electronic evidence was held to be
adm			issible subject to safeguards adopted by the Court
abo			ut the authenticity of the same. In the case of tape-
rec			ording, it was observed that voice of the speaker must
be			duly identified, accuracy of the statement was required
to			be proved by the maker of the record, possibility of
tam			pering was required to be ruled out. Reliability of the
piec			e of evidence is certainly a matter to be determined in
the			facts and circumstances of a fact situation. However,
thre			shold admissibility of an electronic evidence cannot be
rule			d out on any technicality if the same was relevant.

22.			In		T	ukaram S. Dighole												v.	Manikrao Shivaji
Kok			ate			[(2010) 4 SCC 329], the same principle was
reit			erated. This Court observed that new techniques and
dev			ices are the order of the day. Though such devices are
sus			ceptible to tampering, no exhaustive rule could be laid
dow			n by which the admission of such evidence may be
jud			ged. Standard of proof of its authenticity and accuracy

has		to be more stringent than other documentary
evi		dence.

23.		In	Tomaso Bruno						v.	State of U.P.			[(2015) 7 SCC 178],
a t		hree-Judge Bench observed that advancement of
info		rmation technology and scientific temper must pervade
the		method of investigation. Electronic evidence was
rele		vant to establish facts. Scientific and electronic
evi		dence can be a great help to an investigating agency.
Ref		erence was made to the decisions of this Court
in	M	ohd. Ajmal Amir Kasab													v.	State of
Ma		harashtra			[(2012) 9 SCC 1] and									State (NCT of
Del		hi)	v.	Navjot Sandhu						.

24.		We may, however, also refer to the judgment of this
Co		urt in		Anvar P.V.				v.	P.K. Basheer			, delivered by a three-
Jud		ge Bench. In the said judgment in para 24 it was
obs		erved that electronic evidence by way of primary
evi		dence was covered by Section 62 of the Evidence Act
to		which procedure of Section 65-B of the Evidence Act
was		not admissible. However, for the secondary evidence,
pro		cedure of Section 65-B of the Evidence Act was
req		uired to be followed and a contrary view taken
in	N	avjot Sandhu					that secondary evidence of electronic
rec		ord could be covered under Sections 63 and 65 of the
Evi		dence Act, was not correct. There are, however,
obs		ervations in para 14 to the effect that electronic record
can		be proved only as per Section 65-B of the Evidence
Act		.

25.		Though in view of the three-Judge Bench judgments
in	T	omaso Bruno				and			Ram Singh		[1985 Supp SCC 611] ,
it c		an be safely held that electronic evidence is admissible
and		provisions under Sections 65-A and 65-B of the
Evi		dence Act are by way of a clarification and are
pro		cedural provisions. If the electronic evidence is
aut		hentic and relevant the same can certainly be admitted
sub		ject to the Court being satisfied about its authenticity

and		procedure for its admissibility may depend on fact
situ		ation such as whether the person producing such
evi		dence is in a position to furnish certificate under
Sec		tion 65-B(4).

26.		Sections 65-A and 65-B of the Evidence Act, 1872
can		not be held to be a complete code on the subject.
In	A	nvar P.V.	, this Court in para 24 clarified that primary
evi		dence of electronic record was not covered under
Sec		tions 65-A and 65-B of the Evidence Act. Primary
evi		dence is the document produced before the Court and
the		expression “document” is defined in Section 3 of the
Evi		dence Act to mean any matter expressed or described
upo		n any substance by means of letters, figures or marks,
or b		y more than one of those means, intended to be used,
or		which may be used, for the purpose of recording that
ma		tter.

27.<br>(t) o		The term “electronic record” is defined in Section 2(1)<br>f the Information Technology Act, 2000 as follows:

“2.(<br>gen<br>ele<br>fich		1)(t) “electronic record” means data, record or data<br>erated, image or sound stored, received or sent in an<br>ctronic form or micro film or computer generated micro<br>e;”

28.<br>the		The expression “data” is defined in Section 2(1)(o) of<br>Information Technology Act as follows:

“2.(<br>kno<br>pre<br>and<br>has<br>net<br>prin<br>car<br>of t		1)(o) “data” means a representation of information,<br>wledge, facts, concepts or instructions which are being<br>pared or have been prepared in a formalised manner,<br>is intended to be processed, is being processed or<br>been processed in a computer system or computer<br>work, and may be in any form (including computer<br>touts magnetic or optical storage media, punched<br>ds, punched tapes) or stored internally in the memory<br>he computer;”


29.	The applicability of procedural requirement under
Sec	tion 65-B(4) of the Evidence Act of furnishing
cer	tificate is to be applied only when such electronic
evi	dence is produced by a person who is in a position to
pro	duce such certificate being in control of the said device
and	not of the opposite party. In a case where electronic
evi	dence is produced by a party who is not in possession
of	a device, applicability of Sections 63 and 65 of the
Evi	dence Act cannot be held to be excluded. In such case,
pro	cedure under the said sections can certainly be
inv	oked. If this is not so permitted, it will be denial of
just	ice to the person who is in possession of authentic
evi	dence/witness but on account of manner of proving,
suc	h document is kept out of consideration by the court in
the	absence of certificate under Section 65-B(4) of the
Evi	dence Act, which party producing cannot possibly
sec	ure. Thus, requirement of certificate under Section 65-
B(4	) is not always mandatory.

30.	Accordingly, we clarify the legal position on the subject
on	the admissibility of the electronic evidence, especially
by	a party who is not in possession of device from which
the	document is produced. Such party cannot be required
to	produce certificate under Section 65-B(4) of the
Evi	dence Act. The applicability of requirement of certificate
bei	ng procedural can be relaxed by the court wherever
inte	rest of justice so justifies.”

hi M<br>men<br>E<br>ng

contained in 22, namely SCC 329 is paragraph 2 follows: “20 wh wh (i) t evi the pla a p (ii) the Co con of t age The second with Section in Tomaso hereinabove (supra) was

electronic records. Likewise, the judgment cited in paragraph Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) 4 also a judgment which does not deal with Section 65B. In fact, 0 of the said judgment states the issues before the Court as . However, in the present case, the dispute is not ether a cassette is a public document but the issues are ether: he finding by the Tribunal that in the absence of any dence to show that the VHS cassette was obtained by appellant from the Election Commission, the cassette ced on record by the appellant could not be treated as ublic document is perverse; and a mere production of an audio cassette, assuming that same is a certified copy issued by the Election mmission, is per se conclusive of the fact that what is tained in the cassette is the true and correct recording he speech allegedly delivered by the respondent or his nt?” issue was answered referring to judgments which did not deal 65B at all. Much succour was taken from the three Judge Bench decision Bruno (supra) in paragraph 23, which, as has been stated , does not state the law on Section 65B correctly. Anvar P.V. referred to in paragraph 24, but surprisingly, in paragraph 26, 47

Tukaram S. Dighole v. Manikrao Shivaji Kokate	(2010) 4

“20<br>wh<br>wh	. However, in the present case, the dispute is not<br>ether a cassette is a public document but the issues are<br>ether:

(i) t<br>evi<br>the<br>pla<br>a p	he finding by the Tribunal that in the absence of any<br>dence to show that the VHS cassette was obtained by<br>appellant from the Election Commission, the cassette<br>ced on record by the appellant could not be treated as<br>ublic document is perverse; and

(ii)<br>the<br>Co<br>con<br>of t<br>age	a mere production of an audio cassette, assuming that<br>same is a certified copy issued by the Election<br>mmission, is per se conclusive of the fact that what is<br>tained in the cassette is the true and correct recording<br>he speech allegedly delivered by the respondent or his<br>nt?”

Tomaso	Bruno

the Court held that Sections 65A and 65B cannot be held to be a complete Code on the subject, directly contrary to what was stated by a three Judge Bench in Anvar P.V. (supra). It was then “clarified” that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate. 39. Quite apart from the fact that the judgment in Shafhi Mohammad (supra) states the law incorrectly and is in the teeth of the judgment in Anvar P.V. (supra), following the judgment in Tomaso Bruno (supra) - which has been held to be per incuriam hereinabove - the underlying reasoning of the difficulty of producing a certificate by a party who is not in possession of an electronic device is also wholly incorrect. 40. As a matter of fact, Section 165 of the Evidence Act empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts. Section 165 of the Evidence Act states as follows: 48

“Se<br>pro	ction 165. Judge’s power to put questions or order<br>duction.- The Judge may, in order to discover or to
		The Judge may, in order to discover or to
obt	ain proper proof of relevant facts, ask any question he
ple	ases, in any form, at any time, of any witness, or of the
par	ties about any fact relevant or irrelevant; and may order
the	production of any document or thing; and neither the
par	ties nor their agents shall be entitled to make any
obj	ection to any such question or order, nor, without the
lea	ve of the Court, to cross-examine any witness upon any
ans	wer given in reply to any such question.

Pro	vided that the judgment must be based upon facts
dec	lared by this Act to be relevant, and duly proved:

Pro	vided also that this section shall not authorize any
Jud	ge to compel any witness to answer any question or to
pro	duce any document which such witness would be
enti	tled to refuse to answer or produce under sections 121
to	131, both inclusive, if the question were asked or the
doc	ument were called for by the adverse party; nor shall
the	Judge ask any question which it would be improper for
any	other person to ask under section 148 or 149; nor
sha	ll he dispense with primary evidence of any document,
exc	ept in the cases hereinbefore excepted.

whi<br>n is
“6.<br>be<br>sum<br>me<br>com<br>to b<br>the	Summons to produce document.—Any person may<br>summoned to produce a document, without being<br>moned to give evidence; and any person summoned<br>rely to produce a document shall be deemed to have<br>plied with the summons if he causes such document<br>e produced instead of attending personally to produce<br>same.


7.<br>evi<br>Co<br>pro<br>pow	Power to require persons present in Court to give<br>dence or produce document.—Any person present in<br>urt may be required by the Court to give evidence or to<br>duce any document then and there in his possession or<br>er.

xxx	xxx xxx

10.<br>su<br>sum<br>doc<br>com<br>the<br>by<br>by<br>ser<br>ser<br>be,<br>exa<br>ser	Procedure where witness fails to comply with<br>mmons.—(1) Where a person has been issued<br>mons either to attend to give evidence or to produce a<br>ument, fails to attend or to produce the document in<br>pliance with such summons, the Court— (a) shall, if<br>certificate of the serving officer has not been verified<br>the affidavit, or if service of the summons has affected<br>a party or his agent, or (b) may, if the certificate of the<br>ving officer has been so verified, examine on oath the<br>ving officer or the party or his agent, as the case may<br>who has effected service, or cause him to be so<br>mined by any Court, touching the service or non-<br>vice of the summons.

(2)<br>evi<br>has<br>the<br>inte<br>req<br>doc<br>cop<br>doo<br>ord	Where the Court sees reason to believe that such<br>dence or production is material, and that such person<br>, without lawful excuse, failed to attend or to produce<br>document in compliance with such summons or has<br>ntionally avoided service, it may issue a proclamation<br>uiring him to attend to give evidence or to produce the<br>ument at a time and place to be named therein; and a<br>y of such proclamation shall be affixed on the outer<br>r or other conspicuous part of the house in which he<br>inarily resides.

(3)<br>at<br>issu<br>suc	In lieu of or at the time of issuing such proclamation, or<br>any time afterwards, the Court may, in its discretion,<br>e a warrant, either with or without bail, for the arrest of<br>h person, and may make an order for the attachment

of<br>exc<br>any	his property to such amount as it thinks fit, not<br>eeding the amount of the costs of attachment and of<br>fine which may be imposed under rule 12:

Pro<br>ord	vided that no Court of Small Causes shall make an<br>er for the attachment of immovable property.”

e c<br>r pr
“91<br>(1)<br>stat<br>oth<br>any<br>this<br>ma<br>the<br>or<br>pro<br>the	. Summons to produce document or other thing.—<br>Whenever any Court or any officer in charge of a police<br>ion considers that the production of any document or<br>er thing is necessary or desirable for the purposes of<br>investigation, inquiry, trial or other proceeding under<br>Code by or before such Court or officer, such Court<br>y issue a summons, or such officer a written order, to<br>person in whose possession or power such document<br>thing is believed to be, requiring him to attend and<br>duce it, or to produce it, at the time and place stated in<br>summons or order.

(2)<br>pro<br>hav<br>doc<br>per	Any person required under this section merely to<br>duce a document or other thing shall be deemed to<br>e complied with the requisition if he causes such<br>ument or thing to be produced instead of attending<br>sonally to produce the same.

(3)<br>sec<br>of 1<br>189<br>oth<br>pos	Nothing in this section shall be deemed— (a) to affect<br>tions 123 and 124 of the Indian Evidence Act, 1872 (1<br>872), or the Bankers’ Books Evidence Act, 1891 (13 of<br>1), or (b) to apply to a letter, postcard, telegram or<br>er document or any parcel or thing in the custody of the<br>tal or telegraph authority.”

“34 ans call Co or t pow not so suc sen the to t exc per pro per the

9. Imprisonment or committal of person refusing to wer or produce document.—If any witness or person ed to produce a document or thing before a Criminal urt refuses to answer such questions as are put to him o produce any document or thing in his possession or er which the Court requires him to produce, and does , after a reasonable opportunity has been given to him to do, offer any reasonable excuse for such refusal, h Court may, for reasons to be recorded in writing, tence him to simple imprisonment, or by warrant under hand of the Presiding Magistrate or Judge commit him he custody of an officer of the Court for any term not eeding seven days, unless in the meantime, such son consents to be examined and to answer, or to duce the document or thing and in the event of his sisting in his refusal, he may be dealt with according to provisions of section 345 or section 346.”

hat ion e pe o g f th ly l ove

52 45. However, a caveat must be entered here. The facts of the present case show that despite all efforts made by the Respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the Court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC. Once such application is made to the Court, and the Court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. Two Latin maxims become important at this stage. The first is lex non cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the 53

xcu<br>SC		sed. This was well put by this Court in Re: Presidential Poll<br>C 33 as follows:<br>. If the completion of election before the expiration of<br>term is not possible because of the death of the<br>spective candidate it is apparent that the election has<br>menced before the expiration of the term but<br>pletion before the expiration of the term is rendered<br>ossible by an act beyond the control of human agency.<br>necessity for completing the election before the<br>iration of the term is enjoined by the Constitution in<br>lic and State interest to see that the governance of the<br>ntry is not paralysed by non-compliance with the<br>vision that there shall be a President of India.<br>The impossibility of the completion of the election to fill<br>vacancy in the office of the President before the<br>iration of the term of office in the case of death of a<br>didate as may appear from Section 7 of the 1952 Act<br>s not rob Article 62(1) of its mandatory character. The<br>xim of law impotentia excusat legam is intimately<br>nected with another maxim of law lex non cogit ad<br>ossibilia. Impotentia excusat legam is that when there<br>a necessary or invincible disability to perform the<br>ndatory part of the law that impotentia excuses. The<br>does not compel one to do that which one cannot<br>sibly perform. “Where the law creates a duty or charge,<br>the party is disabled to perform it, without any default<br>im, and has no remedy over it, there the law will in<br>eral excuse him.” Therefore, when it appears that the<br>formance of the formalities prescribed by a statute has<br>n rendered impossible by circumstances over which<br>persons interested had no control, like the act of God,<br>circumstances will be taken as a valid excuse. Where<br>act of God prevents the compliance of the words of a<br>ute, the statutory provision is not denuded of its<br>ndatory character because of supervening impossibility<br>54
“	14	.	If the completion of election before the expiration of
the		term is not possible because of the death of the
pro		spective candidate it is apparent that the election has
com		menced before the expiration of the term but
com		pletion before the expiration of the term is rendered
imp		ossible by an act beyond the control of human agency.
The		necessity for completing the election before the
exp		iration of the term is enjoined by the Constitution in
pub		lic and State interest to see that the governance of the
cou		ntry is not paralysed by non-compliance with the
pro		vision that there shall be a President of India.

15.		The impossibility of the completion of the election to fill
the		vacancy in the office of the President before the
exp		iration of the term of office in the case of death of a
can		didate as may appear from Section 7 of the 1952 Act
doe		s not rob Article 62(1) of its mandatory character. The
ma		xim of law		impotentia excusat legam			is intimately
con		nected with another maxim of law				lex non cogit ad
imp		ossibilia. Impotentia excusat legam			is that when there
is		a necessary or invincible disability to perform the
ma		ndatory part of the law that impotentia excuses. The
law		does not compel one to do that which one cannot
pos		sibly perform. “Where the law creates a duty or charge,
and		the party is disabled to perform it, without any default
in h		im, and has no remedy over it, there the law will in
gen		eral excuse him.” Therefore, when it appears that the
per		formance of the formalities prescribed by a statute has
bee		n rendered impossible by circumstances over which
the		persons interested had no control, like the act of God,
the		circumstances will be taken as a valid excuse. Where
the		act of God prevents the compliance of the words of a
stat		ute, the statutory provision is not denuded of its
ma		ndatory character because of supervening impossibility

cau	sed by the act of God. (See
Ma	xims		10th Edn. at pp. 162-163 and	Craies on Statute
Law		6th Edn. at p. 268).”
rta<br>was<br>the<br>diff<br>ah<br>cia<br>) a<br>SC<br>by<br>Ke<br>n of<br>6(4<br>at<br>su<br>ry<br>ectri

“Su	b-section (1) of Section 6 expressly vests in the State
Ele	ctricity Board the option of purchase on the expiry of
the	relevant period specified in the license. But the State
Go	vernment claims that under sub-section (2) of Section 6
it is	now vested with the option. Now, under sub-section
(2)	of Section 6, the State Government would be vested
with	the option only “where a State Electricity Board has
not	been constituted, or if constituted, does not elect to
pur	chase the undertaking”. It is common case that the
Sta	te Electricity Board was duly constituted. But the State
Go	vernment claims that the State Electricity Board did not
ele	ct to purchase the undertaking. For this purpose, the
Sta	te Government relies upon the deeming provisions of
sub	-section (4) of Section 6, and contends that as the
Boa	rd did not send to the State Government any
inti	mation in writing of its intention to exercise the option
as	required by the sub-section, the Board must be
dee	med to have elected not to purchase the undertaking.
No	w, the effect of sub-section (4) read with sub-section (2)
of	Section 6 is that on failure of the Board to give the
noti	ce prescribed by sub-section (4), the option vested in
the	Board under sub-section (1) of Section 6 was liable to
be	divested. Sub-section (4) of Section 6 imposed upon
the	Board the duty of giving after the coming into force of
Sec	tion 6 a notice in writing of its intention to exercise the
opti	on at least 18 months before the expiry of the relevant
per	iod. Section 6 came into force on September 5, 1959,
and	the relevant period expired on December 3, 1960. In
the	circumstances, the giving of the requisite notice of 18
mo	nths in respect of the option of purchase on the expiry
of	December 2, 1960, was impossible from the very
com	mencement of Section 6. The performance of this
imp	ossible duty must be excused in accordance with the
ma	xim,	lex non cogitia ad impossibilia	(the law does not
com	pel the doing of impossibilities), and sub-section (4) of
Sec	tion 6 must be construed as not being applicable to a
cas	e where compliance with it is impossible. We must
the	refore, hold that the State Electricity Board was not

req		uired to give the notice under sub-section (4) of Section
6 in		respect of its option of purchase on the expiry of 25
yea		rs. It must follow that the Board cannot be deemed to
hav		e elected not to purchase the undertaking under sub-
sec		tion (4) of Section 6. By the notice served upon the
app		ellant, the Board duly elected to purchase the
und		ertaking on the expiry of 25 years. Consequently, the
Sta		te Government never became vested with the option of
pur		chasing the undertaking under sub-section (2) of
Sec		tion 6. The State Government must, therefore, be
res		trained from taking further action under its notice, Ex.
G,		dated November 20, 1959.”				5

8, t<br>ppli<br>s:
“	6.	We have to bear in mind two maxims of equity which
are		well settled, namely,			actus curiae neminem gravabit				—
An		act of the Court shall prejudice no man. In
Bro		om's	Legal Maxims, 10th Edn., 1939 at page 73 this
ma		xim is explained that this maxim was founded upon
just		ice and good sense; and afforded a safe and certain
gui		de for the administration of the law. The above maxim
sho		uld, however, be applied with caution. The other
ma		xim is		lex non cogit ad impossibilia			(Broom's	Legal
Ma		xims	— page 162) — The law does not compel a man
to d		o that which he cannot possibly perform. The law itself
and		the administration of it, said Sir W. Scott, with
refe		rence to an alleged infraction of the revenue laws,
mu		st yield to that to which everything must bend, to
nec		essity; the law, in its most positive and peremptory
SC

inju		nctions, is understood to disclaim, as it does in its
gen		eral aphorisms, all intention of compelling
imp		ossibilities, and the administration of laws must adopt
tha		t general exception in the consideration of all particular
cas		es.

7.	I	n this case indisputably during the period from 26-7-
197		8 to December 1982 there was subsisting injunction
pre		venting the arbitrators from taking any steps.
Fur		thermore, as noted before the award was in the
cus		tody of the court, that is to say, 28-1-1978 till the return
of t		he award to the arbitrators on 24-11-1983, arbitrators
or t		he parties could not have presented the award for its
reg		istration during that time. The award as we have noted
bef		ore was made on 28-11-1977 and before the expiry of
the		four months from 28-11-1977, the award was filed in
the		court pursuant to the order of the court. It was argued
tha		t the order made by the court directing the arbitrators to
kee		p the award in the custody of the court was wrong and
with		out jurisdiction, but no arbitrator could be compelled to
dis		obey the order of the court and if in compliance or
obe		dience with court of doubtful jurisdiction, he could not
tak		e back the award from the custody of the court to take
any		further steps for its registration then it cannot be said
tha		t he has failed to get the award registered as the law
req		uired. The aforesaid two legal maxims —				the law does
not		compel a man to do that which he cannot possibly
per		form		and	an act of the court shall prejudice no
ma		n	would, apply with full vigour in the facts of this case
and		if that is the position then the award as we have noted
bef		ore was presented before the Sub-Registrar, Arambagh
on		25-11-1983 the very next one day of getting
pos		session of the award from the court. The Sub-Registrar
pur		suant to the order of the High Court on 24-6-1985
fou		nd that the award was presented within time as the
per		iod during which the judicial proceedings were pending
tha		t is to say, from 28-1-1978 to 24-11-1983 should be
exc		luded in view of the principle laid down in Section 15 of

	the	Limitation Act, 1963. The High Court, therefore, in our
	opi	nion, was wrong in holding that the only period which
	sho	uld be excluded was from 26-7-1978 till 20-12-1982.
	We	are unable to accept this position. 26-7-1978 was the
	dat	e of the order of the learned Munsif directing
	mai	ntenance of status quo and 20-12-1982 was the date
	wh	en the interim injunction was vacated, but still the
	aw	ard was in the custody of the court and there is ample
	evi	dence as it would appear from the narration of events
	her	einbefore made that the arbitrators had tried to obtain
	the	custody of the award which the court declined to give
	to t	hem.”

48.
see M/s B.<br>(1987) 2 SC<br>authorities<br>been found<br>statutes – s<br>(at paragrap
49.
it is clear th<br>case, the R<br>necessary c<br>Respondent<br>contained in

50.		We may hasten to add that Section 65B does not speak of the<br>ich such certificate must be furnished to the Court. In Anvar<br>, this Court did observe that such certificate must accompany<br>ic record when the same is produced in evidence. We may only<br>is so in cases where such certificate could be procured by the<br>ing to rely upon an electronic record. However, in cases where<br>ective certificate is given, or in cases where such certificate has<br>nded and is not given by the concerned person, the Judge<br>the trial must summon the person/persons referred to in<br>(4) of the Evidence Act, and require that such certificate be<br>ch person/persons. This, the trial Judge ought to do when the<br>cord is produced in evidence before him without the requisite<br>the circumstances aforementioned. This is, of course, subject<br>being exercised in civil cases in accordance with law, and in<br>with the requirements of justice on the facts of each case.<br>es to criminal trials, it is important to keep in mind the general<br>at the accused must be supplied all documents that the<br>seeks to rely upon before commencement of the trial, under<br>sections of the CrPC.<br>60
stage at wh<br>P.V. (supra)<br>the electron<br>add that this<br>person seek<br>either a def<br>been dema<br>conducting<br>Section 65B<br>given by su<br>electronic re<br>certificate in<br>to discretion<br>accordance<br>When it com<br>principle th<br>prosecution<br>the relevant

51.		In a recent judgment, a Division Bench of this Court in State of<br>v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar<br>held:<br>“16. The same view has been reiterated by a two-<br>Judge Bench of this Court in Union of India v. Ravindra<br>V. Desai [(2018) 16 SCC 273]. The Court emphasised<br>that non-production of a certificate under Section 65-B<br>on an earlier occasion is a curable defect. The Court<br>relied upon the earlier decision in Sonu v. State of<br>Haryana [(2017) 8 SCC 570], in which it was held:<br>“32. … The crucial test, as affirmed by this Court,<br>is whether the defect could have been cured at the<br>stage of marking the document. Applying this test to<br>the present case, if an objection was taken to the<br>CDRs being marked without a certificate, the court<br>could have given the prosecution an opportunity to<br>rectify the deficiency.”<br>17. Having regard to the above principle of law, the<br>High Court erred in coming to the conclusion that the<br>failure to produce a certificate under Section 65-B(4) of<br>the Evidence Act at the stage when the charge-sheet<br>was filed was fatal to the prosecution. The need for<br>production of such a certificate would arise when the<br>electronic record is sought to be produced in evidence<br>at the trial. It is at that stage that the necessity of the<br>production of the certificate would arise.”<br>It is pertinent to recollect that the stage of admitting<br>y evidence in a criminal trial is the filing of the charge-sheet.<br>minal court summons the accused to stand trial, copies of all<br>61
Karnataka<br>P.V. (supra)<br>52.<br>documentar<br>When a cri

“16. The same view has been reiterated by a two-<br>Judge Bench of this Court in Union of India v. Ravindra<br>V. Desai [(2018) 16 SCC 273]. The Court emphasised<br>that non-production of a certificate under Section 65-B<br>on an earlier occasion is a curable defect. The Court<br>relied upon the earlier decision in Sonu v. State of<br>Haryana [(2017) 8 SCC 570], in which it was held:

“32. … The crucial test, as affirmed by this Court,<br>is whether the defect could have been cured at the<br>stage of marking the document. Applying this test to<br>the present case, if an objection was taken to the<br>CDRs being marked without a certificate, the court<br>could have given the prosecution an opportunity to<br>rectify the deficiency.”

17.		Having regard to the above principle of law, the
High Court erred in coming to the conclusion that the
failure to produce a certificate under Section 65-B(4) of
the Evidence Act at the stage when the charge-sheet
was filed was fatal to the prosecution. The need for
production of such a certificate would arise when the
electronic record is sought to be produced in evidence
at the trial. It is at that stage that the necessity of the
production of the certificate would arise.”

documents which are entered in the charge-sheet/final report have to be given to the accused. Section 207 of the CrPC, which reads as follows, is 6 mandatory . Therefore, the electronic evidence, i.e. the computer output, has to be furnished at the latest before the trial begins. The reason is not far to seek; this gives the accused a fair chance to prepare and defend the charges levelled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of the trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. 6 “ Section 207. Supply to the accused of copy of police report and other documents.- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs, a copy of each of the following:- (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.” 62 53. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in Central Bureau of Investigation v. R.S. Pai (2002) 5 SCC 82, the only exception to this general rule is if the prosecution had ‘mistakenly’ not filed a document, the said document can be allowed to be placed on record. The Court held as follows:

“	7.		From the aforesaid sub-sections, it is apparent that
normally, the investigating officer is required to produce
all the relevant documents at the time of submitting the
charge-sheet. At the same time, as there is no specific
prohibition, it cannot be held that the additional
documents cannot be produced subsequently. If some
mistake is committed in not producing the relevant
documents at the time of submitting the report or the
charge-sheet, it is always open to the investigating
officer to produce the same with the permission of the
court.”

obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A 63

g e<br>cou<br>91<br>ng<br>ing<br>ay<br>e a<br>the<br>upo<br>acc<br>an<br>rai<br>min			xercise in respect of the rights of parties has to be carried out<br>rt, in examining any application by the prosecution under<br>or 311 of the CrPC or Section 165 of the Evidence Act.<br>on the facts of each case, and the Court exercising discretion<br>that the accused is not prejudiced by want of a fair trial, the<br>in appropriate cases allow the prosecution to produce such<br>t a later point in time. If it is the accused who desires to<br>requisite certificate as part of his defence, this again will<br>n the justice of the case - discretion to be exercised by the<br>ordance with law.<br>The High Court of Rajasthan in Paras Jain v. State of<br>2015 SCC OnLine Raj 8331, decided a preliminary objection<br>sed on the applicability of Section 65B to the facts of the case.<br>ary objection raised was framed as follows:<br>(i) Whether transcriptions of conversations and for that<br>tter CDs of the same filed alongwith the charge-sheet<br>not admissible in evidence even at this stage of the<br>ceedings as certificate as required u/Sec. 65-B of the<br>dence Act was not obtained at the time of procurement<br>said CDs from the concerned service provider and it<br>s not produced alongwith charge-sheet in the<br>scribed form and such certificate cannot be filed<br>sequently.”<br>64
“	3	.	(i) Whether transcriptions of conversations and for that
ma			tter CDs of the same filed alongwith the charge-sheet
are			not admissible in evidence even at this stage of the
pro			ceedings as certificate as required u/Sec. 65-B of the
Evi			dence Act was not obtained at the time of procurement
of			said CDs from the concerned service provider and it
wa			s not produced alongwith charge-sheet in the
pre			scribed form and such certificate cannot be filed
sub			sequently.	”

errin		g to Anvar P.V. (supra), the High Court held:<br>. Although, it has been observed by Hon'ble Supreme<br>rt that the requisite certificate must accompany the<br>ctronic record pertaining to which a statement is sought<br>be given in evidence when the same is produced in<br>ence, but in my view it does not mean that it must be<br>duced alongwith the charge-sheet and if it is not<br>duced alongwith the charge-sheet, doors of the Court<br>completely shut and it cannot be produced<br>sequently in any circumstance. Section 65-B of the<br>dence Act deals with admissibility of secondary<br>ence in the form of electronic record and the<br>cedure to be followed and the requirements be fulfilled<br>ore such an evidence can be held to be admissible in<br>ence and not with the stage at which such a certificate<br>o be produced before the Court. One of the principal<br>es arising for consideration in the above case before<br>'ble Court was the nature and manner of admission of<br>ctronic records.<br>From the facts of the above case it is revealed that the<br>ction of the respondent to the legislative assembly of<br>State of Kerala was challenged by the appellant-Shri<br>war P.V. by way of an election petition before the High<br>rt of Kerala and it was dismissed vide order dated<br>11.2011 by the High Court and that order was<br>llenged by the appellant before Hon'ble Supreme<br>rt. It appears that the election was challenged on the<br>und of corrupt practices committed by the respondent<br>in support thereof some CDs were produced<br>ngwith the election petition, but even during the course<br>rial certificate as required under Section 65-B of the<br>dence Act was not produced and the question of<br>issibility of the CDs as secondary evidence in the form<br>lectronic record in absence of requisite certificate was<br>sidered and it was held that such electronic record is<br>admissible in evidence in absence of the certificate. It<br>65
“	15	.	Although, it has been observed by Hon'ble Supreme
Cou		rt that the requisite certificate must accompany the
ele		ctronic record pertaining to which a statement is sought
to		be given in evidence when the same is produced in
evid		ence, but in my view it does not mean that it must be
pro		duced alongwith the charge-sheet and if it is not
pro		duced alongwith the charge-sheet, doors of the Court
are		completely shut and it cannot be produced
sub		sequently in any circumstance. Section 65-B of the
Evi		dence Act deals with admissibility of secondary
evid		ence in the form of electronic record and the
pro		cedure to be followed and the requirements be fulfilled
bef		ore such an evidence can be held to be admissible in
evid		ence and not with the stage at which such a certificate
is t		o be produced before the Court. One of the principal
issu		es arising for consideration in the above case before
Hon		'ble Court was the nature and manner of admission of
ele		ctronic records.

16.		From the facts of the above case it is revealed that the
ele		ction of the respondent to the legislative assembly of
the		State of Kerala was challenged by the appellant-Shri
An		war P.V. by way of an election petition before the High
Cou		rt of Kerala and it was dismissed vide order dated
16.		11.2011 by the High Court and that order was
cha		llenged by the appellant before Hon'ble Supreme
Cou		rt. It appears that the election was challenged on the
gro		und of corrupt practices committed by the respondent
and		in support thereof some CDs were produced
alo		ngwith the election petition, but even during the course
of t		rial certificate as required under Section 65-B of the
Evi		dence Act was not produced and the question of
adm		issibility of the CDs as secondary evidence in the form
of e		lectronic record in absence of requisite certificate was
con		sidered and it was held that such electronic record is
not		admissible in evidence in absence of the certificate. It

is c	lear from the facts of the case that the question of
sta	ge at which such electronic record is to be produced
wa	s not before the Hon'ble Court.

17.	It is to be noted that it has been clarified by Hon'ble
Co	urt that observations made by it are in respect of
sec	ondary evidence of electronic record with reference to
Sec	tions 59, 65-A and 65-B of the Evidence Act and if an
ele	ctronic record as such is used as primary evidence
und	er Section 62 of the Evidence Act, the same is
ad	missible in evidence without compliance with the
con	ditions in Section 65-B of the Evidence Act.

18.	To consider the issue raised on behalf of the
peti	tioners in a proper manner, I pose a question to me
wh	ether an evidence and more particularly evidence in the
for	m of a document not produced alongwith the charge-
she	et cannot be produced subsequently in any
circ	umstances. My answer to the question is in negative
and	in my opinion such evidence can be produced
sub	sequently also as it is well settled legal position that
the	goal of a criminal trial is to discover the truth and to
ach	ieve that goal, the best possible evidence is to be
bro	ught on record.

19.	Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C.
pro	vides that whenever any Court considers that the
pro	duction of any document is necessary or desirable for
the	purposes of any trial under the Code by or before such
Co	urt, such Court may issue a summons to the person in
wh	ose possession or power such document is believed to
be,	requiring him to attend and produce it or to produce it,
at t	he time and place stated in the summons. Thus, a wide
dis	cretion has been conferred on the Court enabling it
dur	ing the course of trial to issue summons to a person in
wh	ose possession or power a document is believed to be
req	uiring him to produce before it, if the Court considers
tha	t the production of such document is necessary or

des	irable for the purposes of such trial. Such power can
be	exercised by the Court at any stage of the proceedings
bef	ore judgment is delivered and the Court must exercise
the	power if the production of such document is necessary
or	desirable for the proper decision in the case. It cannot
be	disputed that such summons can also be issued to the
com	plainant/informer/victim of the case on whose instance
the	FIR was registered. In my considered view when
und	er this provision Court has been empowered to issue
sum	mons for the producment of document, there can be
no	bar for the Court to permit a document to be taken on
rec	ord if it is already before it and the Court finds that it is
nec	essary for the proper disposal of the case irrespective
of t	he fact that it was not filed along with the charge-sheet.
I a	m of the further view that it is the duty of the Court to
tak	e all steps necessary for the production of such a
doc	ument before it.

20.	As per Sec. 311 Cr.P.C., any Court may, at any stage
of	any trial under the Code, summon any person as a
witn	ess, or examine any person in attendance, though not
sum	moned as a witness, or recall or re-examine any
per	son already examined; and the Court shall summon
and	examine or recall and re-examine any such person if
his	evidence appears to it to be essential to the just
dec	ision of the case. Under this provision also wide
dis	cretion has been conferred upon the Court to exercise
its	power and paramount consideration is just decision of
the	case. In my opinion under this provision it is
per	missible for the Court even to order production of a
doc	ument before it if it is essential for the just decision of
the	case.

21.	As per Section 173(8) Cr.P.C. carrying out a further
inv	estigation and collection of additional evidence even
afte	r filing of charge-sheet is a statutory right of the police
and	for that prior permission of the Magistrate is not
req	uired. If during the course of such further investigation

add		itional evidence, either oral or documentary, is
coll		ected by the Police, the same can be produced before
the		Court in the form of supplementary charge-sheet. The
prim		e consideration for further investigation and collection
of		additional evidence is to arrive at the truth and to do
rea		l and substantial justice. The material collected during
furt		her investigation cannot be rejected only because it
has		been filed at the stage of the trial.

22.		As per Section 231 Cr.P.C., the prosecution is entitled
to		produce any person as a witness even though such
per		son is not named in the charge-sheet.

23.		When legal position is that additional evidence, oral or
doc		umentary, can be produced during the course of trial if
in t		he opinion of the Court production of it is essential for
the		proper disposal of the case, how it can be held that the
cert		ificate as required under Section 65-B of the Evidence
Act		cannot be produced subsequently in any
circ		umstances if the same was not procured alongwith the
ele		ctronic record and not produced in the Court with the
cha		rge-sheet. In my opinion it is only an irregularity not
goi		ng to the root of the matter and is curable. It is also
per		tinent to note that certificate was produced alongwith
the		charge-sheet but it was not in a proper form but during
the		course of hearing of these petitioners, it has been
pro		duced on the prescribed form.”
urt h
“	50	.	Anwar P.V.	(supra) partly overruled the earlier
dec		ision of the Supreme Court on the procedure to prove
ele		ctronic record(s) in			Navjot Sandhu	(supra), holding that
Sec		tion 65B is a specific provision relating to the
adm		issibility of electronic record(s) and, therefore,
pro		duction of a certificate under Section 65B(4) is

ma		ndatory.
the		said certificate cannot be produced in exercise of
pow		ers of the trial court under Section 311 Cr.P.C or, at
the		appellate stage under Section 391 Cr.P.C. Evidence
Act		is a procedural law and in view of the pronouncement
in	A	nwar P.V.		(supra) partly overruling	Navjot
San		dhu	(supra), the prosecution may be entitled to invoke
the		aforementioned provisions, when justified and
req		uired. Of course, it is open to the court/presiding officer
at t		hat time to ascertain and verify whether the responsible
offi		cer could issue the said certificate and meet the
req		uirements of Section 65B.”
he l<br>as t<br>ted<br>on<br>on<br>any<br>in<br>who<br>of<br>e m<br>odu

69 sufficient that such person gives the requisite certificate to the “best of his knowledge and belief” (Obviously, the word “and” between knowledge and belief in Section 65B(4) must be read as “or”, as a person cannot testify to the best of his knowledge and belief at the same time). 59. 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. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose. 60. In view of the above, the decision of the Madras High Court in K. Ramajyam (supra), which states that evidence aliunde can be given through a person who was in-charge of a computer device in the place of 70 the requisite certificate under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled. 61. While on the subject, it is relevant to note that the Department of Telecommunication’s license conditions [i.e. under the ‘License for Provision of Unified Access Services’ framed in 2007, as also the subsequent ‘License Agreement for Unified License’ and the ‘License Agreement for provision of internet service’] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a 7 limited duration of one year . Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records - or secure the records but fail to secure the certificate - within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event 7 See , Clause 41.17 of the ‘License Agreement for Provision of Unified Access Services’: “ The LICENSEE shall maintain all commercial records with regard to the communications exchanged on the network. Such records shall be archived for at least one year for scrutiny by the Licensor for security reasons and may be destroyed thereafter unless directed otherwise by the licensor”; Clause 39.20 of the ‘License Agreement for Unified License’: “ The Licensee shall maintain all commercial records/ Call Detail Record (CDR)/ Exchange Detail Record (EDR)/ IP Detail Record (IPDR) with regard to the 39 communications exchanged on the network. Such records shall be archived for at least one year for scrutiny by the Licensor for security reasons and may be destroyed thereafter unless directed otherwise by the Licensor. Licensor may issue directions /instructions from time to time with respect to CDR/IPDR/EDR.” 71

se<br>the<br>he<br>mp<br>es<br>rec<br>e A<br>cord<br>an<br>ev<br>ctio<br>ed<br>67C	d wishes to challenge the genuineness of this certificate by<br>opinion of the Examiner of Electronic Evidence under Section<br>Evidence Act, the electronic record (i.e. the data as to call logs<br>uter of the service provider) may be missing.<br>To obviate this, general directions are issued to cellular<br>and internet service providers to maintain CDRs and other<br>ords for the concerned period (in tune with Section 39 of the<br>ct) in a segregated and secure manner if a particular CDR or<br>is seized during investigation in the said period. Concerned<br>then summon such records at the stage of defence evidence,<br>ent such data is required to cross-examine a particular witness.<br>n shall be applied, in criminal trials, till appropriate directions<br>under relevant terms of the applicable licenses, or under<br>of the Information Technology Act, which reads as follows:<br>C. Preservation and retention of information by<br>rmediaries.– (1) Intermediary shall preserve and<br>in such information as may be specified for such<br>ation and in such manner and format as the Central<br>vernment may prescribe.<br>any intermediary who intentionally or knowingly<br>travenes the provisions of sub-section (1) shall be<br>ished with an imprisonment for a term which may<br>end to three years and also be liable to fine.”<br>72
“67<br>inte<br>reta<br>dur<br>Go	C. Preservation and retention of information by<br>rmediaries.– (1) Intermediary shall preserve and<br>in such information as may be specified for such<br>ation and in such manner and format as the Central<br>vernment may prescribe.
(2)<br>con<br>pun<br>ext	any intermediary who intentionally or knowingly<br>travenes the provisions of sub-section (1) shall be<br>ished with an imprisonment for a term which may<br>end to three years and also be liable to fine.”

63. It is also useful, in this context, to recollect that on 23 April 2016, the conference of the Chief Justices of the High Courts, chaired by the Chief Justice of India, resolved to create a uniform platform and guidelines governing the reception of electronic evidence. The Chief Justices of Punjab and Haryana and Delhi were required to constitute a committee to “frame Draft Rules to serve as model for adoption by High Courts”. A five-Judge Committee was accordingly constituted on 28 July, 8 2018 . After extensive deliberations, and meetings with several police, investigative and other agencies, the Committee finalised its report in November 2018. The report suggested comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. The report also contained Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records. In the opinion of the Court, these Draft Rules should be examined by the concerned authorities, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence. 64. We turn now to the facts of the case before us. In the present case, by the impugned judgment dated 24.11.2017, Election Petition 8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain Raina and R.K. Gauba, JJ. 73 6/2014 and Election Petition 9/2014 have been allowed and partly allowed respectively, the election of the RC being declared to be void under Section 100 of the Representation of the People Act, 1951, inter alia , on the ground that as nomination papers at serial numbers 43 and 44 were not presented by the RC before 3.00 p.m. on 27.09.2014, such nomination papers were improperly accepted. 65. However, by an order dated 08.12.2017, this Court admitted the Election Appeal of the Appellant, and stayed the impugned judgment and order. 66. We have heard this matter after the five year Legislative Assembly term is over in November 2019. This being the case, ordinarily, it would be unnecessary to decide on the merits of the case before us, as the term of the Legislative Assembly is over. However, having read the impugned judgment, it is clear that the learned Single Judge was anguished by the fact that the Election Commission authorities behaved in a partisan manner by openly favouring the Appellant. Despite the fact that the reason given of “substantial compliance” with Section 65B(4) in the absence of the requisite certificate being incorrect in law, yet, considering that the Respondent had done everything in his power to obtain the 74

ce<br>Co<br>ing.<br>d to<br>dgm<br>Hi		rtificate from the appropriate authorities, including directions<br>urt to produce the requisite certificate, no such certificate was<br>The horse was directed to be taken to the water to drink - but<br>drink, leading to the consequence pointed out in paragraph 49<br>ent (supra).<br>Even otherwise, apart from evidence contained in electronic<br>gh court arrived at the following conclusion:<br>The evidence in cross examination of Smt. Mutha<br>ws that when Labade was sent to the passage for<br>ecting nomination forms, she continued to accept the<br>ination forms directly from intending candidates and<br>r proposers in her office. Her evidence shows that on<br>9.2014 the last nomination form which was directly<br>sented to her was form No. 38 of Anand Mhaske. The<br>of receipt of this form was mentioned in the register of<br>ination forms as 2.55 p.m. In respect of subsequent<br>ination forms from Sr. Nos. 39 to 64, the time of<br>eptance is mentioned as 3.00 p.m. Smt. Mutha admits<br>the candidates of nomination form Nos. 39 to 64 (form<br>64 was the last form filed) were not present before her<br>sically at 3.00 p.m. At the cost of repetition, it needs to<br>mentioned here that form numbers of RC are 43 and<br>The oral evidence and the record like register of<br>ination forms does not show that form Nos. 43 and 44<br>e presented to RO at 2.20 p.m. of 27.9.2014. As per<br>evidence of Smt. Mutha and the record, one Arvind<br>van, a candidate having form Nos. 33, 34 and 35 was<br>sent before her between 2.15 p.m. and 2.30 p.m. In<br>ination form register, there is no entry showing that<br>nomination form was received at 2.20 p.m. Form Nos.<br>and 37 of Sunil Khare were entered in the register at<br>75
“	48.
sho<br>coll<br>nom<br>thei<br>27.<br>pre<br>time<br>nom<br>nom<br>acc<br>that<br>No.<br>phy<br>be<br>44.<br>nom<br>wer<br>the<br>Cha<br>pre<br>nom<br>any<br>36

2.4 whi wa tha and is han 3.0

0 p.m. Thus, according to Smt. Mutha, form No. 38, ch was accepted by her directly from the candidate s tendered to her at 2.55 p.m. of 27.9.2014 and after t she had done preliminary examination of form No. 38 check list was given by her to that candidate. Thus, it not possible that form Nos. 43 and 44 were directly ded over to Smt. Mutha by RC at 2.20 p.m. or even at 0 p.m. of 27.9.2014.

50. of h tim for evi the han dire

Smt. Mutha (PW 2) did not show the time as 2.20 p.m. anding over the check list to RC and she showed the e as 3.00 p.m., but this time was shown in respect of all ms starting from Sr. Nos. 39 to 64. Thus, substantive dence of Smt. Mutha and the aforesaid record falsifies contention of the RC made in the pleading that he had ded over the nomination forms (form Nos. 43 and 44) ctly to RO prior to 3.00 p.m., at 2.20 p.m.”

onic ncl t th ein the d th as dg Ver

he<br>ca<br>ly<br>) of<br>et<br>ly a<br>nce		appellant, inter alia, on the ground that as the appellant - the<br>ndidate - was a Government servant, his nomination had been<br>accepted. The Court held that the requirement of Section<br>the Representation of People Act, 1951, being that the election<br>aside only if such improper acceptance of the nomination has<br>ffected” the result of the election, and there being no pleading<br>to this effect, the election petition must fail. This Court stated:<br>As Issues 1 and 2 extracted above, have been<br>wered in favour of the returned candidate and there is<br>cross-appeal, it is only the remaining issues that<br>vive for consideration. All the said issues centre round<br>question of improper acceptance of the nomination<br>m of the returned candidate. In this regard, Issue 6<br>ch raises the question of material effect of the improper<br>eptance of nomination of the returned candidate on the<br>ult of the election may be specifically noticed.<br>Under Section 100(1)(d), an election is liable to be<br>lared void on the ground of improper acceptance of a<br>mination if such improper acceptance of the nomination<br>materially affected the result of the election. This is in<br>inction to what is contained in Section 100(1)(c) i.e.<br>roper rejection of a nomination which itself is a<br>icient ground for invalidating the election without any<br>her requirement of proof of material effect of such<br>ction on the result of the election. The above<br>inction must be kept in mind. Proceeding on the said<br>is, we find that the High Court did not endeavour to go<br>the further question that would be required to be<br>ermined even if it is assumed that the appellant<br>rned candidate had not filed the electoral roll or a<br>77
“	9.	As Issues 1 and 2 extracted above, have been
ans		wered in favour of the returned candidate and there is
no		cross-appeal, it is only the remaining issues that
sur		vive for consideration. All the said issues centre round
the		question of improper acceptance of the nomination
for		m of the returned candidate. In this regard, Issue 6
whi		ch raises the question of material effect of the improper
acc		eptance of nomination of the returned candidate on the
res		ult of the election may be specifically noticed.

10.		Under Section 100(1)(	d	), an election is liable to be
dec		lared void on the ground of improper acceptance of a
no		mination if such improper acceptance of the nomination
has		materially affected the result of the election. This is in
dist		inction to what is contained in Section 100(1)(			c	) i.e.
imp		roper rejection of a nomination which itself is a
suff		icient ground for invalidating the election without any
furt		her requirement of proof of material effect of such
reje		ction on the result of the election. The above
dist		inction must be kept in mind. Proceeding on the said
bas		is, we find that the High Court did not endeavour to go
into		the further question that would be required to be
det		ermined even if it is assumed that the appellant
retu		rned candidate had not filed the electoral roll or a

cert	ified copy thereof and, therefore, had not complied
with	the mandatory provisions of Section 33(5) of the 1951
Act.

11.	In other words, before setting aside the election on the
abo	ve ground, the High Court ought to have carried out a
furt	her exercise, namely, to find out whether the improper
acc	eptance of the nomination had materially affected the
res	ult of the election. This has not been done
not	withstanding Issue 6 framed which is specifically to the
abo	ve effect. The High Court having failed to determine
the	said issue i.e. Issue 6, naturally, it was not empowered
to d	eclare the election of the appellant returned candidate
as	void even if we are to assume that the acceptance of
the	nomination of the returned candidate was improper.”
udg<br>201<br>rt w<br>had<br>on<br>ter<br>SC<br>2, t<br>Nar
“25.<br>Sha	It was held by this Court in Vashist Narain<br>rma v. Dev Chandra [(1955) 1 SCR 509] as under:

“9.<br>the<br>nom<br>elec<br>que			The learned counsel for the respondents concedes that<br>burden of proving that the improper acceptance of a<br>ination has materially affected the result of the<br>tion lies upon the petitioner but he argues that the<br>stion can arise in one of three ways:
(1)<br>acc<br>bet<br>sec			where the candidate whose nomination was improperly<br>epted had secured less votes than the difference<br>ween the returned candidate and the candidate<br>uring the next highest number of votes,
(2)<br>vote			where the person referred to above secured more<br>s, and
(3)<br>imp			where the person whose nomination has been<br>roperly accepted is the returned candidate himself.
It is<br>not<br>add<br>vote<br>retu<br>cas<br>affe<br>rea			agreed that in the first case the result of the election is<br>materially affected because if all the wasted votes are<br>ed to the votes of the candidate securing the highest<br>s, it will make no difference to the result and the<br>rned candidate will retain the seat. In the other two<br>es it is contended that the result is materially<br>cted. So far as the third case is concerned it may be<br>dily conceded that such would be the conclusion…”
rt t
“	26.			Mere finding that there has been an improper
acc			eptance of the nomination is not sufficient for a
dec			laration that the election is void under Section 100(1)
(	d	).	There has to be further pleading and proof that the
res			ult of the election of the returned candidate was
mat			erially affected. But, there would be no necessity of
any			proof in the event of the nomination of a returned
can			didate being declared as having been improperly
acc			epted, especially in a case where there are only two
can			didates in the fray. If the returned candidate's
nom			ination is declared to have been improperly accepted

it	would mean that he could not have contested the
ele	ction and that the result of the election of the returned
can	didate was materially affected need not be proved
furt	her…”
bam<br>m (<br>Jud<br>lly<br>ly<br>d th<br>eria<br>e s<br>efer<br>t be<br>d ju<br>red<br>ent

also. 80 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) 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 81 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. 82 73. These appeals are dismissed with costs of INR One Lakh each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary. …………………..………………J. (R. F. Nariman) ……………..……………………J. (S. Ravindra Bhat) ……………..……………………J. (V. Ramasubramanian) New Delhi. th 14 July, 2020. 83

	REPORTABLE
AR<br>KA

84 how even with the existing rules of procedure, the courts fared well, without any legislative interference, while dealing with evidence in analogue form, and (iii) how after machines in analogue form gave way to machines in electronic form, certain jurisdictions of the world changed their legal landscape, over a period of time, by suitably amending the law, to avoid confusions and conflicts. I. Reasons for the acrimony behind Section 65B 2. Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as (i) admissibility (ii) relevancy and (iii) proof, before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these check posts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three check posts, changes. Generally and theoretically, admissibility depends on relevancy. Under Section 136 of the Evidence Act, relevancy must 85 be established before admissibility can be dealt with. Therefore if we go by Section 136, a party should first show relevancy, making it the first check post and admissibility the second one. But some documents, such as those indicated in Section 68 of the Evidence Act, which pass the first check post of relevancy and the second check post of admissibility may be of no value unless the attesting witness is examined. Proof of execution of such documents, in a manner established by law, thus constitutes the third check post. Here again, proof of execution stands on a different footing than proof of contents. 3. It must also be noted that whatever is relevant may not always be admissible, if the law imposes certain conditions. For instance, a document, whose contents are relevant, may not be admissible, if it is a document requiring stamping and registration, but had not been duly stamped and registered. In other words, if admissibility is the cart, relevancy is the horse, under 86 Section 136. But certain provisions of law place the cart before the horse and Section 65B appears to be one of them. 4. Section 136 which confers a discretion upon the Judge to decide as to the admissibility of evidence reads as follows: 136. Judge to decide as to admissibility of evidence. –– When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such lastmentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. 87 5. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136 states that if the fact proposed to be proved is one, of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the Court is satisfied about such undertaking, the Court may proceed to admit evidence of the first mentioned fact . The third part of Section 136 deals with the relevancy of one alleged fact, which depends upon another alleged fact being first proved. The third part of Section 136 has no relevance for our present purpose. 88 6. Illustration (b) under Section 136 provides an easy example of the second part of Section 136. Illustration (b) reads as follows: (b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced. 7. What is laid down in Section 65B as a precondition for the admission of an electronic record, resembles what is provided in the second part of Section 136. For example, if a fact is sought to be proved through the contents of an electronic record (or information contained in an electronic record), the Judge is first required to see if it is relevant, if the first part of Section 136 is taken to be applicable. But Section 65B makes the admissibility of the 8. information contained in the electronic record subject to certain conditions, including certification. The certification is for the purpose of proving that the information which constitutes the computer output 89 was produced by a computer which was used regularly to store or process information and that the information so derived was regularly fed into the computer in the ordinary course of the said activities. 9. In other words, if we go by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant. But such a fact is admissible only upon proof of some other fact namely, that it was extracted from a computer used regularly etc. In simple terms, what is contained in the computer output can be equated to the first mentioned fact and the requirement of a certification can be equated to the last mentioned fact, referred to in the second part of Section 136 read with Illustration (b) thereunder . 10. But Section 65B(1) starts with a nonobstante clause excluding the application of the other provisions and it makes the certification, a precondition for 90 admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mixup both proof and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records , but Section 65B speaks entirely about the preconditions . As a result, Section 65B places for admissibility admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled. The placement by Section 65B, of admissibility as the 11. first or the border check post, coupled with the fact that a number of ‘computer systems’ (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the ‘originator’ (as defined in Section 2(za) of the Information 91 Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section 65B, which is evident from the judicial opinion swinging like a pendulum. II. How the courts dealt with evidence in analogue form without legislative interference and the shift It is a matter of fact and record that courts all over the 12. world were quick to adapt themselves to evidence in analogue form, within the framework of archaic, centuries old rules of evidence. It was not as if evidence in analogue form was incapable of being manipulated. But the courts managed the show well by applying time tested rules for sifting the actual from the manipulated. 13. It is no doubt true that the felicity with which courts adapted themselves to appreciating evidence in analogue form was primarily due to the fact that in analogue technology, one is able to see and/ or perceive something that is happening. In analogue technology, a wave is recorded or used in its original 92 form. When someone speaks or sings, a signal is taken directly by the microphone and laid onto a tape, if we take the example of an analogue tape recorder. Both, the wave from the microphone and the wave on the tape, are analogue and the wave on the tape can be read, amplified and sent to a speaker to produce the sound. In digital technology, the analogue wave is sampled at some interval and then turned into numbers that are stored in a digital device. Therefore, what are stored, are in terms of numbers and they are, in turn, converted into voltage waves to produce what was stored. 14. The difference between something in analogue form and the same thing in digital form and the reason why digital format throws more challenges, was presented pithily i n an article titled ‘ Electronic evidence and 9 the meaning of “original”’ , by Stephen Mason (Barrister and recognised authority on electronic 9 Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae 26 (2009) 93 signatures and electronic evidence). Taking the example of a photograph in both types of form, the learned author says the following: For instance, a photograph taken with an analogue camera (that is, a camera with a film) can only remain a single object. It cannot be merged into other photographs, and split off again. It remains a physical object. A photograph taken with a digital camera differs markedly. The digital object, made up of a series of zeros and the number one, can be, and frequently is, manipulated and altered (especially in fashion magazines and for advertisements). Things can be taken out and put in to the image, in the same way the water droplets can merge and form a single, larger droplet. The new, manipulated digital image can also be divided back into its constituent parts. Herein lies the interesting point: when three droplets of water fuse and then separate into three droplets, it is to be questioned whether the three droplets that merge from the bigger droplet were the identical droplets that existed before they merged. In the same way, consider a digital object that has been manipulated and added to, and the process is then reversed. The original object that was used remains (unless it was never saved independently, and the changes made to the image were saved in the original file), but another object, with the identical image (or near identical, depending on the system software and application software) now exists. Conceptually, it is possible to argue 94 that the two digital images are different: one is the original, the other a copy of the original that was manipulated and returned to its original state (whatever “original” means). But both images are identical, apart from some additional meta data that might, or might not be conclusive. However, it is apparent that the images, if viewed together, are identical – will be identical, and the viewer will not be able to determine which is the original, and which image was manipulated. In this respect, the digital images are no different from the droplets of rain that fall, merge, then divide: there is no telling whether the droplets that split are identical to the droplets that came together to form the larger droplet. 15. That courts did not have a problem with the evidence in analogue form is established by several judicial precedents, in U.K., which were also followed by our courts. A device used to clandestinely record a conversation between two individuals was allowed in 10 in proving fraud on the part Harry Parker vs. Mason of the plaintiff. While was a civil Harry Parker proceeding, the principle laid down therein found acceptance in a criminal trial in R. vs. Burr and 10 [1940] 2 KB 590 95 11 . The High Court of Judiciary in Scotland Sullivan admitted in evidence, the tape record of a conversation between the complainant and a black mailer, in Hopes 12 . A conversation and Lavery vs. H. M. Advocate recorded in police cell overheard without any deception, beyond setting up a tape recorder without 13 warning, was admitted in evidence in R. vs. Mills . 14 Then came where Marshall J. 16. R. vs. Maqsud Ali drew an analogy between taperecordings and photographs and held that just as evidence of things seen through telescopes or binoculars have been admitted, despite the fact that those things could not be picked up by the naked eye, the devices used for recording conversations could also be admitted, provided the accuracy of the recording 11 [1956] Crim LR 442 12 [1960] Crim LR 566 13 [1962] 3 All ER 298 14 [1965] 2 All ER 464 96 can be proved and the voices recorded properly . identified 17. Following the above precedents, this Court also held in 15 S. Pratap Singh vs. State of Punjab , Yusaffalli 16 , Esmail Nagree vs. State of Maharashtra N. Sri 17 , Rama Reddy vs. V. V. Giri R.M. Malkani vs. State 18 of Maharashtra , Ziyauddin Burhanuddin 19 Bukhari vs. Brijmohan Ramdass Mehra , Ram 20 , Singh vs. Col. Ram Singh Tukaram S. Dighole vs. 21 , that tape records of Manikrao Shivaji Kokate conversations and speeches are admissible in evidence under the Indian Evidence Act, subject to certain conditions. In Ziyauddin Burhanuddin Bukhari and , this Court further held that tape Tukaram S. Dighole records constitute “document” within the meaning of 15 (1964) 4 SCR 753 16 (1967) 3 SCR 720 17 AIR 1972 SC 1162 18 AIR 1973 SC 157 19 (1976) 2 SCC 17 20 AIR 1986 SC 3 21 (2010) 4 SCC 329 97 the expression under Section 3 of the Evidence Act. Thus, without looking up to the law makers to come up with necessary amendments from time to time, the courts themselves developed certain rules, over a period of time, to test the authenticity of these documents in analogue form and these rules have in fact, worked well. 18. There was also an important question that bothered the courts while dealing with evidence in analogue form. It was as to whether such evidence was direct or hearsay. In The Statute of Liberty, Sapporo Maru M/S (Owners) vs. Steam Tanker Statute of Liberty 22 (Owners) , the film recording of a radar set of echoes of ships within its range was held to be real evidence. The court opined that there was no distinction between a photographer operating a camera manually and the observations of a barometer operator or its equivalent operation by a recording mechanism. The Judge rejected the contention that the evidence was hearsay. 22 [1968] 2 All ER 195 98 19. But when it comes to a computer output, one of the earliest of cases where the Court of Appeal had to deal with evidence in the form of a printout from a 23 computer was in R. vs. Pettigrew . In that case, the printout from a computer operated by an employee of the Bank of England was held to be hearsay. But the academic opinion about the correctness of the decision 24 was sharply divided. While Professor Smith considered the evidence in this case as direct and not 25 hearsay, Professor Tapper took the view that the printout was partly hearsay and partly not. Professor 26 Seng thought that both views were plausible. But the underlying theory on the basis of which 20. academicians critiqued the above judgment is that wherever the production of the output was made possible without human intervention, the evidence 23 [1980] 71 Cr. App. R. 39 24 Professor Smith was a wellknown authority on criminal law and law of evidence; J. C. Smith, The admissibility of statements by computer , Crim LR 387, 388 (1981). 25 Professor Tapper is a wellknown authority on law of evidence; Colin Tapper, Reform of the law of evidence in relation to the output from computers , 3 IntlJ L & Info Tech 87 (1995). 26 Professor Seng is an Associate Professor at the National University of Singapore; Daniel K B Seng, Computer output as evidence , Sing JLS 139 (1997). 99 should be taken as direct. This is how the position was 27 explained in Castle vs. Cross , in which the printout from the Intoximeter was held to be direct and not hearsay, on the ground that the breath alcohol value in the printout comprised information produced by the Intoximeter without the data being processed through a human brain. 28 In , a printout 21. R vs. Robson Mitchell and Richards of telephone calls made on a mobile telephone was taken as evidence of the calls made and received in association with the number. The Court held “where a machine observes a fact and records it, that record states a fact. It is evidence of what the machine recorded and this was printed out. The record was not the fact but the evidence of the . fact” 27 [1984] 1 WLR 1372 28 [1991] Crim LR 360 100 22. But the facility of operating in anonymity in the cyber space, has made electronic records more prone to manipulation and consequently to a greater degree of suspicion. Therefore, law makers interfered, sometimes making things easy for courts and sometimes creating a lot of confusion. But over a period of time, certain jurisdictions have come up with reasonably good solutions. Let us now take a look at them. III. Legislative developments in U.S.A., U.K. and Canada on the admissibility of electronic records POSITION IN USA 23. The Federal Rules of Evidence (FRE) of the United States of America as amended with effect from 01.12.2017 recognise the availability of more than one option to a person seeking to produce an electronic record. Under the amended rules, a person can follow either the traditional route under Rule 901 or the route of selfauthentication under Rule 902 whereunder a 101 certificate of authenticity will elevate its status. Rules 901 and 902 of FRE read as follows: Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only —not a complete list—of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Non expert Opinion About Handwriting. A non expert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, 102 evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including selfidentification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court. Rule 902. Evidence That Is Self Authenticating The following items of evidence are self authenticating; they require no extrinsic evidence of authenticity in order to be admitted: 103 (1) Domestic Public Documents That Are Sealed and Signed. A document that bears: (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the 104 document's authenticity and accuracy, the court may, for good cause, either: (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification. (4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court. (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments. (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law. (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic. 105 (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection —so that the party has a fair opportunity to challenge them. (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11). (14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). 106 24. An important decision in the American jurisprudence on this issue was delivered by Chief Magistrate Judge of District of Maryland in Lorraine vs. Markel 29 . In this case, Paul Grimm, American Insurance Co J. while dealing with a challenge to an arbitrator’s decision in an insurance dispute, dealt with the issue whether emails discussing the insurance policy in question, were admissible as evidence. The Court, while extending the applicability of Rules 901 and 902 of FRE to electronic evidence, laid down a broad test 30 for admissibility of electronically stored information. This decision was rendered in 2007 and the FRE were amended in 2017. 29 241 FRD 534 (2007) 30 Paragraph 2: “Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.” 107 25. Subrules (13) and (14) were incorporated in Rule 902 under the amendment of the year 2017. Until then, a person seeking to produce electronic records had to fall back mostly upon Rule 901 (except in few cases covered by subrules (11) and (12) of Rule 902). It means that the benefit of selfauthentication was not available until then [until the advent of subrules (13) and (14), except in cases covered by subrules (11) and (12)]. Nevertheless, the introduction of subrules (13) and (14) in Rule 902 did not completely exclude the application of the general provisions of Rule 901. 26. Rule 901 applies to all evidence across the board. It is a general provision. But Rule 902 is a special provision dealing with evidence that is selfauthenticating. Records generated by an electronic process or system and data copied from an electronic device, storage medium or file, are included in subrules (13) and (14) of Rule 902 of the Federal Rules of Evidence. 108 27. But FRE 902 does not exclude the application of FRE 901. It is only when a party seeks to invoke the benefit of selfauthentication that Rule 902 applies. If a party chooses not to claim the benefit of selfauthentication, he is free to come under Rule 901, even if the evidence sought to be adduced is of an electronically stored information (ESI). In an article titled ‘EDiscovery: Authenticating 28. Common Types of ESI Chart’, authored by Paul W. Grimm (the Judge who delivered the verdict in Lorraine ) and coauthored by Gregory P. Joseph and published by Thomson Reuters (2017), the learned authors have given a snapshot of the different methods of authentication of various types of ESI (electronically stored information). In a subsequent article (2018) titled ‘Admissibility of Electronic Evidence’ published under the caption ‘GrimmBrady Chart’ (referring to Paul W. Grimm and Kevin F. Brady) on the website “complexdiscovery.com”, a condensed chart is provided 109


S. No.	Type of ESI	Potential Authentication<br>Methods
1.	Email, Text<br>Messages, and<br>Instant Messages	■ Witness with personal kn<br>(901(b)(1))<br>■ Expert testimony or com<br>with authenticated e<br>(901(b)(3))<br>■ Distinctive charac<br>including circumstantial e<br>(901(b)(4))<br>■ System or process cap<br>proving reliable and dep<br>result (901(b)(9))<br>■ Trade inscriptions (902(7)<br>■ Certified copies of b<br>record (902(11))<br>■ Certified records generate<br>electronic process or<br>(902(13))<br>■ Certified data copied f<br>electronic device, storage m<br>or file (902(14))	owledge<br>parison<br>xamples<br>teristics<br>vidence<br>able of<br>endable<br>)<br>usiness<br>d by an<br>system<br>rom an<br>edium,
2.	Chat Room Postings,<br>Blogs, Wikis, and<br>Other Social Media<br>Conversations	■ Witness with personal kn<br>(901(b)(1))<br>■ Expert testimony or com<br>with authenticated e<br>(901(b)(3))	owledge<br>parison<br>xamples

		■ Distinctive charac<br>including circumstantial e<br>(901(b)(4))<br>■ System or process cap<br>proving reliable and dep<br>result (901(b)(9))<br>■ Official publications (902(<br>■ Newspapers and per<br>(902(6))<br>■ Certified records generate<br>electronic process or<br>(902(13))<br>■ Certified data copied f<br>electronic device, storage m<br>or file (902(14))	teristics<br>vidence<br>able of<br>endable<br>5))<br>iodicals<br>d by an<br>system<br>rom an<br>edium,
3.	Social Media Sites<br>(Facebook, LinkedIn,<br>Twitter,<br>Instagram, and<br>Snapchat)	■ Witness with personal kn<br>(901(b)(1))<br>■ Expert testimony or com<br>with authenticated e<br>(901(b)(3))<br>■ Distinctive charac<br>including circumstantial e<br>(901(b)(4))<br>■ Public records (901(b)(7))<br>■ System or process cap<br>proving reliable and dep<br>result (901(b)(9))<br>■ Official publications (902(<br>■ Certified records generate<br>electronic process or<br>(902(13))<br>■ Certified data copied f<br>electronic device, storage m<br>or file (902(14))	owledge<br>parison<br>xamples<br>teristics<br>vidence<br>able of<br>endable<br>5))<br>d by an<br>system<br>rom an<br>edium,
4.	Digitally Stored Data<br>and Internet of<br>Things	■ Witness with personal kn<br>(901(b)(1))<br>■ Expert testimony or com	owledge<br>parison

		with authenticated e<br>(901(b)(3))<br>■ Distinctive charac<br>including circumstantial e<br>(901(b)(4))<br>■ System or process cap<br>proving reliable and dep<br>result (901(b)(9))<br>■ Certified records generate<br>electronic process or<br>(902(13))<br>■ Certified data copied f<br>electronic device, storage m<br>or file (902(14))	xamples<br>teristics<br>vidence<br>able of<br>endable<br>d by an<br>system<br>rom an<br>edium,
5.	Computer Processes,<br>Animations,<br>Virtual Reality, and<br>Simulations	■ Witness with personal kn<br>(901(b)(1))<br>■ Expert testimony or com<br>with authenticated e<br>(901(b)(3))<br>■ System or process cap<br>proving reliable and dep<br>result (901(b)(9))<br>■ Certified records generate<br>electronic process or<br>(902(13))	owledge<br>parison<br>xamples<br>able of<br>endable<br>d by an<br>system
6.	Digital Photographs	■ Witness with personal kn<br>(901(b)(1))<br>■ System or process cap<br>providing reliable and dep<br>result (901(b)(9))<br>■ Official publications (902(<br>■ Certified records generate<br>electronic process or<br>(902(13))<br>■ Certified data copied f<br>electronic device, storage m<br>or file (902(14))	owledge<br>able of<br>endable<br>5))<br>d by an<br>system<br>rom an<br>edium,

29. It is interesting to note that while the Indian Evidence Act is of the year 1872, the Federal Rules of Evidence were adopted by the order of the Supreme Court of the United States exactly 100 years later, in 1972 and they were enacted with amendments made by the Congress to take effect on 01.07.1975. Yet, the Rules were found inadequate to deal with emerging situations and hence, several amendments were made, including the one made in 2017 that incorporated specific provisions relating to electronic records under subrules (13) and (14) of FRE 902. After this amendment, a lot of options have been made available to litigants seeking to rely upon electronically stored information, one among them being the route provided by subrules (13) and (14) of FRE 902. This development of law in the US demonstrates that, unlike in India, law has kept pace with technology to a great extent. 113


Section 65B(1), Indian<br>Evidence Act, 1872	Section 5(1), Civil Evid<br>Act, 1968 [UK]	ence
Notwithstanding anything<br>contained in this Act, any<br>information contained in an	In any civil proceedi<br>statement contained<br>document produced	ngs a<br>in a<br>by a

electronic record which is printed computer shall, subject to<br>on a paper, stored, recorded or court, be admissible as e<br>copied in optical or magnetic of any fact stated the<br>media produced by a computer<br>which direct oral evidenc<br>(hereinafter referred to as the<br>be admissible, if it is sho<br>computer output) shall be<br>the conditions mention<br>deemed to be also a document, if<br>subsection (2) below are s<br>the conditions mentioned in this<br>in relation to the statem<br>section are satisfied in relation to<br>computer in question.<br>the information and computer in<br>question and shall be admissible<br>in any proceedings, without<br>further proof or production of the<br>original, as evidence of any<br>contents of the original or of any<br>fact stated therein of which direct<br>evidence would be admissible.<br>31. But the abovementioned Section 5 of the U.K. Act of<br>1968 was repealed by the Civil Evidence Act, 1995.<br>Section 15(2) of the Civil Evidence Act, 1995 repealed<br>the enactments specified in Schedule II therein. Under<br>Schedule II of the 1995 Act, Part I of the 1968 Act<br>containing Sections 110 were repealed. The effect is<br>that when Section 65B was incorporated in the Indian<br>Evidence Act, by Act 21 of 2000, by copying sub<br>sections (2) to (5) of Section 5 of the UK Civil Evidence<br>Act, 1968, Section 5 itself was not there in the U.K.<br>115	electronic record which is printed<br>on a paper, stored, recorded or<br>copied in optical or magnetic<br>media produced by a computer<br>(hereinafter referred to as the<br>computer output) shall be<br>deemed to be also a document, if<br>the conditions mentioned in this<br>section are satisfied in relation to<br>the information and computer in<br>question and shall be admissible<br>in any proceedings, without<br>further proof or production of the<br>original, as evidence of any<br>contents of the original or of any<br>fact stated therein of which direct<br>evidence would be admissible.	computer shall, subject to<br>court, be admissible as e<br>of any fact stated the<br>which direct oral evidenc<br>be admissible, if it is sho<br>the conditions mention<br>subsection (2) below are s<br>in relation to the statem<br>computer in question.	rules of<br>vidence<br>rein of<br>e would<br>wn that<br>ed in<br>atisfied<br>ent and

statute book, as a result of its repeal under the 1995 Act. 32. The repeal of Section 5 under the 1995 Act was a sequel to the recommendations made by the Law Commission in September 1993. Part III of the Law Commission’s report titled ‘The Hearsay Rule in Civil Proceedings’ noted the problems with the 1968 Act, one of which concerned computer records. Paragraphs 3.14 to 3.21 in Part III of the Law Commission’s report read as follows: Computer records A fundamental mistrust and fear of the 3.14 potential for error or mechanical failure can be detected in the elaborate precautions governing computer records in section 5 of the 1968 Act. The Law Reform Committee had not recommended special provisions for such records, and section 5 would appear to have been something of an afterthought with its many safeguards inserted in order to gain acceptance of what was then a novel form of evidence . Twentyfive years later, technology has developed to an extent where computers and computergenerated documents are relied on in every area of business and have long been accepted in 116 banking and other important recordkeeping fields. The conditions have been widely criticised, and it has been said that they are aimed at operations based on the type of mainframe operations common in the mid 1960s, which were primarily intended to process in batches thousands of similar transactions on a daily basis . So far as the statutory conditions are 3.15 concerned, there is a heavy reliance on the need to prove that the document has been produced in the normal course of business and in an uninterrupted course of activity. It is at least questionable whether these requirements provide any real safeguards in relation to the reliability of the hardware or software concerned . In addition, they are capable of operating to exclude wide categories of documents, particularly those which are produced as the result of an original or a “one off” piece of work. Furthermore, they provide no protection against the inaccurate inputting of data. 3.16 We have already referred to the overlap between sections 4 and 5. If compliance with section 5 is a prerequisite, then computer generated documents which pass the conditions setout in section 5(2) “shall” be admissible, notwithstanding the fact that they originated from a chain of human sources and that it has not been established that the persons in the chain acted under a duty. In other words, the record provisions of section 4, which exist to ensure the reliability of the core information, are capable of being disapplied. In the context of our proposed reforms, we do not 117 consider that this apparent discrepancy is of any significance, save that it illustrates the fact that section 5 was something of an afterthought. 3.17 Computergenerated evidence falls into two categories. First, there is the situation envisaged by the 1968 Act, where the computer is used to file and store information provided to it by human beings. Second, there is the case where the record has itself been produced by the computer, sometimes entirely by itself but possibly with the involvement of some other machine. Examples of this situation are computers which are fed information by monitoring devices. A particular example is automatic stock control systems, which are now in common use and which allow for purchase orders to be automatically produced. Under such systems evidence of contract formation will lie solely in the electronic messages automatically generated by the seller’s and buyer’s computers. It is easy to see how uncertainty as to how the courts may deal with the proof and enforceability of such contracts is likely to stifle the full development and effective use of such Furthermore, uncertainty may technology. deter parties from agreeing that contracts made in this way are to be governed by English law and litigated in the English courts. 3.18 It is interesting to compare the technical manner in which the admissibility of computer generated records has developed, compared with cases concerning other forms of sophisticated technologically produced 118 evidence, for example radar records (See Sapporo Maru (Owners) v. Statue of Liberty (Owners) [1968] 1 W.L.R. 739). In the Statue of Liberty case radar records, produced without human involvement and reproduced in photographic form, were held to be admissible to establish how a collision of two ships had occurred. It was held that this was “real” evidence, no different in kind from a monitored tape recording of a conversation. Furthermore, in these cases, no extra tests of reliability need be met and the common law rebuttable presumption is applied, that the machine was in order at the material time. The same presumption has been applied to intoximeter printouts (Castle v. Cross [1984] 1 W.L.R. 1372). There are a number of cases which 3.19 establish the way in which courts have sought to distinguish between types of computer generated evidence, by finding in appropriate cases that the special procedures are inapplicable because the evidence is original or direct evidence. As might be expected, case law on computergenerated evidence is more likely to be generated by criminal cases of theft or fraud, where the incidence of such evidence is high and the issue of admissibility is more likely to be crucial to the outcome and hence less liable to be agreed. For example, even in the first category of cases, where human involvement exists, a computergenerated document may not be considered to be hearsay if the computer has been used as a mere tool, to produce calculations from data fed to it by humans, no matter how complex the calculations, or how difficult it may be for 119 humans to reproduce its work, provided the computer was not “contributing its own knowledge” (R v. Wood (1983) 76 Cr. App. R. 23). 3.20 There was no disagreement with the view that the provisions relating to computer records were outdated and that there was no good reason for distinguishing between different forms of record keeping or maintaining a different regime for the admission of computer generated documents . This is the position in Scotland under the 1988 Act. Furthermore, we were informed of fears that uncertainty over the treatment of such records in civil litigation in the United Kingdom was a significant hindrance to commerce and needed reform. 3.21 Consultees considered that the real issue for concern was authenticity that this was a matter which was best dealt with by a vigilant attitude that concentrated upon the weight to be attached to the evidence, in the circumstances of the individual case, rather than by reformulating complex and inflexible conditions as to admissibility . (emphasis supplied) 33. In Part IV of the 1993 Report, titled ‘Recommendations for Reform’, Paragraph 4.43 dealt with the recommendations of the Law Commission in relation to computer records. Paragraph 4.43 of the Law 120 Commission’s report along with Recommendation Nos. 13, 14 and 15 are reproduced for easy reference: (b) Computerised records In the light of the criticisms of the present 4.43 provisions and the response on consultation, we have decided to recommend that no special provisions be made in respect of computerised records. This is the position in Scotland under the 1988 Act and reflects the overwhelming view of commentators, practitioners and others. That is not to say that we do not recognise that, as familiarity with and confidence in the inherent reliability of computers has grown, so has concern over the potential for misuse, through the capacity to hack, corrupt, or alter information, in manner which is undetectable. We do not underestimate these dangers. However the current provisions of section 5 do not afford any protection and it is not possible to legislate protectively. Nothing in our proposals will either encourage abuse, or prevent a proper challenge to the admissibility of computerised records, where abuse is suspected. Security and authentication are problems that experts in the field are constantly addressing and it is a fast evolving area. The responses from experts in this field, such as the C.B.I., stressed that, whilst computergenerated information should be treated similarly to other records, such evidence should be weighed according to its reliability, with parties being encouraged to provide information as to the security of their systems. We have proposed a wide definition for the word "document". This will cover documents in any form and in 121 particular will be wide enough to cover computergenerated information. We therefore recommend that: 13. Documents, including those stored by computer, which form part of the records of a business or public authority should be admissible as hearsay evidence under clause 1 of our draft Bill and the ordinary notice and weighing provisions should apply. 14. The current provisions governing the manner of proof of business records should be replaced by a simpler regime which allows, unless the court otherwise directs, for a document to be taken to form part of the records of a business or public authority, if it is certified as such, and received in evidence without being spoken to in court. No special provisions should be made in respect of the manner of proof of computerized records. 15. The absence of an entry should be capable of being formally proved by affidavit of an officer of the business or authority to which the records belong. (emphasis in original) The above recommendations of the Law Commission 34. (U.K.) made in 1993, led to the repeal of Section 5 of the 1968 Act, under the 1995 Act. The rules of evidence in civil cases, in so far as electronic records 122 are concerned, thus got liberated in U.K. in 1995 with the repeal of Section 5 of the U.K. Civil Evidence Act,1968. 35. But there is a separate enactment in the U.K., containing the rules of evidence in criminal proceedings and that is the Police and Criminal Evidence Act, 1984. Section 69 of the said Act laid down rules for determining when a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein. Section 69 of the said Act laid down three conditions (there are too many negatives in the language employed in Section 69). In simple terms, they require that it must be shown (i) that there are no reasonable grounds for believing that the statement is not inaccurate because of improper use of the computer; (ii) that at all material times the computer was operating properly and (iii) that the additional conditions specified in the rules made by the court are also satisfied. 123 36. The abovementioned Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. This repeal was also a sequel to the recommendations made by the Law Commission in June 1997 under its report titled “Evidence in Criminal Proceedings: Hearsay and Related Topics”. Part 13 of the Law Commission’s Report dealt with computer evidence in . The problems with Section 69 of extenso the 1984 Act, the response during the Consultative Process and the eventual recommendations of the U.K. Law Commission are contained in paragraphs 13.1 to 13.23. They are usefully extracted as follows: In Minors ([1989] 1 WLR 441, 443D–E.) 13.1 Steyn J summed up the major problem posed for the rules of evidence by computer output: Often the only record of the transaction, which nobody can be expected to remember, will be in the memory of a computer… If computer output cannot relatively readily be used as evidence in criminal cases, much crime (and notably offences involving dishonesty) would in practice be immune from prosecution. On the 124 other hand, computers are not infallible. They do occasionally malfunction. Software systems often have “bugs”. …Realistically, therefore, computers must be regarded as imperfect devices. 13.2 The legislature sought to deal with this dilemma by section 69 of PACE, which imposes important additional requirements that must be satisfied before computer evidence is adduced – whether it is hearsay or not (Shephard [1993] AC 380). In practice, a great deal of hearsay 13.3 evidence is held on computer, and so section 69 warrants careful attention. It must be examined against the requirement that the use of computer evidence should not be unnecessarily impeded, while giving due weight to the fallibility of computers. PACE, SECTION 69 13.4 In the consultation paper we dealt in detail with the requirements of section 69: in essence it provides that a document produced by a computer may not be adduced as evidence of any fact stated in the document unless it is shown that the computer was properly operating and was not being improperly used. If there is any dispute as to whether the conditions in section 69 have been satisfied, the court must hold a trial within the trial to decide whether the party seeking to rely on the document has established the foundation requirements of section 69. 125 In essence, the party relying on computer 13.5 evidence must first prove that the computer is reliable – or, if the evidence was generated by more than one computer, that each of them is reliable (Cochrane [1993] Crim LR 48). This can be proved by tendering a written . It is certificate, or by calling oral evidence not possible for the party adducing the computer evidence to rely on a presumption that the computer is working correctly (Shephard [1993] AC 380, 384E). It is also necessary for the computer records themselves to be produced to the court (Burr v DPP [1996] Crim LR 324). The problems with the present law 13.6 In the consultation paper we came to the conclusion that the present law was unsatisfactory, for five reasons. First, section 69 fails to address the major 13.7 causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, “most computer error is either immediately detectable or results from error in the data entered into the machine”. 13.8 Secondly, advances in computer technology make it increasingly difficult to comply with section 69: it is becoming “increasingly impractical to examine (and therefore certify) all the intricacies of . These problems existed computer operation” even before networking became common. 13.9 A third problem lies in the difficulties confronting the recipient of a computer produced document who wishes to tender it in 126 evidence: the recipient may be in no position to satisfy the court about the operation of the computer. It may well be that the recipient’s opponent is better placed to do this. 13.10 Fourthly, it is illogical that section 69 applies where the document is tendered in evidence (Shephard [1993] AC 380), but not where it is used by an expert in arriving at his or her conclusions (Golizadeh [1995] Crim LR 232), nor where a witness uses it to refresh his or her memory (Sophocleous v Ringer [1988] RTR 52). If it is safe to admit evidence which relies on and incorporates the output from the computer, it is hard to see why that output should not itself be admissible; and conversely, if it is not safe to admit the output, it can hardly be safe for a witness to rely on it. At the time of the publication of the 13.11 consultation paper there was also a problem arising from the interpretation of section 69. It was held by the Divisional Court in McKeown v DPP ([1995] Crim LR 69) that computer evidence is inadmissible if it cannot be proved that the computer was functioning properly – even though the malfunctioning of the computer had no effect on the accuracy of the material produced. Thus, in that case, computer evidence could not be relied on because there was a malfunction in the clock part of an Intoximeter machine, although it had no effect on the accuracy of the material part of the printout (the alcohol reading). On appeal, this interpretation has now been rejected by the House of Lords: only malfunctions that affect the way in which a computer processes, stores or retrieves the information used to generate 127 the statement are relevant to section 69 (DPP v McKeown; DPP v Jones [1997] 1 WLR 295). In coming to our conclusion that the 13.12 present law did not work satisfactorily, we noted that in Scotland, some Australian states, New Zealand, the United States and Canada, there is no separate scheme for computer evidence, and yet no problems appear to arise. Our provisional view was that section 69 fails to serve any useful purpose, and that other systems operate effectively and efficiently without it. 13.13 We provisionally proposed that section 69 of PACE be repealed without replacement. Without section 69, a common law presumption comes into play (Phipson, para 2314, approved by the Divisional Court in Castle v Cross [1984] 1 WLR 1372, 1377B): In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time. 13.14 Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been – in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defence). The principle has been applied to such devices as speedometers (Nicholas v Penny [1950] 2 KB 466) and traffic lights (Tingle Jacobs & Co v Kennedy [1964] 1 WLR 638), and in the consultation paper we saw no reason why it should not apply to computers. 128 The response on consultation 13.15 On consultation, the vast majority of those who dealt with this point agreed with us. A number of those in favour said that section 69 had caused much trouble with little benefit. 13.16 The most cogent contrary argument against our proposal came from David Ormerod. In his helpful response, he contended that the common law presumption of regularity may not extend to cases in which computer evidence is central. He cites the assertion of the Privy Council in Dillon v R ([1982] AC 484) that “it is well established that the courts will not presume the existence of facts which are central to an offence”. If this were literally true it would be of great importance in cases where computer evidence is central, such as Intoximeter cases (R v Medway Magistrates’ Court, ex p Goddard [1995] RTR 206). But such evidence has often been permitted to satisfy a central element of the prosecution case. Some of these cases were decided before section 69 was introduced (Castle v Cross [1984] 1 WLR 1372); others have been decided since its introduction, but on the assumption (now held to be mistaken) (Shephard [1993] AC 380) that it did not apply because the statement produced by the computer was not hearsay (Spiby (1990) 91 Cr App R 186; Neville [1991] Crim LR 288). The presumption must have been applicable; yet the argument successfully relied upon in Dillon does not appear to have been raised. 129 It should also be noted that Dillon was 13.17 concerned not with the presumption regarding machines but with the presumption of the regularity of official action. This latter presumption was the analogy on which the presumption for machines was originally based; but it is not a particularly close analogy, and the two presumptions are now clearly distinct. 13.18 Even where the presumption applies, it ceases to have any effect once evidence of malfunction has been adduced. The question is, what sort of evidence must the defence adduce, and how realistic is it to suppose that the defence will be able to adduce it without any knowledge of the working of the machine? On the one hand the concept of the evidential burden is a flexible one: a party cannot be required to produce more by way of evidence than one in his or her position could be expected to produce. It could therefore take very little for the presumption to be rebutted, if the party against whom the evidence was adduced could not be expected to produce more. For example, in Cracknell v Willis ([1988] AC 450) the House of Lords held that a defendant is entitled to challenge an Intoximeter reading, in the absence of any signs of malfunctioning in the machine itself, by testifying (or calling others to testify) about the amount of alcohol that he or she had drunk. 13.19 On the other hand it may be unrealistic to suppose that in such circumstances the presumption would not prevail. In Cracknell v Willis Lord Griffiths ([1988] AC 450 at p 468C– D) said: 130 If Parliament wishes to provide that either there is to be an irrebuttable presumption that the breath testing machine is reliable or that the presumption can only be challenged by a particular type of evidence then Parliament must take the responsibility of so deciding and spell out its intention in clear language. Until then I would hold that evidence which, if believed, provides material from which the inference can reasonably be drawn that the machine was unreliable is admissible. But his Lordship went on: I am myself hopeful that the good sense of the magistrates and the realisation by the motoring public that approved breath testing machines are proving reliable will combine to ensure that few defendants will seek to challenge a breath analysis by spurious evidence of their consumption of alcohol. The magistrates will remember that the presumption of law is that the machine is reliable and they will no doubt look with a critical eye on evidence such as was produced by Hughes v McConnell ([1985] RTR 244) before being persuaded that it is not safe to rely upon the reading that it produces ([1988] AC 450, 468D–E). Lord Goff did not share Lord Griffiths’ 13.20 optimism that motorists would not seek to challenge the analysis by spurious evidence of 131 their consumption of alcohol, but did share his confidence in the good sense of magistrates who, with their attention drawn to the safeguards for defendants built into the Act …, will no doubt give proper scrutiny to such defences, and will be fully aware of the strength of the evidence provided by a printout, taken from an approved device, of a specimen of breath provided in accordance with the statutory procedure ([1988] AC 450 at p 472B– C). 13.21 These dicta may perhaps be read as implying that evidence which merely contradicts the reading, without directly casting doubt on the reliability of the device, may be technically admissible but should rarely be permitted to succeed. However, it is significant that Lord Goff referred in the passage quoted to the safeguards for defendants which are built into the legislation creating the drinkdriving offences. In the case of other kinds of computer evidence, where (apart from section 69) no such statutory safeguards exist, we think that the courts can be relied upon to apply the presumption in such a way as to recognise the difficulty faced by a defendant who seeks to challenge the prosecution’s evidence but is not in a position to do so directly. The presumption continues to apply to machines other than computers (and until recently was applied to nonhearsay statements by computers) without the safeguard of section 69; and we are not aware of any cases where it has caused injustice because the evidential burden cast on 132 the defence was unduly onerous. Bearing in mind that it is a creature of the common law, and a comparatively modern one, we think it is unlikely that it would be permitted to work injustice. 13.22 Finally it should not be forgotten that section 69 applies equally to computer evidence adduced by the defence. A rule that prevents a defendant from adducing relevant and cogent evidence, merely because there is no positive evidence that it is reliable, is in our view unfair. Our recommendation 13.23 We are satisfied that section 69 serves no useful purpose. We are not aware of any difficulties encountered in those jurisdictions that have no equivalent. We are satisfied that the presumption of proper functioning would apply to computers, thus throwing an evidential burden on to the opposing party, but that that burden would be interpreted in such a way as to ensure that the presumption did not result in a conviction merely because the defence had failed to adduce evidence of malfunction which it was in no position to adduce. We believe, as did the vast majority of our respondents, that such a regime would work fairly. We recommend the repeal of section 69 of PACE. (Recommendation 50) (emphasis supplied) 37. Based on the above recommendations of the U.K. Law Commission, Section 69 of the PACE, 1984, was 133 declared by Section 60 of the Youth Justice and Criminal Evidence Act, 1999, to have ceased to have effect. Section 60 of the 1999 Act reads as follows: “Section 69 of the Police and Criminal Evidence Act, 1984 (evidence from computer records inadmissible unless conditions relating to proper use and operation of computer shown to be satisfied) shall cease to have effect” 38. It will be clear from the above discussion that when our lawmakers passed the Information Technology Bill in the year 2000, adopting the language of Section 5 of the UK Civil Evidence Act, 1968 to a great extent, the said provision had already been repealed by the UK Civil Evidence Act, 1995 and even the Police and Criminal Evidence Act, 1984 was revamped by the 1999 Act to permit hearsay evidence, by repealing Section 69 of PACE, 1984. POSITION IN CANADA 39. Pursuant to a proposal mooted by the Canadian Bar Association hundred years ago, requesting all Provincial Governments to provide for the appointment 134 of Commissioners to attend conferences organised for the purpose of promoting uniformity of legislation among the provinces, a meeting of the Commissioners took place in Montreal in 1918. In the said meeting, a Conference of Commissioners on Uniformity of Laws throughout Canada was organised. In 1974, its name was changed to Uniform Law Conference of Canada. The objective of the Conference is primarily to achieve uniformity in subjects covered by existing legislations. The said Conference recommended a model law on Uniform Electronic Evidence in September 1998. The above recommendations of the Uniform Law 40. Conference later took shape in the form of amendments to the Canada Evidence Act, 1985. Section 31.1 of the said Act deals with authentication of electronic documents and it reads as follows: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of 135 supporting a finding that the electronic document is that which it is purported to be. 41. Section 31.2 deals with the application of ‘best evidence rule’ in relation to electronic documents and it reads as follows: Application of best evidence rule — electronic documents 31.2(1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. Printouts Despite subsection (1), in the absence of (2) evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout. 42. Section 31.3 indicates the method of proving the integrity of an electronic documents system, by or in which an electronic document is recorded or stored. Section 31.3 reads as follows: 136 Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; if it is established that the electronic (b) document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or (c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it. 43. Section 31.5 is an interesting provision which permits evidence to be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored . This is for the purpose of 137 determining under any rule of law whether an electronic document is admissible. Section 31.5 reads as follows: Standards may be considered 31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document. 44. Under Section 31.6(1), matters covered by Section 31.2(2), namely the printout of an electronic document, the matters covered by Section 31.3, namely the integrity of an electronic documents system, and matters covered by Section 31.5, namely evidence in respect of any standard, procedure, usage or practice, may be established by affidavit. Section 31.6 reads as follows: Proof by affidavit 138 The matters referred to in subsection 31.6(1) 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit. Crossexamination A party may crossexamine a deponent of (2) an affidavit referred to in subsection (1) that has been introduced in evidence (a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and (b) with leave of the court, in the case of any other deponent. Though a combined reading of Sections 31.3 and 45. 31.6(1) of the Canada Evidence Act, 1985, gives an impression as though a requirement similar to the one under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law, there is a very important distinction found in the Canadian law. Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon an 139 electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the . control of the party seeking to introduce it IV. Conclusion It will be clear from the above discussion that the 46. major jurisdictions of the world have come to terms with the change of times and the development of technology and finetuned their legislations. Therefore, it 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 140 31 32 33 to to to Sandhu Anvar P.V. Tomaso Bruno 34 35 to Sonu Shafhi Mohammad . 47. With the above note, I respectfully agree with conclusions reached by R. F. Nariman, J. that the appeals are to be dismissed with costs as proposed. ...…..………......................J. (V. RAMASUBRAMANIAN) JULY 14, 2020 NEW DELHI 31 State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600 32 Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 33 Tomaso Bruno vs. State of UP, (2015) 7 SCC 178 34 Sonu vs. State of Haryana, (2017) 8 SCC 570 35 Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801 141