ARJUN PANDIT RAO KHOTKAR

vs.

KAILASH KUSHANRAO GORANTYAL & Ors.

[civil appl no. 20825-20826 of 2017]

DATE OF THE VERDICT- July 14th, 2020

BENCH- R F Nariman, S. R. Bhat, V. Ramasubhramaniam.

BACKGROUND OF THE CASE- the decision was given in this amidst of conflicting decisions
pronounced by the SC previously, regarding admissibility of electronic evidence. In the present case
two petitions were filed against the election of the appellant to the Maharashtra legislative assembly
elections. One petition was filed by the candidate who got defeated in the election and the other
was filed by one of the electors. Relying on the camera footage the respondents contended that the
election was void due to causing delay in filing the nomination forms. The Bombay HC admitted the
electronic evidence even in the absence of the requisite certificate as per Sec. 65 B (4) of the Indian
Evidence Act.

THE LAW OF SECTION 65 B (4)

Sec 65 B (4) of the Indian Evidence Act makes it mandatory for the person relying on electronic
evidence to furnish certificate. This certificate is to be issued by the person who gives the copy of the
content of the electronic record from the device which he possesses provided such device was
functioning properly during the time when the information was recorded and the copy of that was
issued.

THE CONFLICTING DECISIONS WHICH LED TO THIS DECISION

1. 2014- Hon’ble SC in Anvar P V vs. PK Basheer held that procedural requirement of Sec 65 B
needs to be fulfilled in order to rely on the electronic record for testing its admissibility in the
court.

2. 2015 – SC in Tomasa Bruno and Anr. vs. State of UP held the electronic evidence to be
admissible and that Secs. 65 A and 65B of the Indian Evidence Act are means of clarification
and are only procedural provisions. They are not a complete code on the subject. Certificate
is not required under Sec. 65 B

3. 2016- SC in K. Ramajyam vs. Inspector of Police held that in lieu of the certificate
evidence aliunde (elsewhere) can be given by the person who was in possession of the
device.

4. 2018- SC in Shafhi Mohammed vs. State of Himachal Pradesh held that procedural
requirement of Sec 65 B (4) can be relaxed and exempted for the sake of justice provided a
party is not in the possession of the device.

ISSUES BEFORE THE COURT-

1. Determining the validity of appellant’s election.

2. To furnish a clear settlement of law regarding furnishing of certificate under Sec 65 (4)

FINAL VERDICT-
1. The SC upheld the impugned judgment for the reason that the Bombay HC relied on other
evidence apart from the electronic evidence to come up with a conclusion.

2. The SC upholding the Anvar PV’s judgment and overruling the Shafhi Mohammed’s Judgement
made it clear that the certificate must be mandatorily provided as a condition under Sec65 B (4) for
admissibility of electronic evidence. SC also overruled it’s previously given verdicts in Ramajyam and
that of Tomaso Bruno.

3. SC differentiated between ‘original document’ and ‘content that maybe treated as evidence of
original document’. The original document is the original record contained in the computer in which
original information has been stored whereas the latter refers to output of that very information that
the computer gives.

4. The certificate as required under Sec 65 B is not necessary if the original document is produced as
primary evidence. The owner of the respective electronic device be it PC, laptop, tablet etc. can
provide it by stepping in the witness box and has to prove that the device which he is producing
contained the original information and that it has been operated by him. But where it is physically
impossible to bring the device to be produced in the court the requisite condition of producing the
document along with the certificate has to be fulfilled.

5. Where there is refusal to grant the certificate to furnish the evidence, it can be retrieved by
making an application for that. But for that the party requiring such certificate needs to fulfil their
entire legal obligation in order to procure that.

6. The electronic evidence is required to be furnished before the trial is about to begin. If the accused
desires to produce the certificate then it shall depend on the facts and circumstances of the case as
well as the discretionary power exercised by the court. As long as the hearing runs and the trial is not
over yet then the court can direct, to produce the requisite certificate at any stage of the trial.

7. SC has issued guidelines for the ISPs (internet service providers) and the cell phone companies
regarding maintenance of CD records and other records relevant for the purpose of seizure during
investigation, or to be produced by the defence as evidence or during cross-examination.

8. SC while referring to a set of draft rules suggested by a committee constituted in 2018 opined that
such draft rules should be given statutory recognition which shall help and guide the courts regarding
the preservation and retrieval of such electronic records.

9. Having regard to Sec 67 C of the IT Act, 2008; appropriate rules should be framed to for retaining
data to be used in the trial of offences, for stamping and maintaining records etc. in order to avoid
corruption.

CONCLUSION

Thus the SC has settled the position of law regarding furnishing electronic evidence and its
admissibility under Sec65 B (4) of the Indian Evidence Act, and has also clarified the option for those
who are not in possession of the electronic device. The court has the power to order or relax
production of requisite certificate in the interest of justice and according to facts and circumstances
of a particular case.
This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
17

3. The brief facts necessary to appreciate the controversy in the present case, as elucidated in Civil
Appeals Nos. 20825-26 of 2017, are as follows:

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
17

3.1. Two election petitions were filed by the present respondents before the Bombay High Court
under Sections 80 and 81 of the Representation of the People Act, 1951, challenging the election of
the present appellant, namely, Shri Arjun Panditrao Khotkar [who is the returned candidate
(hereinafter referred to as “the RC”) belonging to the Shiv Sena Party from 101-Jalna Legislative
Assembly Constituency] to the Maharashtra State Legislative Assembly for the term commencing
November 2014. Election Petition No. 6 of 2014 was filed by the defeated Congress (I) candidate Shri
Kailash Kishanrao Gorantyal, whereas Election Petition No. 9 of 2014 was filed by one Shri Vijay
Chaudhary, an elector in the said constituency. The margin of victory for the RC was extremely
narrow, namely, 296 votes, the RC having secured 45,078 votes, whereas Shri Kailash Kishanrao
Gorantyal secured 44,782 votes.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
17

3.2. 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 Forms 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 27-9-2014 — rendered such nomination forms not being filed in
accordance with the law, and ought to have been rejected.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
18

3.3. In order to buttress this submission, the respondents sought to rely upon video-camera
arrangements that were made both inside and outside the office of the RO. According to the
respondents, the nomination papers were only offered at 3.53 p.m. (i.e. beyond 3.00 p.m.), as a
result of which it was clear that they had been filed out of time. A specific complaint making this
objection was submitted by Shri Kailash Kishanrao Gorantyal before the RO on 28-9-2014 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.
This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
18

6. Transcripts of the contents of these CDs/VCDs were prepared by the High Court itself. Issues 6 and
7 as framed by the High Court (and its answers to these issues) are important, and are set out in the
impugned judgment dated 24-11-2017 [Kailash Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017
SCC OnLine Bom 9168] , and extracted hereinbelow : (Kailash Kishanrao Gorantyal case [Kailash
Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] , SCC OnLine Bom para
26)

“26. … Issues Findings

***

6 Whether the petitioner proves that the nomination papers at Sl. Nos. 43 and 44 Affir
. were not presented by respondent/returned candidate before 3.00 p.m. on 27-9- mati
2014? ve.
(No
min
atio
n
pap
ers
at
Sl.
Nos.
43
and
44
wer
e
not
pres
ente
d by
RC
befo
re
3.00
p.m.
of
27-
9-
201
4.)

7 Whether the petitioner proves that the respondent/returned candidate submitted Affir
 . original Forms A and B along with nomination papers only on 27-9-2014 after mati
3.00 p.m. and along with nomination paper at Sl. No. 44? ve.
(A, B
For
ms
wer
e
pres
ente
d
after
3.00
p.m.
of
27-
9-
201
4.)”

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
20

8. The High Court then set out Sections 65-A and 65-B of the Evidence Act, and referred to this
Court's judgment in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 :
(2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] The Court held in para 71 of the impugned judgment
[Kailash Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] that the CDs
that were produced by the Election Commission could not be treated as an original record and
would, therefore, have to be proved by means of secondary evidence. Finding that no written
certificate as is required by Section 65-B(4) of the Evidence Act was furnished by any of the election
officials, and more particularly, the RO, the High Court then held [Kailash Kishanrao
Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] : (Kailash Kishanrao Gorantyal
case [Kailash Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] , SCC
OnLine Bom para 75)

“75. In substantive evidence, in the cross-examination of Smt Mutha, it is brought on the record that
there was no complaint with regard to working of video cameras used by the office. She has
admitted that the video cameras were regularly used in the office for recording the aforesaid
incidents and daily VCDs were collected of the recording by her office. This record was created as the
record of the activities of the Election Commission. It is brought on the record that on the first floor
of the building, arrangement was made by keeping electronic gadgets like VCR players, etc. and
arrangement was made for viewing the recording. It is already observed that under her instructions,
the VCDs were marked of this recording. Thus, on the basis of her substantive evidence, it can be said
that the conditions mentioned in Section 65-B of the Evidence Act are fulfilled and she is certifying
the electronic record as required by Section 65-B(4) of the Evidence Act. It can be said that the
Election Commission, the machinery avoided to give certificate in writing as required by Section 65-
B(4) of the Evidence Act. But, substantive evidence is brought on record of competent officer in that
regard. When the certificate expected is required to be issued on the basis of best of knowledge and
belief, there is evidence on oath about it of Smt Mutha. Thus, there is something more than the
contents of certificate mentioned in Section 65-B(4) of the Evidence Act in the present matters. Such
evidence is not barred by the provisions of Section 65-B of the Evidence Act as that evidence is only
on certification made by the responsible official position like RO. She was in charge of the
management of the relevant activities and so, her evidence can be used and needs to be used as the
compliance with the provisions of Section 65-B of the Evidence Act. This Court holds that there is
compliance with the provisions of Section 65-B of the Evidence Act in the present matter in respect
of aforesaid electronic record and so, the information contained in the record can be used in the
evidence.”

Based, therefore, on “substantial compliance” of the requirement of giving a certificate under

Section 65-B of the Evidence Act, it was held that the CDs/ VCDs were admissible in evidence, and
based upon this evidence it was found that, as a matter of fact, the nomination forms by the RC had
been improperly accepted. The election of the RC was, therefore, declared void in the impugned
judgment [Kailash Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] .

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
21

9. Shri Ravindra Adsure, learned advocate appearing on behalf of the appellant, submitted that the
judgment in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1
SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] covered the case before us. He argued that without the
necessary certificate in writing and signed under Section 65-B(4) of the Evidence Act, the CDs/VCDs
upon which the entirety of the judgment rested could not have been admitted in evidence. He
referred to Tomaso Bruno v. State of U.P. [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3
SCC (Cri) 54] , and argued that the said judgment did not notice either Section 65-B or Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] , and was therefore per incuriam. He also argued that Shafhi
Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC
(Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] , being a two-Judge
Bench of this Court, could not have arrived at a finding contrary to Anvar P.V. [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] ,
which was the judgment of three Hon'ble Judges of this Court. In particular, he argued that it could
not have been held in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 :
(2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1
SCC (Cri) 865] that whenever the interest of justice required, the requirement of a certificate could
be done away with under Section 65-B(4). Equally, this Court's judgment dated 3-4-2018, reported
as Shafhi Mohd. v. State of H.P. [Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311 : (2018) 2 SCC (Cri)
704] , which merely followed the law laid down in Shafhi Mohammad [Shafhi Mohammad v. State of
H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1
SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] , being contrary to the larger Bench judgment in Anvar
P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 :
(2015) 1 SCC (L&S) 108] , should also be held as not having laid down good law. He further argued
that the Madras High Court judgment in K. Ramajayam v. State [K. Ramajayam v. State, 2016 SCC
OnLine Mad 451 : 2016 Cri LJ 1542] , being contrary to Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10
SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , also does not lay
down the law correctly, in that it holds that evidence aliunde, that is outside Section 65-B, can be
taken in order to 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 65-B(4), as was held by the impugned judgment [Kailash
Kishanrao Gorantyal v. Arjun Panditrao Khotkar, 2017 SCC OnLine Bom 9168] , could possibly be
sustained in law.

20. Sections 65-A and 65-B occur in Chapter V of the Evidence Act which is entitled “Of Documentary
Evidence”. Section 61 of 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 …”.

21. 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 65-A speaks of “contents” of electronic records
being proved in accordance with the provisions of Section 65-B. Section 65-B speaks of
“admissibility” of electronic records which deals with “existence” and “contents” of electronic
records being proved once admissible into evidence. With these prefatory observations let us have a
closer look at Sections 65-A and 65-B.

22. It will first be noticed that the subject-matter of Sections 65-A and 65-B of the Evidence Act is
proof of information contained in electronic records. The marginal note to Section 65-A indicates
that “special provisions” as to evidence relating to electronic records are laid down in this provision.
The marginal note to Section 65-B then refers to “admissibility of electronic records”.

23. Section 65-B(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.

24. Section 65-B(2) then refers to the conditions that must be satisfied in respect of a computer
output, and states that the test for being included in conditions 65-B(2)(a) to 65-B(2)(d) is that the
computer be regularly used to store or process information for purposes of activities regularly
carried on in the period in question. The conditions mentioned in sub-sections (2)(a) to (2)(d) must
be satisfied cumulatively.

25. Under sub-section (4), a certificate is to be produced that identifies the electronic record
containing the statement and describes the manner in which it is produced, or gives particulars of
the device involved in the production of the electronic record to show that the electronic record was
produced by a computer, by either a person occupying a responsible official position in relation to
the operation of the relevant device; or a person who is in the management of “relevant activities”
— whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to
be stated to the “best of the knowledge and belief of the person stating it”. Here, “doing any of the
following things …” must be read as doing all of the following things, it being well settled that the
expression “any” can mean “all” given the context (see, for example, this Court's judgments
in Banwarilal Agarwalla v. State of Bihar [Banwarilal Agarwalla v. State of Bihar, (1962) 1 SCR 33 :
AIR 1961 SC 849 : (1961) 2 Cri LJ 12:“3. The first contention is based on an assumption that the word
“any one” in Section 76 means only “one of the directors, and only one of the shareholders”. This
question as regards the interpretation of the word “any one” in Section 76 was raised in Chief
Inspector of Mines v. Lala Karam Chand Thapar, AIR 1961 SC 838 : (1961) 2 Cri LJ 1and it has been
decided there that the word “any one” should be interpreted there as “every one”. Thus, under
Section 76 every one of the shareholders of a private company owning the mine, and every one of the
directors of a public company owning the mine is liable to prosecution. No question of violation of
Article 14 therefore arises.” (SCR p. 35 : AIR p. 850, para 3)(emphasis supplied)] and Om
Parkash v. Union of India [Om Parkash v. Union of India, (2010) 4 SCC 17 : (2010) 2 SCC (Civ) 1,
“70. Perusal of the opinion of the Full Bench in B.R. Gupta-1 [Balak Ram Gupta v. Union of India,
1987 SCC OnLine Del 227 : AIR 1987 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 in one case of landowners to be automatically extended to all those landowners,
whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the
fact whether 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, appear to be
reasonable, apt, legal and proper.” (SCC p. 43, para 70)(emphasis supplied)] ). This being the case, the
conditions mentioned in Section 65-B(4) must also be interpreted as being cumulative.

Sections 65-A and 65-B of the Indian Evidence Act, which are part of Chapter V titled "Of
Documentary Evidence," deal with the proof and admissibility of electronic records. §61
establishes that documents may be proved through either primary or secondary evidence,
with §62 defining primary evidence as the document itself. §63 outlines the types of
secondary evidence that can be used, and §64 provides the “Best Evidence Rule” stating
documents to be proved by primary evidence, unless exceptions apply. §65 provides
provision for the conditions for admissibility of secondary evidence. §65 further clarifies the
distinction between the existence (admissibility) of a document and its contents, which need
to be proven once the document is deemed admissible.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
28

26. It is now appropriate to examine the manner in which Section 65-B was interpreted by this Court.
In Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri)
24 : (2015) 1 SCC (L&S) 108] , a three-Judge Bench of this Court, after setting out Sections 65-A and
65-B of the Evidence Act, held : (SCC pp. 483-86, paras 14-18 & 20-24)

“14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of
Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section
65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be
noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained
in the Evidence Act, any information contained in an electronic record which is printed on a paper,
stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to
be a document only if the conditions mentioned under sub-section (2) are satisfied, without further
proof or production of the original. The very admissibility of such a document i.e. electronic record
which is called as computer output, depends on the satisfaction of the four conditions under Section
65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

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

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

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

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

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

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

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

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

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

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

16. It is further clarified that the person need only to state in the certificate that the same is to the
best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic
record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc.
pertaining to which a statement is sought to be given in evidence, when the same is produced in
evidence. All these safeguards are taken to ensure the source and authenticity, which are the two
hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being
more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the
whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would
the question arise as to the genuineness thereof and in that situation, resort can be made to Section
45-A—opinion of Examiner of Electronic Evidence.

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

***

20. Proof of electronic record is a special provision introduced by the IT Act amending various
provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with
Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic
record shall be governed by the procedure 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. In State (NCT of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC
600 : 2005 SCC (Cri) 1715] a two-Judge Bench of this Court had an occasion to consider an issue on
production of electronic record as evidence. While considering the printouts of the computerised
records of the calls pertaining to the cellphones, it was held at para 150 as follows : (SCC p. 714)

‘150. According to Section 63, “secondary evidence” means and includes, among other things,
“copies made from the original by mechanical processes which in themselves insure the accuracy of
the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the
contents of a document to be adduced if the original is of such a nature as not to be easily movable.
It is not in dispute that the information contained in the call records is stored in huge servers which
cannot be easily moved and produced in the court. That is what the High Court has also observed
[State v. Mohd. Afzal, 2003 SCC OnLine Del 935 : (2003) 71 DRJ 178] at para 276. Hence, printouts
taken from the computers/servers by mechanical process and certified by a responsible official of the
service-providing company can be led in evidence through a witness who can identify the signatures
of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective
of the compliance with the requirements of Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to adducing secondary evidence under the other
provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing
the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean
that secondary evidence cannot be given even if the law permits such evidence to be given in the
circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.’

It may be seen that it was a case where a responsible official had duly certified the document at the
time of production itself. The signatures in the certificate were also identified. That is apparently in
compliance with the procedure prescribed under Section 65-B of the Evidence Act. However, it was
held that irrespective of the compliance with the requirements of Section 65-B, which is a special
provision dealing with admissibility of the electronic record, there is no bar in adducing secondary
evidence, under Sections 63 and 65, of an electronic record.

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the
general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall
yield to the same. Generalia specialibus non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility
of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by
way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the
statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by
this Court in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC
(Cri) 1715] , does not lay down the correct legal position. It requires to be overruled and we do so.
An electronic record by way of secondary evidence shall not be admitted in evidence unless the
requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc. the same shall
be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the
document, without which, the secondary evidence pertaining to that electronic record, is
inadmissible.

23. The appellant admittedly has not produced any certificate in terms of Section 65-B in respect of
the CDs, Exts. 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. Thus, the whole case set up regarding the corrupt practice using songs,
announcements and speeches fall to the ground.

24. The situation would have been different had the appellant adduced primary evidence, by making
available in evidence, the CDs used for announcement and songs. Had those CDs used for
objectionable songs or announcements been duly got seized through the police or Election
Commission and had the same been used as primary evidence, the High Court could have played the
same in court to see whether the allegations were true. That is not the situation in this case. The
speeches, songs and announcements were recorded using other instruments and by feeding them
into a computer, CDs were made therefrom which were produced in court, without due certification.
Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the
Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the
preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59,
65-A and 65-B of the Evidence Act, if an electronic record as such is used as primary evidence under
Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the
conditions in Section 65-B of the Evidence Act.”

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
36

31. Section 15(2) of this Act repeals enactments mentioned in Schedule II therein; and Schedule II
repeals Part I of the Civil Evidence Act, 1968 — of which Sections 5 and 6 were a part. The definition
of “records” and “document” in this Act would show that electronic records are considered to be
part of “document” as defined, needing no separate 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.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
37

32. Coming back to Section 65-B of the 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.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
37

33. 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 65-
B, which is a special provision in this behalf — Sections 62 to 65 being irrelevant for this purpose.
However, Section 65-B(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 65-B
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.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
37

34. 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 device concerned, on which the
original information is first stored, is owned and/or operated by him. In cases where “the computer”,
as defined, happens to be a part of a “computer system” or “computer network” (as defined in the
Information Technology Act, 2000) and it becomes impossible to physically bring such network or
system to the court, then the only means of proving information contained in such electronic record
can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-
B(4). This being the case, it is necessary to clarify what is contained in the last sentence in para 24
of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri)
24 : (2015) 1 SCC (L&S) 108] which reads as “… if an electronic record as such is used as primary
evidence under Section 62 of the Evidence Act …”. This may more appropriately be read without the
words “under Section 62 of the Evidence Act,…”. With this minor clarification, the law stated in para
24 of Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC
(Cri) 24 : (2015) 1 SCC (L&S) 108] does not need to be revisited.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
38

35. In fact, in Vikram Singh v. State of Punjab [Vikram Singh v. State of Punjab, (2017) 8 SCC 518 :
(2017) 3 SCC (Cri) 641] , a three-Judge Bench of this Court followed the law in Anvar P.V. [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] , clearly stating that where primary evidence in electronic form has been produced, no
certificate under Section 65-B would be necessary. This was so stated as follows : (SCC pp. 531-32,
paras 25-26)

“25. The learned counsel contended that the tape-recorded conversation has been relied on without
there being any certificate under Section 65-B of the Evidence Act, 1872. It was contended that audio
tapes are recorded on magnetic media, the same could be established through a certificate under
Section 65-B and in the absence of the certificate, the document which constitutes electronic record,
cannot be deemed to be a valid evidence and has to be ignored from consideration. Reliance has
been placed by the learned counsel on the judgment of this Court in Anvar P.V. v. P.K. Basheer [Anvar
P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] . The conversation on the landline phone of the complainant situate in a shop was
recorded by the complainant. The same cassette containing conversation by which ransom call was
made on the landline phone was handed over by the complainant in original to the police. This Court
in its judgment dated 25-1-2010 [Vikram Singh v. State of Punjab, (2010) 3 SCC 56 : (2010) 2 SCC (Cri)
26] has referred to the aforesaid fact and has noted the said fact to the following effect : (Vikram
Singh case [Vikram Singh v. State of Punjab, (2010) 3 SCC 56 : (2010) 2 SCC (Cri) 26] , SCC p. 61, para
5)

‘5. … The cassette on which the conversations had been recorded on the landline was handed over
by Ravi Verma to SI Jiwan Kumar and on a replay of the tape, the conversation was clearly audible
and was heard by the police.’

26. The tape-recorded conversation was not secondary evidence which required certificate under
Section 65-B, since it was the original cassette by which ransom call was tape-recorded, there cannot
be any dispute that for admission of secondary evidence of electronic record a certificate as
contemplated by Section 65-B is a mandatory condition.” [ The definition of “data”, “electronic form”
and “electronic record” under the Information Technology Act, 2000 (as set out hereinabove) makes
it clear that “data” and “electronic form” includes “magnetic or optical storage media”, which would
include the audio tape/cassette discussed in Vikram Singh, (2017) 8 SCC 518 : (2017) 3 SCC (Cri) 641.]

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
56

63. While on the subject, it is relevant to note that the Department of Telecommunication's licence
conditions [i.e. under the “Licence for Provision of Unified Access Services” framed in 2007, as also
the subsequent “Licence Agreement for Unified Licence” and the “Licence 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 limited
duration of one year [See, Clause 41.17 of the Licence 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 Licence Agreement for Unified Licence:“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.”] . 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 the accused wishes to challenge the genuineness of
this certificate by seeking the opinion of the Examiner of Electronic Evidence under Section 45-A of
the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service
provider) may be missing.

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
57

64. To obviate this, general directions are issued to cellular companies and internet service providers
to maintain CDRs and other relevant records for the period concerned (in tune with Section 39 of the
Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during
investigation in the said period. The parties concerned can then summon such records at the stage of
defence evidence, or in the event such data is required to cross-examine a particular witness. This
direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms
of the applicable licences, or under Section 67-C of the Information Technology Act, which reads as
follows:

“67-C. Preservation and retention of information by intermediaries.—(1) Intermediary shall

preserve and retain such information as may be specified for such duration and in such manner and
format as the Central Government may prescribe.

(2) Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (1)
shall be punished with an imprisonment for a term which may extend to three years and also be
liable to fine.”

This extract is taken from Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 :
(2020) 4 SCC (Civ) 1 : (2020) 3 SCC (Cri) 1 : (2020) 2 SCC (L&S) 587 : 2020 SCC OnLine SC 571 at page
57

65. It is also useful, in this context, to recollect that on 23-4-2016, 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 28-7-
2018 [ The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain
Raina and R.K. Gauba, JJ.] . 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 authorities concerned, with the object of giving them statutory force, to
guide courts in regard to preservation and retrieval of electronic evidence.
Finally, the reference to the larger Bench in Arjun Khotkar v. Kailash Gorantyal[1] was answered by the
Three Judge Bench on 14th July 2020 apparently halting the swinging pendulum swinging between P
V Anvar[2], Tomso Bruno[3] and Shafhi Mohammad[4]. The Judgment was eagerly awaited not only for
judicial certainty but to decide course of judicial treatment of the electronic evidence in the digital
era to come. Though this Judgments obviates any need to revisit the verdict in Anvar PV, it leaves
many issues unattended.

This whole saga around 65B of the Indian Evidence Act, 1872 began in Navjot Sandhu[5] where the
Supreme Court overlooked non obstante clause which in fact gave a clear overriding effect to section
65B over other sections, when evidence was digital evidence. In doing so, it imported the provisions
of section 65 to hold that since the original servers are not easily movable one of the conditions of
section 65 for adducing secondary evidecne stands complied and hence secondary evidence in the
form of printouts can be adduced. It then also imported provisions of section 63 to hold that the
printouts are copies made by mechanical process and hence constitute secondary evidence and
therefore can be adduced in evidence. By invoking these two sections, which were meant for paper
documents when enacted, the Supreme Court bypassed the entire set of special procedure laid
down by scheme of section 65A and section 65B together, making the same completely optional.
This view held the field for almost a decade till the three Judges Bench of the Supreme Court
in Anvar PV overruled Navjot Sandhu and held 65B to be a complete code of the subject and
compliance with 65B mandatory. This was again diluted substantially in in Shafhi Mohammad by two
judges' bench allowing exemption from compliance with 65B in appropriate and just cases. This view
of the Division Bench as against the three judges bench view in Anvar PV not only aggravated the
uncertainty already prevailing, but also raised the questions of judicial propriety. The extreme rigidity
shown in Anvar PV in favour of 65B was certainly a cause of worry but so also the extreme laxity
shown in Tomso Bruno and Shafhi Mohd. rendering 65B virtually otiose. For the legal fraternity
caught in these two extremes, the pendulum was constantly swinging and hence the reference by
the Division Bench to a larger bench in the case of Arjun Khotkar[6] certainly came as a relief and
heightened expectations for greater clarity. However larger bench reference judgement in Arjun
Khotkar, poses even graver questions than it seeks to resolve.

In this judgement, Supreme Court has again underlined the distinction between primary and
secondary evidence and held that the primary evidence (i.e. the original hard drive or CD) would not
need certification of 65B, effectively liberating it from its clutches and it is only the copy of such
original electronic evidence (secondary evidence, so as to say) would need the compliance with
Section 65B. Unfortunately, though the judgement extensively refers to the international legislations,
it fails to refer to technical aspects of any electronic data, which, in fact, should have been the centre
of discussion.

Any technical literature will testify that there does not exist anything as a primary and secondary in
the word of digital evidence and in case of any computer. Neither the data that is fed into the
computer nor its output is ever in readable format. Therefore 'original electronic data' is never
readable. It is always in binary (which is unreadable for human eye) format. It is only through data
processing and conversion; it is converted into readable format. So, what one sees with his eyes on
any screen is always the secondary rendition of the original. In other word, the original of the
electronic data can never be seen unless its converted into secondary. It is the computer which
makes the input and output readable for the user or human eye. Most importantly any computer
information or record can be undetectably edited or copied and is so edited or copied on networks
without any ability of the user to even know that its edited or copied. Therefore, the concept of
'original' is completely alien to the electronic world.
This concept of 'original' strictly belongs to the world of 'paper documents'. In fact, it is to get rid of
all these concepts revolving around paper documents that the section 65B begins with Non
obstante clause. It is a technical misnomer to say that if the original Hard Drive or CD is produced, it
constitutes primary evidence and hence it does not require the certification. Any computer output is
merely a 'representation' of primary evidence which lies in binary format. Therefore, every single
Hard Drive or CD falls within ambit of Section 65B and requires its compliance. Otherwise the word
'notwithstanding' would be redundant and one brings in the same logic of Navjot Sandhu through
backdoor by importing concepts of 'primary' and 'secondary' evidence in the world of digital
evidence. Even the language used by Section 65B supports this interpretation. E.g. One of the
conditions of Section 65B certificate is that "during the said period, information of the kind contained
in the electronic record or of the kind from which the information so contained is derived was
regularly fed into the computer".

Had the section been really concerned only about mere computer printout or CD, there was no need
to mention about the regularity of input. Even three other conditions mentioned in 65B(2), which are
required to be compulsorily complied with, can be attributes of only original electronic record. In
fact, first reading of Section 65B(4) also indicates that the certificate should deal with the electronic
record which is 'produced' by the computer or manner of its 'production' etc. The word 'produced'
does not mean mere 'printout' or 'writing or copying of CD'. The CCTV footage or biometric record
would also be electronic record 'produced' by computer since it is always 'system generated'. Any
information contained on any hard drive would be the one which is recorded or stored by the
computer. There is no question of any primary or secondary version. This approach is universally
adopted in treatment of the Electronic Evidence. In fact, the opening words of section 65B provide
"any information contained in an electronic record which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a computer… shall be deemed to be also a
document, if the conditions mentioned in this section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings." Therefore, even if someone
produces the electronic record in the form of an original hard drive, it will amount to information
contained in an electronic record which is stored in magnetic media (as defined above) and would
inevitably require compliance of the conditions mentioned in the section. If someone produces CD, it
will amount to information contained in an electronic record which is recorded in optical media and
would still attract Section 65B and its conditions.

The interpretation by the reference bench in Arjun Khotkar's case may open Pandora's Box since all
the digital evidence would be straightaway admitted into evidence without compliance with 65B,
moment one gets the original device to the court, though the original device may be full of errors
and software bugs.

The second major anomaly in the verdict in Arjun Khotkar's case seems to be blank withdrawal of the
special privilege or exemption granted in by Shafhi Mohammad to whistleblowers for proving of
electronic records. In the cases when the electronic record is produced from the custody of the
person who is not in charge of the computer system, Shafhi Mohammad exempted the proponent of
electronic evidence from rigorous compliance with 65B. The reason was simple. It will be almost
impossible for person to obtain 65B certificate from stranger authority or organisation, who happens
to be in charge of concerned computer-system. Arjun Khotkar alters this position substantially and
suggests an alternative. Supreme Court refers to several provisions in the civil and criminal
law[7] whereby a court can be compel any party or person to file affidavit or produce a document and
the Supreme Court holds that such provisions can be invoked by the court, to ensure compliance
with section 65B by directing concerned person or entity for producing the Certificate of Section 65B.
Though, apparently this alternative looks attractive, it involves several practical and constitutional
hazards.

For example, in a case where RTI activists obtains certain electronic data from the system of the
respondent Government entity, then it is absolutely unlikely that such respondent would ever give
certificate of 65B, howsoever one tries. And even if it chooses to, the correctness of its contents
would be highly susceptible to doubts since any Lacunae in such a certificate would ultimately
benefit the respondent by weakening the case of proponent of electronic evidence. In fact, this very
case of Arjun Khotkar is a saga of administrative apathy for providing certification of 65B. The
Supreme Court narrates in detail the futile efforts of the respondent for obtaining 65B certification
and in fact, condones the requirement of compliance with 65B looking at the best efforts made by
the respondents. If this can happen in Arjun Khotkar, it can happen in any case and there such
condonation would not be possible in the light of this verdict. Most importantly, even if the court
invokes aforementioned provision and directs such respondent or entity to produce and comply with
65B mandate by filing certificate, such compulsion would be directly hit by celebrated constitutional
guarantee of right against self-incrimination enshrined in Article 20(3). For example, if some data is
captured from the computer of the accused, then to compel the accused to give 65B certificate
would clearly amount to self-incrimination and would violate the right granted by Article 20(3) [8] of
the Constitution of India.

In insisting for rigorous compliance with Section 65B, what is probably also neglected is the language
of Section 65A. 65A provides as follows:

Section 65A: Special provisions as to evidence relating to electronic record.—The contents of

electronic records may be proved in accordance with the provisions of section 65B.

Use of word 'may' clearly indicates that 65B was devised to be merely an enabling mechanism to be
availed of in appropriate situations. To make it only and concrete code on the subject of digital
evidence would be ignoring extremely dynamic and ever-changing realm of electronic evidence.

In fact, the portion that really needed the clarification in Shafhi Mohammad was last line in Para 30
follows

"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 Evidence
Act. The applicability of requirement of certificate being procedural can be relaxed by the
court wherever interest of justice so justifies." (Para 30).

The exemption for the whistleblowers could be understood but granting relaxation 'wherever
interest of justice so justifies' was absolutely vague rendering the entire rigour of Section 65B and
mandate in PV Anvar otiose. But the whole thing went out instead of one line closing all the doors
for any electronic evidence except Section 65B.

The last but not the least error appears to be the interpretation of section 65B(4), which reads as

65B(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section,
a certificate doing any of the following things, that is to say,-

The Supreme Court has read 'all' in place of 'any' by placing reliance on certain judgements[9]. In
doing so unfortunately no efforts were made to discuss the facts of the said judgments which
necessitated such judicial re-writing of words. Unless warranted by gravity of the situation, such
judicial replacement of phrase is not only against the golden rule of interpretation but also clear
legislative intent. What 65B (4), really mandates is compliance with 'any' of the conditions
mentioned in 65B(4).

In fact, the most crucial phrase in the scheme of section 65B was "certificate doing any of the
following". Thus, the choice was completely left with the proponent of electronic evidence to give
certificate which deals with 'any of the conditions mentioned in Section 65B(4)'. However, the
Supreme Court now mandates the compliance of 'all' conditions. If compliance with 'all' conditions is
insisted, it would lead to absolutely absurd consequences.

For example, a hacker hacks into a computer system and installs a malware causing a substantial loss
to the owner of the computer system. In the proceedings for compensation, the owner cannot be
compelled to say on affidavit that 'such data was regularly fed in his computer in the regular and
ordinary course of business' since hacking and installation of malware was a solitary instance and
compelling the owner to comply with 'All' the conditions will actually be compelling him to lie on
oath.

Precisely for this reason, choice was given to the proponent of electronic evidence to mention only
those factors in his 65B certificate which he considers to be relevant and which are applicable in each
individual case, instead of insisting for an omnibus certificate.

The words 'any of the following' give proponent a great and much needed flexibility in the world of
digital evidence. Such literal interpretation would have also taken care of the situations, where
fulfilment of all the conditions mentioned in Section 65B(2) was not possible for whistleblower to
lack of his personal knowledge of the computer system. The legislative intent seems to be that the
Certificate should deal with only applicable and appropriate conditions. Unfortunately, this issue is
left unattended by this judgement.

Another visible contradiction that appears from the judgement is the stage for production of 65B
certificate. At one stage the judgement allows production of the certificate at any stage before the
trial begins, in order to protect the rights of the respondent or accused. Whereas in para 57, it
recognizes the right of the court to insist for production of the certificate at any time before the trial
is over.

Another crucial aspect this Judgment ought to have dealt with was 'prospective overruling'. Whilst
the Judgment in Navjot Sandhu held the field for almost a decade, there were several trials where no
compliance with Section 65B was made on account of the allowance made by the Supreme Court
in Navjot Sandhu. There is big question mark in such trials particularly where they are at the verge of
the end or already decided and now pending in Appeal. Failure to comply with the mandate of
Section 65B can fatally effect the outcome of such trials and appeals in the light of mandate of Anvar
PV now re-confirmed in Arjun Khotkar. Specification of cut-off date for application of law as
enunciated would have obviated several untoward consequences.

The data retention guidelines mentioned also in paragraph 62 were much-needed relief but can
never replace the imminent need of comprehensive code on this subject through rule making or
legislation. There is big void in the field of E-Discovery and Uniform standards for handling of digital
evidence, which should have been addressed but they have to wait for another day.

Though the judgement is a certainly laudable effort to reconcile the conflicting positions as arising
from different judgements and provide greater clarity, there were several aspects which required
attention and revisit, where it seems to be a golden but missed opportunity.
Views are personal only

(Author is a Practising Lawyer at High Court & Supreme Court)

[1] Civil Appeal No. 20825-20826 of 2017

[2] Anvar P.V. v. P.K. Bashir & Ors. (2014)10 SCC 473 (Three Judge Bench decision of Supreme Court)

[3] Tomaso Bruno & Anr v. State of Uttar Pradesh (2015)7 SCC 178

[4] Shafhi Mohammad v. State of Himachal Pradesh (2018)2 SCC 801 (Division Bench Judgment of
Supreme Court)

[5] (2005) 11 SCC 600 : 2005 SCC (Cri) 1715

[6] Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. 2019 SCC OnLine SC 1553

[7] Order XVI of Code of Civil Procedure, 1908, Section 91 and 349 of the Code of Criminal Procedure,
1973

[8] the Constitution of India Article 20(3):

No person accused of any offence shall be compelled to be a witness against himself.

[9] Bansilal Agarwalla v. State of Bihar (1962)1 SCR 33 and Om Prakash v. Union of India (2010)4 SCC
17