HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

SHIMLA

INFORMATION TECHNOLOGY

TOPIC: CASE COMMENT ON ARJUN PANDITRAO KHOTKAR V. KAILASH KUSHANRAO

GORANTYAL, 2020 SCC ONLINE SC 571

SUBMITTED BY:

PURVEETA SHARMA

ROLL NO. 1020202164

6TH SEMESTER

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TABLE OF CONTENTS:

1. FACTS OF THE CASE ………………………………………………………03

2. ISSUE CONTENDED…………………………………………………....…...04

3. HELD………………………………………………………………………….05

4. CASE COMMENT………………………………………………………....…06

i) History of interpretation of Section 65B Indian Evidence Act………....…06

ii) Finality to the speculations………………………………………………...08

5. CONCLUSION………………………………………………………………..11

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FACTS OF THE CASE:

i. The Bombay High Court received two election petitions from the current respondents,
which were filed under Sections 80 and 81 of the Representation of the People Act,
1951. These petitions challenged the election of the appellant, Mr. Arjun Panditrao
Khotkar, who belonged to the Shiv Sena party and was elected as the candidate from
the Jalna Legislative Assembly Constituency in Maharashtra State. The petitions were
filed by the defeated candidate from the Congress, Mr. Kailash Kishanrao Gorantyal
and by Mr. Vijay Chaudhary, an elector in the constituency. The RC won the election
by a very narrow margin of 296 votes, with 45,078 votes secured by the RC and 44,782
votes secured by Mr. Kailash Kishanrao Gorantyal.
ii. The entire case presented before the High Court centered around four sets of
nomination papers submitted by the RC. The respondents argued that each set of
nomination papers had substantial defects, and as a result, all four sets should have
been rejected by the Returning Officer, Smt. Mutha, from the Election Commission.
The respondents claimed that the late submission of Nomination Form by the RC, after
the designated time of 3:00 p.m. on September 27, 2014, violated the law and should
have been disqualified, thus leading to the nullification of the RC's election.
iii. To support their argument, the respondents aimed to utilize video camera recordings
from both inside and outside the office of the Returning Officer (RO). They claimed
that the nomination papers were only presented at 3:53 p.m., which was after the
designated time of 3:00 p.m., indicating that they were filed late. Shri Kailash
Kishanrao Gorantyal lodged a specific complaint regarding this issue with the RO on
September 28, 2014, at 11:00 a.m., requesting the rejection of the nomination forms
that were allegedly accepted improperly. However, the RO dismissed this request on
the same day, asserting that the nomination forms were indeed submitted within the
stipulated timeframe.
iv. By its order dated March 16, 2016, the High Court instructed the Election Commission
and the relevant officers to present the complete record of the election in that
constituency, including the original video recordings. The court specifically demanded
that this electronic record be provided along with the necessary certificates. Referring
to Sections 65-A and 65-B of the Evidence Act and this Court's ruling in the case of

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 Anvar P.V. v. P.K Bahseer, the High Court concluded in paragraph 65 of the challenged
judgment that the CDs submitted by the Election Commission could not be considered
as the original record. Consequently, the CDs would have to be substantiated by
secondary evidence. However, as there was "substantial compliance" with the
requirement of providing a certificate under Section 65-B of the Evidence Act, the court
determined that the CDs/VCDs were admissible as evidence. Based on this evidence,
it was established that the nomination forms filed by the RC had been accepted
improperly. As a result, the court declared the election of the RC as void in the
contested judgment.

ISSUE CONTENDED:

Due to the conflicting interpretations of Section 65B of the Evidence Act in the cases of Shafhi
Mohammad and Anvar P.V., the Division Bench of the Supreme Court referred the matter to a
larger bench of the court. The conflict primarily revolved around the question of whether the
certification requirement under Section 65B(4) of the Evidence Act is mandatory for the
admissibility of electronic evidence.

In the case of Anvar P.V., a Three-Judge Bench of the Supreme Court established that an electronic
record presented as secondary evidence cannot be admitted unless it fulfills the conditions outlined
in Section 65B of the Evidence Act. Consequently, in situations involving electronic evidence
stored in formats such as CDs, VCDs, chips, and others, it is imperative to have a certificate, as
per Section 65B of the Evidence Act, obtained at the time of obtaining the document. Without such
a certificate, the secondary evidence related to that electronic record cannot be considered
admissible.

In the case of Shafhi Mohammad, the Division Bench of the Supreme Court expressed a different
perspective from the observations made by the Three-Judge Bench in the case of Anvar P.V. They
held that the requirement of certification under Section 65B(4) of the Evidence Act is not always
obligatory. The condition stipulated by Section 65B(4) of the Evidence Act for the admissibility
of electronic evidence is only applicable when the person presenting the evidence has control over
the device, and not when the opposing party possesses the device. Importantly, the absence of a
certificate, which the party cannot obtain under Section 65B(4) of the Evidence Act, cannot be

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used to exclude the admissibility of electronic evidence produced by a party who does not have
possession of the device.

HELD:

The Hon’ble Supreme court gave great clarity on the admissibility of the electronic evidence its
relevance through the abovementioned case. The Hon’ble court reiterated the precedent set forth
in the case of PK Basheer v. Anwar P.V [(2014) 10 SCC 473] and thus, overruled Shafhi
Mohammad v. State of Himachal Pradesh [(2018) 2 SCC 801]. Held that the certification
requirement under Section 65B(4) of the Indian Evidence Act, 1872 (“Evidence Act”) is a
condition precedent to the admissibility of electronic evidence.

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CASE COMMENT:

To proceed with understanding the case better one first needs to pay heed towards the concepts
provided under Section 65B of Indian Evidence Act. Section 65B of the Indian Evidence Act, 1872
pertains to the admissibility of electronic records as evidence in legal proceedings. It sets out
certain requirements that need to be fulfilled for electronic evidence to be considered admissible.

The key points of Section 65B:

- Certification Requirement: According to Section 65B(4), electronic records can only be

accepted as evidence if accompanied by a certificate in the prescribed format. This
certificate verifies the authenticity of the electronic record, details its production process,
and includes relevant technical information.
- Control of the Device: The mandatory certification under Section 65B(4) applies when the
party presenting the electronic evidence is in control of the device or computer system used
to generate, store, or retrieve the record.
- Opposing Party's Evidence: If the opposing party, who does not have control over the
device, presents electronic evidence, its admissibility cannot be challenged based on the
absence of a certificate under Section 65B(4).
- Compliance with Other Laws: Section 65B does not supersede other laws that may require
additional conditions or certifications for the admissibility of electronic records. Specific
laws related to electronic transactions, information technology, or particular sectors may
have their own provisions.

In legal proceedings, Section 65B of the Indian Evidence Act plays a vital role in ensuring proper
authentication and procedural safeguards when admitting electronic evidence. Section 65B of the
Indian Evidence Act provides guidelines for certifying electronic records to ensure their
admissibility in legal proceedings. The section stipulates that the certification should be signed by
an individual holding a responsible official position related to the operation of the relevant
electronic devices.

History of interpretation of Section 65B Indian Evidence Act:

The journey of interpretation of Section 65B began with the case of “State v. Navjot Sandhu”
(2005 (11) SCC 600) wherein the Hon’ble Supreme Court stated that:

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The controversy does not concern the information stored in the call records, which are stored in
large servers that are difficult to move and present in court. Therefore, printouts obtained from
computers or servers using mechanical processes and certified by a responsible official from the
service provider can be presented as evidence through a witness. The witness can identify the
signatures on the certification or provide testimony based on their personal knowledge. It should
be noted that compliance with Section 65B, which deals with the admissibility of electronic
records, is not necessary when presenting secondary evidence under other provisions of the
Evidence Act. It is important to mention that a certificate under Section 65B was not submitted in
this particular case. However, this does not imply that secondary evidence cannot be presented in
situations outlined in the relevant provisions of Section 65B.

It should be noted that the aforementioned case has been overruled by the case of “Anvar P.V. v.
P.K. Basheer”((2014) 10 SCC 473). In this case, it was supported that the purpose of the
provisions is to validate secondary evidence in electronic form generated by a computer.
Additionally, the court emphasized the conditions that need to be fulfilled for the admissibility of
electronic documents as stated in Section 65B. The court highlighted that a person only needs to
state in the certificate that it is to the best of their knowledge and belief. Moreover, such a
certificate must be accompanied by the electronic record, such as computer printouts or discs,
which is being sought to be presented as evidence. These precautions are implemented to ensure
the authenticity and source of the evidence, as electronic records are more susceptible to alteration
and tampering.

The respected court expressed additional perspectives in the “Shafi Mohammad v. State of
Himachal Pradesh” (SLP(Crl.) No. 2302 of 2017) case, indicating that the requirement of
following procedures outlined in Section 65B of the Indian Evidence Act, which involves
presenting a certificate, applies only when electronic evidence is submitted by a person who
possesses the necessary certificate and has control over the device in question, rather than the
opposing party.

The relaxation of standards for admitting electronic evidence was significant in this case, as the
two-judge panel placed greater emphasis on interpreting the law rather than strictly adhering to its
requirements. Section 65B(4) states that a certificate "must" be presented, implying that without a
certificate, the electronic evidence would be considered inadmissible.

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However, the court clarified that this interpretation was not supported by a straightforward reading
of the provision. Instead, the language of Section 65B(4) simply indicated that an authorized
certificate meeting the requirements outlined in sub-clauses (a), (b), or (c) would serve as evidence
for the content in question. Nowhere was it stated that a certificate must be mandatory for
validating electronic evidence or that all alternative methods of authentication were prohibited.

The court affirmed the admissibility of both electronic and oral evidence, even without a certificate
for authentication. This ruling by the highest court introduced unnecessary flexibility into Section
65B, disregarding the statutory requirements and provisions aimed at maintaining consistency and
certainty in evidentiary principles.

Finality to the speculations:

The case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal marked the end of
speculations, misunderstandings, and flexible interpretations surrounding Section 65B of the
Indian Evidence Act. The court referred back to the PK Basheer case and emphatically reiterated
that Section 65B is mandatory and must be strictly adhered to.

A relaxed explanation pertaining to the case can be summarized as follows:

Firstly, it is pertinent to mention that provided under para 30 of the case abovementioned, the court
clearly states that the Section 65B begins with a Non-obstante clause and then the section continues
to delve into the various types of contents of electronic evidence, the said electronic evidence is
then termed as a document. The section further clearly states that certain requirements are to be
satisfied only then the electronic record would be admissible in court of law.

The inclusion of the phrase "...without further proof or production of the original..."
unambiguously conveys that once the assumption of authenticity is activated by fulfilling the
specified conditions in the Section, the "deemed document" is now admissible as evidence
without the need for additional proof or presentation of the original document. This admissibility
extends to both the contents of the original document and any facts stated within it, for which
direct evidence would otherwise be permissible.

Coming back to the various discussions of court in the present case, one has to divide it into parts
to get the full gist out of it:

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Part I- In the event that the original document is presented, the necessity of a certificate
becomes superfluous.

Section 65B(1) of the Evidence Act gracefully demarcates the original information luxuriating
within the very core of a "computer" from the replicated document that derive from it, where the
former exudes the essence of primary evidence while the latter basks in as the secondary evidence.
The call for a certificate, as mandated by subsection (4), loses its luster when the original document
takes the stage.

This regal unveiling can be orchestrated by the owner of a laptop, tablet, or even a mobile phone,
ascending the witness box to assert their ownership and mastery over the revered that cradles the
genesis of the information. In scenarios where "the computer," adorned with definition, goes into
the realms of a "computer system" or "computer network" as put under the umbrella of the
Information Technology Act, 2000, where the physical manifestation of such a network or system
becomes an unattainable dream within the courtroom's, the sole avenue that paves the way for
proving the information enshrined within such electronic records resides harmoniously within the
arms of Section 65B(1), synergistically entwined with the obligatory certification within Section
65B(4) of the Evidence Act.

Part-II; Should an individual or entity withhold the bestowal of a certificate, a petition shall
be tendered before the court for redressal.

The esteemed Supreme Court further declared that in instances where sincere endeavors have been
exhausted to obtain the necessary certificate as prescribed by Section 65B(4) of the Evidence Act,
from the relevant person or authority, and yet encountered refusal, silence, or non-compliance, the
party seeking such certificate holds the right to petition the Court for its production, utilizing the
provisions outlined in the Evidence Act, the Code of Civil Procedure (CPC), or the Code of
Criminal Procedure (CrPC).

It was expounded that once such an application is presented to the Court, followed by an order or
directive from the Court, summoning a designated individual to produce the required certificate,
the party in pursuit of the certificate has fulfilled their utmost obligations to obtain the necessary
documentation. Consequently, the said party should be exempted from the obligatory obligations
set forth in Section 65B(4) of the Evidence Act.

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Part-III: The juncture at which the presentation of the certificate is to be tendered.

Civil cases: With regard to the critical matter concerning the precise stage at which the esteemed
certificate as mandated by Section 65B(4) of the Evidence Act must be tendered to the court, the
Supreme Court, relying upon the precedent set by Anvar P.V.'s case, sagaciously observed that
said certificate must accompany the electronic record when presented as evidence in the hallowed
court chambers. It was ascertained that this requirement solely applies in cases where the person
seeking to rely upon an electronic record has the capacity to procure such a certificate.

Conversely, in situations where an inadequate certificate is furnished or when the concerned

person fails to provide the requested certificate, the presiding judge presiding over the trial is duty-
bound to summon the individuals referenced within Section 65B(4) of the Evidence Act and duly
demand that the requisite certificate be presented by said individuals. This solemn obligation is to
be fulfilled by the trial judge when the electronic record is submitted as evidence before them in
the absence of the required certificate, under the aforementioned circumstances. Naturally, this is
subject to the exercise of discretion in civil cases, adhering to the principles of law and the demands
of justice, taking into account the specific circumstances of each case.

Criminal cases: In the realm of criminal trials, one must bear in mind the cardinal principle that
the accused should be furnished with all the documents on which the prosecution intends to rely,
in accordance with the pertinent sections of the Code of Criminal Procedure (CrPC), prior to the
commencement of the trial. Moreover, it was firmly established that until the conclusion of the
proceedings in a trial, the presiding judge possesses the authority to issue directions for the
production of the requisite certificate at any stage. This allows for the admission and reliance upon
the information enshrined within the electronic record as evidence.

Part-IV: directions by the Hon’ble court:

The Supreme Court issued a directive to formulate apt regulations and guidelines under the
authority of the Information Technology Act, 2000, utilizing powers bestowed by Section 67C of
the aforementioned Act. Additionally, it called for the establishment of suitable rules pertaining to
the retention, segregation, chain of custody, stamping, and maintenance of data involved in the
trial of offenses throughout the entire duration of trials and appeals. Furthermore, emphasis was
placed on the preservation of metadata to prevent corruption. Likewise, the Court stressed the need

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for the creation of fitting regulations governing the preservation, retrieval, and production of
electronic records.

CONCLUSION:

In conclusion, the esteemed Supreme Court, through its landmark judgment in the case of Arjun
Panditrao Khotkar, has effectively dispelled the ambiguity surrounding the conflicting
interpretations and practical implications of the obligatory certification requirement under Section
65B(4) of the Evidence Act. This requirement, which had become a mere procedural formality in
certain scenarios, has now been endowed with utmost clarity. Significantly, from a practical
standpoint, the Supreme Court's elucidation regarding the available options for parties unable to
procure the certificate under Section 65B(4) of the Evidence Act will undoubtedly assist in
navigating objections pertaining to the admissibility of electronic evidence.

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