Holding

Section 65B(4) certificate is a sine qua non for admissibility of electronic records, unless the original record is produced or the party has shown due diligence in attempting to obtain the certificate; oral evidence cannot replace the certificate.

Summary

The appellant, Arjun Panditrao Khotkar, was elected to the Maharashtra Legislative Assembly but his election was challenged on the ground that two of his nomination papers were filed after the statutory deadline. The High Court relied on video recordings of the Returning Officer's office, produced by the Election Commission without the statutory certificate required under Section 65B(4) of the Evidence Act, and declared the election void. The Supreme Court examined whether the absence of a Section 65B(4) certificate rendered the electronic evidence inadmissible and whether oral testimony could substitute for the certificate. It held that the certificate is a mandatory pre‑condition, but may be dispensed with where the original electronic record is produced or where the party has exhausted all efforts to obtain the certificate, and that oral evidence cannot replace it. Applying this clarified law, the Court found no error in the High Court’s reliance on the video evidence and upheld the declaration of the election as void. The appeals were dismissed with costs.

Issues considered

The necessity of a certificate under Section 65B(4) of the Evidence Act for admissibility of electronic records.
Whether oral evidence can substitute for the statutory certificate under Section 65B(4).
Whether the High Court erred in admitting video‑CD/VCD evidence without the certificate.
Whether the election should be declared void on the basis of improperly accepted nomination papers.

Legislation cited

Code of Civil Procedure, 1908s. Order XVI
Code of Criminal Procedure, 1973s. 207, s. 311, s. 91
Indian Evidence Act, 1872s. 136, s. 165, s. 22A, s. 3, s. 45A, s. 61, s. 62, s. 63, s. 64, s. 65, s. 65A, s. 65B
Information Technology Act, 2000s. 2(i), s. 2(j), s. 2(l), s. 2(o), s. 2(r), s. 2(t), s. 67C
Representation of the People Act, 1951s. 100(1)(d)(i), s. 80, s. 81

Subjects

Electronic evidenceSection 65BCertificate of authenticityAdmissibilityElection lawNomination papersVideo recordingProcedural lawLex non cogit ad impossibiliaImpossibility doctrine

Judgment

180 SUPREME COURT
[2020]REPORTS
7 S.C.R. 180 [2020] 7 S.C.R.

A ARJUN PANDITRAO KHOTKAR
v.
KAILASH KUSHANRAO GORANTYAL AND ORS.
(Civil Appeal Nos. 20825-20826 of 2017)
B JULY 14, 2020
[R.F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
Evidence Act, 1872 – ss.3, 22A, 45A, 61-65, 65A, 65B, 136 –
C Interpretation of s.65B – Electronic records – Admissibility of –
Appellant’s election challenged on the ground that his nomination
papers having been filed after the stipulated time ought to have
been rejected – Respondents relied on video camera recordings of
the office of Returning Officer (RO) – Video recordings produced
by Election Commission without requisite certificate u/s.65-B(4) –
D However, admitted in evidence by High Court, relying upon oral
evidence of RO in cross examination – Election of the appellant
declared void – Matter referred to three judges stating that in view
of Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three Judge
Bench), Division Bench judgment in Shafhi Mohammad v. State of
E Himachal Pradesh (2018) 2 SCC 801 may need reconsideration – Held:
Per R.F. Nariman, J. (for himself, S. Ravindra Bhat and
V. Ramasubramanian, JJ.) Special provisions of ss.65A and 65B
are a complete Code in themselves when it comes to admissibility of
evidence of information contained in electronic records – A written
certificate u/s.65B(4) is a sine qua non for admissibility of such
F evidence – Oral evidence in place of such certificate cannot suffice
as s.65B(4) is mandatory – However, on facts, the respondents
having done everything possible to obtain the necessary certificate
are relieved of the mandatory obligation – Moreover, apart from
electronic record, other evidence was also relied upon by High Court
G to arrive at the same conclusion – Impugned judgment not faulted
– Further, certificate u/s.65B(4) is unnecessary if the original
document itself is produced – Anvar P.V., as clarified, is the law on
s.65B – Shafhi Mohammad and the judgment dtd. 03.04.18 reported
as [2018] 3 SCR 1096 are overruled – Per V. Ramasubramanian J.
(Supplementing) Major jurisdictions of the world have come to
H
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ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 181
GORANTYAL

terms with the development of technology and fine-tuned their A
legislations – Need for a relook at s.65B – Information Technology
Act, 2000 – ss.2(i), (j), (l), (o), (r) & (t) – Representation of the
People Act, 1951 – Interpretation of Statutes – Civil Evidence Act,
1968(UK) – ss.5, s.6(1) – Civil Evidence Act, 1995(UK) – ss.8, 9,
13 and 15(2) – Criminal Law.
B
Information Technology Act, 2000 – s.67C – Held: General
directions issued to cellular companies & internet service providers,
to be followed by courts dealing with electronic evidence, till rules
and directions u/s.67(C) are formulated for compliance by telecom
and service providers – Evidence Act, 1872 – ss.39, 45A and 65B.
C
Evidence Act, 1872 – s.65B – Acrimony behind – Reason for
– Held: Per V. Ramasubramanian J. (Supplementing) s.65B(1) starts
with a non-obstante clause excluding the application of the other
provisions and makes the certification a precondition for
admissibility – Such admissibility as the first check post, coupled
with the fact that a number of ‘computer systems’ (defined in s.2(l), D
2000 Act) owned by different individuals, may get involved in the
production of an electronic record, with the ‘originator’ (defined in
s.2(za), 2000 Act) being different from the recipients or the sharers,
has created lot of acrimony behind s.65B – Information Technology
Act, 2000 – ss.2(l), (za) – Federal Rules of Evidence (USA) – rr.901, E
902 – UK Civil Evidence Act, 1968 – s.5 – Civil Evidence Act,
1995(UK) – Police and Criminal Evidence Act, 1984 (UK) – s.69 –
Youth Justice and Criminal Evidence Act, 1999 – s.60 – Canada
Evidence Act, 1985 – s.31.1-31.3, 31.5 & 31.6.
Evidence Act, 1872 – s.65B(4) – Certificate under – When F
unnecessary – Discussed.
Evidence Act, 1872 – ss.65B(2)(a) to (d) and 65B(4) –
Conditions mentioned under – Held: Conditions mentioned in sub-
sections 2(a) to 2(d) of s.65B must be satisfied cumulatively – Further,
conditions mentioned in sub-section (4) are also cumulative. G
Evidence Act, 1872 – s.65B(1) – Non-obstante clause – Purport
of – Discussed.
Maxims – lex non cogit ad impossibilia; impotentia excusat legem
– Application of – Discussed – Evidence Act, 1872 – s.65B(4).
H
182 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Evidence Act, 1872 – s.65B(4) – Certificate under – Stage of
production – Held: So long as the hearing in a trial is not yet over,
the requisite certificate can be directed to be produced by the Judge
at any stage – Criminal Law – Criminal Trial – Stage of admitting
evidence – Code of Criminal Procedure, 1973 – ss.91, 207, 311.
B Words & Expressions –”doing any of the following things” –
Held: Aforesaid expression must be read as doing all of the following
things – “any” can mean “all” given the context – Interpretation of
Statutes – Evidence Act, 1872 – s.65B(4).
Evidence Act, 1872 – ss.65B(4), 165 – Certificate under –
C Production of – Inability of persons not in possession of – Held:
Major premise of Shafhi Mohammad v. State of Himachal Pradesh
(2018) 2 SCC 801 that such certificate cannot be secured by persons
who are not in possession of an electronic device is wholly incorrect
– An application can always be made to a Judge for production of
such a certificate from the requisite person u/s.65B(4) in cases in
D which such person refuses to give it – Code of Civil Procedure,
1908 – Or.XVI – Code of Criminal Procedure, 1973 – s.91.
Evidence Act, 1872 – s.65B(1) – Deeming fiction – Operation
of – Held: Sub-s. (1) of s.65B begins with a non-obstante clause and
then mentions information contained in an electronic record
E produced by a computer, which is made a “document” by a deeming
fiction – 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 – If such conditions
are met, the “document” shall then be admissible in any proceedings.
F Representation of the People Act, 1951 – s.100(1)(d)(i) – Held:
Where the person whose nomination has been improperly accepted
is the returned candidate himself, the conclusion has to be that the
result of the election would be “materially affected”, without there
being any necessity to plead and prove the same.
G Answering the reference and dismissing the appeals with
costs, the Court
HELD: Per R.F. Nariman, J. (for himself, S. Ravindra Bhat
and V. Ramasubramanian, JJ.)

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ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 183
GORANTYAL

1.1 The subject matter of Sections 65A and 65B of the A
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”. Section 65B(1)
B
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 C
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. Section 65B(2)
then refers to the conditions that must be satisfied in respect of
D
a computer output, and states that the test for being included in
conditions 65B(2(a)) to 65(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. [Paras 20-22][209-A-E] E
1.2 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, F
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 G
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. This being the case, the conditions mentioned in
sub-section (4) must also be interpreted as being cumulative.
[Para 23][209-E-G; 210-A] H
184 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Bansilal Agarwalla v. State of Bihar [1962] 1 SCR 33;
Om Parkash v. Union of India (2010) 4 SCC 17 : [2010]
2 SCR 447 – relied on.
1.3 The sub-section (1) of Section 65B begins with a non-
obstante clause, and then goes on to mention information
B 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
C 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
D the original, or of any fact stated therein of which direct evidence
would be admissible. 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,
E 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
F “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.
[Paras 30, 31][220-G-H; 221-A-D]
G 1.4 Despite the law so declared in Anvar P.V., wherein this
Court made it clear that the special provisions of Sections 65A
and 65B of the Evidence Act are a complete Code in themselves
when it comes to admissibility of evidence of information
contained in electronic records, and also that a written certificate
under Section 65B(4) is a sine qua non for admissibility of such
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 185
GORANTYAL

evidence, a discordant note was soon struck in Tomaso Bruno. A
The judgment of Anvar P.V. was not referred to at all. In fact, the
judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was
adverted to, which was a judgment specifically overruled by Anvar
P.V. Section 65B(4) was also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno following Navjot
B
Sandhu that secondary evidence of the contents of a document
can also be led under Section 65 of the Evidence Act to make
CCTV footage admissible would be in the teeth of Anvar P.V.,
and cannot be said to be a correct statement of the law. The said
view is accordingly overruled. [Paras 34, 35][222-G; 223-A-B;
224-B-C] C
Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)
7 SCC 178 : [2015] 1 SCR 721 – overruled.
1.5 Quite apart from the fact that the judgment in Shafhi
Mohammad states the law incorrectly and is in the teeth of the
judgment in Anvar P.V., following the judgment in Tomaso Bruno D
- 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. As a matter of fact, Section 165 of the Evidence
Act empowers a Judge to order production of any document or E
thing in order to discover or obtain proof of relevant facts.
Likewise, under Order XVI of the Civil Procedure Code, 1908
which deals with ‘Summoning and Attendance of Witnesses’, the
Court can issue orders for the production of documents. Similarly,
in the Code of Criminal Procedure, 1973, the Judge conducting
a criminal trial is empowered to issue the orders for production F
of documents. Thus, it is clear that the major premise of Shafhi
Mohammad that such certificate cannot be secured by persons
who are not in possession of an electronic device is wholly
incorrect. An application can always be made to a Judge for
production of such a certificate from the requisite person under G
Section 65B(4) in cases in which such person refuses to give it.
[Paras 39-43][228-C-E; 229-B; 230-C; 231-C]
1.6 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) H
186 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
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
C 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
D
disobedience of the law is excused. On an application of the
aforesaid maxims to the present case, it is clear that though
Section 65B(4) is mandatory, yet, on the facts of this case, the
Respondents, having done everything possible to obtain the
necessary certificate, which was to be given by a third-party over
E whom the Respondents had no control, must be relieved of the
mandatory obligation contained in the said sub-section.
[Paras 45, 49][231-E-H; 236-C-D]
Re: Presidential Poll (1974) 2 SCC 33; Chandra
Kishore Jha v. Mahavir Prasad and Ors. (1999) 8 SCC
F 266 : [1999] 2 Suppl. SCR 754; Special Reference 1 of
2002 (2002) 8 SCC 237 : [2002] 3 Suppl. SCR 366;
Raj Kumar Yadav v. Samir Kumar Mahaseth and Ors.
(2005) 3 SCC 601 : [2005] 2 SCR 670 – relied on.
2.1 Section 65B does not speak of the stage at which such
G certificate must be furnished to the Court. In Anvar P.V., this
Court did observe that such certificate must accompany the
electronic record when the same is produced in evidence. This
is so in cases where such certificate could be procured by the
person seeking to rely upon an electronic record. However, in
cases where either a defective certificate is given, or in cases
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 187
GORANTYAL

where such certificate has been demanded and is not given by A
the concerned person, the Judge conducting the trial must
summon the person/persons referred to in Section 65B(4) of the
Evidence Act, and require that such certificate be given by such
person/persons. This, the trial Judge ought to do when the
electronic record is produced in evidence before him without
B
the requisite certificate in the circumstances aforementioned. This
is, of course, subject to discretion being exercised in civil cases
in accordance with law, and in accordance with the requirements
of justice on the facts of each case. When it comes to criminal
trials, it is important to keep in mind the general principle that
the accused must be supplied all documents that the prosecution C
seeks to rely upon before commencement of the trial, under the
relevant sections of the CrPC. The stage of admitting documentary
evidence in a criminal trial is the filing of the charge-sheet. When
a criminal court summons the accused to stand trial, copies of all
documents which are entered in the charge-sheet/final report have
to be given to the accused. Section 207 of the CrPC, which reads D
as follows, is mandatory. Therefore, the electronic evidence, i.e.
the computer output, has to be furnished at the latest before the
trial begins. 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. The E
prosecution ought not to be allowed to fill up any lacunae during
a trial. Therefore, in terms of general procedure, the prosecution
is 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 F
or irreversible prejudice to the accused. A balancing exercise in
respect of the rights of parties has to be carried out by the court,
in examining any application by the prosecution under Sections
91 or 311 of the CrPC or Section 165 of the Evidence Act.
Depending on the facts of each case, and the Court exercising G
discretion after seeing that the accused is not prejudiced by want
of a fair trial, the Court may in appropriate cases allow the
prosecution to produce such certificate at a later point in time. If
it is the accused who desires to produce the requisite certificate
as part of his defence, this again will depend upon the justice of
H
188 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the case - discretion to be exercised by the Court in accordance
with law. [Paras 50, 52-54][236-D-G; 237-E-F; 238-C, F;
239-A-B]
2.2 So long as the hearing in a trial is not yet over, the
requisite certificate can be directed to be produced by the learned
B Judge at any stage, so that information contained in electronic
record form can then be admitted, and relied upon in evidence.
It may also be seen that the person who gives this certificate can
be anyone out of several persons who occupy a ‘responsible official
position’ in relation to the operation of the relevant device, as
also the person who may otherwise be in the ‘management of
C relevant activities’ spoken of in Sub-section (4) of Section 65B.
Considering that such certificate may also be given long after
the electronic record has actually been produced by the computer,
Section 65B(4) makes it clear that it is sufficient that such person
gives the requisite certificate to the “best of his knowledge and
belief” (Obviously, the word “and” between knowledge and belief
D
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). 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., and incorrectly “clarified” in Shafhi
E Mohammed. Oral evidence in the place of such certificate cannot
possibly suffice as Section 65B(4) is a mandatory requirement of
the law. 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. [Paras 57-59][243-B-G]
F
Taylor v. Taylor (1876) 1 Ch.D 426 – referred to.
3. 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
G 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 limited
duration of one year. Therefore, if the police or other individuals
H (interested, or party to any form of litigation) fail to secure those
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 189
GORANTYAL

records - or secure the records but fail to secure the certificate - A
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
B
of the Examiner of Electronic Evidence under Section 45A 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. To
obviate this, general directions are issued to cellular companies
and internet service providers to maintain CDRs and other
relevant records for the concerned period (in tune with Section C
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. Concerned parties 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 D
issued under relevant terms of the applicable licenses, or under
Section 67C of the Information Technology Act. [Paras 61,
62][244-A-F]
3.1 In the present case, by the impugned judgment dated
24.11.2017, Election Petition 6/2014 and Election Petition 9/2014 E
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
F
nomination papers were improperly accepted. However, by an
order dated 08.12.2017, this Court admitted the Election Appeal
of the Appellant, and stayed the impugned judgment and order.
This matter has been heard 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 G
case, 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 H
190 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the requisite certificate being incorrect in law, yet, considering
that the Respondent had done everything in his power to obtain
the requisite certificate from the appropriate authorities, including
directions from the Court to produce the requisite certificate, no
such certificate was forthcoming. [Paras 64-66][245-A-G;
246-A-C]
B
3.2 It is clear that apart from the evidence in the form of
electronic record, other evidence was also relied upon to arrive
at the same conclusion. The High Court’s judgment therefore
cannot be faulted. None of the earlier judgments of this Court
referred to in Mairembam Prithviraj have been adverted to in
C Rajendra Kumar Meshram cited by Shri Adsure. In particular,
the judgment of three learned Judges of this Court in Vashist
Narain Sharma has specifically held that where the person whose
nomination has been improperly accepted is the returned
candidate himself, it may be readily conceded that the conclusion
D has to be that the result of the election would be “materially
affected”, without there being any necessity to plead and prove
the same. The judgment in Rajendra Kumar Meshram, not having
referred to these earlier judgments of a larger strength binding
upon it, cannot be said to have declared the law correctly. As a
result thereof, the impugned judgment of the High Court is right
E in its conclusion on this point also. [Paras 68, 71][247-D; 249-H;
250-A-C]
Rajendra Kumar Meshram v. Vanshmani Prasad Verma
(2016) 10 SCC 715 : [2016] 9 SCR 74 – held not
correct law.
F
Mairembam Prithviraj v. Pukhrem Sharatchandra Singh
(2017) 2 SCC 487 : [2016] 9 SCR 687; Durai
Muthuswami v. N. Nachiappan and Ors. (1973) 2 SCC
45 : [1974] 1 SCR 40 – referred to.
4. The reference is answered by stating that:
G
(a) Anvar P.V., as clarified hereinabove, is the law declared
by this Court on Section 65B of the Evidence Act. The judgment
in Tomaso Bruno, being per incuriam, does not lay down the law
correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011
reported as Shafhi Mohammad and the judgment dated 03.04.2018
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 191
GORANTYAL

reported as (2018) 5 SCC 311, do not lay down the law correctly A
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 B
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 C
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. 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 D
be read without the words “under Section 62 of the Evidence
Act,…” With this clarification, the law stated in paragraph 24 of
Anvar P.V. does not need to be revisited.
c. The general directions issued in paragraph 62 shall
hereafter be followed by courts that deal with electronic evidence,
to ensure their preservation, and production of certificate at the E
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 F
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
G
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. [Para 72][250-C-H;
251-A-C] H
192 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Shafhi Mohammad v. State of Himachal Pradesh (2018)
2 SCC 801; Shafhi Mohammad v. State of Himachal
Pradesh (2018) 5 SCC 311 : [2018] 3 SCR 1096; K.
Ramajyam v. Inspector of Police (2016) Crl. LJ 1542 –
overruled.
B Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399 – clarified.
Kundan Singh v. State 2015 SCC OnLine Del 13647;
Paras Jain v. State of Rajasthan 2015 SCC OnLine
Raj 8331 – approved.
C Cochin State Power and Light Corporation v. State of
Kerala [1965] 3 SCR 187; Raj Kumar Dubey v.
Tarapada Dey and Ors. (1987) 4 SCC 398 : [1988] 1
SCR 118; M/s B.P. Khemka Pvt. Ltd. v. Birendra Kumar
Bhowmick and Anr. (1987) 2 SCC 401; Hira Tikoo v.
D U.T., Chandigarh and Ors. (2004) 6 SCC 765 : [2004]
1 Suppl. SCR 65; State of Karnataka v. M.R. Hiremath
(2019) 7 SCC 515 : [2019] 8 SCR 713; Vashist Narain
Sharma v. Dev Chandra [1955] 1 SCR 509 – relied
on.

E Vikram Singh and Anr. v. State of Punjab and Anr. (2017)
8 SCC 518 : [2017] 8 SCR 177; State v. Navjot Sandhu
(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Tukaram
S. Dighole v. Manikrao Shivaji Kokate (2010) 4 SCC
329 : [2010] 2 SCR 396; Central Bureau of
Investigation v. R.S. Pai (2002) 5 SCC 82 : [2002] 2
F SCR 889; Jagjit Singh v. Dharam Pal Singh (1995)
Supp (1) SCC 422 – referred to.
Per V. Ramasubramanian, J. (Supplementing)
1.1 Section 65B(1), Indian Evidence Act, 1872 starts with
a non-obstante clause excluding the application of the other
G
provisions and it makes the certification, a precondition for
admissibility. While doing so, it does not talk about relevancy. In
a way, Sections 65A and 65B, if read together, mix-up both proof
and admissibility, but not talk about relevancy. Section 65A refers
to the procedure prescribed in Section 65B, for the purpose of
H proving the contents of electronic records, but Section 65B
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 193
GORANTYAL

speaks entirely about the preconditions for admissibility. As a A
result, Section 65B places 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 first or the border check post, coupled
B
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 Technology Act, 2000) being different from
the recipients or the sharers, has created lot of acrimony behind C
Section 65B, which is evident from the judicial opinion swinging
like a pendulum. [Paras 10, 11][254-B-E]
1.2 It is a matter of fact and record that courts all over the
world were quick to adapt themselves to evidence in analogue
form, within the framework of archaic, centuries old rules of D
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. 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 E
perceive something that is happening. In analogue technology, a
wave is recorded or used in its original form. 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, F
converted into voltage waves to produce what was stored. Further,
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. But the facility of operating in anonymity in the cyber G
space has made electronic records more prone to manipulation
and consequently to a greater degree of suspicion. Over a period
of time, certain jurisdictions have come up with reasonably good
solutions. [Paras 12, 13, 17 and 22][254-F-H; 255-A-B; 257-C;
258-E] H
194 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 1.3 Conclusion-
The major jurisdictions of the world have come to terms
with the change of times and the development of technology and
fine-tuned their legislations. Therefore, it is the need of the hour
that there is a relook at Section 65B of the Indian Evidence Act,
B introduced 20 years ago, by Act 21 of 2000, and which has created
a huge judicial turmoil, with the law swinging from one extreme
to the other in the past 15 years from Navjot Sandhu to Anvar
P.V. to Tomaso Bruno to Sonu to Shafhi Mohammad. [Para 46]
[282-D-E]
C State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005] 2 Suppl. SCR 79; Anvar P.V. v. P.K. Basheer,
(2014) 10 SCC 473 : [2014] 11 SCR 399; Tomaso Bruno
vs. State of UP (2015) 7 SCC 178 : [2015] 1 SCR 721;
Sonu v. State of Haryana (2017) 8 SCC 570 : [2017] 8
SCR 151; Shafhi Mohammad v. The State of Himachal
D Pradesh (2018) 2 SCC 801 : S. Pratap Singh v. State of
Punjab [1964] 4 SCR 753; Yusaffalli Esmail Nagree v.
State of Maharashtra [1967] 3 SCR 720; N. Sri Rama
Reddy v. V. V. Giri AIR 1972 SC 1162; R.M. Malkani v.
State of Maharashtra AIR 1973 SC 157 : [1973] 2 SCR
E 417; Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra (1976) 2 SCC 17 : [1975] Suppl. SCR
281; Ram Singh v. Col. Ram Singh AIR 1986 SC 3 :
[1985] Suppl. SCR 399; Tukaram S. Dighole v.
Manikrao Shivaji Kokate (2010) 4 SCC 329 : [2010] 2
SCR 396 – referred to.
F
Harry Parker v. Mason [1940] 2 KB 590; R. v. Burr
and Sullivan [1956] Crim LR 442; Hopes and Lavery
v. H. M. Advocate [1960] Crim LR 566; R. v. Mills
[1962] 3 All ER 298; R. v. Maqsud Ali [1965] 2 All ER
464; The Statute of Liberty, Sapporo Maru M/S (Owners)
G v. Steam Tanker Statute of Liberty (Owners) [1968] 2
All ER 195; R. v. Pettigrew [1980] 71 Cr. App. R. 39;
Castle v. Cross [1984] 1 WLR 1372; R v. Robson
Mitchell and Richards [1991] Crim LR 360; Lorraine
v. Markel American Insurance Co. 241 FRD 534 (2007)
H – referred to.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 195
GORANTYAL & ORS.

Case Law Reference A
In the judgment of R.F. Nariman, J. (for himself, S. Ravindra
Bhat and V. Ramasubramanian, JJ.)
[2014] 11 SCR 399 clarified Para 2
(2018) 2 SCC 801 overruled Para 2 B
[2018] 3 SCR 1096 overruled Para 9
[2015] 1 SCR 721 overruled Para 9
[1962] 1 SCR 33 relied on Para 23
[2010] 2 SCR 447 relied on Para 23 C
[2017] 8 SCR 177 referred to Para 33
[2005] 2 Suppl. SCR 79 referred to Para 35
[2010] 2 SCR 396 referred to Para 37
(1974) 2 SCC 33 relied on Para 45 D
[1999] 2 Suppl. SCR 754 relied on Para 45
[2002] 3 Suppl. SCR 366 relied on Para 45
[2005] 2 SCR 670 relied on Para 45
E
[1965] 3 SCR 187 relied on Para 46
[1988] 1 SCR 118 relied on Para 47
(1987) 2 SCC 401 relied on Para 48
[2004] 1 Suppl. SCR 65 relied on Para 49
F
[2019] 8 SCR 713 relied on Para 51
[2002] 2 SCR 889 referred to Para 53
[2016] 9 SCR 74 held not correct Para 69
law
G
[2016] 9 SCR 687 referred to Para 70
[1974] 1 SCR 40 referred to Para 70
(1995) 1 Suppl. SCC 422 referred to Para 70
[1955] 1 SCR 509 relied on Para 70
H
196 SUPREME COURT REPORTS [2020] 7 S.C.R.

A In the judgment of V. Ramasubramanian, J. (Supplementing)
[1964] 4 SCR 753 referred to Para 17
[1967] 3 SCR 720 referred to Para 17
[1973] 2 SCR 417 referred to Para 17
B [1975] Suppl. SCR 281 referred to Para 17
[1985] Suppl. SCR 399 referred to Para 17
[2010] 2 SCR 396 referred to Para 17
[2005] 2 Suppl. SCR 79 referred to Para 46
C
[2014] 11 SCR 399 referred to Para 46
[2015] 1 SCR 721 referred to Para 46
[2017] 8 SCR 151 referred to Para 46
(2018) 2 SCC 801 referred to Para 46
D
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 20825-
20826 of 2017.
From the Judgment and Order dated 24.11.2017 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Election Petition Nos.
6 of 2014 and 9 of 2014.
E
With
Civil Appeal Nos. 2407 and 3696 of 2018.
Ms. Meenakshi Arora, Pravin M. Shah, Sr. Advs., Ravindra
Keshavrao Adsure, Haribhau Damodar Zol, Pratik Arvind Bhosle,
F Prashant Ramakant Katneshwarkar, Ait Babanrao Kale, Sagar N.
Pahune Patil, Shashibhushan P. Adgaonkar, Aditya Sikchi, Jakalwar,
Gagandeep Sharma, Gautam Talukdar, Vikas Upadhyay, Ashwin Kumar
Nair, Advs. for the appearing parties.
The Judgments of the Court were delivered by
G
R. F. NARIMAN, J.
1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-
20826 of 2017 is allowed.
2. These Civil Appeals have been referred to a Bench of three
H honourable Judges of this Court by a Division Bench reference order
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 197
GORANTYAL & ORS. [R. F. NARIMAN, J.]

dated 26.07.2019, dealing with the interpretation of Section 65B of the A
Indian Evidence Act, 1872 (“Evidence Act”) by two judgments of this
Court. In the reference order, after quoting from Anvar P.V. v. P.K.
Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of
this Court), it was found that a Division Bench judgment in SLP (Crl.)
No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal
Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a B
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:
C
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 partyfrom 101- D
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 E
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 F
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
G
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 - H
198 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B Respondents, the nomination papers were only offered at 3.53
p.m.(i.e. beyond 3.00 p.m.), as a result of which it was clear
that they had been filed out of time. A specific complaint making
this objection was submitted by Shri Kailash Kishanrao
Gorantyal before the RO on 28.09.2014 at 11.00 a.m., in which
it was requested that the RO reject the nomination forms that
C 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
D 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’.
E
5. In compliance with this order, such video recordings were
produced by the Election Commission, together with acertificate issued
with regard to the CDs/VCDs, which read as follows:
“Certificate
F This is to certify that the CDs in respect of video recording done
on two days of filing nomination forms of date 26.9.2014 and
27.9.2014 which were present in the record are produced.
Sd/- Sd/-
Returning Officer Asst. Returning
G 101 Jalna Legislative Assembly Officer
Constituency/Tahsildar Jalna” 101 Jalna Legislative
Assembly
Constituency/
Tahsildar Jalna

H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 199
GORANTYAL & ORS. [R. F. NARIMAN, J.]

6. Transcripts of the contents of these CDs/VCDs were prepared A
by the High Court itself. Issue nos. 6 and 7 as framed by the High Court
(and its answers to these issues) are important, and are set out in the
impugned judgment dated 24.11.2017, and extracted hereinbelow:
“Issues Findings

6. Whether the petitioner proves that the Affirmative. (nomination papers at B
nomination papers at Sr.Nos. 43 and 44 were Sr. Nos. 43 and 44 were not
not presented by respondent/ Returned presented by RC before 3.00 p.m.
candidate before 3.00 p.m. on 27/09/2014 ? of 27.9.2014.)

7. Whether the petitioner proves that the Affirmative. (A, B forms were C
respondent /Returned candidate submitted presented after 3.00 p.m. of
original forms A and B along with nomination 27.9.2014)”
paper only on 27/09/2014 after 3.00 p.m. and
along with nomination paper at Sr.No. 44 ?

7. In answering issues 6 and 7, the High Court recorded:
D
“60. Many applications were given by the petitioner of Election
Petition No. 6/2014 to get the copies of electronic record in respect
of aforesaid incidents with certificate as provided in section 65-B
of the Evidence Act. The correspondence made with them show
that even after leaving of the office by Smt. Mutha, the
Government machinery, incharge of the record, intentionally E
avoided to give certificate as mentioned in section 65-B of the
Evidence Act. After production of the record in the Court in this
regard, this Court had allowed to Election Commission by order
to give copies of such record to applicants, but after that also the
authority avoided to give copies by giving lame excuses. It needs
F
to be kept in mind that the RC is from political party which has
alliance with ruling party, BJP, not only in the State, but also at the
center. It is unfortunate that the machinery which is expected to
be fair did not act fairly in the present matter. The circumstances
of the present matter show that the aforesaid two officers tried to
cover up their mischief. However the material gives only one G
inference that nomination forms Nos. 43 and 44 with A, B forms
were presented before the RO by RC after 3.00 p.m. of 27.9.2014
and they were not handed over prior to 3.00 p.m. In view of
objection of the learned counsels of the RC to using the information
contained in aforesaid VCDs, marked as Article A1 to A6, this
H
200 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Court had made order on 11.7.2017 that the objections will be
considered in the judgment itself. This VCDs are already exhibited
by this Court as Exhs. 70 to 75. Thus, if the contents of the
aforesaid VCDs can be used in the evidence, then the petitioners
are bound to succeed in the present matters.”
B 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. (supra).
The Court held in paragraph 65 of the impugned judgment 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
C
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:
“69. 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
D 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,
E arrangement was made by keeping electronic gazettes 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
F electronic record as required by section 65-B (4) of the Evidence
Act. It can be said that 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
G 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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 201
GORANTYAL & ORS. [R. F. NARIMAN, J.]

by the responsible official position like RO. She was incharge of A
the management of the relevant activities and so her evidence
can be used and needs to be used as the compliance of the
provision of section 65-B of the Evidence Act. This Court holds
that there is compliance of the provision of section 65-B of the
Evidence Act in the present matter in respect of aforesaid
B
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 65B of the Evidence Act, it was
held that the CDs/VCDs were admissible in evidence, and based upon
C
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 was declared void in the impugned judgment.
9. Shri Ravindra Adsure, learned advocate appearing on behalf of
the Appellant, submitted that the judgment in Anvar P.V. (supra) covered
the case before us. He argued that without the necessary certificate in D
writing and signed under Section 65B(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 and Anr. v.
State of Uttar Pradesh (2015) 7 SCC 178, and argued that the said
judgment did not notice either Section 65B or Anvar P.V. (supra), and E
was therefore per incuriam. He also argued that Shafhi Mohammad
(supra), being a two-Judge Bench of this Court, could not have arrived
at a finding contrary to Anvar P.V. (supra), 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 (supra) that whenever the
interest of justice required, the requirement of a certificate could be F
done away with under Section 65B(4). Equally, this Court’s judgment
dated 03.04.2018, reported as (2018) 5 SCC 311, which merely followed
the law laid down in Shafhi Mohammad (supra), being contrary to the
larger bench judgment in Anvar P.V. (supra), should also be held as not
having laid down good law. He further argued that the Madras High G
Court judgment in K. Ramajyam v. Inspector of Police (2016) Crl.
LJ 1542, being contrary to Anvar P.V. (supra), also does not lay down
the law correctly, in that it holds that evidence aliunde, that is outside
Section 65B, 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
H
202 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B 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
C
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
D applied on 26.08.2017 to the Chief Election Commissioner, New Delhi,
stating that the authorities 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
E
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
F 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
G
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
were therefore improperly accepted, as a result of which, the election of
the Appellant was correctly set aside.
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 203
GORANTYAL & ORS. [R. F. NARIMAN, J.]

11. On law, Ms. Arora argued that it must not be forgotten that A
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)
B
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.
C
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 D
to Kundan Singh v. State 2015 SCC OnLine Del 13647 of the Delhi
High Court, to argue that the requisite certificate need not necessarily
be given at the time of tendering of evidence but could be at a subsequent
stage of the proceedings, as in cases where the requisite certificate is
not forthcoming due to no fault of the party who tried to produce it, but
E
who had to apply to a Judge for its production. He also argued that
Anvar P.V. (supra) required to be clarified to the extent that Sections
65A and 65B being a complete code as to admissibility of electronic
records, the “baggage” of Primary and Secondary Evidence contained
in Sections 62 and 65 of the Evidence Act should not at all be adverted
to, and that the drill of Section 65A and 65B alone be followed when it F
comes to admissibility of information contained in electronic records.
13. It is now necessary to set out the relevant provisions of the
Evidence Act and the Information Technology Act, 2000. Section 3 of
the Evidence Act defines “document” as follows:
“Document.— “Document” means any matter expressed or G
described upon any substance by means of letters, figures or marks,
or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter.”

H
204 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “Evidence” in Section 3 is defined as follows:
“Evidence.”— “Evidence” means and includes—(1) all
statements which the Court permits or requires to be made before
it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
B
(2) all documents including electronic records produced for the
inspection of the Court; such documents are called documentary
evidence.”
The Evidence Act also declares that the expressions “Certifying
C Authority”, “electronic signature”, “Electronic Signature Certificate”,
“electronic form”, “electronic records”, “information”, “secure electronic
record”, “secure digital signature” and “subscriber” shall have the
meanings respectively assigned to them in the Information Technology
Act.

D 14. Section 22-A of the Evidence Act, which deals with the
relevance of oral admissions as to contents of electronic records, reads
as follows:
“22A. When oral admission as to contents of electronic
records are relevant. — Oral admissions as to the contents of
electronic records are not relevant, unless the genuineness of the
E
electronic record produced is in question.”
15. Section 45A of the Evidence Act, on the opinion of the Examiner
of Electronic Evidence, then states:
“45A. Opinion of Examiner of Electronic Evidence.— When
F in a proceeding, the court has to form an opinion on any matter
relating to any information transmitted or stored in any computer
resource or any other electronic or digital form, the opinion of the
Examiner of Electronic Evidence referred to in section 79A of
the Information Technology Act, 2000 (21 of 2000), is a relevant
fact.
G
Explanation.— For the purposes of this section, an Examiner of
Electronic Evidence shall be an expert.”
16. Sections 65-A and 65-B of the Evidence Act read as follows:

H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 205
GORANTYAL & ORS. [R. F. NARIMAN, J.]

“65A. Special provisions as to evidence relating to A
electronic record.—The contents of electronic records may be
proved in accordance with the provisions of section 65B.”
“65B. Admissibility of electronic records.- (1) Notwithstanding
anything contained in this Act, any information contained in an
electronic record which is printed on a paper, stored, recorded or B
copied in optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) 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, without further proof
or production of the original, as evidence or any contents of the C
original or of any fact stated therein of which direct evidence
would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a
computer output shall be the following, namely:
D
(a) the computer output containing the information was produced
by the computer during the period over which the computer was
used regularly to store or process information for the purposes of
any activities regularly carried on over that period by the person
having lawful control over the use of the computer;
E
(b) 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 in the
ordinary course of the said activities;
(c) throughout the material part of the said period, the computer F
was operating properly or, if not, then in respect of any period in
which it was not operating properly or was out of operation during
that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces
G
or is derived from such information fed into the computer in the
ordinary course of the said activities.
(3) Where over any period, the function of storing or processing
information for the purposes of any activities regularly carried on
over that period as mentioned in clause (a) of sub-section (2) was
regularly performed by computers, whether- H
206 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period;
or
(c) by different combinations of computers operating in succession
over that period; or
B
(d) in any other manner involving the successive operation over
that period, in whatever order, of one or more computers and one
or more combinations of computers,
all the computers used for that purpose during that period shall be
C treated for the purposes of this section as constituting a single
computer; and references in this section to a computer shall be
construed accordingly.
(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
D following things, that is to say, -
(a) identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production
of that electronic record as may be appropriate for the purpose of
E showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible
official position in relation to the operation of the relevant device
F
or the management of the relevant activities (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 stated to the best of the knowledge
and belief of the person stating it.
G (5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is
supplied thereto in any appropriate form and whether it is so
supplied directly or (with or without human intervention) by means
of any appropriate equipment; —
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 207
GORANTYAL & ORS. [R. F. NARIMAN, J.]

(b) whether in the course of activities carried on by any official, A
information is supplied with a view to its being stored or processed
for the purposes of those activities by a computer operated
otherwise than in the course of those activities, that information,
if duly supplied to that computer, shall be taken to be supplied to it
in the course of those activities;
B
(c) a computer output shall be taken to have been produced by a
computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
Explanation. — For the purposes of this section any reference
to information being derived from other information shall be a C
reference to its being derived therefrom by calculation, comparison
or any other process.”
17. The following definitions as contained in Section 2 of the
Information Technology Act, 2000 are also relevant:
“(i) “computer” means any electronic, magnetic, optical or other D
high-speed data processing device or system which performs
logical, arithmetic, and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes all input,
output, processing, storage, computer software or communication
facilities which are connected or related to the computer in a E
computer system or computer network;”
“(j) “computer network” means the inter-connection of one or
more computers or computer systems or communication device
through– (i) the use of satellite, microwave, terrestrial line, wire,
wireless or other communication media; and (ii) terminals or a F
complex consisting of two or more interconnected computers or
communication device whether or not the inter-connection is
continuously maintained;”
“(l) “computer system” means a device or collection of devices,
including input and output support devices and excluding calculators
G
which are not programmable and capable of being used in
conjunction with external files, which contain computer
programmes, electronic instructions, input data and output data,
that performs logic, arithmetic, data storage and retrieval,
communication control and other functions;”
H
208 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “(o) “data” means a representation of information, knowledge,
facts, concepts or instructions which are being prepared or have
been prepared in a formalised manner, and is intended to be
processed, is being processed or has been processed in a computer
system or computer network, and may be in any form (including
computer printouts magnetic or optical storage media, punched
B
cards, punched tapes) or stored internally in the memory of the
computer;”
“(r) “electronic form”, with reference to information, means any
information generated, sent, received or stored in media, magnetic,
optical, computer memory, micro film, computer generated micro
C
fiche or similar device;”
“(t) “electronic record” means data, record or data generated,
image or sound stored, received or sent in an electronic form or
micro film or computer generated micro fiche;”
D 18. Sections 65A and 65B 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
E 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
F 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
G 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
proved once admissible into evidence.With these prefatory observations
let us have a closer look at Sections 65A and 65B.
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 209
GORANTYAL & ORS. [R. F. NARIMAN, J.]

20. It will first be noticed that the subject matter of Sections 65A A
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”.
B
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 C
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 D
in respect of a computer output, and states that the test for being included
in conditions 65B(2(a)) to 65(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. E
23. 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 F
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 G
being well settled that the expression “any” can mean “all” given the
context (see, for example, this Court’s judgments in Bansilal Agarwalla
v. State of Bihar (1962) 1 SCR 331 and Om Parkash v. Union of
1
“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 H
210 SUPREME COURT REPORTS [2020] 7 S.C.R.

A India (2010) 4 SCC 172. This being the case, the conditions mentioned
in sub-section (4) must also be interpreted as being cumulative.
24. It is now appropriate to examine the manner in which Section
65B was interpreted by this Court. In Anvar P.V. (supra), a three Judge
Bench of this Court, after setting out Sections 65A and 65B of the
B Evidence Act, held:
“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
C 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
D 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
E 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:

as regards the interpretation of the word “any one” in Section 76 was raised in Criminal
F Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and 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.”
2
“70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v.
Union of India, AIR 1987 Del 239] would clearly indicate with regard to interpretation
G of the word “any” in Explanation 1 to the firstproviso to Section 6of 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.”
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 211
GORANTYAL & ORS. [R. F. NARIMAN, J.]

(i) The electronic record containing the information should have A
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 B
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 C
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 D
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; E
(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;
F
(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. G
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 H
212 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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,
B 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.
C
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.
D xxx xxx xxx
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
E 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 a two-Judge Bench
F 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
G 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
H call records is stored in huge servers which cannot be easily moved
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 213
GORANTYAL & ORS. [R. F. NARIMAN, J.]

and produced in the court. That is what the High Court has also A
observed 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. B
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 C
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 D
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,
E
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 F
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 G
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, 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
H
214 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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.
B
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
C
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
D 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
E 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
F 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.”
G 25. Shri Upadhyay took exception to the language of paragraph
24 in this judgment. According to the learned counsel, primary and
secondary evidence as to documents, referred to in Sections 61 to Section
65 of the Evidence Act, should be kept out of admissibility of electronic
records, given the fact that Sections 65A and 65B are a complete code
H on the subject.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 215
GORANTYAL & ORS. [R. F. NARIMAN, J.]

26. At this juncture, it is important to note that Section 65B has its A
genesis in Section 5 of the Civil Evidence Act 1968 (UK), which reads
as follows:
“Admissibility of statements produced by computers.
(1) In any civil proceedings a statement contained in a document
produced by a computer shall, subject to rules of court, be B
admissible as evidence of any fact stated therein of which direct
oral evidence would be admissible, if it is shown that the conditions
mentioned in sub section (2) below are satisfied in relation to the
statement and computer in question.
(2) The said conditions are— C

(a) that the document containing the statement was produced by
the computer during a period over which the computer was used
regularly to store or process information for the purposes of any
activities regularly carried on over that period, whether for profit
or not, by any body, whether corporate or not, or by any individual; D

(b) that over that period there was regularly supplied to the
computer in the ordinary course of those activities information of
the kind contained in the statement or of the kind from which the
information so contained is derived;
E
(c) that throughout the material part of that period the computer
was operating properly or, if not, that any respect in which it was
not operating properly or was out of operation during that part of
that period was not such as to affect the production of the
document or the accuracy of its contents; and
F
(d) that the information contained in the statement reproduces or
is derived from information supplied to the computer in the ordinary
course of those activities.
(3) Where over a period the function of storing or processing
information for the purposes of any activities regularly carried on
G
over that period as mentioned in subsection (2)(a) above was
regularly performed by computers, whether-
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period;
or H
216 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (c) by different combinations of computers operating in succession
over that period; or
(d) in any other manner involving the successive operation over
that period, in whatever order, of one or more computers and one
or more combinations of computers,
B all the computers used for that purpose during that period shall be
treated for the purposes of this Part of this Act as constituting a
single computer; and references in this Part of this Act to a
computer shall be construed accordingly.
(4) In any civil proceedings where it is desired to give a statement
C in evidence by virtue of this section, a certificate doing any of the
following things, that is to say—
(a) identifying the document containing the statement and describing
the manner in which it was produced;

D (b) giving such particulars of any device involved in the production
of that document as may be appropriate for the purpose of showing
that the document was produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in subsection (2) above relate,
E and purporting to be signed by a person occupying a responsible
position in relation to the operation of the relevant device or the
management of the relevant activities (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 stated to the best of the knowledge and belief of the person
F
stating it.
(5) For the purposes of this Part of this Act—
(a) information shall be taken to be supplied to a computer if it is
supplied thereto in any appropriate form and whether it is so
G supplied directly or (with or without human intervention) by means
of any appropriate equipment;
(b) where, in the course of activities carried on by any individual
or body, information is supplied with a view to its being stored or
processed for the purposes of those activities by a computer
H operated otherwise than in the course of those activities, that
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 217
GORANTYAL & ORS. [R. F. NARIMAN, J.]

information, if duly supplied to that computer, shall be taken to be A
supplied to it in the course of those activities;
(c) a document shall be taken to have been produced by a computer
whether it was produced by it directly or (with or without human
intervention) by means of any appropriate equipment.
(6) Subject to subsection (3) above, in this Part of this Act B
“computer “ means any device for storing and processing
information, and any reference to information being derived from
other information is a reference to its being derived therefrom by
calculation, comparison or any other process.”
27. It may be noticed that sub-sections (2) to (5) of Section 65B C
of the Evidence Act are a reproduction of sub-sections (2) to (5) of
Section 5 of the Civil Evidence Act, 1968, with minor changes 3. The
definition of “computer” under Section 5(6) of the Civil Evidence Act,
1968 was not, however, adopted by Section 2(i) of the Information
Technology Act, 2000, which as noted above, is a ‘means and includes’ D
definition of a much more complex and intricate nature. It is also important
to note Section 6(1) and (5) of the Civil Evidence Act, 1968, which state
as follows:
“(1) Where in any civil proceedings a statement contained in a
document is proposed to be given in evidence by virtue of section E
2, 4 or 5 of this Act it may, subject to any rules of court, be proved
by the production of that document or (whether or not that
document is still in existence) by the production of a copy of that
document, or of the material part thereof, authenticated in such
manner as the court may approve.
F
xxx xxx xxx
(5) If any person in a certificate tendered in evidence in civil
proceedings by virtue of section 5(4) of this Act wilfully makes a
statement material in those proceedings which he knows to be
false or does not believe to be true, he shall be liable on conviction
G
3
Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence from
computer records in criminal proceedings. Section 69 read thus:
“69.-(1) In any proceedings, a statement in a document produced by a computer shall
not be admissible as evidence of any fact stated therein unless it is shown-
(a) that there are no reasonable grounds for believing that the statement is
inaccurate because of improper use of that computer; H
218 SUPREME COURT REPORTS [2020] 7 S.C.R.

A on indictment to imprisonment for a term not exceeding two years
or a fine or both.”
28. Section 6(1), in essence, maintains the dichotomy between
proof by ‘primary’ and ‘secondary’ evidence - proof by production of
the ‘document’ itself being primary evidence, and proof by production of
B a copy of that document, as authenticated, being secondary evidence.
(b) that at all material times the computer was operating properly, or if not, that
any respect in which it was not operating properly or was out of operation was
not such as to affect the production of the document or the accuracy of its
contents; and
(c) that any relevant conditions specified in rules of court under subsection (2)
C below are satisfied.
(2) Provision may be made by rules of court requiring that in any proceedings where it
is desired to give a statement in evidence by virtue of this section such information
concerning the statement as may be required by the rules shall be provided in such form
and at such time as may be so required.”
By Section 70, Sections 68 and 69 of this Act had to be read with Schedule 3 thereof, the
D provisions of which had the same force in effect as Sections 68 and 69. Part I of
Schedule 3 supplemented Section 68. Notwithstanding the importance of Part I of
Schedule 3, we propose to refer to only two provisions of it, namely:
“1. Section 68(1) above applies whether the information contained in the document was
supplied directly or indirectly but, if it was supplied indirectly, only if each person
through whom it was supplied was acting under a duty; and applies also where the
person compiling the record is himself the person by whom the information is supplied.”
E
“6. Any reference in Section 68 above or this Part of this Schedule to a person acting
under a duty includes a reference to a person acting in the course of any trade, business,
profession or other occupation in which he is engaged or employed or for the purposes
of any paid or unpaid office held by him.”
Part II supplemented Section 69 in important respects. Two provisions of it are relevant,
namely-
F “8. In any proceedings where it is desired to give a statement in evidence in accordance
with section 69 above, a certificate–
(a) identifying the document containing the statement and describing the manner in
which it was produced;
(b) giving such particulars of any device involved in the production of that document as
may be appropriate for the purpose of showing that the document was produced by
G a computer;
(c) dealing with any of the matters mentioned in Section 69(1) above; and
(d) purporting to be signed by a person occupying a reasonable position in relation to
the operation of the computer, shall be evidence of anything stated in it; and for the
purposes of this paragraph it shall be sufficient for a matter to be stated to the best
of the knowledge and belief of the person stating it.
9. Notwithstanding paragraph 8 above, a court may require oral evidence to be given
H of anything of which evidence could be given by a certificate under that paragraph.”
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 219
GORANTYAL & ORS. [R. F. NARIMAN, J.]

Section 6(5), which gives teeth to the person granting the certificate A
mentioned in Section 5(4) of the Act, by punishing false statements
wilfully made in the certificate, has not been included in the Indian
Evidence Act.These sections have since been repealed by the Civil
Evidence Act of 1995 (UK), pursuant to a UK Law Commission Report
published in September, 1993(Law Com. No. 216), by which the strict
B
rule as to hearsay evidence was relaxed, and hearsay evidence wasmade
admissible in the circumstances mentioned by the Civil Evidence Act of
1995.Sections 8, 9 and 13 of this Act are important, and are set out
hereinbelow:
“8. Proof of statements contained in documents.
C
(1) Where a statement contained in a document is admissible as
evidence in civil proceedings, it may be proved—
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the
production of a copy of that document or of the material part of it, D
authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are
between a copy and the original.
9. Proof of records of business or public authority.
E
(1) A document which is shown to form part of the records of a
business or public authority may be received in evidence in civil
proceedings without further proof.
(2) A document shall be taken to form part of the records of a
business or public authority if there is produced to the court a
F
certificate to that effect signed by an officer of the business or
authority to which the records belong. For this purpose—
(a) a document purporting to be a certificate signed by an officer
of a business or public authority shall be deemed to have been
duly given by such an officer and signed by him; and
G
(b) a certificate shall be treated as signed by a person if it purports
to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or public
authority may be proved in civil proceedings by affidavit of an
officer of the business or authority to which the records belong. H
220 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period
of time, whether for profit or not, by any body (whether corporate
or not) or by an individual;
B
“officer” includes any person occupying a responsible position in
relation to the relevant activities of the business or public authority
or in relation to its records; and
“public authority” includes any public or statutory undertaking,
C any government department and any person holding office under
Her Majesty.
(5) The court may, having regard to the circumstances of the
case, direct that all or any of the above provisions of this section
do not apply in relation to a particular document or record, or
D description of documents or records.”
Section 13 of this Act defines “document” as follows:
“document” means anything in which information of any description
is recorded, and “copy”, in relation to a document, means anything
onto which information recorded in the document has been copied,
E by whatever means and whether directly or indirectly;”
29. 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
F 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.

G 30. Coming back to Section 65B of the Indian Evidence Act, sub-
section (1) needs to be analysed. The sub-section begins with anon-
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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 221
GORANTYAL & ORS. [R. F. NARIMAN, J.]

to both the information and the computer in question; and if such conditions A
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 B
stated therein of which direct evidence would be admissible.
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 C
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 D
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 E
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 be a part of a “computer system” or “computer F
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 65B(1), together
with the requisite certificate under Section 65B(4). This being the case,
it is necessary to clarify what is contained in the last sentence in paragraph G
24 of 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…”. This may more appropriately be read without the words “under
Section 62 of the Evidence Act,…”. With this minor clarification, the
law stated in paragraph 24 of Anvar P.V. (supra) does not need to be
revisited. H
222 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 33. In fact, in Vikram Singh and Anr. v. State of Punjab and
Anr.(2017) 8 SCC 518, a three-Judge Bench of this Court followed the
law in Anvar P.V. (supra), clearly stating that where primary evidence
in electronic form has been produced, no certificate under Section 65B
would be necessary. This was so stated as follows:
B “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
C 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. The conversation on the landline phone of
the complainant situate in a shop was recorded by the complainant.
D 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 has referred to the aforesaid fact and has noted
the said fact to the following effect:
“5. The cassette on which the conversations had been recorded
E 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
F 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.”4
34. Despite the law so declared in Anvar P.V. (supra), wherein
G this Court made it clear that the special provisions of Sections 65A and
65B of the Evidence Act are a complete Code in themselves when it
4
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 (supra).
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 223
GORANTYAL & ORS. [R. F. NARIMAN, J.]

comes to admissibility of evidence of information contained in electronic A
records, and also that a written certificate under Section 65B(4) is a
sine qua non for admissibility of such evidence, a discordant note was
soon struck in Tomaso Bruno (supra).In this judgment, another three
Judge Bench dealt with the admissibility of evidence in a criminal case
in which CCTV footage was sought to be relied upon in evidence. The
B
Court held:
“24. With the advancement of information technology, scientific
temper in the individual and at the institutional level is to pervade
the methods of investigation. With the increasing impact of
technology in everyday life and as a result, the production of
electronic evidence in cases has become relevant to establish the C
guilt of the accused or the liability of the defendant. Electronic
documents stricto sensu are admitted as material evidence. With
the amendment to the Evidence Act in 2000, Sections 65-A and
65-B were introduced into Chapter V relating to documentary
evidence. Section 65-A provides that contents of electronic records D
may be admitted as evidence if the criteria provided in Section
65-B is complied with. The computer generated electronic records
in evidence are admissible at a trial if proved in the manner
specified by Section 65-B of the Evidence Act. Sub-section (1) of
Section 65-B makes admissible as a document, paper printout of
electronic records stored in optical or magnetic media produced E
by a computer, subject to the fulfilment of the conditions specified
in sub-section (2) of Section 65-B. Secondary evidence of contents
of document can also be led under Section 65 of the Evidence
Act. PW 13 stated that he saw the full video recording of the
fateful night in the CCTV camera, but he has not recorded the F
same in the case diary as nothing substantial to be adduced as
evidence was present in it.
25. The production of scientific and electronic evidence in court
as contemplated under Section 65-B of the Evidence Act is of
great help to the investigating agency and also to the prosecution. G
The relevance of electronic evidence is also evident in the light of
Mohd. Ajmal Amir Kasab v. State of Maharashtra [(2012) 9
SCC 1] , wherein production of transcripts of internet transactions
helped the prosecution case a great deal in proving the guilt of the
accused. Similarly, in State (NCT of Delhi) v. Navjot Sandhu,
H
224 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the links between the slain terrorists and the masterminds of the
attack were established only through phone call transcripts obtained
from the mobile service providers.”
35. What is clear from this judgment is that the judgment of Anvar
P.V. (supra) was not referred to at all. In fact, the judgment in State v.
B Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a
judgment specifically overruled by Anvar P.V. (supra). It may also be
stated that Section 65B(4) was also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno (supra) following
Navjot Sandhu (supra) that secondary evidence of the contents of a
document can also be led under Section 65 of the Evidence Act to make
C
CCTV footage admissible would be in the teeth of Anvar P.V., (supra)
and cannot be said to be a correct statement of the law. The said view is
accordingly overruled.
36. We now come to the decision in Shafhi Mohammad (supra).
In this case, by an order dated 30.01.2018 made by two learned Judges
D of this Court, it was stated:

“21. We have been taken through certain decisions which may
be referred to. In Ram Singh v. Ram Singh [Ram Singh v. Ram
Singh, 1985 Supp SCC 611], a three-Judge Bench considered the
said issue. English judgments in R. v. Maqsud Ali [R. v. Maqsud
E Ali, (1966) 1 QB 688] and R. v. Robson [R. v. Robson, (1972) 1
WLR 651] and American Law as noted in American
Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to
the effect that it will be wrong to deny to the law of evidence
advantages to be gained by new techniques and new devices,
F provided the accuracy of the recording can be proved. Such
evidence should always be regarded with some caution and
assessed in the light of all the circumstances of each case.
Electronic evidence was held to be admissible subject to safeguards
adopted by the Court about the authenticity of the same. In the
case of tape-recording, it was observed that voice of the speaker
G must be duly identified, accuracy of the statement was required
to be proved by the maker of the record, possibility of tampering
was required to be ruled out. Reliability of the piece of evidence
is certainly a matter to be determined in the facts and
circumstances of a fact situation. However, threshold admissibility
H of an electronic evidence cannot be ruled out on any technicality
if the same was relevant.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 225
GORANTYAL & ORS. [R. F. NARIMAN, J.]

22. In Tukaram S. Dighole v. Manikrao Shivaji Kokate [(2010) A
4 SCC 329], the same principle was reiterated. This Court
observed that new techniques and devices are the order of the
day. Though such devices are susceptible to tampering, no
exhaustive rule could be laid down by which the admission of
such evidence may be judged. Standard of proof of its authenticity
B
and accuracy has to be more stringent than other documentary
evidence.
23. In Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178], a
three-Judge Bench observed that advancement of information
technology and scientific temper must pervade the method of
investigation. Electronic evidence was relevant to establish facts. C
Scientific and electronic evidence can be a great help to an
investigating agency. Reference was made to the decisions of
this Court in Mohd. Ajmal Amir Kasab v. State of Maharashtra
[(2012) 9 SCC 1] and State (NCT of Delhi) v. Navjot Sandhu.
24. We may, however, also refer to the judgment of this Court in D
Anvar P.V. v. P.K. Basheer, delivered by a three-Judge Bench.
In the said judgment in para 24 it was observed that electronic
evidence by way of primary evidence 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 E
evidence, procedure of Section 65-B of the Evidence Act was
required to be followed and a contrary view taken in Navjot
Sandhu that secondary evidence of electronic record could be
covered under Sections 63 and 65 of the Evidence Act, was not
correct. There are, however, observations in para 14 to the effect
that electronic record can be proved only as per Section 65-B of F
the Evidence Act.
25. Though in view of the three-Judge Bench judgments in Tomaso
Bruno and Ram Singh [1985 Supp SCC 611] , it can be safely
held that electronic evidence is admissible and provisions under
Sections 65-A and 65-B of the Evidence Act are by way of a G
clarification and are procedural provisions. If the electronic
evidence is authentic and relevant the same can certainly be
admitted subject to the Court being satisfied about its authenticity
and procedure for its admissibility may depend on fact situation
such as whether the person producing such evidence is in a position H
to furnish certificate under Section 65-B(4).
226 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be
held to be a complete code on the subject. In Anvar P.V., this
Court in para 24 clarified that primary evidence of electronic record
was not covered under Sections 65-A and 65-B of the Evidence
Act. Primary evidence is the document produced before the Court
B and the expression “document” is defined in Section 3 of the
Evidence Act to mean any matter expressed or described upon
any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
27. The term “electronic record” is defined in Section 2(1)(t) of
C
the Information Technology Act, 2000 as follows:
“2.(1)(t) “electronic record” means data, record or data generated,
image or sound stored, received or sent in an electronic form or
micro film or computer generated micro fiche;”
D 28. The expression “data” is defined in Section 2(1)(o) of the
Information Technology Act as follows:
“2.(1)(o) “data” means a representation of information, knowledge,
facts, concepts or instructions which are being prepared or have
been prepared in a formalised manner, and is intended to be
E processed, is being processed or has been processed in a computer
system or computer network, and may be in any form (including
computer printouts magnetic or optical storage media, punched
cards, punched tapes) or stored internally in the memory of the
computer;”

F 29. The applicability of procedural requirement under Section 65-
B(4) of the Evidence Act of furnishing certificate is to be applied
only when such electronic evidence is produced by a person who
is in a position to produce such certificate being in control of the
said device and not of the opposite party. In a case where
electronic evidence is produced by a party who is not in possession
G of a device, applicability of Sections 63 and 65 of the Evidence
Act cannot be held to be excluded. In such case, procedure under
the said sections can certainly be invoked. If this is not so permitted,
it will be denial of justice to the person who is in possession of
authentic evidence/witness but on account of manner of proving,
H such document is kept out of consideration by the court in the
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 227
GORANTYAL & ORS. [R. F. NARIMAN, J.]

absence of certificate under Section 65-B(4) of the Evidence Act, A
which party producing cannot possibly secure. 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 B
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.”
37. It may be noted that the judgments referred to in paragraph C
21 of Shafhi Mohammed (supra) are all judgments before the year
2000, when Amendment Act 21 of 2000 first introduced Sections 65A
and 65B into the Evidence Act and can, therefore, be of no assistance
on interpreting the law as to admissibility into evidence of information
contained in electronic records. Likewise, the judgment cited in paragraph
22, namely Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010) D
4 SCC 329 is also a judgment which does not deal with Section 65B. In
fact, paragraph 20 of the said judgment states the issues before the
Court as follows:
“20. However, in the present case, the dispute is not whether a
cassette is a public document but the issues are whether: E

(i) the finding by the Tribunal that in the absence of any evidence
to show that the VHS cassette was obtained by the appellant
from the Election Commission, the cassette placed on record by
the appellant could not be treated as a public document is perverse;
and F
(ii) a mere production of an audio cassette, assuming that the
same is a certified copy issued by the Election Commission, is per
se conclusive of the fact that what is contained in the cassette is
the true and correct recording of the speech allegedly delivered
by the respondent or his agent?” G
The second issue was answered referring to judgments which did
not deal with Section 65B at all.
38. Much succour was taken from the three Judge Bench decision
in Tomaso Bruno (supra) in paragraph 23, which, as has been stated
H
228 SUPREME COURT REPORTS [2020] 7 S.C.R.

A hereinabove, does not state the law on Section 65B correctly. Anvar
P.V. (supra) was referred to in paragraph 24, but surprisingly, in paragraph
26, 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,
B
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.
C
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
D 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
E as follows:
“Section 165. Judge’s power to put questions or order
production.- The Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases, in any
form, at any time, of any witness, or of the parties about any fact
F relevant or irrelevant; and may order the production of any
document or thing; and neither the parties nor their agents shall
be entitled to make any objection to any such question or order,
nor, without the leave of the Court, to cross-examine any witness
upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by
G this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to
compel any witness to answer any question or to produce any
document which such witness would be entitled to refuse to answer
or produce under sections 121 to 131, both inclusive, if the question
H were asked or the document were called for by the adverse party;
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 229
GORANTYAL & ORS. [R. F. NARIMAN, J.]

nor shall the Judge ask any question which it would be improper A
for any other person to ask under section 148 or 149; nor shall he
dispense with primary evidence of any document, except in the
cases hereinbefore excepted.
41. Likewise, under Order XVI of the Civil Procedure Code, 1908
(“CPC”) which deals with ‘Summoning and Attendance of Witnesses’, B
the Court can issue the following orders for the production of documents:
“6. Summons to produce document.—Any person may be
summoned to produce a document, without being summoned to
give evidence; and any person summoned merely to produce a
document shall be deemed to have complied with the summons if C
he causes such document to be produced instead of attending
personally to produce the same.
7. Power to require persons present in Court to give
evidence or produce document.—Any person present in Court
may be required by the Court to give evidence or to produce any
D
document then and there in his possession or power.
xxx xxx xxx
10. Procedure where witness fails to comply with
summons.—(1) Where a person has been issued summons either
to attend to give evidence or to produce a document, fails to attend E
or to produce the document in compliance with such summons,
the Court— (a) shall, if the certificate of the serving officer has
not been verified by the affidavit, or if service of the summons
has affected by a party or his agent, or (b) may, if the certificate
of the serving officer has been so verified, examine on oath the
serving officer or the party or his agent, as the case may be, who F
has effected service, or cause him to be so examined by any
Court, touching the service or non-service of the summons.
(2) Where the Court sees reason to believe that such evidence or
production is material, and that such person has, without lawful
excuse, failed to attend or to produce the document in compliance G
with such summons or has intentionally avoided service, it may
issue a proclamation requiring him to attend to give evidence or to
produce the document at a time and place to be named therein;
and a copy of such proclamation shall be affixed on the outer
door or other conspicuous part of the house in which he ordinarily H
resides.
230 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (3) In lieu of or at the time of issuing such proclamation, or at any
time afterwards, the Court may, in its discretion, issue a warrant,
either with or without bail, for the arrest of such person, and may
make an order for the attachment of his property to such amount
as it thinks fit, not exceeding the amount of the costs of attachment
and of any fine which may be imposed under rule 12:
B
Provided that no Court of Small Causes shall make an order for
the attachment of immovable property.”
42. Similarly, in the Code of Criminal Procedure, 1973 (“CrPC”),
the Judge conducting a criminal trial is empowered to issue the following
C orders for production of documents:
“91. Summons to produce document or other thing.—(1)
Whenever any Court or any officer in charge of a police station
considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation,
D inquiry, trial or other proceeding under this Code by or before
such Court or officer, such Court may issue a summons, or such
officer a written order, to the person in whose possession or power
such document or thing is believed to be, requiring him to attend
and produce it, or to produce it, at the time and place stated in the
summons or order.
E
(2) Any person required under this section merely to produce a
document or other thing shall be deemed to have complied with
the requisition if he causes such document or thing to be produced
instead of attending personally to produce the same.

F (3) Nothing in this section shall be deemed— (a) to affect sections
123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the
Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply
to a letter, postcard, telegram or other document or any parcel or
thing in the custody of the postal or telegraph authority.”
“349. Imprisonment or committal of person refusing to
G
answer or produce document.—If any witness or person called
to produce a document or thing before a Criminal Court refuses
to answer such questions as are put to him or to produce any
document or thing in his possession or power which the Court
requires him to produce, and does not, after a reasonable
H opportunity has been given to him so to do, offer any reasonable
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 231
GORANTYAL & ORS. [R. F. NARIMAN, J.]

excuse for such refusal, such Court may, for reasons to be recorded A
in writing, sentence him to simple imprisonment, or by warrant
under the hand of the Presiding Magistrate or Judge commit him
to the custody of an officer of the Court for any term not exceeding
seven days, unless in the meantime, such person consents to be
examined and to answer, or to produce the document or thing and
B
in the event of his persisting in his refusal, he may be dealt with
according to the provisions of section 345 or section 346.”
43. Thus, it is clear that the major premise of Shafhi Mohammad
(supra) that such certificate cannot be secured by persons who are not
in possession of an electronic device is wholly incorrect. An application
can always be made to a Judge for production of such a certificate from C
the requisite person under Section 65B(4) in cases in which such person
refuses to give it.
44. Resultantly, the judgment dated 03.04.2018 of a Division Bench
of this Court reported as (2018) 5 SCC 311, in following the law incorrectly
laid down in Shafhi Mohammed (supra), must also be, and is hereby, D
overruled.
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, E
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 F
certificate can apply to the Court for its production under the provisions
aforementioned of the Evidence Act, CPCor 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 G
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 law is excused.
This was well put by this Court in Re: Presidential Poll (1974) 2 SCC H
33 as follows:
232 SUPREME COURT REPORTS [2020] 7 S.C.R.

A “14. If the completion of election before the expiration of the
term is not possible because of the death of the prospective
candidate it is apparent that the election has commenced before
the expiration of the term but completion before the expiration of
the term is rendered impossible by an act beyond the control of
B human agency. The necessity for completing the election before
the expiration of the term is enjoined by the Constitution in public
and State interest to see that the governance of the country is not
paralysed by non-compliance with the provision that there shall
be a President of India.
15. The impossibility of the completion of the election to fill the
C
vacancy in the office of the President before the expiration of the
term of office in the case of death of a candidate as may appear
from Section 7 of the 1952 Act does not rob Article 62(1) of its
mandatory character. The maxim of law impotentia excusat legam
is intimately connected with another maxim of law lex non cogit
D ad impossibilia. Impotentia excusat legam is that when there is a
necessary or invincible disability to perform the mandatory part
of the law that impotentia excuses. The law does not compel one
to do that which one cannot possibly perform. “Where the law
creates a duty or charge, and the party is disabled to perform it,
without any default in him, and has no remedy over it, there the
E
law will in general excuse him.” Therefore, when it appears that
the performance of the formalities prescribed by a statute has
been 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
F the compliance of the words of a statute, the statutory provision is
not denuded of its mandatory character because of supervening
impossibility caused by the act of God. (See Broom’s Legal Maxims
10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at
p. 268).”
G It is important to note that the provision in question in Re
Presidential Poll (supra) was also mandatory, which could not be
satisfied owing to an act of God, in the facts of that case. These maxims
have been applied by this Court in different situations in other election
cases – see Chandra Kishore Jha v. Mahavir Prasad and Ors.
(1999) 8 SCC 266 (at paragraphs 17 and 21); Special Reference 1 of
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 233
GORANTYAL & ORS. [R. F. NARIMAN, J.]

2002 (2002) 8 SCC 237 (at paragraphs 130 and 151) and Raj Kumar A
Yadav v. Samir Kumar Mahaseth and Ors. (2005) 3 SCC 601 (at
paragraphs 13 and 14).
46. These Latin maxims have also been applied in several other
contexts by this Court. In Cochin State Power and Light Corporation
v. State of Kerala (1965) 3 SCR 187, a question arose as to the exercise B
of an option of purchasing an undertaking by the State Electricity Board
under Section 6(4) of the Indian Electricity Act, 1910. The provision
required a notice of at least 18 months before the expiry of the relevant
period to be given by such State Electricity Board to the State
Government.Since this mandatory provision was impossible of
C
compliance, it was held that the State Electricity Board was excused
from giving such notice, as follows:
“Sub-section (1) of Section 6 expressly vests in the State Electricity
Board the option of purchase on the expiry of the relevant period
specified in the license. But the State Government claims that
D
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
purchase the undertaking”. It is common case that the State
Electricity Board was duly constituted. But the State Government E
claims that the State Electricity Board did not elect to purchase
the undertaking. For this purpose, the State Government relies
upon the deeming provisions of sub-section (4) of Section 6, and
contends that as the Board did not send to the State Government
any intimation in writing of its intention to exercise the option as
required by the sub-section, the Board must be deemed to have F
elected not to purchase the undertaking. Now, the effect of sub-
section (4) read with sub-section (2) of Section 6 is that on failure
of the Board to give the notice 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 G
the Board the duty of giving after the coming into force of Section
6 a notice in writing of its intention to exercise the option at least
18 months before the expiry of the relevant period. Section 6
came into force on September 5, 1959, and the relevant period
expired on December 3, 1960. In the circumstances, the giving of
H
234 SUPREME COURT REPORTS [2020] 7 S.C.R.

A the requisite notice of 18 months in respect of the option of purchase
on the expiry of December 2, 1960, was impossible from the very
commencement of Section 6. The performance of this impossible
duty must be excused in accordance with the maxim, lex non
cogitia ad impossibilia (the law does not compel the doing of
impossibilities), and sub-section (4) of Section 6 must be construed
B
as not being applicable to a case where compliance with it is
impossible. We must therefore, hold that the State Electricity Board
was not required to give the notice under sub-section (4) of Section
6 in respect of its option of purchase on the expiry of 25 years. It
must follow that the Board cannot be deemed to have elected not
C to purchase the undertaking under sub-section (4) of Section 6.
By the notice served upon the appellant, the Board duly elected to
purchase the undertaking on the expiry of 25 years. Consequently,
the State Government never became vested with the option of
purchasing the undertaking under sub-section (2) of Section 6.
The State Government must, therefore, be restrained from taking
D
further action under its notice, Ex. G, dated November 20, 1959.”5
47. In Raj Kumar Dubey v. Tarapada Dey and Ors. (1987) 4
SCC 398, the maxim non cogit ad impossibilia was applied in the
context of the applicability of a mandatory provision of the Registration
Act, 1908, as follows:
E
“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 Broom’s Legal Maxims, 10th
Edn., 1939 at page 73 this maxim is explained that this maxim
was founded upon justice and good sense; and afforded a safe
F and certain guide for the administration of the law. The above
maxim should, however, be applied with caution. The other maxim
is lex non cogit ad impossibilia (Broom’s Legal Maxims — page
162) — The law does not compel a man to do that which he
cannot possibly perform. The law itself and the administration of
G it, said Sir W. Scott, with reference to an alleged infraction of the
revenue laws, must yield to that to which everything must bend,
to necessity; the law, in its most positive and peremptory injunctions,
is understood to disclaim, as it does in its general aphorisms, all
intention of compelling impossibilities, and the administration of
5
H (1965) 3 SCR 187, at 193.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 235
GORANTYAL & ORS. [R. F. NARIMAN, J.]

laws must adopt that general exception in the consideration of all A
particular cases.
7. In this case indisputably during the period from 26-7-1978 to
December 1982 there was subsisting injunction preventing the
arbitrators from taking any steps. Furthermore, as noted before
the award was in the custody of the court, that is to say, 28-1- B
1978 till the return of the award to the arbitrators on 24-11-1983,
arbitrators or the parties could not have presented the award for
its registration during that time. The award as we have noted
before 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
C
to the order of the court. It was argued that the order made by the
court directing the arbitrators to keep the award in the custody of
the court was wrong and without jurisdiction, but no arbitrator
could be compelled to disobey the order of the court and if in
compliance or obedience with court of doubtful jurisdiction, he
could not take back the award from the custody of the court to D
take any further steps for its registration then it cannot be said
that he has failed to get the award registered as the law required.
The aforesaid two legal maxims — the law does not compel a
man to do that which he cannot possibly perform and an act of
the court shall prejudice no man would, apply with full vigour in
E
the facts of this case and if that is the position then the award as
we have noted before was presented before the Sub-Registrar,
Arambagh on 25-11-1983 the very next one day of getting
possession of the award from the court. The Sub-Registrar
pursuant to the order of the High Court on 24-6-1985 found that
the award was presented within time as the period during which F
the judicial proceedings were pending that is to say, from 28-1-
1978 to 24-11-1983 should be excluded in view of the principle
laid down in Section 15 of the Limitation Act, 1963. The High
Court, therefore, in our opinion, was wrong in holding that the
only period which should be excluded was from 26-7-1978 till 20-
G
12-1982. We are unable to accept this position. 26-7-1978 was
the date of the order of the learned Munsif directing maintenance
of status quo and 20-12-1982 was the date when the interim
injunction was vacated, but still the award was in the custody of
the court and there is ample evidence as it would appear from the
narration of events hereinbefore made that the arbitrators had H
236 SUPREME COURT REPORTS [2020] 7 S.C.R.

A tried to obtain the custody of the award which the court declined
to give to them.”
48. These maxims have also been applied to tenancy legislation –
see M/s B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick
and Anr. (1987) 2 SCC 401 (at paragraph 12), and have also been applied
B to relieve authorities of fulfilling their obligation to allot plots when such
plots have been found to be un-allottable, owing to the contravention of
Central statutes – see Hira Tikoo v. U.T., Chandigarh and Ors.
(2004) 6 SCC 765 (at paragraphs 23 and 24).
49. On an application of the aforesaid maxims to the present case,
C it is clear that though Section 65B(4) is mandatory, yet, on the facts of
this case, the Respondents, having done everything possible to obtain
the necessary certificate, which was to be given by a third-party over
whom the Respondents had no control, must be relieved of the mandatory
obligation contained in the said sub-section.
D 50. We may hasten to add that Section 65B does not speak of the
stage at which such certificate must be furnished to the Court. In Anvar
P.V. (supra), this Court did observe that such certificate must accompany
the electronic record when the same is produced in evidence. We may
only add that this is so in cases where such certificate could be procured
by the person seeking to rely upon an electronic record. However, in
E cases where either a defective certificate is given, or in cases where
such certificate has been demanded and is not given by the concerned
person, the Judge conducting the trial must summon the person/persons
referred to in Section 65B(4) of the Evidence Act, and require that such
certificate be given by such person/persons. This, the trial Judge ought
F to do when the electronic recordis produced in evidence before him
without the requisite certificate in the circumstances aforementioned.This
is, of course, subject to discretion being exercised in civil cases in
accordance with law, and in accordance with the requirements of justice
on the facts of each case. When it comes to criminal trials, it is important
to keep in mind the general principle that the accused must be supplied
G all documents that the prosecution seeks to rely upon before
commencement of the trial, under the relevant sections of the CrPC.
51. In a recent judgment, a Division Bench of this Court in State
of Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to
Anvar P.V. (supra) held:
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 237
GORANTYAL & ORS. [R. F. NARIMAN, J.]

“16. The same view has been reiterated by a two-Judge Bench A
of this Court in Union of India v. Ravindra V. Desai [(2018) 16
SCC 273]. The Court emphasised that non-production of a
certificate under Section 65-B on an earlier occasion is a curable
defect. The Court relied upon the earlier decision in Sonu v. State
of Haryana [(2017) 8 SCC 570], in which it was held: B
“32. … The crucial test, as affirmed by this Court, is whether the
defect could have been cured at the stage of marking the
document. Applying this test to the present case, if an objection
was taken to the CDRs being marked without a certificate,
the court could have given the prosecution an opportunity to
C
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.
D
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.”
52. It is pertinent to recollect that the stage of admitting
documentary evidence in a criminal trial is the filing of the charge-sheet. E
When a criminal court summons the accused to stand trial, copies of all
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
mandatory6. Therefore, the electronic evidence, i.e. the computer output,
has to be furnished at the latest before the trial begins. The reason is not F
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; G
(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; H
238 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
accused to prepare for the trial before its commencement.
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
C
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,
D 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
E 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.”
54. Therefore, in terms of general procedure, the prosecution is
obligated to supply all documents upon which reliance may be placed to
F 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

(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
G 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
H Court.”
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 239
GORANTYAL & ORS. [R. F. NARIMAN, J.]

a later stage should not result in serious or irreversible prejudice to the A
accused. A balancing exercise in respect of the rights of parties has to
be carried out by the court, in examining any application by the prosecution
under Sections 91 or 311 of the CrPC or Section 165 of the Evidence
Act. Depending on the facts of each case, and the Court exercising
discretion after seeing that the accused is not prejudiced by want of a
B
fair trial, the Court may in appropriate cases allow the prosecution to
produce such certificate at a later point in time.If it is the accused who
desires to produce the requisite certificate as part of his defence, this
again will depend upon the justice of the case - discretion to be exercised
by the Court in accordance with law.
55. The High Court of Rajasthan in Paras Jain v. State of C
Rajasthan 2015 SCC OnLine Raj 8331, decided a preliminary objection
that was raised on the applicability of Section 65B to the facts of the
case. The preliminary objection raised was framed as follows:
“3. (i) Whether transcriptions of conversations and for that matter
CDs of the same filed alongwith the charge-sheet are not D
admissible in evidence even at this stage of the proceedings as
certificate as required u/Sec. 65-B of the Evidence Act was not
obtained at the time of procurement of said CDs from the
concerned service provider and it was not produced alongwith
charge-sheet in the prescribed form and such certificate cannot E
be filed subsequently.”
After referring to Anvar P.V. (supra), the High Court held:
“15. Although, it has been observed by Hon’ble Supreme Court
that the requisite certificate must accompany the electronic record
pertaining to which a statement is sought to be given in evidence F
when the same is produced in evidence, but in my view it does not
mean that it must be produced alongwith the charge-sheet and if
it is not produced alongwith the charge-sheet, doors of the Court
are completely shut and it cannot be produced subsequently in
any circumstance. Section 65-B of the Evidence Act deals with G
admissibility of secondary evidence in the form of electronic record
and the procedure to be followed and the requirements be fulfilled
before such an evidence can be held to be admissible in evidence
and not with the stage at which such a certificate is to be produced
before the Court. One of the principal issues arising for
H
240 SUPREME COURT REPORTS [2020] 7 S.C.R.

A consideration in the above case before Hon’ble Court was the
nature and manner of admission of electronic records.
16. From the facts of the above case it is revealed that the election
of the respondent to the legislative assembly of the State of Kerala
was challenged by the appellant-Shri Anwar P.V. by way of an
B election petition before the High Court of Kerala and it was
dismissed vide order dated 16.11.2011 by the High Court and that
order was challenged by the appellant before Hon’ble Supreme
Court. It appears that the election was challenged on the ground
of corrupt practices committed by the respondent and in support
thereof some CDs were produced alongwith the election petition,
C
but even during the course of trial certificate as required under
Section 65-B of the Evidence Act was not produced and the
question of admissibility of the CDs as secondary evidence in the
form of electronic record in absence of requisite certificate was
considered and it was held that such electronic record is not
D admissible in evidence in absence of the certificate. It is clear
from the facts of the case that the question of stage at which
such electronic record is to be produced was not before the Hon’ble
Court.
17. It is to be noted that it has been clarified by Hon’ble Court
E that observations made by it are in respect of secondary evidence
of electronic record with reference to Sections 59, 65-A and 65-
B of the Evidence Act and 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.
F
18. To consider the issue raised on behalf of the petitioners in a
proper manner, I pose a question to me whether an evidence and
more particularly evidence in the form of a document not produced
alongwith the charge-sheet cannot be produced subsequently in
any circumstances. My answer to the question is in negative and
G in my opinion such evidence can be produced subsequently also
as it is well settled legal position that the goal of a criminal trial is
to discover the truth and to achieve that goal, the best possible
evidence is to be brought on record.
19. Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides
H that whenever any Court considers that the production of any
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 241
GORANTYAL & ORS. [R. F. NARIMAN, J.]

document is necessary or desirable for the purposes of any trial A
under the Code by or before such Court, such Court may issue a
summons to the person in whose possession or power such
document is believed to be, requiring him to attend and produce it
or to produce it, at the time and place stated in the summons.
Thus, a wide discretion has been conferred on the Court enabling B
it during the course of trial to issue summons to a person in whose
possession or power a document is believed to be requiring him to
produce before it, if the Court considers that the production of
such document is necessary or desirable for the purposes of such
trial. Such power can be exercised by the Court at any stage of
the proceedings before judgment is delivered and the Court must C
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 complainant/
informer/victim of the case on whose instance the FIR was
registered. In my considered view when under this provision Court D
has been empowered to issue summons for the producment of
document, there can be no bar for the Court to permit a document
to be taken on record if it is already before it and the Court finds
that it is necessary for the proper disposal of the case irrespective
of the fact that it was not filed along with the charge-sheet. I am
of the further view that it is the duty of the Court to take all steps E
necessary for the production of such a document 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 witness, or examine
any person in attendance, though not summoned as a witness, or
recall or re-examine any person already examined; and the Court F
shall summon and examine or recall and re-examine any such
person if his evidence appears to it to be essential to the just
decision of the case. Under this provision also wide discretion has
been conferred upon the Court to exercise its power and paramount
consideration is just decision of the case. In my opinion under this
G
provision it is permissible for the Court even to order production
of a document 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
investigation and collection of additional evidence even after filing
H
242 SUPREME COURT REPORTS [2020] 7 S.C.R.

A of charge-sheet is a statutory right of the police and for that prior
permission of the Magistrate is not required. If during the course
of such further investigation additional evidence, either oral or
documentary, is collected by the Police, the same can be produced
before the Court in the form of supplementary charge-sheet. The
prime consideration for further investigation and collection of
B
additional evidence is to arrive at the truth and to do real and
substantial justice. The material collected during further
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
C
produce any person as a witness even though such person is not
named in the charge-sheet.
23. When legal position is that additional evidence, oral or
documentary, can be produced during the course of trial if in the
opinion of the Court production of it is essential for the proper
D disposal of the case, how it can be held that the certificate as
required under Section 65-B of the Evidence Act cannot be
produced subsequently in any circumstances if the same was not
procured alongwith the electronic record and not produced in the
Court with the charge-sheet. In my opinion it is only an irregularity
E not going to the root of the matter and is curable. It is also pertinent
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 produced on the prescribed form.”
56. In Kundan Singh(supra), a Division Bench of the Delhi High
F Court held:
“50. Anwar P.V. (supra) partly overruled the earlier decision of
the Supreme Court on the procedure to prove electronic record(s)
in Navjot Sandhu (supra), holding that Section 65B is a specific
provision relating to the admissibility of electronic record(s) and,
G therefore, production of a certificate under Section 65B(4) is
mandatory. Anwar P.V. (supra) does not state or hold that the said
certificate cannot be produced in exercise of powers 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 Anwar P.V. (supra) partly overruling
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 243
GORANTYAL & ORS. [R. F. NARIMAN, J.]

Navjot Sandhu (supra), the prosecution may be entitled to invoke A
the aforementioned provisions, when justified and required. Of
course, it is open to the court/presiding officer at that time to
ascertain and verify whether the responsible officer could issue
the said certificate and meet the requirements of Section 65B.”
57. Subject to the caveat laid down in paragraphs 50 and 54 above, B
the law laid down by these two High Courts has our concurrence. So
long as the hearing in a trial is not yet over, the requisite certificate can
be directed to be produced by the learned Judge at any stage, so that
information contained in electronic record form can then be admitted,
and relied upon in evidence.
C
58. It may also be seen that the person who gives this certificate
can be anyone out of several persons who occupy a ‘responsible official
position’ in relation to the operation of the relevant device, as also the
person who may otherwise be in the ‘management of relevant activities’
spoken of in Sub-section (4) of Section 65B. Considering that such
certificate may also be given long after the electronic record has actually D
been produced by the computer, Section 65B(4) makes it clear that it is
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). E
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 F
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. G

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 the requisite certificate under Section 65B(4) of the Evidence
Act is also an incorrect statement of the law and is, accordingly, overruled. H
244 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
maintain electronic call records and records of logs of internet users for
a limited duration of one year7. 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
C commencement of the trial) would in all probability render the data
unverifiable. This places the accusedin 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 45A 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.
D
62. To obviate this, general directions are issued to cellular
companies and internet service providers to maintain CDRs and other
relevant records for the concerned period (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. Concerned
E parties 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 licenses, or under Section
67C of the Information Technology Act, which reads as follows:
F “67C. Preservation and retention of information by
intermediaries.–(1) Intermediary shall preserve and retain such
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
G 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 /
H instructions from time to time with respect to CDR/IPDR/EDR.”
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 245
GORANTYAL & ORS. [R. F. NARIMAN, J.]

information as may be specified for such duration and in such A
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.” B
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 C
committee to “frame Draft Rules to serve as model for adoption by
High Courts”. A five-Judge Committee was accordingly constituted on
28 July, 20188. 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
D
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. E
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
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, F
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 G
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,
8
The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv
Narain Raina and R.K. Gauba, JJ. H
246 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B 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
requisite certificate from the appropriate authorities, including directions
from the Court to produce the requisite certificate, no such certificate
was forthcoming.The horse was directed to be taken to the water to
C drink - but it refused to drink, leading to the consequence pointed out in
paragraph 49 of this judgment (supra).
67. Even otherwise, apart from evidence contained in electronic
form, the High court arrived at the following conclusion:
“48.The evidence in cross examination of Smt. Mutha shows that
D
when Labade was sent to the passage for collecting nomination
forms, she continued to accept the nomination forms directly from
intending candidates and their proposers in her office. Her evidence
shows that on 27.9.2014 the last nomination form which was
directly presented to her was form No. 38 of Anand Mhaske.
E The time of receipt of this form was mentioned in the register of
nomination forms as 2.55 p.m. In respect of subsequent nomination
forms from Sr. Nos. 39 to 64, the time of acceptance is mentioned
as 3.00 p.m. Smt. Mutha admits that the candidates of nomination
form Nos. 39 to 64 (form No. 64 was the last form filed) were not
present before her physically at 3.00 p.m. At the cost of repetition,
F it needs to be mentioned here that form numbers of RC are 43
and 44. The oral evidence and the record like register of nomination
forms does not show that form Nos. 43 and 44 were presented to
RO at 2.20 p.m. of 27.9.2014. As per the evidence of Smt. Mutha
and the record, one Arvind Chavan, a candidate having form Nos.
G 33, 34 and 35 was present before her between 2.15 p.m. and 2.30
p.m. In nomination form register, there is no entry showing that
any nomination form was received at 2.20 p.m. Form Nos. 36
and 37 of Sunil Khare were entered in the register at 2.40 p.m.
Thus, according to Smt. Mutha, form No. 38, which was accepted
by her directly from the candidate was tendered to her at 2.55
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 247
GORANTYAL & ORS. [R. F. NARIMAN, J.]

p.m. of 27.9.2014 and after that she had done preliminary A
examination of form No. 38 and check list was given by her to
that candidate. Thus, it is not possible that form Nos. 43 and 44
were directly handed over to Smt. Mutha by RC at 2.20 p.m. or
even at 3.00 p.m. of 27.9.2014.
50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m. of B
handing over the check list to RC and she showed the time as
3.00 p.m., but this time was shown in respect of all forms starting
from Sr. Nos. 39 to 64. Thus, substantive evidence of Smt. Mutha
and the aforesaid record falsifies the contention of the RC made
in the pleading that he had handed over the nomination forms
(form Nos. 43 and 44) directly to RO prior to 3.00 p.m., at 2.20 C
p.m.”
68. Thus, it is clear that apart from the evidence in the form of
electronic record, other evidence was also relied upon to arrive at the
same conclusion. The High Court’s judgment therefore cannot be faulted.
D
69. Shri Adsure, however, attacked the impugned judgment when
it held that the improper acceptance of the nomination form of the RC
himself being involved in the matter, no further pleadings and particulars
on whether the election is “materially affected”were required, as it can
be assumed that if such plea is accepted, the election would be materially
affected,as the election would then be set aside. He cited a Division E
Bench judgment of this Court in Rajendra Kumar Meshram v.
Vanshmani Prasad Verma (2016) 10 SCC 715,wherein an election
petition was filed against the appellant, inter alia, on the ground that as
the appellant - the returned candidate - was a Government servant, his
nomination had been improperly accepted. The Court held that the F
requirement of Section 100(1)(d) of the Representation of People Act,
1951, being that the election can be set aside only if such improper
acceptance of the nomination has “materially affected” the result of the
election, and there being no pleading or evidence to this effect, the election
petition must fail. This Court stated:
G
“9. As Issues 1 and 2 extracted above, have been answered in
favour of the returned candidate and there is no cross-appeal, it is
only the remaining issues that survive for consideration. All the
said issues centre round the question of improper acceptance of
the nomination form of the returned candidate. In this regard,
Issue 6 which raises the question of material effect of the improper H
248 SUPREME COURT REPORTS [2020] 7 S.C.R.

A acceptance of nomination of the returned candidate on the result
of the election may be specifically noticed.
10. Under Section 100(1)(d), an election is liable to be declared
void on the ground of improper acceptance of a nomination if
such improper acceptance of the nomination has materially
B affected the result of the election. This is in distinction to what is
contained in Section 100(1)(c) i.e. improper rejection of a
nomination which itself is a sufficient ground for invalidating the
election without any further requirement of proof of material effect
of such rejection on the result of the election. The above distinction
must be kept in mind. Proceeding on the said basis, we find that
C
the High Court did not endeavour to go into the further question
that would be required to be determined even if it is assumed that
the appellant returned candidate had not filed the electoral roll or
a certified copy thereof and, therefore, had not complied with the
mandatory provisions of Section 33(5) of the 1951 Act.
D 11. In other words, before setting aside the election on the above
ground, the High Court ought to have carried out a further exercise,
namely, to find out whether the improper acceptance of the
nomination had materially affected the result of the election. This
has not been done notwithstanding Issue 6 framed which is
E specifically to the above effect. The High Court having failed to
determine the said issue i.e. Issue 6, naturally, it was not empowered
to declare 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.”
F 70. On the other hand, Ms. Meenakshi Arora cited a Division
Bench judgment in Mairembam Prithviraj v. Pukhrem Sharatchandra
Singh (2017) 2 SCC 487. In this judgment, several earlier judgments of
this Court were cited on the legal effect of not pleading or proving that
the election had been “materially affected” by the improper acceptance
of a nomination under Section 100(1)(d)(i) of the Representation of
G People Act, 1951. After referring to Durai Muthuswami v. N.
Nachiappan and Ors. 1973(2) SCC 45 and Jagjit Singh v. Dharam
Pal Singh 1995 Supp (1) SCC 422, this Court then referred to a three-
Judge Bench judgment in Vashist Narain Sharma v. Dev Chandra
1955 (1) SCR 509 as under:
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 249
GORANTYAL & ORS. [R. F. NARIMAN, J.]

“25. It was held by this Court in Vashist Narain Sharma v. Dev A
Chandra [(1955) 1 SCR 509] as under:
“9. The learned counsel for the respondents concedes that the
burden of proving that the improper acceptance of a nomination
has materially affected the result of the election lies upon the
petitioner but he argues that the question can arise in one of three B
ways:
(1) where the candidate whose nomination was improperly
accepted had secured less votes than the difference between the
returned candidate and the candidate securing the next highest
number of votes, C
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly
accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not D
materially affected because if all the wasted votes are added to
the votes of the candidate securing the highest votes, it will make
no difference to the result and the returned candidate will retain
the seat. In the other two cases it is contended that the result is
materially affected. So far as the third case is concerned it
may be readily conceded that such would be the conclusion…” E
This Court then concluded:
“26. Mere finding that there has been an improper acceptance of
the nomination is not sufficient for a declaration that the election
is void under Section 100(1)(d). There has to be further pleading
F
and proof that the result of the election of the returned candidate
was materially affected. But, there would be no necessity of any
proof in the event of the nomination of a returned candidate being
declared as having been improperly accepted, especially in a case
where there are only two candidates in the fray. If the returned
candidate’s nomination is declared to have been improperly G
accepted it would mean that he could not have contested the
election and that the result of the election of the returned candidate
was materially affected need not be proved further…”
71. None of the earlier judgments of this Court referred to in
Mairembam Prithviraj (supra) have been adverted to in Rajendra H
250 SUPREME COURT REPORTS [2020] 7 S.C.R.

A Kumar Meshram (supra) cited by Shri Adsure. In particular, the
judgment of three learned Judges of this Court in Vashist Narain Sharma
(supra)has specifically held that where the person whose nomination
has been improperly accepted is the returned candidate himself, it may
be readily conceded that the conclusion has to be that the result of the
election would be “materially affected”, without there being any necessity
B
to pleadand prove the same. The judgment in Rajendra Kumar
Meshram (supra), not having referred to these earlier judgments of a
larger strength binding upon it, cannot be said to have declared the law
correctly. As a result thereof, the impugned judgment of the High Court
is right in its conclusion on this point also.
C 72. The reference is thus answered by stating that:
(a) Anvar P.V. (supra), as clarified by us hereinabove,is the law
declared by this Court on Section 65B of the Evidence Act.The judgment
in Tomaso Bruno (supra), being per incuriam, does not lay down the
law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported
D 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
E 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
F 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
G Evidence Act…” is thus clarified; it is to be read without the words
“under Section 62 of the Evidence Act,…” With this clarification, the
law stated in paragraph 24 of Anvar P.V. (supra) does not need to be
revisited.
(c) The general directions issued in paragraph 62 (supra) shall
H hereafter be followed by courts that deal with electronic evidence, to
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 251
GORANTYAL & ORS. [R. F. NARIMAN, J.]

ensure their preservation, and production of certificate at the appropriate A
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 B
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 C
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.
73. These appealsare dismissed with costs of INR One Lakh
each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in D
C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao
Gorantyal and Shri Vijay Chaudhary.

V. RAMASUBRAMANIAN, J. E
1. While I am entirely in agreement with the opinion penned by
R. F. Nariman, J. I also wish to add a few lines about (i) the reasons for
the acrimony behind Section 65B of the Indian Evidence Act, 1872
(hereinafter “Evidence Act”) (ii) how even with the existing rules of
procedure, the courts fared well, without any legislative interference, F
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
G
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,
H
252 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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 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,
B
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
C 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
D stamped and registered. In other words, if admissibility is the cart,
relevancy is the horse, under 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
E 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;
F 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 last-
mentioned fact must be proved before evidence is given of
G 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
H discretion, either permit evidence of the first fact to be given
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 253
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

before the second fact is proved, or require evidence to be A
given of the second fact before evidence is given of the first
fact.
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 B
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 C
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.
6. Illustration (b) under Section 136 provides an easy example of D
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 E
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 F
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.
8. But Section 65B makes the admissibility of the information
contained in the electronic record subject to certain conditions, including
certification. The certification is for the purpose of proving that the
G
information which constitutes the computer output 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 H
254 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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.
B
10. But Section 65B(1) starts with a non-obstante clause excluding
the application of the other provisions and it makes the certification, a
precondition for admissibility. While doing so, it does not talk about
relevancy. In a way, Sections 65A and 65B, if read together, mix-up both
proof and admissibility, but not talk about relevancy. Section 65A refers
C 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 for admissibility. As a result, Section 65B
places admissibility as the first or the outermost check post, capable of
turning away even at the border, any electronic evidence, without any
D enquiry, if the conditions stipulated therein are not fulfilled.
11. The placement by Section 65B, of admissibility as the 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
E of an electronic record, with the ‘originator’ (as defined in Section 2(za)
of the Information 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
F without legislative interference and the shift
12. It is a matter of fact and record that courts all over the 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
G 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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 255
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

or used in its original form. When someone speaks or sings, a signal is A
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
B
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 in an article titled ‘Electronic C
evidence and the meaning of “original”’, 1 by Stephen Mason
(Barrister and recognised authority on electronic 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 D
(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 E
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. F

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 G
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
1
Stephen Mason, Electronic evidence and the meaning of “original”, 79 Amicus Curiae
26 (2009) H
256 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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 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
B “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
C 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
D
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 Harry
Parker vs. Mason2 in proving fraud on the part of the plaintiff. While
Harry Parker was a civil proceeding, the principle laid down therein
E found acceptance in a criminal trial in R. vs. Burr and Sullivan.3 The
High Court of Judiciary in Scotland admitted in evidence, the tape record
of a conversation between the complainant and a black mailer, in Hopes
and Lavery vs. H. M. Advocate.4 A conversation recorded in police
cell overheard without any deception, beyond setting up a tape recorder
without warning, was admitted in evidence in R. vs. Mills.5
F
16. Then came R. vs. Maqsud Ali6 where Marshall J. drew an
analogy between tape-recordings 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
G also be admitted, provided the accuracy of the recording can be
proved and the voices recorded properly identified.
2
[1940] 2 KB 590
3
[1956] Crim LR 442
4
[1960] Crim LR 566
5
[1962] 3 All ER 298
H 6
[1965] 2 All ER 464
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 257
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

17. Following the above precedents, this Court also held in S. A
Pratap Singh vs. State of Punjab,7Yusaffalli Esmail Nagree vs. State
of Maharashtra,8 N. Sri Rama Reddy vs. V. V. Giri,9 R.M. Malkani
vs. State of Maharashtra,10 Ziyauddin Burhanuddin Bukhari vs.
Brijmohan Ramdass Mehra,11 Ram Singh vs. Col. Ram Singh,12
Tukaram S. Dighole vs. Manikrao Shivaji Kokate,13 that tape records
B
of conversations and speeches are admissible in evidence under the
Indian Evidence Act, subject to certain conditions. In Ziyauddin
Burhanuddin Bukhari and Tukaram S. Dighole, this Court further
held that tape records constitute “document” within the meaning of 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 C
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 D
evidence was direct or hearsay. In The Statute of Liberty, Sapporo
Maru M/S (Owners) vs. Steam Tanker Statute of Liberty (Owners),14
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 E
recording mechanism. The Judge rejected the contention that the evidence
was hearsay.
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 computer was in R. vs. Pettigrew.15 In that case, F
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

7
(1964) 4 SCR 753
8
(1967) 3 SCR 720 G
9
AIR 1972 SC 1162
10
AIR 1973 SC 157
11
(1976) 2 SCC 17
12
AIR 1986 SC 3
13
(2010) 4 SCC 329
14
[1968] 2 All ER 195
15
[1980] 71 Cr. App. R. 39 H
258 SUPREME COURT REPORTS [2020] 7 S.C.R.

A correctness of the decision was sharply divided. While Professor Smith16
considered the evidence in this case as direct and not hearsay, Professor
Tapper17 took the view that the printout was partly hearsay and partly
not. Professor Seng18 thought that both views were plausible.
20. But the underlying theory on the basis of which academicians
B critiqued the above judgment is that wherever the production of the output
was made possible without human intervention, the evidence should be
taken as direct. This is how the position was explained in Castle vs.
Cross,19 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
C being processed through a human brain.
21. In R vs. Robson Mitchell and Richards,20 a printout 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
D 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”.
22. But the facility of operating in anonymity in the cyber space,
has made electronic records more prone to manipulation and consequently
E 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
F on the admissibility of electronic records
POSITION IN USA

16
Professor Smith was a well-known authority on criminal law and law of evidence; J.
C. Smith, The admissibility of statements by computer, Crim LR 387, 388 (1981).
G 17
Professor Tapper is a well-known 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).
18
Professor Seng is an Associate Professor at the National University of Singapore;
Daniel K B Seng, Computer output as evidence, Sing JLS 139 (1997).
19
[1984] 1 WLR 1372
20
H [1991] Crim LR 360
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 259
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

23. The Federal Rules of Evidence (FRE) of the United States of A
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 self-authentication
under Rule 902 whereunder a certificate of authenticity will elevate its
B
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 C
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. D
(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
E
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
F
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. G

(6) Evidence About a Telephone Conversation. For a
telephone conversation, evidence that a call was made to the
number assigned at the time to:

H
260 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (A) a particular person, if circumstances, including self-
identification, 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
B 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

C (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:
D (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.
E (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
F 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:
G
(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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 261
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

Territory of the Pacific Islands; a political subdivision of any A
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: B

(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— C
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 D
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 E
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 document’s F
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 G
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: H
262 SUPREME COURT REPORTS [2020] 7 S.C.R.

A (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
B 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
C
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.
D
(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
E
be presumptively or prima facie genuine or authentic.
(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
F 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
G 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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 263
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

manner that, if falsely made, would subject the maker to a 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 B
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).
C
(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 D
requirements of Rule 902(11).
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 American Insurance Co.21 In this case, Paul
Grimm, J. while dealing with a challenge to an arbitrator’s decision in an E
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 for admissibility of electronically stored
information.22 This decision was rendered in 2007 and the FRE were
amended in 2017. F
21241 FRD 534 (2007)
22Paragraph 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 G
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
H
factors identified by Rule 403, such that it should be excluded despite its relevance.”
264 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 25. Sub-rules (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 sub-rules (11) and (12) of Rule 902). It means that the
benefit of self-authentication was not available until then [until the advent
of sub-rules (13) and (14), except in cases covered by sub-rules (11)
B and (12)]. Nevertheless, the introduction of sub-rules (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
C is self-authenticating. Records generated by an electronic process or
system and data copied from an electronic device, storage medium or
file, are included in sub-rules (13) and (14) of Rule 902 of the Federal
Rules of Evidence.
27. But FRE 902 does not exclude the application of FRE 901. It
D is only when a party seeks to invoke the benefit of self-authentication
that Rule 902 applies. If a party chooses not to claim the benefit of self-
authentication, he is free to come under Rule 901, even if the evidence
sought to be adduced is of an electronically stored information (ESI).
28. In an article titled ‘E-Discovery: Authenticating Common Types
of ESI Chart’, authored by Paul W. Grimm (the Judge who delivered
E the verdict in Lorraine) and co-authored 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
‘Grimm-Brady Chart’ (referring to Paul W. Grimm and Kevin F. Brady)
F
on the website “complexdiscovery.com”, a condensed chart is provided
which throws light on the different methods of authentication of ESI.
The chart is reproduced in the form of a table, with particular reference
to the relevant sub-rules of Rules 901 and 902 of the Federal Rules of
Evidence as follows:
G S.No. Type of ESI Potential Authentication Methods
1. Email, Text Messages, and Witness with personal knowledge (901(b)(1))
Instant Messages Expert testimony or comparison with authenticated
examples (901(b)(3))
Distinctive characteristics including circumstantial
evidence (901(b)(4))
System or process capable of proving reliable and
dependable result (901(b)(9))
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 265
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

Trade inscriptions (902(7)) A
Certified copies of business record (902(11))
Certified records generated by an electronic process or
system (902(13))
Certified data copied from an electronic device, storage
medium, or file (902(14))
2. Chat Room Postings, Witness with personal knowledge (901(b)(1))
Blogs, Wikis, and Expert testimony or comparison with authenticated
Other Soc ial Me dia examples (901(b)(3)) B
Conversations Distinctive characteristics including circumstantial
evidence (901(b)(4))
System or process capable of proving reliable and
dependable result (901(b)(9))
Official publications (902(5))
Newspapers and periodicals (902(6))
Certified records generated by an electronic process or
system (902(13))
Certified data copied from an electronic device, storage C
medium, or file (902(14))
3. Socia l Media Site s Witness with personal knowledge (901(b)(1))
(Faceb ook, Linke dIn, Expert testimony or comparison with authenticated
Twitter, examples (901(b)(3))
Instagram, and Snapchat) Distinctive characteristics including circumstantial
evidence (901(b)(4))
Public records (901(b)(7))
System or process capable of proving reliable and D
dependable result (901(b)(9)) Official publications
(902(5))
Certified records generated by an electronic process or
system (902(13))
Certified data copied from an electronic device, storage
medium, or file (902(14))

4. Digitally Stored Data and Witness with personal knowledge (901(b)(1))
Internet of Things Expert testimony or comparison with authenticated E
examples (901(b)(3))
Distinctive characteristics including circumstantial
evidence (901(b)(4))
System or process capable of proving reliable and
dependable result (901(b)(9))
Certified records generated by an electronic process or
system (902(13))
Certified data copied from an electronic device, storage
medium, or file (902(14)) F
5. Computer Proce ss es, Witness with personal knowledge (901(b)(1))
Animations, Virtua l Expert testimony or comparison with authenticated
Reality, and Simulations examples (901(b)(3))
System or process capable of proving reliable and
dependable result (901(b)(9))
Certified records generated by an electronic process or
system (902(13)) G
6.. Digital Photographs Witness with personal knowledge (901(b)(1))
System or process capable of providing reliable and
dependable result (901(b)(9))
Official publications (902(5))
Certified records generated by an electronic process or
system (902(13))
Certified data copied from an electronic device, storage
medium, or file (902(14)) H
266 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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,
B
including the one made in 2017 that incorporated specific provisions
relating to electronic records under sub-rules (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 sub-rules (13) and (14) of FRE 902.
C This development of law in the US demonstrates that, unlike in India,
law has kept pace with technology to a great extent.
POSITION IN UK
30. As pointed out in the main opinion, Section 65B, in its present
form, is a poor reproduction of Section 5 of the UK Civil Evidence Act,
D 1968. The language employed in sub-sections (2), (3), (4) and (5) of
Section 65B is almost in pari materia (with minor differences) with
sub-sections (2) to (5) of Section 5 of the UK Civil Evidence Act, 1968.
However, sub-section (1) of Section 65B is substantially different from
sub-section (1) of Section 5 of the UK Civil Evidence Act, 1968. But it
E also contains certain additional words in sub-section (1) namely “without
further proof or production of the original”. For easy comparison
and appreciation, sub-section (1) of Section 65B of the Indian Evidence
Act and sub-section (1) of Section 5 of UK Civil Evidence Act, 1968 are
presented in a tabular form as follows:

F Section 65B(1), Indian Evidence Act, Section 5(1), Civil Evidence Act, 1968
1872 [UK]
Notwithstanding anything contained in this In any civil proceedings a statement
Act, any information contained in an contained in a document produced by a
electronic record which is printed on a computer shall, subject to rules of court,
paper, stored, recorded or copied in optical
be admissible as evidence of any fact
or magnetic media produced by a computer
(hereinafter referred to as the computer stated therein of which direct oral
G evidence would be admissible, if it is
output) shall be deemed to be also a
document, if the conditions mentioned in shown that the conditions mentioned in
this section are satisfied in relation to the subsection (2) below are satisfied in
information and computer in question and relation to the statement and computer in
shall be admissible in any proceedings, question.
without further proof or production of the
original, as evidence of any contents of the
H original or of any fact stated therein of
which direct evidence would be admissible.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 267
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

31. But the abovementioned Section 5 of the U.K. Act of 1968 A
was repealed by the Civil Evidence Act, 1995. Section 15(2) of the Civil
Evidence Act, 1995 repealed the enactments specified in Schedule II
therein. Under Schedule II of the 1995 Act, Part I of the 1968 Act
containing Sections 1-10 were repealed. The effect is that when Section
65B was incorporated in the Indian Evidence Act, by Act 21 of 2000, by
B
copying sub-sections (2) to (5) of Section 5 of the UK Civil Evidence
Act, 1968, Section 5 itself was not there in the U.K. 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. C
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
D
3.14 A fundamental mistrust and fear of the 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 E
many safeguards inserted in order to gain acceptance of what
was then a novel form of evidence. Twenty-five years later,
technology has developed to an extent where computers and
computer-generated documents are relied on in every area of
business and have long been accepted in banking and other F
important record-keeping 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.
3.15 So far as the statutory conditions are concerned, there G
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 H
268 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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.
B 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
C 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 consider that this apparent
discrepancy is of any significance, save that it illustrates the
D fact that section 5 was something of an afterthought.
3.17 Computer-generated 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
E
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
F 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 technology.
G
Furthermore, uncertainty may 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
H
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 269
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

developed, compared with cases concerning other forms of A
sophisticated technologically produced 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
B
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 C
presumption has been applied to intoximeter printouts (Castle
v. Cross [1984] 1 W.L.R. 1372).
3.19 There are a number of cases which establish the way in
which courts have sought to distinguish between types of
computer-generated evidence, by finding in appropriate cases D
that the special procedures are inapplicable because the
evidence is original or direct evidence. As might be expected,
case law on computer-generated 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 E
hence less liable to be agreed. For example, even in the first
category of cases, where human involvement exists, a
computer-generated 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 F
how complex the calculations, or how difficult it may be for
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 G
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.
H
270 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B 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.
C (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
Commission’s report along with Recommendation Nos. 13, 14 and 15
D are reproduced for easy reference:
(b) Computerised records
4.43 In the light of the criticisms of the present provisions
and the response on consultation, we have decided to
recommend that no special provisions be made in respect of
E 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,
F 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
G 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 computer-
generated information should be treated similarly to other
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records, such evidence should be weighed according to its A
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 particular will be
wide enough to cover computer-generated information.
B
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 C
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 D
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 E
formally proved by affidavit of an officer of the business or
authority to which the records belong.
(emphasis in original)
34. The above recommendations of the Law Commission (U.K.)
made in 1993, led to the repeal of Section 5 of the 1968 Act, under the F
1995 Act. The rules of evidence in civil cases, in so far as electronic
records 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 G
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
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272 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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.
B 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
C computer evidence in extenso. The problems with Section 69 of 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:
13.1 In Minors ([1989] 1 WLR 441, 443D–E.) Steyn J summed
D 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
E be used as evidence in criminal cases, much crime (and
notably offences involving dishonesty) would in practice
be immune from prosecution. On the other hand, computers
are not infallible. They do occasionally malfunction.
Software systems often have “bugs”. …Realistically,
F 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).
G 13.3 In practice, a great deal of hearsay 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.
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PACE, SECTION 69 A
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 B
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.
C
13.5 In essence, the party relying on computer 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 certificate, or by calling oral evidence.
It is not possible for the party adducing the computer evidence D
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 E

13.6 In the consultation paper we came to the conclusion
that the present law was unsatisfactory, for five reasons.
13.7 First, section 69 fails to address the major causes of
inaccuracy in computer evidence. As Professor Tapper has F
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
G
“increasingly impractical to examine (and therefore certify)
all the intricacies of computer operation”. These problems
existed 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
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274 SUPREME COURT REPORTS [2020] 7 S.C.R.

A tender it in 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
B 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
C 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.
13.11 At the time of the publication of the consultation paper
there was also a problem arising from the interpretation of
D 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
E 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
F in which a computer processes, stores or retrieves the
information used to generate the statement are relevant to
section 69 (DPP v McKeown; DPP v Jones [1997] 1 WLR
295).
13.12 In coming to our conclusion that the present law did
G 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
H that other systems operate effectively and efficiently without
it.
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 275
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13.13 We provisionally proposed that section 69 of PACE be A
repealed without replacement. Without section 69, a common
law presumption comes into play (Phipson, para 23-14,
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 B
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 C
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 & D
Co v Kennedy [1964] 1 WLR 638), and in the consultation
paper we saw no reason why it should not apply to computers.
The response on consultation
13.15 On consultation, the vast majority of those who dealt E
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 F
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 G
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
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276 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
does not appear to have been raised.
13.17 It should also be noted that Dillon was 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
C 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.
D 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
E 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
F 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
G in such circumstances the presumption would not prevail. In
Cracknell v Willis Lord Griffiths ([1988] AC 450 at p 468C–
D) said:
If Parliament wishes to provide that either there is to be an
irrebuttable presumption that the breath testing machine is
H reliable or that the presumption can only be challenged by
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 277
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

a particular type of evidence then Parliament must take A
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.
B
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 C
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 D
reading that it produces ([1988] AC 450, 468D–E).
13.20 Lord Goff did not share Lord Griffiths’ optimism that
motorists would not seek to challenge the analysis by spurious
evidence of their consumption of alcohol, but did share his
confidence in E

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 F
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 G
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 drink-driving
offences. In the case of other kinds of computer evidence,
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278 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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
B
computers (and until recently was applied to non-hearsay
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 the defence
was unduly onerous. Bearing in mind that it is a creature of
C 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
D 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
E 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
F 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)

G (emphasis supplied)
37. Based on the above recommendations of the U.K. Law
Commission, Section 69 of the PACE, 1984, was 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:
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ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 279
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“Section 69 of the Police and Criminal Evidence Act, 1984 A
(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, B
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.
C
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 of Commissioners to attend conferences organised for
the purpose of promoting uniformity of legislation among the provinces, D
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 E
legislations. The said Conference recommended a model law on Uniform
Electronic Evidence in September 1998.
40. The above recommendations of the Uniform Law 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 F
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 supporting a finding that the electronic document G
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:

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280 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 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;
B or
(b) if an evidentiary presumption established under section
31.4 applies.
Printouts
C (2) Despite subsection (1), in the absence of 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.
D 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:
Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence
E 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
F 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;
G (b) if it is established that the electronic 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
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ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 281
GORANTYAL & ORS. [V. RAMASUBRAMANIAN, J.]

business by a person who is not a party and who did not A
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 B
to be recorded or stored. This is for the purpose of 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 C
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 D
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, E
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
31.6(1) The matters referred to in subsection 31.2(2) and F
sections 31.3 and 31.5 and in regulations made under section
31.4 may be established by affidavit.
Cross-examination
(2) A party may cross-examine a deponent of an affidavit
referred to in subsection (1) that has been introduced in G
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. H
282 SUPREME COURT REPORTS [2020] 7 S.C.R.

A 45. Though a combined reading of Sections 31.3 and 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
B
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 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
C control of the party seeking to introduce it.
IV. Conclusion
46. It will be clear from the above discussion that the major
jurisdictions of the world have come to terms with the change of times
and the development of technology and fine-tuned their legislations.
D 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 Sandhu23
to Anvar P.V.24 to Tomaso Bruno25 to Sonu26 to Shafhi Mohammad.27
E 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.

Divya Pandey Appeals dismissed.
F

G

23 State (NCT of Delhi) vs. Navjot Sandhu, (2005) 11 SCC 600
24 Anvar P.V. vs. P.K. Basheer, (2014) 10 SCC 473
25 Tomaso Bruno vs. State of UP, (2015) 7 SCC 178

26 Sonu vs. State of Haryana, (2017) 8 SCC 570

27 Shafhi Mohammad vs. The State of Himachal Pradesh, (2018) 2 SCC 801
H