• Electronic Record
  • Order VII Rule 14 of the Code of Civil Procedure
  • Anwar P.V. v. P.K. Bashir, 2014 (10) SCC 437

A compact disc is an electronic records. As per Section 59 of the Evidence Act, all facts accept contents of electronic records may be proved by oral evidence. Section 65-A ordains that contents of electronic record may be proved in accordance with Section 65-B.

high-court-mp-jabalpur

Electronic Record

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

 

Present: Hon’ble Shri Justice C.V. Sirpurkar

17-01-2017

E.P.No.01/2014

Sharadendu Tiwari Vs. Ajay Arjun Singh and others

Shri Prakash Upadhyay, counsel for the petitioner. Shri P.D. Gupta, counsel for the respondent No.1. None for the remaining respondents.

O R D E R

1. This order shall govern the disposal of I.A.No.15554/2016 dated 18.11.2016 under

Order VII Rule 14 of the Code of Civil Procedure

filed on behalf of the election petitioner.

2. It has been submitted hereby that the petitioner is challenging the election of respondent No.1 from 76 Churahat, district Sidhi, Assembly Constituency. The election petitioner had filed compact discs (CDs) of Video recording of the election meetings of the respondent no.1 with the election petition as annexure nos. P-41, P-47 and P-50. These are copies of the official record maintained in the office of the Returning Officer. At the time of filing the election petition, the petitioner had obtained aforesaid copies certified to be true on its cover by Returning Officer. However, the Returning Officer had inadvertently failed to issue the certificate as prescribed by Section 65-B of the Evidence Act, along with the certified copies. Therefore, the petitioner applied for aforesaid certified copies afresh and obtained second set of copies along with certificate under Section 65-B of the Evidence Act in prescribed format from Returning Officer as well as the person in charge of the activity. Another certificate was obtained from Abhishek Digital Colour Lab, Sidhi and same is being filed as per the list of documents annexed to this application. It has further been submitted that official videography of election campaign of different candidates, contesting election was part of official surveillance conducted by Election Commission and official camera-persons were deputed along with Video Surveillance Team constituted by the competent authority. The certified copy of relevant orders regarding the deputation of the team and designation of camera-persons in charge for aforesaid activity are also proposed to be filed. The petitioner also proposes to file Certified copy of Election Expenses Registers of Shri Kamleshwar Patel, Indian National Congress Candidate from 78-Sinhawal (Sidhi) and Shri Kamaleshwar Dwivedi, Indian National Congress Candidate from 77-Sidhi, which the petitioner would be required to rely on in order to prove the case against the respondent No.1. It has also been submitted that the documents which are proposed to be filed along with this application are certified copies of official records and certificates required to prove those records. These documents were not in possession of the petitioner at the time of filing of the petition. Later, there was a stay in operation on the proceedings of this Court; therefore, the documents could not be filed; however, at present only issues in the case have been framed and the evidence is yet to commence. As such, the trial of the election petition is in preliminary stages; therefore, it has been prayed that the documents be taken on record, which shall be duly proved during the evidence at the trial.

3. Learned counsel for the respondent No.1 has vehemently opposed the I.A.No.15554/2016 by filing a written reply. It has been submitted that by means of this petition under Order VII Rule 14 of the C.P.C, the petitioner proposes to file documents which run into as many as 438 pages. The petitioner deliberately failed to obtain the certified copies of the documents which he proposes to file more than two years after the filing of the election petition thereby, he is trying to introduce a new case. It has been specifically contended that there was mention of four compact discs in the annexures appended to the election petition; however, in this petition, the petitioner refers to only three compact discs. No particulars have been given about compact discs which are proposed to be filed. They are not identified at all in the certificates purportedly issued under Section 65-B of the Evidence Act. These CDS are not in consonance with the pleadings. An attempt has been made to introduce new facts in the garb of additional documents, which is not permissible under the provisions of the Representation of People Act, 1951. The petitioner is trying to plead fresh cause of action. The certificates are not in accordance with Section 65-B (4) of the Evidence Act; therefore, they cannot be taken on record. These certificates do not bear any date. In aforesaid view of the matter, all documents have been filed to improve upon the case of the petitioner and fill-up lacunae in the pleadings and evidence; thus, none of the proposed documents deserves to be taken on record. In support of his contention with regard to the inadmissibility of the compact disc and certificates filed therewith, learned counsel for the respondent has placed reliance upon the judgment rendered by the Supreme Court in the case of

 Anwar P.V. v. P.K. Bashir, 2014 (10) SCC 437

and order dated 4.1.2016 passed by this Court in the election petition No.24/2014 (Kamal Patel Vs. Ram Kishore Dogne).

4. During the course of arguments, learned counsel for the petitioner inviting attention to Order VII Rule 14 (3) of the C.P.C. has submitted that the documents which ought to be produced in the Court by the plaintiff when the plaint is presented, are to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. Thus, the petitioner was entitled to produce the documents at the time of evidence and could have sought leave of the Court at that stage. However, in the interest of fairness and to avoid causing surprise to the respondent, he has filed this application.

5. It may be noted here that the main opposition of learned counsel for the respondent is to the admissibility of the compact disc and certificates under Section 65-B of the Evidence Act. In this regard, learned counsel for the petitioner submits that certificates and CDs may be taken on record and their admissibility may be considered when they would be tendered in evidence. However, since the entire material by which the petitioner proposes to prove the compact discs is available to the Court and admissibility of Electronic Evidence is a complicated issue, it would be appropriate to consider it at this stage so that no prejudice or surprise is be caused to any of the parties. The admissibility or remaining documents may be considered when they are actually tendered in evidence.

6. There is no doubt that a compact disc is an electronic records. As per Section 59 of the Evidence Act, all facts accept contents of electronic records may be proved by oral evidence. Section 65-A ordains that contents of electronic record may be proved in accordance with Section 65-B. It has been held by a three Bench of Supreme Court in the case of Anwar P.V. (supra).

7. Relying upon the judgment in the case of Anwar P.V. (supra), this Court elaborated upon the mode of proving of electronic record by order dated 4-1-2016 passed in E.P. No. 24/2014 (Kamal Patel Vs Ramkishore Dogne).

8. Reverting back to the facts of the case, we may note that the petitioner proposes to file five compact discs purportedly issued as certified copies of the record of the speeches made by respondent no.1 and maintained by the Returning Officer. In support of these compact disc, three certificates under Section 65-B of the Evidence Act have been filed. These may be found at page Nos 1, 3 and 436 of the documents proposed to be filed along with I.A.No.15554/2016.

9. Certificates at page No.1 and 3 do not bear any date. They are issued by the Proprietor of Abhishek Digital Colour Lab, Sidhi. The certificate at page no. 436 has been issued by Returning Officer of the concerned Vidhan Sabha Constituency. It is dated 16.9.2016.

10. As noted about, it has been held by this Court in the case of Kamal Patel (supra) that in order to ensure the source and authenticity of electronic record, a contemporaneously issued certificate is necessary. In the instant case, the videography was purportedly done by Abhishek Digital Colour Lab, Sidhi, by using viedo-cameras. Thus, the original electronic record was the memory card of the concerned video-camera. From the memory card, the electronic record must have been transferred to a computer and from the computer to the official compact disc maintained in the office of the Returning Officer. Thus, even the compact disc maintained in the office of Returning Officer was secondary evidence. From that compact disc, the certified copies of the compact disc must have been prepared and these certified copies have now been filed along with certificates as stated above.

11. Certificates at page Nos. 1 and 3 bear no date. They were filed in the Court on 18-11-2016. Thus, it cannot be said that they were issued contemporaneously at the time of transfer of record from memory card to the official compact disc. These subsequently procured certificates clearly constitute an attempt on the part of the petitioner to fill up the gaps in electronic evidence. The certificate issued by the returning officer only cover the second part of the transfer of electronic evidence, i.e., from official compact discs to the certified copies.

12. In aforesaid circumstances it cannot be said that the certificates filed by the petitioners by way of additional documents fulfill the requirements of section 65-B (4) of the Evidence Act. As such, the compact discs and certificates under section 65-B (4) filed therewith cannot be permitted to be taken on record. The admissibility of remaining documents in evidence shall be considered when they are tendered in evidence.

13. I.A. No. 15554 of 2016 stands disposed of accordingly.

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

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

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

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

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

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

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

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

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

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

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

16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

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

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

19. It is relevant to note that Section 69 of the Police and Criminal Evidence Act, 1984 (PACE) dealing with evidence on computer records in the United Kingdom was repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. Computer evidence hence must follow the common law rule, where a presumption exists that the computer producing the evidential output was recording properly at the material time. The presumption can be rebutted if evidence to the contrary is adduced. In the United States of America, under Federal Rule of Evidence, reliability of records normally go to the weight of evidence and not to admissibility.

20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

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

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

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

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant , special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case 2 , does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

23. The appellant admittedly has not produced any certificate in terms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.

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

(Emphasis Supplied)

12. In the case at hand, the objectionable matter formed part of the speeches made in the public meetings convened by the respondent. Those speeches were recorded video-graphed by the Election Commission, presumably by using video cameras. Thereafter, the contents of the memory card of the video cameras must have been transferred to a computer and the CDs forming record of the Election Commission must have been prepared. Thus, even the so called original CDs in the record of the Election Commission, would not constitute primary electronic evidence of the speeches. Moreover, in the case at hand, the CDs supplied to the petitioner were copies of the record maintained in the Election Commission and annexures P/19 to P/25 are in fact the copies prepared from the copies supplied to the petitioner by the Election Commission. Thus, in order to ensure the source and authenticity of the electronic record, a contemporaneous certificate issued at the time of each transfer, in terms of section 65-B (4) of the Evidence Act, would be required because the Supreme Court has specifically held that 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 documents, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

13. In aforesaid view of the matter, no useful purpose would be served by indulging in the exercise of summoning the Returning Officer along with CDs/DVDs of annexures-P/19 to P/25 maintained by the Election Commission because even those CDs/DVDs would be inadmissible.

14. Coming to the second prayer regarding the Compact Discs sent to the Returning Officer along with complaint dated 19-11-2013, it may be noted that there is no pleading in the election petition as to who prepared the video recording of the flex hoarding displayed near State Bank of India and in what manner, using which instrument. However, by means of I.A.No.14043/2015, which would be considered in latter part of this order, the certificate on affidavit issued by one Santosh S/o Ram Narayan Agrawal is sought to be filed, stating that he had video-graphed the flex hoarding using his mobile phone. He transferred the video into his computer and prepared the Compact Disc furnished to the Returning Officer along with the complaint. However, it may be noted that aforesaid certificate is dated 21-10-2015; whereas the CD was prepared before 19-11-2013. Thus, the certificate now sought to be filed was not “obtained at the time of taking the electronic document” and is valueless for purpose of ensuring the source and authenticity of the contents of the Compact Disc. Thus, the second part of prayer can also not be allowed.

 

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