Evidence Law

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

(2020) 7 SCC 1

Facts

The case arose from an election dispute concerning the Maharashtra Legislative Assembly.
The election petitioner alleged that Arjun Khotkar filed his nomination papers after the statutory deadline.
CCTV recordings from the returning officer’s office were relied upon to establish:
the time of entry;
the time when nomination papers were presented.
Copies of the electronic recordings were produced.
The electronic system was controlled by public election authorities rather than the election petitioner.
The required certificate under Section 65B(4) had not initially been produced.
Conflicting Supreme Court judgments had developed concerning electronic evidence:
Anvar P.V. treated the certificate as mandatory;
Shafhi Mohammad suggested that it could be dispensed with where the device was not in the party’s possession.
A larger Bench was asked to settle:
whether the certificate is mandatory;
when it must be produced;
what happens where the party cannot obtain it.

Whether a Section 65B(4) certificate is a condition precedent for secondary electronic evidence.
Whether the requirement disappears when the device is controlled by another person.
At what stage the certificate may be produced.
Whether the court can assist a party in obtaining it.

Electronic evidence is governed by the special statutory procedure in Sections 65A and 65B of the Evidence Act.
Under the BSA, the corresponding provisions are principally Sections 62 and 63.
Where the original electronic device itself is produced and directly examined as primary evidence, a certificate may not be necessary.
Where the party relies upon:
a printout;
copied CD;
transferred file;
other computer output, the Section 65B(4) certificate is mandatory.
The certificate must identify:
the electronic record;
the manner of production;
relevant device particulars;
satisfaction of the conditions concerning regular operation and integrity.
The certificate may be produced later where justice requires.
A party unable to obtain it from the person controlling the device may seek:
a court summons;
an order directing production;
other procedural assistance.
Shafhi Mohammad was overruled insofar as it treated the certificate as generally dispensable.

The Court rejected the argument that practical difficulty could erase an express statutory condition.
Parliament created Section 65B to ensure:
authenticity;
reliability;
protection against manipulation;
traceability of electronic copies.
A copied electronic file can be altered without visible physical signs.
Certification identifies the responsible person and describes the system that produced it.
Nevertheless, the requirement must not become impossible to satisfy.
Where a public authority or third party controls the device, the litigant may request the court to compel that person to issue or produce the certificate.
The party should not lose the case merely because another person initially refuses cooperation.
The certificate need not invariably accompany the first filing.
It may be supplied:
during trial;
pursuant to a judicial direction;
before the electronic record is finally relied upon.
The opposing party must receive a fair opportunity to challenge it.
The Court clarified language in Anvar suggesting that all electronic primary evidence falls under Section 62.
The decisive distinction is between:
the original electronic record or device;
a computer-generated copy.
The judgment restored certainty while providing procedural solutions for parties lacking control of the original system.

The Supreme Court held that the Section 65B(4) certificate is mandatory for secondary electronic evidence.
The requirement cannot be waived merely because the device belongs to another person.
The court may compel the person controlling the device to furnish the certificate.
The certificate may be produced at a later appropriate stage.
Anvar P.V. was affirmed, while the contrary relaxation in Shafhi Mohammad was overruled.
The CCTV evidence had to be assessed in accordance with those principles.