Evidence Act, 1872 – ss.3, 22A, 45A, 61-65, 65A, 65B, 136 – 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) – 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 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 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 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 terms with the development of technology and fine-tuned their 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.

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.

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), 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, 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 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.  

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).

  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.

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 – 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 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 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.

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.