ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO GORANTYAL AND ORS.

The Judgments of the Court were delivered by G R. F. NARIMAN, J.

1Copy pinpoint1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825- 20826 of 2017 is allowed.

2Copy pinpoint2. 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.

3Copy pinpoint3. 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 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 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 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

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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.

4Copy pinpoint4. 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

5Copy pinpoint5. 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

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

6Copy pinpoint6. Transcripts of the contents of these CDs/VCDs were prepared 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 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.)

7Copy pinpoint7. Whether the petitioner proves that the Affirmative. (A, B forms were respondent /Returned candidate submitted presented after 3.00 p.m. of original forms and 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 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 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 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

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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.”

8Copy pinpoint8. 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, 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 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 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 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 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 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.

9Copy pinpoint9. 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 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 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 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

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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.

10Copy pinpoint10. 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 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 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 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 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.]

11Copy pinpoint11. 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

12Copy pinpoint12. 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 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 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 comes to admissibility of information contained in electronic records.

13Copy pinpoint13. 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 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.”

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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.

14Copy pinpoint14. 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.”

15Copy pinpoint15. 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.”

16Copy pinpoint16. Sections 65-A and 65-B of the Evidence Act read as follows:

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

“65A. Special provisions as to evidence relating to 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 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 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 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 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

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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 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 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 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 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.”

17Copy pinpoint17. 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

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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 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 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;”

18Copy pinpoint18. 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 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 may be given of “the existence, condition or contents of a document in the following cases…”.

19Copy pinpoint19. 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 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.]

20Copy pinpoint20. 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

21Copy pinpoint21. 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 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.

22Copy pinpoint22. Section 65B(2) then refers to the conditions that must be satisfied 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

23Copy pinpoint23. 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 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 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

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A India (2010) 4 SCC 172. This being the case, the conditions mentioned in sub-section (4) must also be interpreted as being cumulative.

24Copy pinpoint24. 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 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:

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 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; 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

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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 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

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 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, 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 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

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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 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 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.”

25Copy pinpoint25. 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 on the subject.

ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO 215 GORANTYAL & ORS. [R. F. NARIMAN, J.]

26Copy pinpoint26. At this juncture, it is important to note that Section 65B has its 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 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

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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, 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 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, 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 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 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 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 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.”

27Copy pinpoint27. 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

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A on indictment to imprisonment for a term not exceeding two years or a fine or both.”

28Copy pinpoint28. 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 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 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 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

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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, 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 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, by whatever means and whether directly or indirectly;”

29Copy pinpoint29. 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 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.

30Copy pinpoint30. 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 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 stated therein of which direct evidence would be admissible.

31Copy pinpoint31. 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, 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.

32Copy pinpoint32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be 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 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

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33Copy pinpoint33. 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 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 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

34Copy pinpoint34. Despite the law so declared in Anvar P.V. (supra), 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 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 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 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 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 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