2014 (9) TMI 1007 - SC - Indian Laws

Supreme Court emphasizes evidence standards in election petition appeal dismissal

Anvar P.V Versus P.K. Basheer and others

The Supreme Court dismissed the appeal as the appellant failed to provide admissible evidence to prove allegations of corrupt practices under Section ... Nature and manner of admission of electronic records - proof by evidence - relevancy and admissibility - Allegations of corrupt practices under Section 123(4) of The Representation of the People Act, 1951 - Genuineness, veracity or reliability of the evidence - Publication and distribution of defamatory leaflets - Word ‘Connivance’ - HELD THAT:- 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 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B 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. 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 65B 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 on electronic record with reference to Section 59, 65A and 65B 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 of the conditions in Section 65B of the Evidence Act. It is also relevant to note that in Annexure-P3-complaint filed by the chief electoral agent of the appellant on 13.04.2011, there is no reference to the number of copies of Exhibit-P1-leaflet, days when the same were distributed and the people who distributed the same, etc., and most importantly, there is no allegation at all in Annexure-P3 that the said leaflet was printed by the first respondent or with his consent. The only allegation is on knowledge and connivance on the part of the first respondent. We have already held that knowledge and connivance is different from consent. Consent is the requirement for constituting corrupt practice under Section 123(4) of the RP Act. In such circumstances, it cannot be said that there is a complete chain of circumstances which would lead to a reasonable inference on consent by the first respondent with regard to printing of Exhibit-P1-leaflet. Not only that there are missing links, the evidence available is also not cogent and credible on the consent aspect of first respondent. The allegation is on distribution of Exhibit-P1 at about 08.00 p.m. on 12.04.2011. But the evidence is on distribution of Exhibit-P1 at various places at 08.00 a.m., 02.00 p.m., 05.00 p.m., 06.30 p.m., etc. by the UDF workers. No doubt, the details on distribution are given at Paragraph-5 (extracted above) of the election petition at different places, at various timings. The appellant as PW-1 stated that copies of Exhibit-P1 were distributed until 08.00 p.m. Though the evidence is on printing of 1,000 copies of Exhibit-P1, the evidence on distribution is of many thousands. In one panchayat itself, according to PW-22- KV Muhammed around 5,000 copies were distributed near Areakode bus stand. Another allegation is that two bundles were entrusted with one Sarafulla at Areakode but he is not examined. All this would show that there is no consistent case with regard to the distribution of Exhibit-P1 making it difficult for the Court to hold that there is credible evidence in that regard. From the record, it is not possible to infer consent on the part of the first respondent in the matter of printing and publication of Exhibit-P1-leaflet. There is also no evidence that the distribution of Exhibit-P1 was with the consent of first respondent. The allegation in the election petition that bundles of Exhibit-P1 were kept in the house of the first respondent is not even attempted to be proved. The only connecting link is of the two jeeps which were used by the UDF workers and not exclusively by the first respondent. It is significant to note that there is no case for the appellant that any corrupt practice has been committed in the interest of the returned candidate by an agent other than his election agent, as per the ground under Section 100(1)(d)(ii) of the RP Act. The definite case is only of Section 100(1)(b) of the RP Act. Having regard to the admissible evidence available on record, though for different reasons, we find it extremely difficult to hold that the appellant has founded and proved corrupt practice under Section 100(1)(b) read with Section 123(4) of the RP Act against the first respondent. Appeal dismissed. Issues Involved:1. Admissibility and proof of electronic records.2. Allegations of corrupt practices under Section 123(4) of The Representation of the People Act, 1951.3. Publication and distribution of defamatory leaflets.4. Consent and knowledge of the candidate regarding the corrupt practices.5. Standard of proof required for establishing corrupt practices.Detailed Analysis:1. Admissibility and Proof of Electronic Records:The court emphasized the importance of adhering to the statutory requirements for the admissibility of electronic records under Section 65B of the Indian Evidence Act. It was noted that electronic records must be accompanied by a certificate that meets specific conditions outlined in Section 65B(4). The court underscored that electronic records are susceptible to tampering and thus require stringent safeguards to ensure their authenticity. The appellant failed to produce the necessary certificates for the CDs presented as evidence, rendering them inadmissible.2. Allegations of Corrupt Practices under Section 123(4) of The Representation of the People Act, 1951:The appellant alleged that the respondent engaged in corrupt practices by publishing defamatory statements in leaflets. The court examined whether the publication and distribution of the leaflets were done with the consent of the respondent. The court reiterated that for a statement to constitute a corrupt practice under Section 123(4), it must be false, made with the knowledge of its falsity, and reasonably calculated to prejudice the election prospects of a candidate.3. Publication and Distribution of Defamatory Leaflets:The appellant claimed that 25,000 copies of a leaflet (Exhibit-P1) containing false statements were printed and distributed with the respondent's consent. However, the court found inconsistencies in the evidence regarding the number of copies printed and the individuals involved in the printing and distribution. The court noted that only 1,000 copies were printed, and key witnesses who could corroborate the appellant's claims were not examined.4. Consent and Knowledge of the Candidate Regarding the Corrupt Practices:The court distinguished between 'consent' and 'connivance,' stating that mere knowledge of the publication does not imply consent. The appellant failed to provide credible evidence to establish that the respondent consented to the printing and distribution of the defamatory leaflets. The court highlighted that the allegations in the election petition were not supported by a complete chain of circumstances leading to a reasonable conclusion of consent by the respondent.5. Standard of Proof Required for Establishing Corrupt Practices:The court reiterated that allegations of corrupt practices are akin to criminal charges and must be proved beyond a reasonable doubt. The evidence presented by the appellant did not meet this high standard. The court found that there was no reliable evidence to prove that the respondent consented to the publication of the defamatory leaflets or that the distribution was done with his consent. Consequently, the court held that the appellant failed to establish the corrupt practices alleged.Conclusion:The Supreme Court dismissed the appeal, holding that the appellant did not provide sufficient admissible evidence to prove the allegations of corrupt practices under Section 123(4) of The Representation of the People Act, 1951. The court emphasized the necessity of complying with the statutory requirements for the admissibility of electronic records and the high standard of proof required for establishing corrupt practices in election petitions.