2020 (7) TMI 740 - SC - Indian Laws

Supreme Court upholds election, calls for revisiting Section 65B of Indian Evidence Act on digital evidence

The SC upheld the election of the appellant to the Maharashtra State Legislative Assembly, dismissing challenges to the acceptance of four sets of ... Admissibility of electronic records under Section 65B - Mandatory certificate under Section 65B(4) for secondary electronic evidence - Primary electronic evidence exception - Court's power to summon production of documents and certificates - Lex non cogit ad impossibilia / impotentia excusat legem (excusing impossibility) - Overruling of precedents rendered per incuriam - Material effect of improper acceptance of nomination under Section 100(1)(d) RPA, 1951Admissibility of electronic records under Section 65B - Overruling of precedents rendered per incuriam - The correct law on admissibility of electronic records and the precedential status of earlier decisions - HELD THAT: - A three-Judge Bench decision in Anvar P.V. v. P.K. Basheer is affirmed as laying down the correct law on Section 65B of the Evidence Act. Decisions to the contrary, including Tomaso Bruno and the two-Judge pronouncement in Shafhi Mohammad (and a Division Bench judgment following it), do not state the law correctly and are overruled. The Court holds that the special code in Sections 65A-65B governs admissibility of electronic records, subject to the clarifications made in this judgment. [Paras 35, 72]Anvar P.V. is the law; Tomaso Bruno, Shafhi Mohammad and the later Division Bench decision are overruled.Mandatory certificate under Section 65B(4) for secondary electronic evidence - Primary electronic evidence exception - Whether the certificate in Section 65B(4) is a condition precedent and whether any exception exists - HELD THAT: - Section 65B(4) requires a certificate identifying and describing the electronic record and relevant conditions; such certificate is a condition precedent to admissibility of secondary electronic evidence. However, if the original electronic record itself is produced as primary evidence (for example, the device containing the original data produced and proved in court), the requirement of the certificate is unnecessary. The last sentence in paragraph 24 of Anvar is clarified to remove the textual reference to Section 62 without altering its substance: primary electronic records admitted directly do not require the Section 65B(4) certificate. [Paras 32, 59]Section 65B(4) is mandatory for secondary electronic records; the certificate is unnecessary when original electronic evidence (primary evidence) is produced.Court's power to summon production of documents and certificates - Lex non cogit ad impossibilia / impotentia excusat legem (excusing impossibility) - Whether the inability to obtain a Section 65B(4) certificate from a third party excuses non-production and whether courts may order production at a later stage - HELD THAT: - Courts possess statutory powers (Evidence Act Section 165, CPC Order XVI, CrPC Sections 91/311 etc.) to compel production of documents and to summon persons to give the certificate required under Section 65B(4). If a party has applied for the certificate and the third party wilfully refuses or fails to produce it, the party having taken all possible steps may seek the Court's intervention; where production is impossible despite such efforts, the maxims lex non cogit ad impossibilia and impotentia excusat legem may excuse literal compliance. Accordingly, defects in production of a certificate can be cured by court direction where the interest of justice requires, provided the court safeguards the rights of the other party (especially in criminal trials where prejudice to the accused must be considered). [Paras 49, 50, 54]Courts can order production of the Section 65B(4) certificate at any stage before the conclusion of trial; where a party has done everything possible to obtain the certificate and the authority refuses, the party may be excused from strict compliance and the electronic record may be admitted.Material effect of improper acceptance of nomination under Section 100(1)(d) RPA, 1951 - Whether further pleading or proof of 'materially affected' is required when the returned candidate's own nomination is improperly accepted - HELD THAT: - The Court reviews earlier precedents and holds that where the person whose nomination was improperly accepted is the returned candidate himself, it may be readily concluded that the result of the election is materially affected. Earlier Division Bench authority to the contrary (which omitted consideration of binding larger-bench precedents) does not correctly state the law. On the facts of this case, the High Court relied on electronic and non-electronic evidence to find improper acceptance of the returned candidate's nomination and correctly concluded material effect. [Paras 68, 71]Where the returned candidate's nomination itself is improperly accepted, pleading and separate proof of material effect is not necessary; the High Court's conclusion setting the election aside is correct on the facts.Final Conclusion: The reference is answered: Anvar P.V. is affirmed (with clarification); Tomaso Bruno, Shafhi Mohammad and the subsequent Division Bench decision are overruled to the extent they conflict with Anvar; Section 65B(4) certification is mandatory for secondary electronic evidence but unnecessary for primary electronic evidence; courts can and should compel production of the certificate and may excuse literal compliance where a party has exhausted all means to obtain it; on the facts the High Court rightly admitted the evidence and set aside the election. Issues Involved:1. Interpretation of Section 65B of the Indian Evidence Act, 1872.2. Admissibility of electronic records.3. Requirement and production of certificates under Section 65B(4).4. Impact of improper acceptance of nomination papers on election results.5. Compliance with procedural requirements in the context of electronic evidence.Detailed Analysis:1. Interpretation of Section 65B of the Indian Evidence Act, 1872:The Supreme Court was tasked with interpreting Section 65B, particularly in light of conflicting judgments. The Court reaffirmed that Section 65B is a special provision for the admissibility of electronic records, which must be adhered to strictly. It clarified that the certificate under Section 65B(4) is mandatory for the admissibility of secondary electronic evidence and that this requirement cannot be bypassed by oral testimony or other forms of evidence.2. Admissibility of Electronic Records:The Court emphasized that electronic records must be accompanied by a certificate as prescribed under Section 65B(4) to be admissible. This certificate must identify the electronic record, describe the manner of its production, provide particulars of the device used, and be signed by a person in a responsible official position. The Court overruled previous judgments that allowed for the admissibility of electronic records without such certificates, thereby reinforcing the mandatory nature of Section 65B.3. Requirement and Production of Certificates under Section 65B(4):The Court addressed the practical difficulties in obtaining certificates, especially when the electronic record is not in the possession of the party seeking to produce it. It held that if a party has made all reasonable efforts to obtain the certificate but is unable to do so due to the refusal of the concerned authority, the party can apply to the court for an order to produce the certificate. The Court also noted that the law does not demand the impossible and that in cases where obtaining the certificate is genuinely not possible, the court may excuse the requirement.4. Impact of Improper Acceptance of Nomination Papers on Election Results:The Court examined whether the improper acceptance of nomination papers materially affects the election results. It held that if the returned candidate's nomination was improperly accepted, it could be assumed that the election was materially affected without needing further proof. This aligns with the principle that the election would be void if the returned candidate's nomination was invalid.5. Compliance with Procedural Requirements in the Context of Electronic Evidence:The Court emphasized the importance of procedural compliance for the admissibility of electronic evidence. It clarified that the certificate under Section 65B(4) must be produced at the time the electronic record is presented in evidence. However, the Court allowed for some flexibility, noting that if the certificate is not initially available, the trial judge can order its production at a later stage. This ensures that the interests of justice are served without compromising the integrity of the evidence.Conclusion:The Supreme Court's judgment clarifies the strict requirements for the admissibility of electronic records under Section 65B of the Indian Evidence Act. It reaffirms the necessity of the certificate under Section 65B(4) and provides guidance on how to handle situations where obtaining the certificate is challenging. The judgment also addresses the impact of improper acceptance of nomination papers on election results, emphasizing the need for procedural compliance to ensure fair and just outcomes.