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2014 (9) TMI 1007
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....ndent was the chief election agent of the first respondent. There were five candidates. Appellant was second in terms of votes; others secured only marginal votes. He sought to set aside the election under Section 100(1)(b) read with Section 123(2)(ii) and (4) of The Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act') and also sought for a declaration in favour of the appellant. By order dated 16.11.2011, the High Court held that the election petition to set aside the election on the ground under Section 123(2)(a)(ii) is not maintainable and that is not pursued before us either. Issues (1) and (2) were on maintainability and those were answered as preliminary, in favour of the appellant. The contested issues read as follows: "1) xxx xxx xxx 2) xxx xxx xxx 3) Whether Annexure A was published and distributed in the constituency on 12.4.2011 as alleged in paragraphs 4 and 5 of the election petition and if so whether Palliparamban Aboobacker was an agent of the first respondent? 4) Whether any of the statements in Annexure A publication is in relation to the personal character and conduct of the petitioner or in relation to the candidature and if so whe....
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....ction 123(4) of The Representation of the People Act? 12) Whether the alleged announcements mentioned in paragraph 13 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice under section 123(4) of The Representation of the People Act? 13) Whether the alleged announcements mentioned in paragraph 14 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice under section 123(4) of The Representation of the People Act. 14) Whether the election of the first respondent is liable to be set aside for any of the grounds mentioned in the election petition?" 3. By the impugned judgment dated 13.04.2012, the High Court dismissed the election petition holding that corrupt practices pleaded in the petition are not proved and, hence, the election cannot be set aside under Section 100(1)(b) of the RP Act; and thus the Appeal. 4. Heard Shri Vivek Chib, learned Counsel appearing for the appellant and Shri Kapil Sibal, learned Senior Counsel appearing for the first respondent. 5. The evidence consisted of three parts - (i) electronic records, (ii) documentary evidence other than electronic r....
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.... 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. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (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; (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 reprodu....
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....ses 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; (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 reference to its being derived therefrom by calculation, comparison or any other process." These are the provisions under the Evidence Act relevant to the issue under discussion. 12. In the Statement of Objects and Reasons to the IT Act, it is stated thus: "New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business." In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisio....
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....he electronic record was produced; (c) The certificate must furnish the particulars of the device involved in the production of that record; (d) The certificate must deal with the applicable conditions mentioned under Section 65B(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. 15. 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 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, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. 16. Only if the ele....
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....tored in huge servers which cannot be easily moved 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. 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 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." 21. 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 signatures in the certificat....
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....is not the situation in this case. 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. 25. Now, we shall deal with the ground on publication of Exhibit-P1-leaflet which is also referred to as Annexure-A. To quote relevant portion of Paragraph-4 of the election petition: "4. On the 12th of April, 2011, the day previous to the election, one Palliparamban Aboobacker, S/o Ahamedkutty, Palliparamban House, Kizhakkechathalloor, Post Chathalloor, who was a member of the Constituency Committee of the UDF and the Convenor ....
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....Hamza are agents of the first respondent, who had actively participated in the election campaign, the printing, publication and distribution of annexure-A was made with the consent and knowledge of the first respondent as it is gathered from Shri P V Mustafa a worker of the petitioner that the expenses for printing have been shown in the electoral return of the first respondent. ..." At Paragraph-18 of the election petition, it is stated thus: "18. ... As far as the printing and publication of annexure-A leaflet is concerned, the same was not only done with the knowledge and connivance of the 1st respondent, it was done with the assistance of the his official account agent Sri V. Hamza, who happened to be the General Manager of the Press in which the said leaflets were printed. ..." 28. PW-4-Palliparamban Aboobakar has completely denied the allegations. Strangely, Shri Mustafa and Shri Hamza, referred to above, have not been examined. Therefore, evidence on printing of the leaflets is of PW-4-Aboobakar and PW-42. According to PW-4, he had not seen Exhibit-P1-leaflet before the date of his examination. He also denied that he was a member of the election committee. According to PW....
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....ent, the sixth respondent. Though it was vehemently contended by the appellant that the printing and publication was made with the connivance of the first respondent and hence consent should be inferred, we are afraid, the same cannot be appreciated. 'Connivance' is different from 'consent'. According to the Concise Oxford English Dictionary, 'connive' means to secretly allow a wrong doing where as 'consent' is permission. The proof required is of consent for the publication and not connivance on publication. In Charan Lal Sahu v. Giani Zail Singh and another (1984) 1 SCC 390, this Court held as under: "30. ... 'Connivance' may in certain situations amount to consent, which explains why the dictionaries give 'consent' as one of the meanings of the word 'connivance'. But it is not true to say that 'connivance' invariably and necessarily means or amounts to consent, that is to say, irrespective of the context of the given situation. The two cannot, therefore, be equated. Consent implies that parties are ad idem. Connivance does not necessarily imply that parties are of one mind. They may or may not be, depending upon the facts of the situation. ..." 31. Learned Counsel for the appe....
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....e local committee of the said party of Edavanna and Faizal is his friend. PW-29 is one Joy, driver of jeep bearing registration no. KL 10J 5992. He has completely denied of any such material like Exhibit-P1 being transported by him in the jeep. It is also significant to note that neither PW-7-Arjun nor PW-9-Faizal has a case that the copies of Exhibit-P1 were taken from the house of the first respondent. Their only case is that the vehicles were coming from the house of the first respondent and PW-4- Palliparamban Aboobakar gave them the copies. PW-4 has denied it. It is also interesting to note that PW-9-Faizal has stated in evidence that he was disclosing the same for the first time in court regarding the receipt of notice from PW-4. 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 knowl....
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....ed throughout the constituency from the aforesaid jeeps by the workers and agents of the first respondent at about 8 PM that night. The aforesaid publication also amounted to undue influence as the said expression is understood in Section 123(2)(a)(ii) of The Representation of the People Act, in that it amounted to direct or indirect interference or attempt to interfere on the part of the first respondent or his agent and other persons who were his agents referred to below with the consent of the first respondent, the free exercise of the electoral right of the voters of the Eranad Constituency and is also a corrupt practice falling under Section 123(4) of The Representation of the People Act, 1951. ..." 33. 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 evidenc....
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....otality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged." On the evidence available on record, it is unsafe if not difficult to connect the first respondent with the distribution of Exhibit-P1, even assuming that the allegation on distribution of Exhibit-P1 at various places is true. 36. Now, we shall deal with the last ground on announcements. The attack on this ground is based on Exhibit- P10-CD. We have already held that the CD is inadmissible in evidence. Since the very foundation is shaken, there is no point in discussing the evidence of those who heard the announcements. Same is the fate of the speech of PW-4- Palliparamban Aboobakar and PW-30-Mullan Sulaiman. 37. We do not think it necessary to deal with the aspect of oral evidence since the main allegation of corrupt practice is of publication of Exhibit-P1-leaflet apart from other evidence based on CDs. Since there is no reliable evidence to reach the irresistible inference that Exhibit-P1-leaflet was published with the consent of the first respondent or his election agent, the election cannot be set aside on the ground of corrupt practice under Section 123(....