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2020 (7) TMI 740
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....appreciate the controversy in the present case, as elucidated in Civil Appeals 20825-20826 of 2017, are as follows: 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 party from 101-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 Responden....
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....ative Assembly Constituency/Tahsildar Jalna" 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 nomination papers at Sr. Nos. 43 and 44 were not presented by respondent/ Returned candidate before 3.00 p.m. on 27/09/2014 ? Affirmative. (nomination papers at Sr. Nos. 43 and 44 were not presented by RC before 3.00 p.m. of 27.9.2014.) 7. Whether the petitioner proves that the respondent /Returned candidate submitted original forms A and B along with nomination paper only on 27/09/2014 after 3.00 p.m. and along with nomination paper at Sr. No. 44 ? Affirmative. (A, B forms were presented after 3.00 p.m. of 27.9.2014)" 7. In answering issues 6 and 7, the High Court recorded: "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....
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....s 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 matter....
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....rary 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 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. 10. Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the Respondents, has taken us in copious detail through the 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 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 r....
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....dural provision be not exalted to such a level that vital evidence would be shut out, resulting in manifest injustice. 12. 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 t....
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....of Electronic Evidence shall be an expert." 16. Sections 65-A and 65-B of the Evidence Act read as follows: "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: (a) the computer output containing the information was produced by the computer during the per....
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.... 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. (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; -- (b) whether in the course of activities carried on by any official, 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; (c) a computer output shall....
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....ro 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;" 18. 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...". 19. Section 65 differentiates between existence, condition and contents of a document. Whereas "exi....
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....erson 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 "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 as regards the interpretation of the word "any one" in Section 76 was raised in Criminal 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 and company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises." ....
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....d 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; (b) The certificate must describe the manner in which the ele....
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....ce. 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 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 electr....
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...., 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 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 reference to Sections 59, 65-A and 65-B of th....
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....ities regularly carried on 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 (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; (b) giving such particulars of any device involved in the production of that document as may ....
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....s inaccurate because of improper use of that computer; (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) 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 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 bu....
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....ial part thereof, authenticated in such manner as the court may approve. 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 on indictment to imprisonment for a term not exceeding two years or a fine or both." 28. 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 a copy of that document, as authenticated, being secondary evidence. 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....
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....ion 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;" 29. 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. 30. Coming back to Section 65B of the Indian Evidence Act, sub-section (1) needs to be analysed. The sub-section begins with a non-obstante clause, and then goes on to mention i....
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....cordance 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 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. 33. 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: "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 a....
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....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 dia....
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....evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape- recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant. 22. In Tukaram S. Dighole v. Manikrao Shivaji Kokate [(2010) 4 SCC 329], the same principle was reiterated. This Court observed that new techniques and devices are the order of the day. Though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged. Standard of proof of its authenticity and accuracy has to be more stringent than other documentary evidence. 23. In Tomaso Bruno v. State of U.P. [(2015) 7 SCC 178], a three-Judge Bench observed that advancement of information technology and scientific....
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....electronic record" is defined in Section 2(1) (t) of the Information Technology Act, 2000 as follows: "2.(1)(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;" 28. The expression "data" is defined in Section 2(1)(o) of the Information Technology Act as follows: "2.(1)(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;" 29. The applicability of procedural requirement under Section 65-B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case....
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....ech allegedly delivered by the respondent or his agent?" The second issue was answered referring to judgments which did not deal with Section 65B at all. 38. Much succour was taken from the three Judge Bench decision in Tomaso Bruno (supra) in paragraph 23, which, as has been stated hereinabove, does not state the law on Section 65B correctly. Anvar P.V. (supra) was referred to in paragraph 24, but surprisingly, in paragraph 26, the Court held that Sections 65A and 65B cannot be held to be a complete Code on the subject, directly contrary to what was stated by a three Judge Bench in Anvar P.V. (supra). It was then "clarified" that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate. 39. Quite apart from the fact that the judgment in Shafhi Mohammad (supra) states the law incorrectly and is in the teeth of the....
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....ocument.- Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. xxx xxx xxx 10. Procedure where witness fails to comply with summons.- (1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non- service of the summons. (2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation....
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....ent or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346." 43. Thus, it is clear that the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it. 44. Resultantly, the judgment dated 03.04.2018 of a Division Bench of this Court reported as (2018) 5 SCC 311, in following ....
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....rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268)." It is important to note that the provision in question in Re Pre....
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....o be divested. Sub-section (4) of Section 6 imposed upon the Board the duty of giving after the coming into force of Section 6 a notice in writing of its intention to exercise the option at least 18 months before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960, was impossible from the very commencement of Section 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogitia ad impossibilia (the law does not compel the doing of impossibilities), and sub-section (4) of Section 6 must be construed as not being applicable to a case where compliance with it is impossible. We must therefore, hold that the State Electricity Board was not required to give the notice under sub-section (4) of Section 6 in respect of its option of purchase on the expiry of 25 years. It must follow that the Board cannot be deemed to have elected not to purchase the undertaking under sub- section (4) of Section 6. By the notice served upon the ....
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....urt was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims - the law does not compel a man to do that which he cannot possibly perform and an act of the court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub-Registrar, Arambagh on 25-11-1983 the very next one day of getting possession of the award from the court. The Sub-Registrar pursuant to the order of the High Court on 24-6-1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28-1-1978 to 24-11-1983 should be excluded in view of the principle laid down in Section 15 of the Limitation Act, 1963. The High Court, therefore, in our opinion, was wrong in holding that the only p....
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....and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. 51. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar P.V. (supra) held: "16. The same view has been reiterated by a two- Judge Bench of this Court in Union of India v. Ravindra V. Desai [(2018) 16 SCC 273]. The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana [(2017) 8 SCC 570], in which it was held: "32. ... The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify t....
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.... report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." 53. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in Central Bureau of Investigation v. R.S. Pai (2002) 5 SCC 82, the only exception to this general rule is if the prosecution had 'mistakenly' not filed a document, the said document can be allowed to be p....
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.... After referring to Anvar P.V. (supra), the High Court held: "15. Although, it has been observed by Hon'ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced alongwith the charge-sheet and if it is not produced alongwith the charge-sheet, doors of the Court are completely shut and it cannot be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the Court. One of the principal issues arising for consideration in the above case before Hon'ble Court was the nature and manner of admission of electronic records. 16. From the facts of the above case it is revealed that the election of the respondent to the legislative assembly of the State of Kerala was chall....
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....ce stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all ste....
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....m but during the course of hearing of these petitioners, it has been produced on the prescribed form." 56. In Kundan Singh (supra), a Division Bench of the Delhi High Court held: "50. Anwar P.V. (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, when justified and required. Of course, it is open to the court/presiding officer at that time to ascertain and verify whether the responsible officer could issue the said certificate and meet the requirements of Section 65B." 57. Subject to the caveat laid do....
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....nified Access Services' framed in 2007, as also the subsequent 'License Agreement for Unified License' and the 'License Agreement for provision of internet service'] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year7. Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records -or secure the records but fail to secure the certificate - within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event 7 See, Clause 41.17 of the 'License Agreement for Provision of Unified Access Services': "The LICENSEE shall maintain all commercial records with regard to the communications exchanged on the network. Such records shall be archived for at least one year for scrutiny by the Licensor for security reasons and may be destroyed thereafter unless directed otherwise by the licensor"; Clause 39.20 of the 'License Agreem....
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....n by High Courts". A five-Judge Committee was accordingly constituted on 28 July, 20188. After extensive deliberations, and meetings with several police, investigative and other agencies, the Committee finalised its report in November 2018. The report suggested comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. The report also contained Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records. In the opinion of the Court, these Draft Rules should be examined by the concerned authorities, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence. 64. We turn now to the facts of the case before us. In the present case, by the impugned judgment dated 24.11.2017, Election Petition 8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain Raina and R.K. Gauba, JJ. 6/2014 and Election Petition 9/2014 have been allowed and partly allowed respectively, the election of the RC being declared to be void under Section 100 of the Representation of the People Act, 1951, inter alia, on th....
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.... of nomination forms does not show that form Nos. 43 and 44 were presented to RO at 2.20 p.m. of 27.9.2014. As per the evidence of Smt. Mutha and the record, one Arvind Chavan, a candidate having form Nos. 33, 34 and 35 was present before her between 2.15 p.m. and 2.30 p.m. In nomination form register, there is no entry showing that any nomination form was received at 2.20 p.m. Form Nos. 36 and 37 of Sunil Khare were entered in the register at 2.40 p.m. Thus, according to Smt. Mutha, form No. 38, which was accepted by her directly from the candidate was tendered to her at 2.55 p.m. of 27.9.2014 and after that she had done preliminary examination of form No. 38 and check list was given by her to that candidate. Thus, it is not possible that form Nos. 43 and 44 were directly handed over to Smt. Mutha by RC at 2.20 p.m. or even at 3.00 p.m. of 27.9.2014. 50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m. of handing over the check list to RC and she showed the time as 3.00 p.m., but this time was shown in respect of all forms starting from Sr. Nos. 39 to 64. Thus, substantive evidence of Smt. Mutha and the aforesaid record falsifies the contention of the RC made in the p....
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....t of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had not filed the electoral roll or a certified copy thereof and, therefore, had not complied with the mandatory provisions of Section 33(5) of the 1951 Act. 11. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the nomination had materially affected the result of the election. This has not been done notwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even if we are to assume that the acceptance of the nomination of the returned candidate was improper." 70. On the other hand, Ms. Meenakshi Arora cited a Division Bench judgment in Mairembam Prithvira....
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....returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further..." 71. None of the earlier judgments of this Court referred to in Mairembam Prithviraj (supra) have been adverted to in Rajendra Kumar Meshram (supra) cited by Shri Adsure. In particular, the judgment of three learned Judges of this Court in Vashist Narain Sharma (supra) has specifically held that where the person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that the conclusion has to be that the result of the election would be "materially affected", without there being any necessity to plead and prove the same. The judgment in Rajendra Kumar Meshram (supra), not having referred to these earlier judgments of a larger strength binding upon it, cannot be said to have declared the law correctly. As a result thereof, the impugned judgment of the High Court is right in its conclusion on this point also. 72. The reference is thus answered by stating that: (a) A....
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.... also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016. 73. These appeals are dismissed with costs of INR One Lakh each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary. JUDGMENT V. Ramasubramanian, 1. While I am entirely in agreement with the opinion penned by R. F. Nariman, J. I also wish to add a few lines about (i) the reasons for the acrimony behind Section 65B of the Indian Evidence Act, 1872 (hereinafter "Evidence Act") (ii) how even with the existing rules of procedure, the courts fared well, without any legislative interference, while dealing with evidence in analogue form, and (iii) how after machines in analogue form gave way to machines in electronic form, certain jurisdictions of the world changed their legal landscape, over a period of time, by suitably amending the law, to avoid confusion....
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....last-mentioned fact must be proved before evidence is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. 5. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136 states that if the fact proposed to be proved is one, of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the Court is satisfied about such undertaking, the Court may proceed to admit evidence of the first mentioned fact. The t....
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....n Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled. 11. The placement by Section 65B, of admissibility as the first or the border check post, coupled with the fact that a number of 'computer systems' (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the 'originator' (as defined in Section 2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section 65B, which is evident from the judicial opinion swinging like a pendulum. II. How the courts dealt with evidence in analogue form without legislative interference and the shift 12. It is a matter of fact and record that courts all over the world were quick to adapt themselves to evidence in analogue form, w....
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....the interesting point: when three droplets of water fuse and then separate into three droplets, it is to be questioned whether the three droplets that merge from the bigger droplet were the identical droplets that existed before they merged. In the same way, consider a digital object that has been manipulated and added to, and the process is then reversed. The original object that was used remains (unless it was never saved independently, and the changes made to the image were saved in the original file), but another object, with the identical image (or near identical, depending on the system software and application software) now exists. Conceptually, it is possible to argue that the two digital images are different: one is the original, the other a copy of the original that was manipulated and returned to its original state (whatever "original" means). But both images are identical, apart from some additional meta data that might, or might not be conclusive. However, it is apparent that the images, if viewed together, are identical - will be identical, and the viewer will not be able to determine which is the original, and which image was manipulated. In this respect, the digital....
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....us, without looking up to the law makers to come up with necessary amendments from time to time, the courts themselves developed certain rules, over a period of time, to test the authenticity of these documents in analogue form and these rules have in fact, worked well. 18. There was also an important question that bothered the courts while dealing with evidence in analogue form. It was as to whether such evidence was direct or hearsay. In The Statute of Liberty, Sapporo Maru M/S (Owners) vs. Steam Tanker Statute of Liberty (Owners) [1968] 2 All ER 195 the film recording of a radar set of echoes of ships within its range was held to be real evidence. The court opined that there was no distinction between a photographer operating a camera manually and the observations of a barometer operator or its equivalent operation by a recording mechanism. The Judge rejected the contention that the evidence was hearsay. 19. But when it comes to a computer output, one of the earliest of cases where the Court of Appeal had to deal with evidence in the form of a printout from a computer was in R. vs. Pettigrew [1980] 71 Cr. App. R. 39]. In that case, the printout from a computer operated ....
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....Federal Rules of Evidence (FRE) of the United States of America as amended with effect from 01.12.2017 recognise the availability of more than one option to a person seeking to produce an electronic record. Under the amended rules, a person can follow either the traditional route under Rule 901 or the route of self-authentication under Rule 902 whereunder a certificate of authenticity will elevate its status. Rules 901 and 902 of FRE read as follows: Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only -not a complete list-of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Non expert Opinion About Handwriting. A non expert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of....
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....ision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal-or its equivalent-that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester-or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, ....
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.... reasonable written notice of the intent to offer the record-and must make the record and certification available for inspection -so that the party has a fair opportunity to challenge them. (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11). (14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if....
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....cases covered by sub-rules (11) and (12)]. Nevertheless, the introduction of sub-rules (13) and (14) in Rule 902 did not completely exclude the application of the general provisions of Rule 901. 26. Rule 901 applies to all evidence across the board. It is a general provision. But Rule 902 is a special provision dealing with evidence that is self-authenticating. Records generated by an electronic process or system and data copied from an electronic device, storage medium or file, are included in sub-rules (13) and (14) of Rule 902 of the Federal Rules of Evidence. 27. But FRE 902 does not exclude the application of FRE 901. It is only when a party seeks to invoke the benefit of self-authentication that Rule 902 applies. If a party chooses not to claim the benefit of self-authentication, he is free to come under Rule 901, even if the evidence sought to be adduced is of an electronically stored information (ESI). 28. In an article titled 'E-Discovery: Authenticating Common Types of ESI Chart', authored by Paul W. Grimm (the Judge who delivered the verdict in Lorraine) and co-authored by Gregory P. Joseph and published by Thomson Reuters (2017), the learned authors have given ....
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....sp; ■ System or process capable of proving reliable and dependable result (901(b)(9)) ■ Trade inscriptions (902(7)) ■ Certified copies of business record (902(11))  ....
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....ronic device, storage medium, or file (902(14)) 4. Digitally Stored Data Witness with personal knowledge and Internet of (901(b)(1)) Things Expert testimony or comparison with authenticated examples (901(b)(3)) Distinctive characteristics including circumstantial evidence (901(b)(4)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14)) 5. Computer Processes, Witness with personal knowledge Animations, (901(b)(1)) Virtual Reality, and Expert testimony or comparison Simulations with authenticated examples (901(b)(3)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or system (902(13)) 6. Digital Photographs Witness with personal knowledge (901(b)(1)) System or process capable of providing reliable and dependable result (901(b)(9)) Official publications (902(5)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage med....
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.... information contained in an document produced by a electronic record which is printed computer shall, subject to rules of on a paper, stored, recorded or court, be admissible as evidence copied in optical or magnetic of any fact stated therein of media produced by a computer which direct oral evidence would (hereinafter referred to as the be admissible, if it is shown that computer output) shall be the conditions mentioned in deemed to be also a document, if subsection (2) below are satisfied the conditions mentioned in this section are satisfied in ....
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.... that the document has been produced in the normal course of business and in an uninterrupted course of activity. It is at least questionable whether these requirements provide any real safeguards in relation to the reliability of the hardware or software concerned. In addition, they are capable of operating to exclude wide categories of documents, particularly those which are produced as the result of an original or a "one off" piece of work. Furthermore, they provide no protection against the inaccurate inputting of data. 3.16 We have already referred to the overlap between sections 4 and 5. If compliance with section 5 is a prerequisite, then computer- generated documents which pass the conditions setout in section 5(2) "shall" be admissible, notwithstanding the fact that they originated from a chain of human sources and that it has not been established that the persons in the chain acted under a duty. In other words, the record provisions of section 4, which exist to ensure the reliability of the core information, are capable of being disapplied. In the context of our proposed reforms, we do not consider that this apparent discrepancy is of any significance, save that ....
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....original or direct evidence. As might be expected, case law on computer-generated evidence is more likely to be generated by criminal cases of theft or fraud, where the incidence of such evidence is high and the issue of admissibility is more likely to be crucial to the outcome and hence less liable to be agreed. For example, even in the first category of cases, where human involvement exists, a computer-generated document may not be considered to be hearsay if the computer has been used as a mere tool, to produce calculations from data fed to it by humans, no matter how complex the calculations, or how difficult it may be for humans to reproduce its work, provided the computer was not "contributing its own knowledge" (R v. Wood (1983) 76 Cr. App. R. 23). 3.20 There was no disagreement with the view that the provisions relating to computer records were outdated and that there was no good reason for distinguishing between different forms of record keeping or maintaining a protectively. Nothing in our proposals will either encourage abuse, or prevent a proper challenge to the admissibility of computerised records, where abuse is suspected. Security and authentication are pro....
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....w Commission's report along with Recommendation Nos. 13, 14 and 15 are reproduced for easy reference: (b) Computerised records 4.43 In the light of the criticisms of the present provisions and the response on consultation, we have decided to recommend that no special provisions be made in respect of computerised records. This is the position in Scotland under the 1988 Act and reflects the overwhelming view of commentators, practitioners and others. That is not to say that we do not recognise that, as familiarity with and confidence in the inherent reliability of computers has grown, so has concern over the potential for misuse, through the capacity to hack, corrupt, or alter information, in manner which is undetectable. We do not underestimate these dangers. However the current provisions of section 5 do not afford any protection and it is not possible to legislate original) 34. The above recommendations of the Law Commission (U.K.) made in 1993, led to the repeal of Section 5 of the 1968 Act, under the 1995 Act. The rules of evidence in civil cases, in so far as electronic records are concerned, thus got liberated in U.K. in 1995 with the repeal of Section ....
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....ay or not (Shephard [1993] AC 380). 13.3 In practice, a great deal of hearsay evidence is held on computer, and so section 69 warrants careful attention. It must be examined against the requirement that the use of computer evidence should not be unnecessarily impeded, while giving due weight to the fallibility of computers. PACE, SECTION 69 13.4 In the consultation paper we dealt in detail with the requirements of section 69: in essence it provides that a document produced by a computer may not be adduced as evidence of any fact stated in the document unless it is shown that the computer was properly operating and was not being improperly used. If there is any dispute as to whether the conditions in section 69 have been satisfied, the court must hold a trial within the trial to decide whether the party seeking to rely on the document has established the foundation requirements of section 69. 13.5 In essence, the party relying on computer evidence must first prove that the computer is reliable - or, if the evidence was generated by more than one computer, that each of them is reliable (Cochrane [1993] Crim LR 48). This can be proved by tendering a written ....
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....omputer evidence could not be relied on because there was a malfunction in the clock part of an Intoximeter machine, although it had no effect on the accuracy of the material part of the printout (the alcohol reading). On appeal, this interpretation has now been rejected by the House of Lords: only malfunctions that affect the way in which a computer processes, stores or retrieves the information used to generate the statement are relevant to section 69 (DPP v McKeown; DPP v Jones [1997] 1 WLR 295). 13.12 In coming to our conclusion that the present law did not work satisfactorily, we noted that in Scotland, some Australian states, New Zealand, the United States and Canada, there is no separate scheme for computer evidence, and yet no problems appear to arise. Our provisional view was that section 69 fails to serve any useful purpose, and that other systems operate effectively and efficiently without it. 13.13 We provisionally proposed that section 69 of PACE be repealed without replacement. Without section 69, a common law presumption comes into play (Phipson, para 23-14, approved by the Divisional Court in Castle v Cross [1984] 1 WLR 1372, 1377B): In th....
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....is latter presumption was the analogy on which the presumption for machines was originally based; but it is not a particularly close analogy, and the two presumptions are now clearly distinct. 13.18 Even where the presumption applies, it ceases to have any effect once evidence of malfunction has been adduced. The question is, what sort of evidence must the defence adduce, and how realistic is it to suppose that the defence will be able to adduce it without any knowledge of the working of the machine? On the one hand the concept of the evidential burden is a flexible one: a party cannot be required to produce more by way of evidence than one in his or her position could be expected to produce. It could therefore take very little for the presumption to be rebutted, if the party against whom the evidence was adduced could not be expected to produce more. For example, in Cracknell v Willis ([1988] AC 450) the House of Lords held that a defendant is entitled to challenge an Intoximeter reading, in the absence of any signs of malfunctioning in the machine itself, by testifying (or calling others to testify) about the amount of alcohol that he or she had drunk. 13.19 On ....
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....her kinds of computer evidence, where (apart from section 69) no such statutory safeguards exist, we think that the courts can be relied upon to apply the presumption in such a way as to recognise the difficulty faced by a defendant who seeks to challenge the prosecution's evidence but is not in a position to do so directly. The presumption continues to apply to machines other than computers (and until recently was applied to non-hearsay statements by computers) without the safeguard of section 69; and we are not aware of any cases where it has caused injustice because the evidential burden cast on the defence was unduly onerous. Bearing in mind that it is a creature of the common law, and a comparatively modern one, we think it is unlikely that it would be permitted to work injustice. 13.22 Finally it should not be forgotten that section 69 applies equally to computer evidence adduced by the defence. A rule that prevents a defendant from adducing relevant and cogent evidence, merely because there is no positive evidence that it is reliable, is in our view unfair. Our recommendation 13.23 We are satisfied that section 69 serves no useful purpose. We are not aware ....
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....erence later took shape in the form of amendments to the Canada Evidence Act, 1985. Section 31.1 of the said Act deals with authentication of electronic documents and it reads as follows: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. 41. Section 31.2 deals with the application of 'best evidence rule' in relation to electronic documents and it reads as follows: Application of best evidence rule - electronic documents 31.2(1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. Printouts (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, rel....
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....m, and matters covered by Section 31.5, namely evidence in respect of any standard, procedure, usage or practice, may be established by affidavit. Section 31.6 reads as follows: Proof by affidavit 31.6(1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit. Cross-examination (2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence (a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and (b) with leave of the court, in the case of any other deponent. 45. Though a combined reading of Sections 31.3 and 31.6(1) of the Canada Evidence Act, 1985, gives an impression as though a requirement similar to the one under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law, there is a very important distinction found in the Canadian law. Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce ....