ARJUN PANDITRAO KHOTKAR versus KAILASH KUSHANRAO GORANTYAL AND ORS.

Citation: [2020] 7 S.C.R. 180 · Decided: 14-07-2020 · Supreme Court of India · Bench: R.F. NARIMAN · Disposal: Dismissed

Cited by 8 judgment(s) · cites 20 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
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ARJUN PANDITRAO KHOTKAR
v.
KAILASH KUSHANRAO GORANTYAL AND ORS.
(Civil Appeal Nos. 20825-20826 of 2017)
JULY 14, 2020
[R.F. NARIMAN, S. RAVINDRA BHAT AND
V. RAMASUBRAMANIAN, JJ.]
Evidence Act, 1872 – ss.3, 22A, 45A, 61-65, 65A, 65B, 136 –
Interpretation of s.65B – Electronic records – Admissibility of –
Appellant’s election challenged on the ground that his nomination
papers having been filed after the stipulated time ought to have
been rejected – Respondents relied on video camera recordings of
the office of Returning Officer (RO) – Video recordings produced
by Election Commission without requisite certificate u/s.65-B(4) –
However, admitted in evidence by High Court, relying upon oral
evidence of RO in cross examination – Election of the appellant
declared void – Matter referred to three judges stating that in view
of Anvar P.V. v. P.K. Basheer & Ors. [2014] 11 SCR 399 (three Judge
Bench), Division Bench judgment in Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801 may need reconsideration – Held:
Per R.F. Nariman, J. (for himself, S. Ravindra Bhat and
V. Ramasubramanian, JJ.) Special provisions of ss.65A and 65B
are a complete Code in themselves when it comes to admissibility of
evidence of information contained in electronic records – A written
certificate u/s.65B(4) is a sine qua non for admissibility of such
evidence – Oral evidence in place of such certificate cannot suffice
as s.65B(4) is mandatory – However, on facts, the respondents
having done everything possible to obtain the necessary certificate
are relieved of the mandatory obligation – Moreover, apart from
electronic record, other evidence was also relied upon by High Court
to arrive at the same conclusion – Impugned judgment not faulted
– Further, certificate u/s.65B(4) is unnecessary if the original
document itself is produced – Anvar P.V., as clarified, is the law on
s.65B – Shafhi Mohammad and the judgment dtd. 03.04.18 reported
as [2018] 3 SCR 1096 are overruled – Per V. Ramasubramanian J.
(Supplementing) Major jurisdictions of the world have come to
[2020] 7 S.C.R. 180
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terms with the development of technology and fine-tuned their
legislations – Need for a relook at s.65B – Information Technology
Act, 2000 – ss.2(i), (j), (l), (o), (r) & (t) – Representation of the
People Act, 1951 – Interpretation of Statutes – Civil Evidence Act,
1968(UK) – ss.5, s.6(1) – Civil Evidence Act, 1995(UK) – ss.8, 9,
13 and 15(2) – Criminal Law.
Information Technology Act, 2000 – s.67C – Held: General
directions issued to cellular companies & internet service providers,
to be followed by courts dealing with electronic evidence, till rules
and directions u/s.67(C) are formulated for compliance by telecom
and service providers – Evidence Act, 1872 – ss.39, 45A and 65B.
Evidence Act, 1872 – s.65B – Acrimony behind – Reason for
– Held: Per V. Ramasubramanian J. (Supplementing) s.65B(1) starts
with a non-obstante clause excluding the application of the other
provisions and makes the certification a precondition for
admissibility – Such admissibility as the first check post, coupled
with the fact that a number of ‘computer systems’ (defined in s.2(l),
2000 Act) owned by different individuals, may get involved in the
production of an electronic record, with the ‘originator’ (defined in
s.2(za), 2000 Act) being different from the recipients or the sharers,
has created lot of acrimony behind s.65B – Information Technology
Act, 2000 – ss.2(l), (za) – Federal Rules of Evidence (USA) – rr.901,
902 – UK Civil Evidence Act, 1968 – s.5 – Civil Evidence Act,
1995(UK) – Police and Criminal Evidence Act, 1984 (UK) – s.69 –
Youth Justice and Criminal Evidence Act, 1999 – s.60 – Canada
Evidence Act, 1985 – s.31.1-31.3, 31.5 & 31.6.
Evidence Act, 1872 – s.65B(4) – Certificate under – When
unnecessary – Discussed.
Evidence Act, 1872 – ss.65B(2)(a) to (d) and 65B(4) –
Conditions mentioned under – Held: Conditions mentioned in sub-
sections 2(a) to 2(d) of s.65B must be satisfied cumulatively – Further,
conditions mentioned in sub-section (4) are also cumulative.
Evidence Act, 1872 – s.65B(1) – Non-obstante clause – Purport
of – Discussed.
Maxims – lex non cogit ad impossibilia;  impotentia excusat legem
– Application of – Discussed – Evidence Act, 1872 – s.65B(4).
ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO
GORANTYAL
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Evidence Act, 1872 – s

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