Anvar P.V. v. P.K. Basheer

Why this case matters

Any lawyer who has filed a CD, a pen drive or a printout of call records has met Anvar P.V. In 2014 a three-judge bench of the Supreme Court looked at how an electronic record must be proved, what part a certificate under Section 65B(4) of the Evidence Act plays, and whether the general rules on secondary evidence in Sections 63 and 65 apply to such a record. The case was an election appeal, and the CDs on which much of it rested came without that certificate.

The facts

In the general election to the Kerala Legislative Assembly held on 13 April 2011, the first respondent was declared elected from the Eranad constituency. The appellant, who came second, filed an election petition in the High Court of Kerala to set aside the election for corrupt practice under Section 100(1)(b) read with Section 123 of the Representation of the People Act, 1951. He alleged that a leaflet linking him to a murder (of which he said he had been acquitted) had been printed and distributed with the first respondent’s consent, and that songs, announcements and speeches had been used against him. To prove the songs, announcements and speeches he produced CDs, made by recording them on other instruments and feeding them into a computer, without a certificate under Section 65B. On 13 April 2012 the High Court dismissed the election petition, holding that the corrupt practices were not proved, and he appealed.

The question before the Court

How must an electronic record be proved in court, and can a copy such as a CD be admitted as secondary evidence under Sections 63 and 65 of the Evidence Act without a certificate under Section 65B?

What the Court said

The Court began with the route for proving an electronic record:

Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B.

Para 13 · [2014] 11 S.C.R. 411 · Open at this page

On the certificate and why it matters:

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.

Para 15 · [2014] 11 S.C.R. 412–413 · Open at this page

On the general law of secondary evidence, and the earlier decision in State (NCT of Delhi) v. Navjot Sandhu:

Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position.

Para 22 · [2014] 11 S.C.R. 415 · Open at this page

The rule that follows:

An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

Para 22 · [2014] 11 S.C.R. 415 · Open at this page

And the line it drew for primary evidence:

… 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.

Para 24 · [2014] 11 S.C.R. 416 · Open at this page

What the Court decided

The appellant had not produced any Section 65B certificate for the CDs, so the Court held them inadmissible, and the case on songs, announcements and speeches fell with them. On the leaflet, the Court found no reliable evidence that it was printed, published or distributed with the consent of the first respondent or his election agent, which Section 123(4) requires. The appeal was dismissed, with no order as to costs.

Why it still matters

Anvar P.V. is where the modern law on electronic evidence in India starts. The Supreme Court returned to Section 65B in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020), which names this case, and High Courts have cited it since; the case map below shows one of them. Read Arjun Panditrao Khotkar alongside it before you rely on it today, and check Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which now holds the provision.

How lawyers use it

• To object to a CD, pen drive, printout or call record produced as secondary evidence without a Section 65B certificate.
• To answer an attempt to prove an electronic record through oral evidence or under Sections 63 and 65.
• When producing electronic evidence, to make sure the certificate identifies the record, describes how it was produced and is signed by a responsible person.
• To distinguish primary evidence, such as the original device, which the Court said is admissible without the certificate.