Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

Why this case matters

Arjun Panditrao Khotkar is the Supreme Court’s three-judge answer to a reference on Section 65B of the Evidence Act: must a party relying on an electronic record as secondary evidence produce the certificate under Section 65B(4), and if so, when? The Court answered that the certificate is a condition precedent, explained when it is not needed at all, and said what a trial judge must do when the certificate is defective or the person who should give it will not.

The facts

The appellant won the 2014 election to the Maharashtra Legislative Assembly from the Jalna constituency by 296 votes. The defeated candidate and an elector filed election petitions in the Bombay High Court, saying his nomination papers at serial numbers 43 and 44 had been presented after the 3.00 p.m. deadline on 27 September 2014 and were wrongly accepted. To prove the time, they relied on video recordings of the Returning Officer’s office. The High Court ordered the Election Commission to produce the recordings with the necessary certificates; the recordings came with a certificate that the CDs were produced, but no certificate in the terms of Section 65B(4), which the election petitioners had asked the authorities for and not received. The High Court allowed one petition and partly allowed the other, declaring the election void. In the appellant’s appeal, a two-judge bench referred the reading of Section 65B to a bench of three.

The question before the Court

Is the certificate under Section 65B(4) of the Evidence Act a condition precedent to admitting an electronic record as evidence, can oral evidence take its place, and at what stage of a case must it be produced?

What the Court said

The Court first separated the original electronic record from copies of it:

The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the “original” document - which would be the original “electronic record” contained in the “computer” in which the original information is first stored- and the computer output containing such information, which then may be treated as evidence of the contents of the “original” document. All this necessarily shows that Section 65B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence, and the latter being secondary evidence.

Para 31 · R.F. Nariman, J. · [2020] 7 S.C.R. 221 · Open at this page

It held the certificate to be a condition precedent:

We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly “clarified” in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.

Para 59 · R.F. Nariman, J. · [2020] 7 S.C.R. 243 · Open at this page

On a party who cannot get the certificate despite trying, it applied the maxim that the law does not compel the impossible:

On an application of the aforesaid maxims to the present case, it is clear that though Section 65B(4) is mandatory, yet, on the facts of this case, the Respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third-party over whom the Respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.

Para 49 · R.F. Nariman, J. · [2020] 7 S.C.R. 236 · Open at this page

On when the certificate must be produced:

We may hasten to add that Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.

Para 50 · R.F. Nariman, J. · [2020] 7 S.C.R. 236 · Open at this page

Subject to the caveat laid down in paragraphs 50 and 54 above, the law laid down by these two High Courts has our concurrence. So long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the learned Judge at any stage, so that information contained in electronic record form can then be admitted, and relied upon in evidence.

Para 57 · R.F. Nariman, J. · [2020] 7 S.C.R. 243 · Open at this page

What the Court decided

The Court answered the reference in paragraph 72 and turned to the appeals. It found that the election petitioners had done everything in their power to obtain the certificate, which was not forthcoming, and that the High Court’s conclusion was also supported by evidence other than the electronic record. The appeals were dismissed with costs of one lakh rupees each, to be paid by the appellant to both election petitioners. V. Ramasubramanian, J. agreed with R.F. Nariman, J. and wrote separately on the background to Section 65B.

Why it still matters

Parties who rely on CCTV footage, call records, e-mails or chat messages as evidence regularly meet this judgment. It builds on Anvar P.V. v. P.K. Basheer (2014), and later Supreme Court judgments such as Ravinder Singh @ Kaku v. State of Punjab (2022) name it; the case map below shows them. Since 1 July 2024, Section 65B of the Evidence Act is in Section 63 of the Bharatiya Sakshya Adhiniyam, so check the new section when you rely on it today.

How lawyers use it

• To object to electronic records tendered as secondary evidence without a Section 65B(4) certificate.
• To apply for a direction that the person responsible for the device be summoned and made to give the certificate.
• To produce a certificate late in a trial, before the hearing is over, subject to the caveat for criminal trials.
• Where the original device itself is produced and proved by its owner, so that no certificate is needed.