CD is an electronic record : Madhya pradesh HC

IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
E.P.No.01/2014

Sharadendu Tiwari
Vs.
Ajay Arjun Singh and others.
Present: Hon’ble Shri Justice C.V. Sirpurkar
……………………………………………………………………………………………………
Shri Prakash Upadhyay, counsel for the petitioner.
Shri P.D. Gupta, counsel for the respondent No.1.
None for the remaining respondents.
………………………………………………………………………………………………….
O R D E R
(17-1-2017)
1. This order shall govern the disposal of
I.A.No.15554/2016 dated 18.11.2016 under Order VII Rule 14
of the Code of Civil Procedure filed on behalf of the election
petitioner.
2. It has been submitted hereby that the petitioner is
challenging the election of respondent No.1 from 76 Churahat,
district Sidhi, Assembly Constituency. The election petitioner
had filed compact discs (CDs) of Video recording of the
election meetings of the respondent no.1 with the election
petition as annexure nos. P-41, P-47 and P-50. These are
copies of the official record maintained in the office of the
Returning Officer. At the time of filing the election petition,
the petitioner had obtained aforesaid copies certified to be true
on its cover by Returning Officer. However, the Returning
2 E.P. No.01/2014
Officer had inadvertently failed to issue the certificate as
prescribed by Section 65-B of the Evidence Act, along with the
certified copies. Therefore, the petitioner applied for aforesaid
certified copies afresh and obtained second set of copies along
with certificate under Section 65-B of the Evidence Act in
prescribed format from Returning Officer as well as the person
in charge of the activity. Another certificate was obtained from
Abhishek Digital Colour Lab, Sidhi and same is being filed as
per the list of documents annexed to this application. It has
further been submitted that official videography of election
campaign of different candidates, contesting election was part
of official surveillance conducted by Election Commission and
official camera-persons were deputed along with Video
Surveillance Team constituted by the competent authority. The
certified copy of relevant orders regarding the deputation of
the team and designation of camera-persons in charge for
aforesaid activity are also proposed to be filed. The petitioner
also proposes to file Certified copy of Election Expenses
Registers of Shri Kamleshwar Patel, Indian National Congress
Candidate from 78-Sinhawal (Sidhi) and Shri Kamaleshwar
Dwivedi, Indian National Congress Candidate from 77-Sidhi,
which the petitioner would be required to rely on in order to
prove the case against the respondent No.1. It has also been
submitted that the documents which are proposed to be filed
along with this application are certified copies of official
records and certificates required to prove those records. These
documents were not in possession of the petitioner at the time
3 E.P. No.01/2014
of filing of the petition. Later, there was a stay in operation on
the proceedings of this Court; therefore, the documents could
not be filed; however, at present only issues in the case have
been framed and the evidence is yet to commence. As such, the
trial of the election petition is in preliminary stages; therefore,
it has been prayed that the documents be taken on record,
which shall be duly proved during the evidence at the trial.
3. Learned counsel for the respondent No.1 has vehemently
opposed the I.A.No.15554/2016 by filing a written reply. It has
been submitted that by means of this petition under Order VII
Rule 14 of the C.P.C, the petitioner proposes to file documents
which run into as many as 438 pages. The petitioner
deliberately failed to obtain the certified copies of the
documents which he proposes to file more than two years after
the filing of the election petition thereby, he is trying to
introduce a new case. It has been specifically contended that
there was mention of four compact discs in the annexures
appended to the election petition; however, in this petition, the
petitioner refers to only three compact discs. No particulars
have been given about compact discs which are proposed to be
filed. They are not identified at all in the certificates
purportedly issued under Section 65-B of the Evidence Act.
These CDS are not in consonance with the pleadings. An
attempt has been made to introduce new facts in the garb of
additional documents, which is not permissible under the
provisions of the Representation of People Act, 1951. The
petitioner is trying to plead fresh cause of action. The
4 E.P. No.01/2014
certificates are not in accordance with Section 65-B (4) of the
Evidence Act; therefore, they cannot be taken on record. These
certificates do not bear any date. In aforesaid view of the
matter, all documents have been filed to improve upon the case
of the petitioner and fill-up lacunae in the pleadings and
evidence; thus, none of the proposed documents deserves to be
taken on record. In support of his contention with regard to the
inadmissibility of the compact disc and certificates filed
therewith, learned counsel for the respondent has placed
reliance upon the judgment rendered by the Supreme Court in
the case of Anwar P.V. Vs. P.K. Bashir 2014 (10) SCC 437
and order dated 4.1.2016 passed by this Court in the election
petition No.24/2014 (Kamal Patel Vs. Ram Kishore Dogne).
4. During the course of arguments, learned counsel for the
petitioner inviting attention to Order VII Rule 14 (3) of the
C.P.C. has submitted that the documents which ought to be
produced in the Court by the plaintiff when the plaint is
presented, are to be entered in the list to be added or annexed
to the plaint but is not produced or entered accordingly, shall
not, without the leave of the Court, be received in evidence on
his behalf at the hearing of the suit. Thus, the petitioner was
entitled to produce the documents at the time of evidence and
could have sought leave of the Court at that stage. However, in
the interest of fairness and to avoid causing surprise to the
respondent, he has filed this application.
5. It may be noted here that the main opposition of learned
counsel for the respondent is to the admissibility of the
5 E.P. No.01/2014
compact disc and certificates under Section 65-B of the
Evidence Act. In this regard, learned counsel for the petitioner
submits that certificates and CDs may be taken on record and
their admissibility may be considered when they would be
tendered in evidence. However, since the entire material by
which the petitioner proposes to prove the compact discs is
available to the Court and admissibility of Electronic Evidence
is a complicated issue, it would be appropriate to consider it at
this stage so that no prejudice or surprise is be caused to any
of the parties. The admissibility or remaining documents may
be considered when they are actually tendered in evidence.
6. There is no doubt that a compact disc is an electronic
records. As per Section 59 of the Evidence Act, all facts accept
contents of electronic records may be proved by oral evidence.
Section 65-A ordains that contents of electronic record may be
proved in accordance with Section 65-B. It has been held by a
three Bench of Supreme Court in the case of Anwar P.V.
(supra) that:
“14. Any documentary evidence by way of an electronic record
under the Evidence Act, in view of Sections 59 and 65-A, can be
proved only in accordance with the procedure prescribed under
Section 65-B. Section 65-B deals with the admissibility of the
electronic record. The purpose of these provisions is to sanctify
secondary evidence in electronic form, generated by a computer.
It may be noted that the section starts with a non-obstante clause.
Thus, notwithstanding anything contained in the Evidence 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 shall be deemed to be a
document only if the conditions mentioned under sub-section (2)
are satisfied, without further proof or production of the original.
The very admissibility of such a document i.e. electronic record
which is called as computer output, depends on the satisfaction of
the four conditions under Section 65-B(2). Following are the
specified conditions under Section 65-B(2) of the Evidence Act:
(i) The electronic record containing the information should
have been produced by the computer during the period over
which the same was regularly used 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
electronic record was produced;
(c) The certificate must furnish the particulars of the device
involved in the production of that record;
7 E.P. No.01/2014
(d) The certificate must deal with the applicable conditions
mentioned under Section 65-B(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.
16. 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.
17. Only if the electronic record is duly produced in terms of
Section 65-B of the Evidence Act, would the question arise as to
the genuineness thereof and in that situation, resort can be
made to Section 45-A—opinion of Examiner of Electronic
Evidence.
18. The Evidence Act does not contemplate or permit the proof
of an electronic record by oral evidence if requirements under
Section 65-B of the Evidence Act are not complied with, as the
law now stands in India.
19. It is relevant to note that Section 69 of the Police and
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
the evidential output was recording properly at the material
time. The presumption can be rebutted if evidence to the
contrary is adduced. In the United States of America, under
Federal Rule of Evidence, reliability of records normally go to
the weight of evidence and not to admissibility.
8 E.P. No.01/2014
20. Proof of electronic record is a special provision introduced
by the IT Act amending various provisions under the Evidence
Act. The very caption of Section 65-A of the Evidence Act, read
with Sections 59 and 65-B is sufficient to hold that the special
provisions on evidence relating to electronic record shall be
governed by the procedure prescribed under Section 65-B of the
Evidence Act. That is a complete code in itself. Being a special
law, the general law under Sections 63 and 65 has to yield.
21. In State (NCT of Delhi) v. Navjot Sandhu2 a two-Judge
Bench of this Court had an occasion to consider an issue on
production of electronic record as evidence. 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 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.”
9 E.P. No.01/2014
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 certificate were also
identified. That is apparently in compliance with the procedure
prescribed under Section 65-B of the Evidence Act. However, it
was held that irrespective of the compliance with the
requirements of Section 65-B, which is a special provision
dealing with admissibility of the electronic record, there is no
bar in adducing secondary evidence, under Sections 63 and 65,
of an electronic record.
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59
and 65-A dealing with the admissibility of electronic record.
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 65-A and 65-B. 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 2, does not lay down the correct legal position. It
requires to be overruled and we do so. An electronic record by
way of secondary evidence shall not be admitted in evidence
unless the requirements under Section 65-B are satisfied. Thus,
in the case of CD, VCD, chip, etc., the same shall be
accompanied by the certificate in terms of Section 65-B
obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is
inadmissible.
23. The appellant admittedly has not produced any certificate in
terms of Section 65-B in respect of the CDs, Exts. P-4, P-8, P-9,
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 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 with the
conditions in Section 65-B of the Evidence Act.”
(Emphasis Supplied)
7. Relying upon the judgment in the case of Anwar P.V.
(supra), this Court elaborated upon the mode of proving of
electronic record by order dated 4-1-2016 passed in E.P. No.
24/2014 (Kamal Patel Vs Ramkishore Dogne, as hereunder:
“12. In the case at hand, the objectionable matter
formed part of the speeches made in the public meetings
convened by the respondent. Those speeches were recorded
video-graphed by the Election Commission, presumably by
using video cameras. Thereafter, the contents of the memory
card of the video cameras must have been transferred to a
computer and the CDs forming record of the Election
Commission must have been prepared. Thus, even the so called
original CDs in the record of the Election Commission, would
not constitute primary electronic evidence of the speeches.
Moreover, in the case at hand, the CDs supplied to the
petitioner were copies of the record maintained in the Election
Commission and annexures P/19 to P/25 are in fact the copies
prepared from the copies supplied to the petitioner by the
Election Commission. Thus, in order to ensure the source and
11 E.P. No.01/2014
authenticity of the electronic record, a contemporaneous
certificate issued at the time of each transfer, in terms of section
65-B (4) of the Evidence Act, would be required because the
Supreme Court has specifically held that in the case of CD,
VCD, chip etc, the same shall be accompanied by the certificate
in terms of section 65-B obtained at the time of taking the
documents, without which, the secondary evidence pertaining to
that electronic record, is inadmissible.
13. In aforesaid view of the matter, no useful purpose
would be served by indulging in the exercise of summoning the
Returning Officer along with CDs/DVDs of annexures-P/19 to
P/25 maintained by the Election Commission because even
those CDs/DVDs would be inadmissible.
14. Coming to the second prayer regarding the
Compact Discs sent to the Returning Officer along with
complaint dated 19-11-2013, it may be noted that there is
no pleading in the election petition as to who prepared the video
recording of the flex hoarding displayed near State Bank of
India and in what manner, using which instrument. However, by
means of I.A.No.14043/2015, which would be considered in
latter part of this order, the certificate on affidavit issued by one
Santosh S/o Ram Narayan Agrawal is sought to be filed, stating
that he had video-graphed the flex hoarding using his mobile
phone. He transferred the video into his computer and prepared
the Compact Disc furnished to the Returning Officer along with
the complaint. However, it may be noted that aforesaid
certificate is dated 21-10-2015; whereas the CD was prepared
before 19-11-2013. Thus, the certificate now sought to be filed
was not “obtained at the time of taking the electronic
document” and is valueless for purpose of ensuring the source
and authenticity of the contents of the Compact Disc. Thus, the
second part of prayer can also not be allowed.
8. Reverting back to the facts of the case, we may note that
the petitioner proposes to file five compact discs purportedly
issued as certified copies of the record of the speeches made
by respondent no.1 and maintained by the Returning Officer.
In support of these compact disc, three certificates under
12 E.P. No.01/2014
Section 65-B of the Evidence Act have been filed. These may
be found at page Nos 1, 3 and 436 of the documents proposed
to be filed along with I.A.No.15554/2016.
9. Certificates at page No.1 and 3 do not bear any date.
They are issued by the Proprietor of Abhishek Digital Colour
Lab, Sidhi. The certificate at page no. 436 has been issued by
Returning Officer of the concerned Vidhan Sabha
Constituency. It is dated 16.9.2016.
10. As noted about, it has been held by this Court in the case
of Kamal Patel (supra) that in order to ensure the source and
authenticity of electronic record, a contemporaneously issued
certificate is necessary. In the instant case, the videography
was purportedly done by Abhishek Digital Colour Lab, Sidhi,
by using viedo-cameras. Thus, the original electronic record
was the memory card of the concerned video-camera. From
the memory card, the electronic record must have been
transferred to a computer and from the computer to the official
compact disc maintained in the office of the Returning Officer.
Thus, even the compact disc maintained in the office of
Returning Officer was secondary evidence. From that compact
disc, the certified copies of the compact disc must have been
prepared and these certified copies have now been filed along
with certificates as stated above.
11. Certificates at page Nos. 1 and 3 bear no date. They were
filed in the Court on 18-11-2016. Thus, it cannot be said that
they were issued contemporaneously at the time of transfer of
record from memory card to the official compact disc. These
13 E.P. No.01/2014
subsequently procured certificates clearly constitute an attempt
on the part of the petitioner to fill up the gaps in electronic
evidence. The certificate issued by the returning officer only
cover the second part of the transfer of electronic evidence,
i.e., from official compact discs to the certified copies.
12. In aforesaid circumstances it cannot be said that the
certificates filed by the petitioners by way of additional
documents fulfill the requirements of section 65-B (4) of the
Evidence Act. As such, the compact discs and certificates
under section 65-B (4) filed therewith cannot be permitted to
be taken on record. The admissibility of remaining documents
in evidence shall be considered when they are tendered in
evidence.
13. I.A. No. 15554 of 2016 stands disposed of accordingly.
+
{C.V. Sirpurkar}
Judge
ahd
14 E.P.No.01/2014
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
E.P.No.01/2014

Sharadendu Tiwari
Vs.
Ajay Arjun Singh and others.
ORDER
Post for :- 17.1.2017
(C.V.Sirpurkar)
JUDGE