Case Study: Anvar P.V. v. P.K. Basheer and others

2014 10 SCC 473

Bench: CJI R.M Lodha, J. Kurian Joseph, J. Rohinton Fali Nariman

Facts:

Petitioner (hereinafter referred to as P), an independent candidate contested the election for the Eranad seat in the Kerala Legislative Assembly held on 13/04/2011. He lost to Respondent (hereinafter referred to as R), who was the Congress-led United Democratic Front candidate. It has been alleged by P that R orchestrated malicious propaganda against him in the follow up to the Voting day. Pamphlets which falsely implicated P as a murderer were distributed, hoardings targeting his reputation were setup, and defamatory speeches were made. P produced evidence for the same: which included witnesses, the copy of distributed pamphlets as well as CDs of such recorded speeches. Evidence was put on record that such pamphlets were stocked in the house of R and were within his knowledge.

P alleged that such activities amounted to ‘corrupt practices‘ as per Section 123(2) and Section 123(4) of The Representation of the People Act, 1951 (RPA) and thus R’s election to the seat be declared void as per Section 100(1)(b). The High Court did not find merits in the case and subsequently, an appeal was made by P to the Supreme Court. The Supreme Court rejected P’s contention on following grounds:

• Many key witness were not examined therefore the chain of events proposed to establish guilt faced certain unverified loopholes.
• The charges under Section 123 of RPA are criminal charges and not of civil nature, as established in Razik Ram v. Jaswant Singh Chouhan[1]. Thus, the legal position of the charge of ‘corrupt practice’ under Section 123 RPA is to be equated with the standard of proof of a criminal charge. In civil cases, a mere preponderance of probability may constitute an adequate basis of the decision, but in cases of criminal charge a far higher degree of assurance and judicial certitude is required for a conviction, which ordains charges to be proved “beyond reasonable doubt“. The evidence presented by P was unable to establish proof “beyond reasonable doubt”.
• The evidence proposed established knowledge on part of R for such activities. However, no evidence was given to deductively establish his ‘consent’. Section 123(2) and Section 123(4) both stipulate ‘consent’ to be proved to weigh in the attraction of the said sections. The Court said, “If an inference on consent from the circumstances is to be drawn, the circumstances put together should form a chain which should lead to a reasonable conclusion that the candidate or his agent has given the consent for publication of the objectionable material.”
• P did not attach the certificate under Section 65B(4) which was an essential condition for the admission of electronic evidence under the court of law. Therefore, the CDs (which contained the recorded alleged defamatory speeches) submitted could not be admitted nor examined under the court of law.
    

Key Law Positions established in the case

1. Is the requirement of Section 65B (4) of the Indian Evidence Act, 1872 mandatory?
   Yes.
   The Court said that safeguards under Section 65B(4) are necessary “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.“
   Secondly, Section 65B is a special provision, specifically dealing with electronic evidence. The language of the section starts with a non-obstante clause thereby overruling the application of any other provision for determining the admissibility and validity of electronic evidence. According to the maxim of “Generalia specialibus non derogant“, such special law will always prevail over the general law. Thus, if any electronic record is not made admissible under Section 65B, it cannot be presented under Sections 63 and 65 for they have no application in the case of secondary evidence by way of electronic records.
   
2. Is the position established pertaining to Section 65B in the Navtoj Sandhu case[2] correct?
   No.
   In Navjot Sandhu case, the division bench of the Supreme Court held that, “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.“
   The 3 Judge bench in this Anvar P.V v. P.K Basheer case overruled the Navjot Sandhu case to the extent of the above-mentioned statement. The bench rightly opined that the Supreme Court in the Navjot Sandhu case failed to take into account Section 59 and Section 65A of the Indian Evidence Act, 1872, and thus arrived at a wrong conclusion. The bench said in para 22, “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. 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 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.“
   
3. When will the requirements under Section 65B not applicable in the context of electronic records?
   If the electronic record serves as primary evidence then it shall be admissible under Section 62 of the Indian Evidence Act, 1872, and Section 65B won’t have any application. However, if it is to be admitted as secondary evidence, in that case, requirements of Section 65B are mandatory.
   The bench said in para 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 65B 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 on electronic record with reference to Section 59, 65A and 65B 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 of the conditions in Section 65B of the Evidence Act.“

[1] (1975) 4 SCC 769
[2] State  (NCT  of  Delhi) v.  Navjot  Sandhu  alias Afsan Guru (2005) 11 SCC 600