DISCUSS JUDGEMENT OF ARJUN PANDITRAO

KHOTKAR VERSUS KAILASH KHUSHANRAO

GORANTYAN IN CONTEX OF ADMISSIBILITY
OF THE DIGITAL EVIDENCE IN THE COURT

(CYBER LAWS AND CYBER CRIMES)

BY,
NAME : DRASHTI KAMLESH GAJJAR
CLASS: LLM (SEM-2)
ROLL NO. : 17
(SUBMITTED TO : ADV. (Dr.) CHINTAN PATHAK SIR)
DIGITAL EVIDENCE :
 E-evidence is any information that is stored or transmitted in
digital form which a party to a case may use at trial.
 Digital Evidence is "information of probative value that is stored
or transmitted in the binary form".
 Before accepting digital evidence it is important that its
relevance, veracity, and authenticity must be ascertained by
the court and to establish if the fact is hearsay or a copy is
preferred to the original.
 Include - telecommunication or electronic multimedia devices
E-evidence can be found in e- mails, digital photographs, ATM
transaction logs, word processing, documents, instant message
histories, files saved from accounting programs, spreadsheets,
internet browser histories databases, Contents of computer
memory Computer backups, Computer printouts, Global
Positioning System tracks, Logs from a hotel's electronic door
locks, Digital video or audio files.
 can be easily modified and duplicated, potentially more
expressive, and more readily available.
INDIAN EVIDENCE ACT,1872 :
 SEC. 3 - Evidence”. ––
“Evidence” means and includes ––
(2) all documents including electronic records produced for the inspection of
the Court; such documents are called documentary evidence.

 SEC. 7 - ADMISSION DEFINED –

An admission is a statement, oral or documentary or contained in electronic
form, which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and under the circumstances,
hereinafter mentioned.
 -Continued…
 SEC. 65 (B) – ADMISSIBILITY OF ELECTRONIC RECORDS –
(1) Information from electronic evidence- admissible direct without proof or production of original - if
condition mentioned are satisfied.
(2) Condition:
(a) Computer used regularly to store or information regularly fed by person of lawful control on use of
computer.
(b) information so contained is derived was regularly fed into the computer in the ordinary course of
the said activities;
(c) computer was operating properly or, if not, period in which it was not operating properly, was not
such as to affect the electronic record or the accuracy of its contents
(d) information fed into the computer in the ordinary course.
(4) desired to give a statement in evidence by virtue of this section, a certificate doing any of the
following things,
(a) identifying the electronic record containing the statement and describing the manner in which it
was produced;
(b) particulars of any device involved in the production of that electronic record as may be
appropriate for the purpose of showing that the electronic record was produced by a computer
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2)
signed by a person occupying a responsible official
Arjun Panditrao Khotkar Versus
Kailash Khushanrao Gorantyan

 FACTS :
 Two election petitions were filed by the Respondents before the Bombay
High Court challenging the election of Arjun Panditrao Khotkar, the
Returned Candidate (“Appellant”) to the Maharashtra Legislative Assembly
for the term commencing November 2014.
 One election petition was filed by the defeated candidate Kailash
Kishanrao Gorantyal (“Respondent”), whereas the other was filed by
Chaudhary, an elector.
 The Respondents relying on video camera footage contended that the
election was void due to delay in presentation of nomination forms.
 The Bombay High Court admitted the electronic evidence, even in the
absence of the requisite Certificate, as the party was in ‘substantial
compliance’ of the requirements under the applicable provisions and
declared the election void.
CASES REFERRED:

State of Delhi v Mohd Afzal (2003 (3) JCC 1669)

 It was held that electronic records are admissible as evidence.
 If someone challenges the accuracy of computer evidence or electronic
record on the grounds of misuse of the system or operating failure or
interpolation, then the person challenging it must prove the same beyond a
reasonable doubt.
 The court observed that mere theoretical and general apprehensions
cannot make clear evidence defective and inadmissible.
 State (NCT of Delhi) v Navjot Sandhu (AIR 2005 SC 3820)
 There was an appeal against conviction following the attack on Parliament in December 2001.
 This case dealt with the proof and admissibility of mobile telephone call records. It was submitted
on behalf of the accused that no reliance could be placed on the mobile telephone call
records, because the prosecution had failed to produce the relevant certificate under Section
65B(4) of the Evidence Act.
 The apex court while examining the provisions of newly added Section 65B, held that in a given
case, where the certificate containing the details in Section 65B(4) is not filed, that does not
mean that secondary evidence cannot be given.
 It was held by the court that the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions of Sections 64 and 65 of the Indian Evidence Act, 1872 as it
states that "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.”
 Sec. 63 and 65 of IEA,1872- Secondary evidence for electronic evidence- not compulsory to
comply sec. 65B.
 Jagjit Singh Versus State of Haryana (2006 11 SCC 1)
 Voice recording on CD was accepted aa evidence
 Brief facts of the case are, a member of Haryana SIA gave an interview to
various News Channels Le., the Zee News television channel, the Aaj Tak
television channel, and the Haryana News of Punjab Today television channel.
The speaker of the Legislative Assembly of the State of Haryana disqualified him
for defection.
 Subsequently, the case was filed and the Apex Court considered the digital
evidence in the form of interview transcripts from various News Channels.
 The court stated that the electronic evidence placed on record was admissible
and upheld the reliance placed by the speaker on the recorded interview
when concluding that the voices recorded on the CD were those of the persons
taking action.
 Significantly, the Apex Court found no infirmity in the speaker's reliance on the
digital evidence and the conclusions reached by him.
 Anvar PV v P.K. Basheer (AIR 2015 SC 180) 3Judge Bench
 Overruled the judgment laid down in the State (NCT of Delhi) v Navjot Sandhu alias Afzal Guru by
the two Judges Bench of the Supreme Court.
 The court held that Computer Output is not admissible without Compliance of 65B, the certificate
as mentioned in section 658 is a must.
 The Court specifically observed that the Judgment of Navjot Sandhu supra, to the extent, the
statement of the law on admissibility of electronic evidence about the electronic record of this
court, does not lay down the correct position and is required to be overruled.
 This judgment has put to rest the controversies arising from the various conflicting judgments and
thereby provided a guideline regarding the practices being followed in the various High Courts
and the Trial Court as to the admissibility of the Electronic Evidences.
 It was observed that 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, it was held
 Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015 7 SCC 178) 3J bench
 The Apex Court observed that the advancement of information technology and scientific
temper must pervade the method of investigation.
 Electronic evidence was relevant to establish facts.
 Scientific and electronic evidence can be a great help to an investigating agency In this
case, the court held that CCTV footage would have been best evidence to prove
whether the accused remained inside the room and whether or not they have gone out.
 CCTV footage is a strong piece of evidence that would have indicated whether the
accused remained inside the hotel and whether they were responsible for the commission
of a crime.
 Certificate needed.
 No reference made of Anvar PV case.
 Shafi Moh. Versus State of Himachal Pradesh (2J Bench)
 It was held, a party who is not in possession of device from which the
electronic document is produced, cannot be required to produce
certificate under Section 65B (4) of the Evidence Act.
 In that case, the bench was considering the issue whether videography of
the scene of crime or scene of recovery during investigation should be
necessary to inspire confidence in the evidence collected
ISSUES:

 Ascertaining the validity of the Appellant’s election.

 Settling the position of law relating to furnishing of Certificate for electronic
evidence under Section 65B of the Act due to its conflicting rulings on the issue.

 A three Judge Bench of the Supreme Court comprising Justices RF Nariman, S

Ravindra Bhat and V Ramasubramanian delivered its judgment on a reference
on the question- "Is requirement of certificate U/s 65-B(4) Evidence Act
mandatory for production of electronic evidence?“
 Upheld- Anvar PV case
 Over ruled – Shafi Moh. case
 Judgement:
 The Supreme Court stated that Section 65B (1) differentiates between (i) ‘original document’ - which is the original electronic record
contained in the computer in which the original information is first stored; and (ii) the computer output containing such information, which
then may be treated as evidence of the contents of the ‘original document’.
 The Supreme Court clarified that Certificate is not necessary if the ‘original document’ itself is produced (as a primary evidence).
 This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving
that the concerned device, on which the original information is first stored, is owned and/or operated by him.
 However, in all other cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes
impossible to physically bring such system or network to the Court,- Section 65B (1) together with production of the requisite Certificate under
Section 65B (4) of the Act.
 The Supreme Court -the issue of inability of a party in producing a certificate who is not in possession of the electronic device. the Supreme
Court that a judge has sufficient powers and jurisdiction under CPC n CrPC to order production of any document.
 An application can always be made for production of such Certificate in cases in which there is a refusal to grant the Certificate. Such party is
said to have completed his legal obligations to procure the Certificate.
 The Supreme Court held that electronic evidence has to be furnished at the latest before the trial begins.
 However, the exercise of power by courts in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice
to the accused in a criminal trial.
 Similarly, if it is the accused who desires to produce the requisite Certificate, this too will depend upon the facts of the case and discretion to
be exercised by the Court in accordance with law.
 If hearing in a trial is not yet over, the requisite certificate can be directed to be produced at any stage, so that information contained in
electronic record can be admitted and relied upon in evidence.
 The Supreme Court also issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant
records for the concerned period (in tune with Section 39 of the Act) in a segregated and secure manner if a particular CDR or other record is
seized during investigation in the said period. This is directed to be applicable to all criminal trials.
 This will permit the parties to summon such records at the stage of defense evidence or in the event such data is required to cross-examine a
particular witness.
 It was observed that 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 iaccompanied by the certificate n 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,
 it was held, a party who is not in possession of device from which the electronic document is produced, cannot be required to produce
certificate under Section 65B (4) of the Evidence Act. In that case, the bench was considering the issue whether videography of the scene of
crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
Reference:

 Bibliography:
 The Indian Evidence Act, 1872 Bare Act
 CYBER LAWS & INFORMATION TECHNOLOGY
By- Dr. Jyoti Rattan

 Webliography:
 https://indiankanoon.org/doc/172105947/
 https://www.natlawreview.com/article/india-admissibility-electronic-
records-certification-essential
THANK YOU