TMI Blog2014 (9) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... nd under Section 100(1)(d)(ii) of the RP Act. The definite case is only of Section 100(1)(b) of the RP Act.On the evidence available on record, it is unsafe if not difficult to connect the first respondent with the distribution of Exhibit-P1, even assuming that the allegation on distribution of Exhibit-P1 at various places is true. Having regard to the admissible evidence available on record, though for different reasons, we find it extremely difficult to hold that the appellant has founded and proved corrupt practice under Section 100(1)(b) read with Section 123(4) of the RP Act against the first respondent. In the result, there is no merit in the appeal and the same is accordingly dismissed. - CIVIL APPEAL NO. 4226 OF 2012 - - - Dated:- 18-9-2014 - R. M. LODHA, KURIAN JOSEPH ROHINTON FALI NARIMAN, JJ. JUDGMENT KURIAN, J.: 1. Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by evidence; proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. These are some of the first principles of evidence. What is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the election propaganda of the first respondent and if so whether the alleged announcements mentioned in paragraph 8 will amount to commission of corrupt practice as contemplated under section 123(4) of The Representation of the People Act? 8) Whether the songs and announcements alleged in paragraph 9 of the election petition were made on 8.4.2011 as alleged, in the above paragraph, as part of the election propaganda of the first respondent and if so whether the publication of the alleged announcements and songs will amount to commission of corrupt practice under section 123(4) of The Representation of People Act? 9) Whether Mr. Mullan Sulaiman mentioned in paragraph 10 of the election petition did make a speech on 9.4.2011 as alleged in the above paragraph as part of the election propaganda of the first respondent and if so whether the alleged speech of Mr. Mullan Sulaiman amounts to commission of corrupt practice under section 123(4) of The Representation of the People Act? 10) Whether the announcements mentioned in paragraph 11 were made on 9.4.2011, as alleged in the above paragraph, as part of the election propaganda of the first respondent and if so whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tents of electronic records are relevant.- Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. 8. Section 45A of the Evidence Act reads as follows: 45A. Opinion of Examiner of Electronic Evidence.-When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact. Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert. 9. Section 59 under Part II of the Evidence Act dealing with proof, reads as follows: 59. Proof of facts by oral evidence.-All facts, except the contents of documents or electronic records, may be proved by oral evidence. 10. Section 65A reads as follows: 65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B. 11. Section 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such 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) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded 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 65B(2). Following are the specified conditions under Section 65B(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 eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. 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 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B 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. 20. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru(2005) 11 SCC 600 , a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 65A 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 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. 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. 23. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not forget April 13) and in the leaflet there is a specific reference to the petitioner who is described as the son of the then President of the Edavanna Panchayat Shri P V Shaukat Ali and the allegation is that he gave leadership to the murder of Manaf in Cinema style. The name of the petitioner is specifically mentioned in one part of the leaflet which had been highlighted with a black circle around it specifically making the allegation that it was the petitioner under whose leadership the murder was committed. Similarly in another part of the leaflet the name of the petitioner is specifically mentioned with a black border in square. The leaflet comprises various excerpts from newspaper reports of the year 1995 highlighting the comments in big letters, which are the deliberate contribution of the publishers. The excerpts of various newspaper reports was so printed in the leaflet to expose the petitioner as a murderer, by intentionally concealing the fact that petitioner was honourably acquitted by the Honourable Court. 26. The allegation is that at least 25,000 copies of Exhibit- P1-leaflet were printed and published with the consent of the first respondent. Exhibit-P1, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come out in evidence that only 1,000 copies were printed. 29. It is further contended that Exhibit-P1 was printed and published with the knowledge and consent of the first respondent. Mere knowledge by itself will not imply consent, though, the vice-versa may be true. The requirement under Section 123(4) of the RP Act is not knowledge but consent. For the purpose of easy reference, we may quote the relevant provision: 123. Corrupt practices.-The following shall be deemed to be corrupt practices for the purposes of this Act:- (1) xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) xxx xxx xxx xxx (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. 30. In the grounds for declaring election to be void under Section 100(1)(b), the court must form an opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the candidate or his agent has given the consent for publication of the objectionable material. Question is whether such clear, cogent and credible evidence is available so as to lead to a reasonable conclusion on the consent of the first respondent on the alleged publication of Exhibit-P1-leaflet. As we have also discussed above, there is no evidence at all to prove that Exhibit-P1- leaflet was printed at the instance of the first respondent. One Haseeb, who placed the order for printing of Exhibit-P1 is not examined. Shri Hamza, who is said to be the Manager of the Press at the relevant time, was not examined. Shri Mustafa, who is said to have told the appellant that the expenses for the printing of Exhibit-P1 were borne by the first respondent and the same have been shown in the electoral return of the first respondent is also not examined. No evidence of the electoral returns pertaining to the expenditure on printing of Exhibit-P1 by the first respondent is available. The allegation in the election petition is on printing of 25,000 copies of Exhibit-P1. The evidence available on record is only with regard to printing of 1,000 copies. According to PW-24-Sajid, 21 bundles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of first respondent. 32. Now, we shall deal with distribution of Exhibit-P1-leaflet. Learned counsel for the appellant contends that consent has to be inferred from the circumstances pertaining to distribution of Exhibit-P1. Strong reliance is placed on the evidence of one Arjun and Faizal. According to them, bundles of Exhibit-P1- leaflet were taken in two jeeps and distributed throughout the constituency at around 08.00 p.m. on 12.04.2011. To quote the relevant portion from Paragraph-5 of the election petition: 5. Both the first respondent and all his election agents and other persons who were working for him knew that the contents of Annexure A which was got printed in the manner stated above are false and false to their knowledge and though the petitioner was falsely implicated in the Manaf murder case he has been honourably acquitted in the case and declared not guilty. True copy of the judgment in S.C. No. 453 of 2001 of the Additional Sessions Court (Adhoc No.2), Manjeri, dated 24.9.2009 is produced herewith and marked as Annexure B. Though this fact is within the knowledge of the first respondent, his agents referred to above and other persons who were working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the appellant is that the election is to be declared void on the ground of Section 100(1)(b) of the RP Act and that too on corrupt practice committed by the returned candidate, viz., the first respondent and with his consent. We have already found that on the evidence available on record, it is not possible to infer consent on the part of the first respondent in the matter of printing and publication of Exhibit-P1-leaflet. There is also no evidence that the distribution of Exhibit-P1 was with the consent of first respondent. The allegation in the election petition that bundles of Exhibit-P1 were kept in the house of the first respondent is not even attempted to be proved. The only connecting link is of the two jeeps which were used by the UDF workers and not exclusively by the first respondent. It is significant to note that there is no case for the appellant that any corrupt practice has been committed in the interest of the returned candidate by an agent other than his election agent, as per the ground under Section 100(1)(d)(ii) of the RP Act. The definite case is only of Section 100(1)(b) of the RP Act. 35. In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and others ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved. The same view was followed by this Court P.C. Thomas v. P.M. Ismail and others (2009) 10 SCC 239, wherein it was held as follows: 42. As regards the decision of this Court in Razik Ram and other decisions on the issue, relied upon on behalf of the appellant, there is no quarrel with the legal position that the charge of corrupt practice is to be equated with criminal charge and the proof required in support thereof would be as in a criminal charge and not preponderance of probabilities, as in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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