TMI Blog2020 (7) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from STATE (NCT. OF DELHI) VERSUS NAVJOT SANDHU @ AFSAN GURU [ 2005 (8) TMI 663 - SUPREME COURT ] to ANVAR P.V VERSUS P.K. BASHEER AND OTHERS [ 2014 (9) TMI 1007 - SUPREME COURT ] to Tomaso Bruno [ 2015 (1) TMI 1307 - SUPREME COURT ] to SONU @ AMAR VERSUS STATE OF HARYANA [ 2017 (7) TMI 1366 - SUPREME COURT ] to Shafhi Mohammad [ 2018 (1) TMI 1402 - SUPREME COURT] . Appeals dismissed. - Civil Appeal Nos.20825-20826 Of 2017, 2407 Of 2018, 3696 Of 2018 - - - Dated:- 14-7-2020 - Rohinton Fali Nariman, S. Ravindra Bhat And V. Ramasubramanian, JJ. JUDGMENT R.F. Nariman, 1. I.A. No.134044 of 2019 for intervention in C.A. Nos. 20825-20826 of 2017 is allowed. 2. These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 ( Evidence Act ) by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer Ors. (2014) 10 SCC 473 (a three Judge Bench decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was clear that they had been filed out of time. A specific complaint making this objection was submitted by Shri Kailash Kishanrao Gorantyal before the RO on 28.09.2014 at 11.00 a.m., in which it was requested that the RO reject the nomination forms that had been improperly accepted. This request was rejected by the RO on the same day, stating that the nomination forms had, in fact, been filed within time. 4. Given the fact that allegations and counter allegations were made as to the time at which the nomination forms were given to the RO, and that videography was available, the High Court, by its order dated 16.03.2016, ordered the Election Commission and the concerned officers to produce the entire record of the election of this Constituency, including the original video recordings. A specific order was made that this electronic record needs to be produced along with the necessary certificates . 5. In compliance with this order, such video recordings were produced by the Election Commission, together with a certificate issued with regard to the CDs/VCDs, which read as follows: Certificate This is to certify that the CDs in respect of video recording done o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nomination forms Nos. 43 and 44 with A, B forms were presented before the RO by RC after 3.00 p.m. of 27.9.2014 and they were not handed over prior to 3.00 p.m. In view of objection of the learned counsels of the RC to using the information contained in aforesaid VCDs, marked as Article A1 to A6, this Court had made order on 11.7.2017 that the objections will be considered in the judgment itself. This VCDs are already exhibited by this Court as Exhs. 70 to 75. Thus, if the contents of the aforesaid VCDs can be used in the evidence, then the petitioners are bound to succeed in the present matters. 8. The High Court then set out Sections 65-A and 65-B of the Evidence Act, and referred to this Court s judgment in Anvar P.V. (supra). The Court held in paragraph 65 of the impugned judgment that the CDs that were produced by the Election Commission could not be treated as an original record and would, therefore, have to be proved by means of secondary evidence. Finding that no written certificate as is required by Section 65-B(4) of the Evidence Act was furnished by any of the election officials, and more particularly, the RO, the High Court then held: 69. In substantive evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RC was therefore was declared void in the impugned judgment. 9. Shri Ravindra Adsure, learned advocate appearing on behalf of the Appellant, submitted that the judgment in Anvar P.V. (supra) covered the case before us. He argued that without the necessary certificate in writing and signed under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence. He referred to Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178, and argued that the said judgment did not notice either Section 65B or Anvar P.V. (supra), and was therefore per incuriam. He also argued that Shafhi Mohammad (supra), being a two-Judge Bench of this Court, could not have arrived at a finding contrary to Anvar P.V. (supra), which was the judgment of three Hon ble Judges of this Court. In particular, he argued that it could not have been held in Shafhi Mohammad (supra) that whenever the interest of justice required, the requirement of a certificate could be done away with under Section 65B(4). Equally, this Court s judgment dated 03.04.2018, reported as (2018) 5 SCC 311, which merely followed the law laid down in Shafhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the form of writing, which witness statement is signed by the RO, would itself amount to the requisite certificate being issued under Section 65B(4) in the facts of this case, as was correctly held by the High Court. Quite apart from this, Ms. Arora also stated that - independent of the finding given by the High Court by relying upon CDs/VCDs - the High Court also relied upon other documentary and oral evidence to arrive at the finding that the RC had not handed over nomination forms directly to the RO at 2.20 p.m (i.e. before 3pm). In fact, it was found on the basis of this evidence that the nomination forms were handed over and accepted by the RO only after 3.00 p.m. and were therefore improperly accepted, as a result of which, the election of the Appellant was correctly set aside. 11. On law, Ms. Arora argued that it must not be forgotten that Section 65B is a procedural provision, and it cannot be the law that even where a certificate is impossible to get, the absence of such certificate should result in the denial of crucial evidence which would point at the truth or falsehood of a given set of facts. She, therefore, supported the decision in Shafhi Mohammad (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic records produced for the inspection of the Court; such documents are called documentary evidence. The Evidence Act also declares that the expressions Certifying Authority , electronic signature , Electronic Signature Certificate , electronic form , electronic records , information , secure electronic record , secure digital signature and subscriber shall have the meanings respectively assigned to them in the Information Technology Act. 14. Section 22-A of the Evidence Act, which deals with the relevance of oral admissions as to contents of electronic records, reads as follows: 22A. When oral admission as to contents 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. 15. Section 45A of the Evidence Act, on the opinion of the Examiner of Electronic Evidence, then states: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation 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 appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained; (l) computer system means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions; (o) data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer; (r) electronic form , with reference to information, means any information generated, sent, received or stored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that document as defined by Section 3 of the Evidence Act does not include electronic records. 22. Section 65B(2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being included in conditions 65B(2(a)) to 65(2(d)) is that the computer be regularly used to store or process information for purposes of activities regularly carried on in the period in question. The conditions mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively. 23. Under Sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctronic 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 sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. xxx xxx xxx 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 Sandhu 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 cellphon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by any body, whether corporate or not, or by any individual; (b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. (3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2)(a) above was regularly performed by computers, whether- (a) by a combination of computers operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans of any appropriate equipment. (6) Subject to subsection (3) above, in this Part of this Act computer means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived therefrom by calculation, comparison or any other process. 27. It may be noticed that sub-sections (2) to (5) of Section 65B of the Evidence Act are a reproduction of sub-sections (2) to (5) of Section 5 of the Civil Evidence Act, 1968, with minor changes Section 69 of the UK Police and Criminal Evidence Act, 1984 dealt with evidence from computer records in criminal proceedings. Section 69 read thus: 69.-(1) In any proceedings, a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein unless it is shown- (a) that there are no reasonable grounds for believing that the statement is inaccurate because of improper use of that computer; (b) that at all material times the computer was operating properly, or if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire oral evidence to be given of anything of which evidence could be given by a certificate under that paragraph. The definition of computer under Section 5(6) of the Civil Evidence Act, 1968 was not, however, adopted by Section 2(i) of the Information Technology Act, 2000, which as noted above, is a means and includes definition of a much more complex and intricate nature. It is also important to note Section 6(1) and (5) of the Civil Evidence Act, 1968, which state as follows: (1) Where in any civil proceedings a statement contained in a document is proposed to be given in evidence by virtue of section 2, 4 or 5 of this Act it may, subject to any rules of court, be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or of the material part thereof, authenticated in such manner as the court may approve. xxx xxx xxx (5) If any person in a certificate tendered in evidence in civil proceedings by virtue of section 5(4) of this Act wilfully makes a statement material in those proceedings which he knows to be false or does not believe to be true, he shall be liable on convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit of an officer of the business or authority to which the records belong. (4) In this section- records means records in whatever form; business includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual; officer includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and public authority includes any public or statutory undertaking, any government department and any person holding office under Her Majesty. (5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records. Section 13 of this Act defines document as follows: document means anything in which information of any description is recorded, and copy , in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly; 29. Section 15(2) of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being secondary evidence. 32. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a 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. In cases where the computer , as defined, happens to be a part of a computer system or computer network (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act . This may more appropriately be read without the words under Section 62 of the Evidence Act, . With this minor clarifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Sections 65A and 65B of the Evidence Act are a complete Code in themselves when it comes to admissibility of evidence of information contained in electronic records, and also that a written certificate under Section 65B(4) is a sine qua non for admissibility of such evidence, a discordant note was soon struck in Tomaso Bruno (supra). In this judgment, another three Judge Bench dealt with the admissibility of evidence in a criminal case in which CCTV footage was sought to be relied upon in evidence. The Court held: 24. With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. Electronic documents stricto sensu are admitted as material evidence. With the amendment to the Evidence Act in 2000, Sections 65-A and 65-B were introduced into Chapter V relating to documentary evidence. Section 65-A provides that contents of electronic records may be admitted as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions which may be referred to. In Ram Singh v. Ram Singh [Ram Singh v. Ram Singh, 1985 Supp SCC 611] , a three-Judge Bench considered the said issue. English judgments in R. v. Maqsud Ali [R. v. Maqsud Ali, (1966) 1 QB 688] and R. v. Robson [R. v. Robson, (1972) 1 WLR 651] and American Law as noted in American Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape- recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65-B(4). 26. Sections 65-A and 65-B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V., this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65-A and 65-B of the Evidence Act. Primary evidence is the document produced before the Court and the expression document is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. 27. The term electronic record is defined in Section 2(1) (t) of the Information Technology Act, 2000 as follows: 2.(1)(t) electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; 28. The expression data is defined in Section 2(1)(o) of the Information Technology Act as follows: 2.(1)(o) data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the dispute is not whether a cassette is a public document but the issues are whether: (i) the finding by the Tribunal that in the absence of any evidence to show that the VHS cassette was obtained by the appellant from the Election Commission, the cassette placed on record by the appellant could not be treated as a public document is perverse; and (ii) a mere production of an audio cassette, assuming that the same is a certified copy issued by the Election Commission, is per se conclusive of the fact that what is contained in the cassette is the true and correct recording of the speech allegedly delivered by the respondent or his agent? The second issue was answered referring to judgments which did not deal with Section 65B at all. 38. Much succour was taken from the three Judge Bench decision in Tomaso Bruno (supra) in paragraph 23, which, as has been stated hereinabove, does not state the law on Section 65B correctly. Anvar P.V. (supra) was referred to in paragraph 24, but surprisingly, in paragraph 26, the Court held that Sections 65A and 65B cannot be held to be a complete Code on the subject, directly contrary to what was stated by a three Judge Bench in An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 ( CPC ) which deals with Summoning and Attendance of Witnesses , the Court can issue the following orders for the production of documents: 6. Summons to produce document.- Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. 7. Power to require persons present in Court to give evidence or produce document.- Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. xxx xxx xxx 10. Procedure where witness fails to comply with summons.- (1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1872), or the Bankers Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. 349. Imprisonment or committal of person refusing to answer or produce document.-If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346. 43. Thus, it is clear that the major premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is enjoined by the Constitution in public and State interest to see that the governance of the country is not paralysed by non-compliance with the provision that there shall be a President of India. 15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t send to the State Government any intimation in writing of its intention to exercise the option as required by the sub-section, the Board must be deemed to have elected not to purchase the undertaking. Now, the effect of sub-section (4) read with sub-section (2) of Section 6 is that on failure of the Board to give the notice prescribed by sub-section (4), the option vested in the Board under sub-section (1) of Section 6 was liable to be divested. Sub-section (4) of Section 6 imposed upon the Board the duty of giving after the coming into force of Section 6 a notice in writing of its intention to exercise the option at least 18 months before the expiry of the relevant period. Section 6 came into force on September 5, 1959, and the relevant period expired on December 3, 1960. In the circumstances, the giving of the requisite notice of 18 months in respect of the option of purchase on the expiry of December 2, 1960, was impossible from the very commencement of Section 6. The performance of this impossible duty must be excused in accordance with the maxim, lex non cogitia ad impossibilia (the law does not compel the doing of impossibilities), and sub-section (4) of Section 6 must be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrators on 24-11-1983, arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28-11-1977 and before the expiry of the four months from 28-11-1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims - the law does not compel a man to do that which he cannot possibly perform and an act of the court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub-Registrar, Arambagh on 25-11-1983 the very next one day of getting possession of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. 51. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R. Hiremath (2019) 7 SCC 515, after referring to Anvar P.V. (supra) held: 16. The same view has been reiterated by a two- Judge Bench of this Court in Union of India v. Ravindra V. Desai [(2018) 16 SCC 273]. The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 53. In a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in evidence even at this stage of the proceedings as certificate as required u/Sec. 65-B of the Evidence Act was not obtained at the time of procurement of said CDs from the concerned service provider and it was not produced alongwith charge-sheet in the prescribed form and such certificate cannot be filed subsequently. After referring to Anvar P.V. (supra), the High Court held: 15. Although, it has been observed by Hon'ble Supreme Court that the requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but in my view it does not mean that it must be produced alongwith the charge-sheet and if it is not produced alongwith the charge-sheet, doors of the Court are completely shut and it cannot be produced subsequently in any circumstance. Section 65-B of the Evidence Act deals with admissibility of secondary evidence in the form of electronic record and the procedure to be followed and the requirements be fulfilled before such an evidence can be held to be admissible in evidence and not with the stage at which such a certificate is to be produced before the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/informer/victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record and not produced in the Court with the charge-sheet. In my opinion it is only an irregularity not going to the root of the matter and is curable. It is also pertinent to note that certificate was produced alongwith the charge-sheet but it was not in a proper form but during the course of hearing of these petitioners, it has been produced on the prescribed form. 56. In Kundan Singh (supra), a Division Bench of the Delhi High Court held: 50. Anwar P.V. (supra) partly overruled the earlier decision of the Supreme Court on the procedure to prove electronic record(s) in Navjot Sandhu (supra), holding that Section 65B is a specific provision relating to the admissibility of electronic record(s) and, therefore, production of a certificate under Section 65B(4) is mandatory. Anwar P.V. (supra) does not state or hold that the said certificate cannot be produced in exercise of powers of the trial court under Section 311 Cr.P.C or, at the appellate stage under Section 391 Cr.P.C. Evidence Act is a procedural law and in view of the pronouncement in Anwar P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution may be entitled to invoke the aforementioned provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled. 61. While on the subject, it is relevant to note that the Department of Telecommunication s license conditions [i.e. under the License for Provision of Unified Access Services framed in 2007, as also the subsequent License Agreement for Unified License and the License Agreement for provision of internet service ] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year7. Therefore, if the police or other individuals (interested, or party to any form of litigation) fail to secure those records -or secure the records but fail to secure the certificate - within that period, the production of a post-dated certificate (i.e. one issued after commencement of the trial) would in all probability render the data unverifiable. This places the accused in a perilous position, as, in the event 7 See, Clause 41.17 of the License Agreement for Provision of Unified Access Services : The LICENSEE shall maintain all commercial records with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to create a uniform platform and guidelines governing the reception of electronic evidence. The Chief Justices of Punjab and Haryana and Delhi were required to constitute a committee to frame Draft Rules to serve as model for adoption by High Courts . A five-Judge Committee was accordingly constituted on 28 July, 20188. After extensive deliberations, and meetings with several police, investigative and other agencies, the Committee finalised its report in November 2018. The report suggested comprehensive guidelines, and recommended their adoption for use in courts, across several categories of proceedings. The report also contained Draft Rules for the Reception, Retrieval, Authentication and Preservation of Electronic Records. In the opinion of the Court, these Draft Rules should be examined by the concerned authorities, with the object of giving them statutory force, to guide courts in regard to preservation and retrieval of electronic evidence. 64. We turn now to the facts of the case before us. In the present case, by the impugned judgment dated 24.11.2017, Election Petition 8 The Committee comprised of Rajesh Bindal, S. Muralidhar, Rajiv Sahai Endlaw, Rajiv Narain Raina and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 64 was the last form filed) were not present before her physically at 3.00 p.m. At the cost of repetition, it needs to be mentioned here that form numbers of RC are 43 and 44. The oral evidence and the record like register of nomination forms does not show that form Nos. 43 and 44 were presented to RO at 2.20 p.m. of 27.9.2014. As per the evidence of Smt. Mutha and the record, one Arvind Chavan, a candidate having form Nos. 33, 34 and 35 was present before her between 2.15 p.m. and 2.30 p.m. In nomination form register, there is no entry showing that any nomination form was received at 2.20 p.m. Form Nos. 36 and 37 of Sunil Khare were entered in the register at 2.40 p.m. Thus, according to Smt. Mutha, form No. 38, which was accepted by her directly from the candidate was tendered to her at 2.55 p.m. of 27.9.2014 and after that she had done preliminary examination of form No. 38 and check list was given by her to that candidate. Thus, it is not possible that form Nos. 43 and 44 were directly handed over to Smt. Mutha by RC at 2.20 p.m. or even at 3.00 p.m. of 27.9.2014. 50. Smt. Mutha (PW 2) did not show the time as 2.20 p.m. of handing over the check list to RC and she showed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to what is contained in Section 100(1)(c) i.e. improper rejection of a nomination which itself is a sufficient ground for invalidating the election without any further requirement of proof of material effect of such rejection on the result of the election. The above distinction must be kept in mind. Proceeding on the said basis, we find that the High Court did not endeavour to go into the further question that would be required to be determined even if it is assumed that the appellant returned candidate had not filed the electoral roll or a certified copy thereof and, therefore, had not complied with the mandatory provisions of Section 33(5) of the 1951 Act. 11. In other words, before setting aside the election on the above ground, the High Court ought to have carried out a further exercise, namely, to find out whether the improper acceptance of the nomination had materially affected the result of the election. This has not been done notwithstanding Issue 6 framed which is specifically to the above effect. The High Court having failed to determine the said issue i.e. Issue 6, naturally, it was not empowered to declare the election of the appellant returned candidate as void even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further 71. None of the earlier judgments of this Court referred to in Mairembam Prithviraj (supra) have been adverted to in Rajendra Kumar Meshram (supra) cited by Shri Adsure. In particular, the judgment of three learned Judges of this Court in Vashist Narain Sharma (supra) has specifically held that where the person whose nomination has been improperly accepted is the returned candidate himself, it may be readily conceded that the conclusion has to be that the result of the election would be materially affected , without there being any necessity to plead and prove the same. The judgment in Rajendra Kumar Meshram (supra), not having referred to these earlier judgments of a larger strength binding upon it, cannot be said to have declared the law correctly. As a result thereof, the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice s Conference in April, 2016. 73. These appeals are dismissed with costs of INR One Lakh each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary. JUDGMENT V. Ramasubramanian, 1. While I am entirely in agreement with the opinion penned by R. F. Nariman, J. I also wish to add a few lines about (i) the reasons for the acrimony behind Section 65B of the Indian Evidence Act, 1872 (hereinafter Evidence Act ) (ii) how even with the existing rules of procedure, the courts fared well, without any legislative interference, while dealing with evidence in analogue form, and (iii) how after machines in analogue form gave way to machines in electronic form, certain jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. 5. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136 states that if the fact proposed to be proved is one, of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the Court is satisfied abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled. 11. The placement by Section 65B, of admissibility as the first or the border check post, coupled with the fact that a number of computer systems (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the originator (as defined in Section 2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section 65B, which is evident from the judicial opinion swinging like a pendulum. II. How the courts dealt with evidence in analogue form without legislative interference and the shift 12. It is a matter of fact and record that courts all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge can also be divided back into its constituent parts. Herein lies the interesting point: when three droplets of water fuse and then separate into three droplets, it is to be questioned whether the three droplets that merge from the bigger droplet were the identical droplets that existed before they merged. In the same way, consider a digital object that has been manipulated and added to, and the process is then reversed. The original object that was used remains (unless it was never saved independently, and the changes made to the image were saved in the original file), but another object, with the identical image (or near identical, depending on the system software and application software) now exists. Conceptually, it is possible to argue that the two digital images are different: one is the original, the other a copy of the original that was manipulated and returned to its original state (whatever original means). But both images are identical, apart from some additional meta data that might, or might not be conclusive. However, it is apparent that the images, if viewed together, are identical will be identical, and the viewer will not be able to determine which is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of the expression under Section 3 of the Evidence Act. Thus, without looking up to the law makers to come up with necessary amendments from time to time, the courts themselves developed certain rules, over a period of time, to test the authenticity of these documents in analogue form and these rules have in fact, worked well. 18. There was also an important question that bothered the courts while dealing with evidence in analogue form. It was as to whether such evidence was direct or hearsay. In The Statute of Liberty, Sapporo Maru M/S (Owners) vs. Steam Tanker Statute of Liberty (Owners) [1968] 2 All ER 195 the film recording of a radar set of echoes of ships within its range was held to be real evidence. The court opined that there was no distinction between a photographer operating a camera manually and the observations of a barometer operator or its equivalent operation by a recording mechanism. The Judge rejected the contention that the evidence was hearsay. 19. But when it comes to a computer output, one of the earliest of cases where the Court of Appeal had to deal with evidence in the form of a printout from a computer was in R. vs. Pettigrew [1980] 71 Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issibility of electronic records POSITION IN USA 23. The Federal Rules of Evidence (FRE) of the United States of America as amended with effect from 01.12.2017 recognise the availability of more than one option to a person seeking to produce an electronic record. Under the amended rules, a person can follow either the traditional route under Rule 901 or the route of self-authentication under Rule 902 whereunder a certificate of authenticity will elevate its status. Rules 901 and 902 of FRE read as follows: Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only -not a complete list-of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Non expert Opinion About Handwriting. A non expert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer of any entity named above; and (B) a signature purporting to be an execution or attestation. (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal-or its equivalent-that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester-or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11). (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11). (14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). 24. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. But Rule 902 is a special provision dealing with evidence that is self-authenticating. Records generated by an electronic process or system and data copied from an electronic device, storage medium or file, are included in sub-rules (13) and (14) of Rule 902 of the Federal Rules of Evidence. 27. But FRE 902 does not exclude the application of FRE 901. It is only when a party seeks to invoke the benefit of self-authentication that Rule 902 applies. If a party chooses not to claim the benefit of self-authentication, he is free to come under Rule 901, even if the evidence sought to be adduced is of an electronically stored information (ESI). 28. In an article titled E-Discovery: Authenticating Common Types of ESI Chart , authored by Paul W. Grimm (the Judge who delivered the verdict in Lorraine) and co-authored by Gregory P. Joseph and published by Thomson Reuters (2017), the learned authors have given a snapshot of the different methods of authentication of various types of ESI (electronically stored information). In a subsequent article (2018) titled Admissibility of Electronic Evidence published under the caption Grimm-Brady Chart (referring to Paul W. Grimm and Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Snapchat) (901(b)(3)) Distinctive characteristics including circumstantial evidence (901(b)(4)) Public records (901(b)(7)) System or process capable of proving reliable and dependable result (901(b)(9)) Official publications (902(5)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14)) 4. Digitally Stored Data Witness with personal knowledge and Internet of (901(b)(1)) Things Expert testimony or comparison with authenticated examples (901(b)(3)) Distinctive characteristics including circumstantial evidence (901(b)(4)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or system (902(13)) Certified data copied from an electronic device, storage medium, or file (902(14)) 5. Computer Processes, Witness with personal knowledge Animations, (901(b)(1)) Virtual Reality, and Expert testimony or comparison Simulations with authenticated examples (901(b)(3)) System or process capable of proving reliable and dependable result (901(b)(9)) Certified records generated by an electronic process or sy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an document produced by a electronic record which is printed computer shall, subject to rules of on a paper, stored, recorded or court, be admissible as evidence copied in optical or magnetic of any fact stated therein of media produced by a computer which direct oral evidence would (hereinafter referred to as the be admissible, if it is shown that computer output) shall be the conditions mentioned in deemed to be also a document, if subsection (2) below are satisfied the conditions mentioned in this section are satisfied in relation to in relation to the statement and the information and computer in computer in question. question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. 31. But the abovementioned Section 5 of the U.K. Act of 1968 was repealed by the Civil Evidence Act, 1995. Section 15(2) of the Civil Evidence Act, 1995 repealed the enactments specified in Schedule II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready referred to the overlap between sections 4 and 5. If compliance with section 5 is a prerequisite, then computer- generated documents which pass the conditions setout in section 5(2) shall be admissible, notwithstanding the fact that they originated from a chain of human sources and that it has not been established that the persons in the chain acted under a duty. In other words, the record provisions of section 4, which exist to ensure the reliability of the core information, are capable of being disapplied. In the context of our proposed reforms, we do not consider that this apparent discrepancy is of any significance, save that it illustrates the fact that section 5 was something of an afterthought. 3.17 Computer-generated evidence falls into two categories. First, there is the situation envisaged by the 1968 Act, where the computer is used to file and store information provided to it by human beings. Second, there is the case where the record has itself been produced by the computer, sometimes entirely by itself but possibly with the involvement of some other machine. Examples of this situation are computers which are fed information by monitoring devices. A particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er how complex the calculations, or how difficult it may be for humans to reproduce its work, provided the computer was not contributing its own knowledge (R v. Wood (1983) 76 Cr. App. R. 23). 3.20 There was no disagreement with the view that the provisions relating to computer records were outdated and that there was no good reason for distinguishing between different forms of record keeping or maintaining a protectively. Nothing in our proposals will either encourage abuse, or prevent a proper challenge to the admissibility of computerised records, where abuse is suspected. Security and authentication are problems that experts in the field are constantly addressing and it is a fast evolving area. The responses from experts in this field, such as the C.B.I., stressed that, whilst computer-generated information should be treated similarly to other records, such evidence should be weighed according to its reliability, with parties being encouraged to provide information as to the security of their systems. We have proposed a wide definition for the word document . This will cover documents in any form and in particular will be wide enough to cover computer-generated informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n over the potential for misuse, through the capacity to hack, corrupt, or alter information, in manner which is undetectable. We do not underestimate these dangers. However the current provisions of section 5 do not afford any protection and it is not possible to legislate original) 34. The above recommendations of the Law Commission (U.K.) made in 1993, led to the repeal of Section 5 of the 1968 Act, under the 1995 Act. The rules of evidence in civil cases, in so far as electronic records are concerned, thus got liberated in U.K. in 1995 with the repeal of Section 5 of the U.K. Civil Evidence Act,1968. 35. But there is a separate enactment in the U.K., containing the rules of evidence in criminal proceedings and that is the Police and Criminal Evidence Act, 1984. Section 69 of the said Act laid down rules for determining when a statement in a document produced by a computer shall not be admissible as evidence of any fact stated therein. Section 69 of the said Act laid down three conditions (there are too many negatives in the language employed in Section 69). In simple terms, they require that it must be shown (i) that there are no reasonable grounds for believing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g improperly used. If there is any dispute as to whether the conditions in section 69 have been satisfied, the court must hold a trial within the trial to decide whether the party seeking to rely on the document has established the foundation requirements of section 69. 13.5 In essence, the party relying on computer evidence must first prove that the computer is reliable or, if the evidence was generated by more than one computer, that each of them is reliable (Cochrane [1993] Crim LR 48). This can be proved by tendering a written certificate, or by calling oral evidence. It is not possible for the party adducing the computer evidence to rely on a presumption that the computer is working correctly (Shephard [1993] AC 380, 384E). It is also necessary for the computer records themselves to be produced to the court (Burr v DPP [1996] Crim LR 324). The problems with the present law 13.6 In the consultation paper we came to the conclusion that the present law was unsatisfactory, for five reasons. 13.7 First, section 69 fails to address the major causes of inaccuracy in computer evidence. As Professor Tapper has pointed out, most computer error is either immediately detectabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no separate scheme for computer evidence, and yet no problems appear to arise. Our provisional view was that section 69 fails to serve any useful purpose, and that other systems operate effectively and efficiently without it. 13.13 We provisionally proposed that section 69 of PACE be repealed without replacement. Without section 69, a common law presumption comes into play (Phipson, para 23-14, approved by the Divisional Court in Castle v Cross [1984] 1 WLR 1372, 1377B): In the absence of evidence to the contrary, the courts will presume that mechanical instruments were in order at the material time. 13.14 Where a party sought to rely on the presumption, it would not need to lead evidence that the computer was working properly on the occasion in question unless there was evidence that it may not have been in which case the party would have to prove that it was (beyond reasonable doubt in the case of the prosecution, and on the balance of probabilities in the case of the defence). The principle has been applied to such devices as speedometers (Nicholas v Penny [1950] 2 KB 466) and traffic lights (Tingle Jacobs Co v Kennedy [1964] 1 WLR 638), and in the consultation pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttle for the presumption to be rebutted, if the party against whom the evidence was adduced could not be expected to produce more. For example, in Cracknell v Willis ([1988] AC 450) the House of Lords held that a defendant is entitled to challenge an Intoximeter reading, in the absence of any signs of malfunctioning in the machine itself, by testifying (or calling others to testify) about the amount of alcohol that he or she had drunk. 13.19 On the other hand it may be unrealistic to suppose that in such circumstances the presumption would not prevail. In Cracknell v Willis Lord Griffiths ([1988] AC 450 at p 468C D) said: If Parliament wishes to provide that either there is to be an irrebuttable presumption that the breath testing machine is reliable or that the presumption can only be challenged by a particular type of evidence then Parliament must take the responsibility of so deciding and spell out its intention in clear language. Until then I would hold that evidence which, if believed, provides material from which the inference can reasonably be drawn that the machine was unreliable is admissible. But his Lordship went on: I am myself hopeful that the good sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. 13.22 Finally it should not be forgotten that section 69 applies equally to computer evidence adduced by the defence. A rule that prevents a defendant from adducing relevant and cogent evidence, merely because there is no positive evidence that it is reliable, is in our view unfair. Our recommendation 13.23 We are satisfied that section 69 serves no useful purpose. We are not aware of any difficulties encountered in those jurisdictions that have no equivalent. We are satisfied that the presumption of proper functioning would apply to computers, thus throwing an evidential burden on to the opposing party, but that that burden would be interpreted in such a way as to ensure that the presumption did not result in a conviction merely because the defence had failed to adduce evidence of malfunction which it was in no position to adduce. We believe, as did the vast majority of our respondents, that such a regime would work fairly. We recommend the repeal of section 69 of PACE. (Recommendation 50) (emphasis supplied) 37. Based on the above recommendations of the U.K. Law Commission, Section 69 of the PACE, 1984, was declared by Section 60 of the Youth Justice and Crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. Printouts (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout. 42. Section 31.3 indicates the method of proving the integrity of an electronic documents system, by or in which an electronic document is recorded or stored. Section 31.3 reads as follows: Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inds a place in the Canadian law, there is a very important distinction found in the Canadian law. Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon an electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it. IV. Conclusion 46. It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine-tuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot Sandhu (2005) 11 SCC 600) to Anvar P.V. (2014) 10 SCC 473) to Tomaso Bruno (2015) 7 SCC 178) to Sonu (2017) 8 SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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