INDIAN JOURNAL OF

LEGAL REVIEW

VOLUME 3 AND ISSUE 1 OF 2023

INSTITUTE OF LEGAL EDUCATION

 Indian Journal of Legal Review [ISSN - 2583-2344]

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Volume 3 and Issue 1 of 2023 Institute of Legal Education

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evidences and tried to bring a uniform practice

in admissibility requirements and mandated
Anvar P.V v. P.K. Basheer & Ors (2014 10 SCC one particular method of practice. Through this
473) Section 65A and 65B- Admissibility of paper researcher would be analysing the
Electronic Records of Indian Evidence Act, 1872 relevance of Section 65A and 65B for
admissibility of electronic evidence through
Author- Sandra Jini Saju, Student at Christ judicial pronouncements.
Academy, Institute of Law, Bengaluru,
Karnataka, India. INTRODUCTION

Best Citation - Sandra Jini Saju, Anvar P.V v. P.K. Section 65A and 65B was inserted to Chapter V
Basheer & Ors (2014 10 SCC 473) Section 65A of the Indian Evidence Act, 1872 through the
and 65B- Admissibility of Electronic Records of Amendment Act 2000 after the enactment of
Indian Evidence Act, 1872, Indian Journal of Legal the Information Technology Act, 2000. Prior 2000
Review (IJLR), 3 (1) of 2023, Pg. 579-782, ISSN - Courts used to adopt Section 61 to 65 for the
2583-2344. admissibility of electronic evidence which could
be proved either as primary evidence or
ABSTRACT secondary evidence. The major concern arose
as to whether the admissibility of certificate
Section 65A and 65B of the Indian Evidence Act, envisaged under Section 65B(4) is mandatory
1872 engrafts the admissibility of electronic or not. In Anvar P.V v P.K Basheer, declared a
records. After the enactment of Information new law in admission of electronic evidences by
Technology Act, 2000, Section 65A and 65B were overruling Afsan Guru one of the landmark
added to Chapter V of the Indian Evidence Act, judgement. Supreme Court interpreted the
to corroborate standards for admissibility and application of 65A and 65B from 63 and 65 of
authentication of electronic evidence in the Indian Evidence Act, 1872.
Courts as a documentary evidence. Before the
enactment of Section 65A and 65B Courts FACTS OF THE CASE
followed the Sections 61-65 while considering
the admissibility of electronic evidences. After In the general election to the Kerala Legislative
the amendment in 2000 the issue regarding Assembly held on 13.04.2011, the first respondent
admissibility was raised foremost in State v. secured highest number of votes and declared
Mohd. Afzal1563, 2003 in which Delhi High Court elected to Eranad Legislative Assembly
held that certification is not mandatory for Constituency. The appellant contested the
admission of electronic evidence. Thenceforth election as an independent candidate secured
in the landmark judgement of State (NCT of second in terms of votes. The appellant
Delhi) v. Navjot Sandhu1564, 2005 case court have contends to set aside the election under Section
substandard the admissibility criteria 100(1)(b), Section 123(2)(ii) and (4) of The
mentioned under Section 65B (4) that even if Representation of the People Act, 1951 envisages
the requirements are not fulfilled electronic the corrupt practice committed by election
evidence can be admitted as a documentary agent with the consent of the candidate
evidence, which created an irregularity in the inducing the elector to believe through
procedure of admission of electronic evidence. publication false allegation in relation to the
Anvar P.V v P.K Basheer 1565
, 2014 curb the personal character reasonably calculated to
controversies to the admissibility of electronic prejudice the other candidate’s election such
case the election can be declared to be void.
1563 State v Mohd. Afzal, [2003] 107 DLT 385. The appellant contends that during election
1564 State (NCT of Delhi) v Navjot Sandhu, [2005] 11 SCC 600.
1565 Anvar PV v PK Basheer [2014] 10 SCC 473. propaganda the agent of respondent with the

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 INDIAN JOURNAL OF LEGAL REVIEW [IJLR] Published by

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consent and knowledge of the respondent In State v. Mohd. Afzal , 2003 in which Delhi High
printed allegations of the appellant in a leaflet Court held that certification is not mandatory
of at least twenty five thousand copies and also for admission of electronic evidence.
during election propaganda the respondent Thenceforth in the landmark judgement of the
have made objectionable songs and division judge decision of Supreme Court State
announcements which amounts to commission (NCT of Delhi) v. Navjot Sandhu case was
of corrupt practice under the Section 100(1)(b) notable decision which gave relaxation in
of The Representation of the People Act 1951, the admissibility of electronic evidence, by referring
electronic evidences such as CD and VCD were Section 63 and 65 of Evidence Act wherein the
also submitted as an evidence. The respondent secondary evidence may be produced without
contends there was no proper fulfilment of primary evidence in respect to admissibility
requirements under Section 65A and 65B of the electronic evidence, in this case secondary
Indian Evidence Act, 1872 and did not give evidence simply means xerox or any other copy
consent for printing of leaflet and there was no of an original file, thus certification is not
proper evidence for the same. Thus, the election mandatory. The Supreme Court held that “even
is not void under Section 100(1)(b) of the if the requirements under section 65B(4) were
Representation of People Act. not satisfied, evidence could be produced
under sections 63 and 65 of the Evidence Act.”
ISSUES OF THE CASE This decision was overruled by Anvar case
which set aside a proper code for setting out
1) Whether the respondent’s election to the
the admissibility of electronic evidence.
Eranad Legislative Assembly could be set
aside void? IMPORTANCE OF THE CASE
2) Whether the electronic evidence provided
by the appellant is admissible under the This case allowed for consideration in appeal to
Indian Evidence Act? demonstrate nature and manner of admission
3) Whether the High Court was right in of electronic evidence only relevant when the
rejecting the election petition? evidence in reliable and genuine. The Anvar
JUDGEMENT OF THE CASE case have set out a uniform method of
admissibility of electronic evidence. Court held
The three judge bench decides that there was that Sections 63 and 65 have no application to
no proper evidence to infer consent on the part electronic evidence as it’s dealt under Section
of the respondent in the matter of printing, 65A and 65B of the Indian Evidence Act.
publication and distribution of leaflet. The Generalia specialibus non derogant, special law
electronic evidence shall be accompanied by will prevail over the general law, the Section 65A
the certificate in terms of Section 65B obtained and 65B are specific provisions to deal with
at the time of taking the document, without electronic evidence thus Section 63 and 65
which, the secondary evidence pertaining to have no application in matters of electronic
that electronic record, is inadmissible. Thus, the evidence.
Supreme Court upheld the decision of High
Court and held that election of the respondent ADMISSIBILITY OF ELECTRONIC EVIDENCE IN
could not be set aside under Section 100 of The POST ANVAR CASE
Representation of the People Act, 1951 as the
appeal brought before the Court has not merit. The Anwar case has sorted out the uncertainty
with respect to the admissibility of electronic
PRIOR JUDICIAL INTERPRETATION evidence, it was first time the Supreme Court
have mandated certification for electronic
evidence post Anwar case in 2015, Jagdeo Singh

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 INDIAN JOURNAL OF LEGAL REVIEW [IJLR] Published by

Volume 3 and Issue 1 of 2023 Institute of Legal Education

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v. State1566, High Court of Delhi followed decision Section 65B is mere a procedural provision it
of Anvar case and held that electronic evidence can be relaxed wherever interest of justice is in
shall be accompanied by certificate without question.
which the secondary evidence pertaining to
electronic record shall be held inadmissible. Shafhi Mohammad case was overruled by Arjun
Panditrao Khotkar v. Kailash Kushanrao
In 2017, Sonu v. State of Haryana1567, two judge Gorantyal,1572 three judge bench decision of
bench decision of Supreme Court held that Call Supreme Court envisaging that Shafhi
Detail Records submitted by police as evidence Mohammad case does not lay down the correct
during investigation cannot be admissible position of law that but an application to a
without certification under Section 65B of Judge for production of such certificate
Evidence Act. mentioned under Shafhi Mohammad case from
the requisite person relying upon the Indian
In 2017, Vikram Singh v. State of Punjab1568, Evidence Act, Code of Civil Procedure, 1908 and
three- judge bench Supreme Court decision Criminal Procedure Code, 1973. In Arjun
referred the ruling of Anvar case and held that if Panditrao case Court also held that Section
the electronic evidence is used as secondary 65B(1) differentiates the original information
evidence the same is admissible, without contained in the document itself and copies
compliance with the conditions in Section 65B made from them, former being primary
as in the present case it was held that tape document latter being secondary evidence in
record was primary evidence not secondary such case certification is not mandatory as
evidence, hence certification is not mandatory. Section 65B(1) is fulfilled.

In 2015, Tomaso Bruno v. State of Uttar ANALYSIS OF THE JUDGEMENT

Pradesh1569 three judge bench decision of
Supreme Court held per incuriam that Section 65A of the Indian Evidence Act, 1872
Secondary evidence of contents of document envisages that the special provisions as to
can be also led under Section 65 of the evidence relating to electronic record and
Evidence Act without making any reference to Section 65B deals with the admissibility of
the earlier decision in Anvar v. Basheer. In 2019 electronic records. In Anvar P.V v. P.K. Basheer
State of Karnataka v. M.R. Hiremath 1570
Supreme case emphasised the importance of
Court held that failure to produce certificate applicability of special provisions of Section 65A
under Section 65B on an earlier occasion is a and 65B dealing with electronic evidences. The
curable defect. court analysed that the very admissibility of
electronic record which is called as computer
In 2020, the Shafhi Mohammad v. State of U.P 1571 output, depends on the satisfaction of the four
two judge bench decision of Supreme Court conditions under Section 65B(2) of the Evidence
diluted the decision in Anvar v. Basheer held Act:
that circumstances when party who is not in
possession with the device of the document is i. Electronic record containing the information
produced cannot produce certification for the should have been produced by the
electronic evidences under Section 65B (4). In computer.
such cases certification is not mandatory as ii. Electronic information is derived regularly fed
into the computer in the ordinary course of
1566 Jagdeo Singh v. State, CRL.A. 527 of 2014. the said activity.
1567 Sonu v. State of Haryana Crl. A. SLP. No. 5438 of 2020.
1568 Vikram Singh v. State of Punjab, Criminal Appeal Nos. 1396-97 of 2008.
1569 Tomaso Bruno v. State of Uttar Pradesh, Criminal Appeal No. 142 of

2015.
1570 State of Karnataka v. M.R. Hiremath, Criminal Appeal No. 819 of 2019. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, Civil Appeal
1572
1571 Shafhi Mohammad v. State of U.P, CRL. No. 2302 of 2017. Nos, 20825- 20826 of 2017.

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iii. When electronic record is derived there must rigid process of admissibility. In supporting to
not be any breakage in the time period. the decision by analysing the language of
iv. The information contained in the record Section 65B(4) doesn’t mandate certification of
should be a reproduction or derivation from electronic evidence. Section 59B of the South
the information fed into the computer in the Australian Evidence Act, 1929 introduced three
ordinary course of the said activity. condition which safeguards from manipulation
of the electronic record; accuracy of recording
Section 65B(4) envisages about the certification
must not be effected, alterations to the
of the electronic record- certificate which
computer must be maintained by a reasonable
identifies the electronic record containing the
man and accuracy of evidence shall not be
statement, describe the manner in which the
effected by inadequate usage of the Computer.
electronic record was produced, furnish the
Indian Parliament must adopt laws which
particulars of the device involved in the
rationalise the conditions for admissibility of
production of that record and certificate must
electronic evidence.
be signed by the person occupying responsible
official position.
REFERENCES

In present case petitioner submitted the

BOOKS
electronic evidence of allegations made by
respondent against petitioner in a form of video 1) K. A. Pandey Law of Evidence, (8th Edn.2021).
which were originally recorded in mobile CASES
phones and video camera transferred to
computer and transferred to CDs containing 1) State v Mohd. Afzal, [2003] 107 DLT 385.
election propaganda announcements, 2) State (NCT of Delhi) v Navjot Sandhu, [2005]
11 SCC 600.
interviews and public meetings of respondent’s.
3) Anvar PV v PK Basheer [2014] 10 SCC 473.
The petitioner produced CDs without the
4) State of Karnataka v. M.R. Hiremath, Criminal
original record. Prior to Anvar P.V. v. P.K. Basheer
Appeal No. 819 of 2019.
case court looked upon the Section 63 and 65 5) Shafhi Mohammad v. State of U.P, CRL. No.
for considering electronic evidence as it is a 2302 of 2017.
secondary evidence and not mandated the 6) Arjun Panditrao Khotkar v. Kailash Kushanrao
provisions under Section 65A and 65B. In Anvar Gorantyal, Civil Appeal Nos, 20825- 20826 of 2017.
P.V. v. P.K. Basheer three bench of Supreme 7) Jagdeo Singh v. State, CRL.A. 527 of 2014.
Court mandated to follow the provision laid 8) Sonu v. State of Haryana Crl. A. SLP. No. 5438
of 2020.
under Section 65A and 65B shall be fulfilled by
9) Vikram Singh v. State of Punjab, Criminal
overruling the decision of Afsan Guru case by
Appeal Nos. 1396-97 of 2008.
stating that electronic record by way of
10) Tomaso Bruno v. State of Uttar Pradesh,
secondary evidence shall be only admitted if Criminal Appeal No. 142 of 2015.
the requirements of Section 65B is fulfilled.
STATUTES

CONCLUSION 1) The Indian Evidence Act, 1872

ARTICLES
Besides the positive aspects of Anvar case it
brought out a strict practice of admissibility of 1) Anuj Berry (New Delhi), Malak Bhatt (New
electronic evidence. Contrary to Anvar case an Delhi) and Sonali Malik (New Delhi), Supreme Court
array of judgements diluting the legal position On Admissibility Of Electronic Records As Secondary
of Anvar reinterpreted and criticized the Evidence in Mondaq 2017 July 28.
decision by concluding that Section 65B is a
mere procedural provision and reduced the

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