Civil Appeal No. 4226 of 2012. Case: Anvar P.V. Vs P.K. Basheer. Supreme Court (India)
| Case Number | Civil Appeal No. 4226 of 2012 |
| Judges | R. M. Lodha, C.J.I., Kurian Joseph and Rohinton Nariman, JJ. |
| Issue | Representation of the People Act, 1951 - Sections 100(1), 123(2), 123(4); Indian Evidence Act, 1872 - Sections 3, 22A, 45A, 59, 62, 63, 65, 65A, 65B, 65B(1), 65B(2), 65B(4); Information Technology Act, 2000 - Section 79A; Bankers Books Evidence Act, 1891; Police and Criminal Evidence Act, 1984 - Section 69; Youth Justice and Criminal Evidence ... |
| Judgement Date | September 18, 2014 |
| Court | Supreme Court (India) |
Judgment:
Kurian Joseph, 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 the nature and manner of admission of electronic records, is one of the principal issues arising for consideration in this appeal.
2. In the general election to the Kerala Legislative Assembly held on 13.04.2011, the first Respondent was declared elected to 034 Eranad Legislative Assembly Constituency. He was a candidate supported by United Democratic Front. The Appellant contested the election as an independent candidate, allegedly supported by the Left Democratic Front. Sixth Respondent was the chief election agent of the first Respondent. There were five candidates. Appellant was second in terms of votes; others secured only marginal votes. He sought to set aside the election Under Section 100(1)(b) read with Section 123(2)(ii) and (4) of The Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act') and also sought for a declaration in favour of the Appellant. By order dated 16.11.2011, the High Court held that the election petition to set aside the election on the ground Under Section 123(2)(a)(ii) is not maintainable and that is not pursued before us either. Issues (1) and (2) were on maintainability and those were answered as preliminary, in favour of the Appellant. The contested issues read as follows:
1) xxx
2) xxx
3) Whether Annexure A was published and distributed in the constituency on 12.4.2011 as alleged in paragraphs 4 and 5 of the election petition and if so whether Palliparamban Aboobacker was an agent of the first Respondent?
4) Whether any of the statements in Annexure A publication is in relation to the personal character and conduct of the Petitioner or in relation to the candidature and if so whether its alleged publication will amount to commission of corrupt practice Under Section 123(4) of The Representation of the People Act?
xxx
6) Whether the Flex Board and posters mentioned in Annexures D, E and E1 were exhibited on 13.4.2011 as part of the election campaign of the first Respondent as alleged in paragraphs 6 and 7 of the election petition and if so whether the alleged exhibition of Annexures D, E and E1 will amount to commission of corrupt practice Under Section 123(4) of The Representation of the People Act?
7) Whether announcements mentioned in paragraph 8 of the election petition were made between 6.4.2011 and 11.4.2011, as alleged in the above paragraph, as part 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 alleged announcements mentioned in paragraph 11 of the election petition amount to commission of corrupt practice Under Section 123(4) of The Representation of the People Act?
11) Whether the announcements mentioned in paragraph 12 of the election petition were made, as alleged in the above paragraph, as part of the election propaganda of the first Respondent and if so whether the alleged announcements mentioned in paragraph 12 of the election petition amount to commission of corrupt practice Under Section 123(4) of The Representation of the People Act?
12) Whether the alleged announcements mentioned in paragraph 13 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice Under Section 123(4) of The Representation of the People Act?
13) Whether the alleged announcements mentioned in paragraph 14 of the election petition were made as alleged and if so whether it amounts to commission of corrupt practice Under Section 123(4) of The Representation of the People Act.
14) Whether the election of the first Respondent is liable to be set aside for any of the grounds mentioned in the election petition?
3. By the impugned judgment dated 13.04.2012, the High Court dismissed the election petition holding that corrupt practices pleaded in the petition are not proved and, hence, the election cannot be set aside Under Section 100(1)(b) of the RP Act; and thus the Appeal.
4. Heard Shri Vivek Chib, learned Counsel appearing for the Appellant and Shri Kapil Sibal, learned Senior Counsel appearing for the first Respondent.
5. The evidence consisted of three parts - (i) electronic records, (ii) documentary evidence other than electronic records, and (iii) oral evidence. As the major thrust in the arguments was on electronic records, we shall first deal with the same.
6. Electronic record produced for the inspection of the court is documentary evidence Under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments were also introduced in The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc.
7. Section 22A of the Evidence Act 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.
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 65B reads as follows:
65B. Admissibility of electronic records:
(1) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in 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.
(2) The conditions referred to in Sub-section (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of...
To continue reading
Request your trial