Supreme Court of India
ANVAR P.V.versusP.K. BASHEER AND ORS.
- Citation
- 2014 INSC 645
- Decided
- 18 September 2014
- Disposal
- Dismissed
- Bench
- RAJENDRA MAL LODHA
Holding
Electronic records without a Section 658 certificate are inadmissible, and without proof of the returned candidate’s consent the alleged leaflet publication cannot constitute a corrupt practice under Section 123(4), leading to dismissal of the election petition.
Summary
The Supreme Court examined an election petition challenging the election of P.K. Basheer on the ground that a leaflet (Exhibit‑P1) and various audio‑visual recordings were published to malign the petitioner, Anvar P.V., constituting a corrupt practice under the Representation of the People Act, 1951. The Court held that the CDs presented as evidence were inadmissible because they were not accompanied by the certificate required under Section 658 of the Evidence Act. It further found no reliable evidence that the printing or distribution of the leaflet was done with the consent of the returned candidate or his election agent, noting that knowledge or connivance does not satisfy the consent requirement. Consequently, the alleged corrupt practice could not be proved beyond reasonable doubt, and the election could not be set aside. The appeal was therefore dismissed.
Issues considered
- The admissibility of electronic records (CDs) without a Section 658 certificate under the Evidence Act.
- Whether the printing and distribution of Exhibit‑P1 leaflet was done with the consent of the returned candidate/election agent, thereby constituting a corrupt practice under Section 123(4) of the Representation of the People Act, 1951.
- Whether the evidence establishes a corrupt practice sufficient to set aside the election under Section 100(1)(b) of the RP Act.
- The maintainability of the election petition under the RP Act.
Legislation cited
- Indian Evidence Act, 1872s. 59, s. 63, s. 65, s. 658, s. 65A
- Information Technology Act, 2000
- Representation of the People Act, 1951s. 100(1)(b), s. 123(2)(ii), s. 123(4)
Subjects
election petitioncorrupt practiceelectronic evidenceSection 658consentRepresentation of the People ActEvidence Actsecondary evidenceelectoral law
Judgment
•• [2014] 11 S.C.R 399
ANVAR P.V. A
v.
P.K. BASHEER AND ORS.·
(Civil Appeal No. 4226 of 2012)
SEPTEMBER 18, 2014
I B
[R.M. LODHA, CJI, KURIAN JOSEPH AND ROHINTON
FALi NARIMAN, JJ.)
Representation of the People Act, 1951: s.100(1)(b) r/w
s.123(2)(ii) and (4) - Election petition - On the ground that C
publication, announcement and speeches in relation to
personal character and conduct of petitioner, amounted to
commission of corrupt practices - High Court dismissed
election petition - Held: There was no reliable evidence to
show that the printing and distribution of alleged publication o
was with the consent of returned candidate or his election
agent - The speeches, songs and announcements were
recorded using other instruments and by feeding them into
the computer - CD were made therefrom which were
produced in court, without due certification. - Those CDs were E
not admissible in evidence since the mandatory requirements
of s.658 of Evidence Act were not satisfied - There was
missing link in chain of circumstances to lead to a reasonable
inference on consent by returned candidate with regard to
printing - Election petition was rightly dismissed - Evidence
F
Act, 1872 - s. 658.
Evidence Act, 1872: s.658 - Admissibility of electronic
record - Held: An electronic record by way of secondary
evidence shall not be admitted in evidence unless the
requirements u/s. 658 are satisfied - Thus, in the case of CD,
'
G
VCD, chip, etc., the same should be accompanied by the
certificate in terms of s. 658 obtained at the time of taking the
document, without which, the secondary evidence pertaining
399 H
400 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A to that electronic record, is inadmissible - Information
Technology Act, 2000.
Dismissing the appeal, the Court
HELD: 1. Section 658 of Evidence Act deals with the
B admissibility of the electronic record. The Evidence Act
does not contemplate or permit the proof of an electronic
record by oral evidence if requirements under Section
658 of the Evidence Act are not complied with. The
evidence relating to electronic record is a special
C provision. Generalia specialibus non derogant, special law
will always prevail over the general law. Sections 63 and
65 have no application in the case of secondary
evidence by way of electronic record; the same is wholly
governed by Sections 65A and 658. An electronic record
o by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 658 are
satisfied. Thus, in the case of CD, VCD, chip, etc., the
same shall be accompanied by the certificate in terms of
Section 658 obtained at the time of taking the document,
E without which, the secondary evidence pertaining to that
electronic record, is inadmissible. The appellant
admittedly has not produced any certificate in terms of
Section 658 in respect of the CDs. Therefore, the same
cannot be admitted in evidence. [Paras 13, 17, 22 to 23]
F [411-8; 415-C-H]
State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru
(2005) 11 SCC 600: 2005 (2) Suppl. SCR 79 - overruled.
2. The speeches, songs and announcements were
G recorded using other instruments and by feeding them
into a computer, CDs were made therefrom which wen\
produced in court, without due certification. 'T\"i e.
allegation was that at least 25,000 copies of Exhibit-I" 1-
leaflet were printed and published with the consent of the
H returned candidate-first respondent which allegedly
• ANVAR P.V. v. P.K. BASHEER
contained a false statement regarding involvement of the A
appellant in a murder case to prejudice the prospects of
401
the appellant's election. The corrupt practice must be
committed by (i) returned candidate, (ii) or his election
agent (iii) or any other person acting with the consent of
the returned candidate or his election agent. There was B
no evidence to prove that the printing and publication of
Exhibit-P1-leaflet was made with the consent of the first
respondent or his election agent. 'Connivance' is different
from 'consent'. [paras 24, 26, 30] [416-C, D; 417-G-H; 420-
B-D] C
Charan Lal Sahu v. Giani Zail Singh and Anr. (1984) 1
SCC 390: 1984 (2) SCR 6 - relied! on.
3. Consent is to be inferred from the circumstances.
However, if an inference on consent from the D
circumstances is to be drawn, ~he circumstances put
together should form a chain ~hich should lead to a
reasonable conclusion that the candidate or his agent
has given the consent for publication of the objectionable
material. There was no allegation 4t all that the said leaflet E
was printed by the first respondent or with his consent.
The only allegation was on knowledge and connivance
on the part of the first respondent. In such circumstances,
it cannot be said that there was a complete chain of
circumstances which would lead to a reasonable F
inference on consent by the first respondent with regard
to printing of Exhibit-P1-leaflet. Not only that there are
missing links, the evidence available was also not cogent
and credible on the consent aspect of first respondent.
Though the evidence was on printing of 1,000 copies of G
Exhibit-P1, the evidence on distribution was of many
thousands. There was no consistent case with regard to
the distribution of Exhibit-P1 making it difficult for the
Court to hold that there is credible evidence in that regard.
[Para 31, 33 to 36] [421-A-C; 422-F; 424-C-E]
H
402 SUPREME COURT REPORTS [2014) 11 S.C.R.
A Sheopat Singh v. Harish Chandra and Anr. AIR 1960 SC
1217; Ram Sharan Yadav v. Thakur Muneshwar Nath Singh
and Ors. (1984) 4 sec 649: 1985 (1) scR. 1089; Ratik Ram
v. Jaswant Singh Chouhan and Ors. (1975) 4 SCC 769 -
relied on.
B
Case Law Reference:
. 2005 (2) Suppl. $CR 19 overruled Pc:1ra 20
1984 (2) SCR 6 relied on Para 30
c AIR 1960 SC 1217 relied on Para 31
1985 (1) SCR 1089 relied on Para 35
(1975) 4 sec 769 relied on Para 39
o CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4226 of 2012.
From the Judgment & Order dated 13.04.2012 of the High
Court of Kerala at Ernakulam in Election Petition 3/2011.
E Vivek Chib, Asif Ahmed, Neeraj Shekhar for the Appellant.
Kapil Sibal, Haris Beeran, Mushtaq Salim, Radha Shyam
Jena for the Respondent.
The Judgment of the Court was delivered by
F
KURIAN, J. 1. Construction by plaintiff, destruction by
defendant. Construction by pleadings, proof by evidenc1e; proof
only by relevant and admissible evidence. Genuineness,
veracity or reliability of the evidence is seen by the court only
G 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.
•. H 2. In the general election to the Kerala Legislative
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.) 403
Assembly held on 13.04.2011, the first respondent was declared A
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. B
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 C
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 D
as preliminary, in favour of the appellant. The contested issues
read as follows:
"(1) xxx xxx xxx
(2) xxx xxx xxx E
(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 F
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 G
will amount to commission of corrupt practice under
section 123(4) of The Representation of the People
Act?
xxx xxx xxx H
A
404 SUPREME COURT REPORTS
(6)
[2014) 11 S.C.R.
Whether the Flex Board and posters mentioned in
Annexures D, E and E 1 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
B 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
c 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
D
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
E 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
F 123(4) of The Representation of People Act'?
(9) Whether Mr. Mullan Sulaiman mentioned in
paragraph 1O of the election petition did make a
speech on 9.4.2011 as alleged in the above
G 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?
H
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
(10) Whether the announcements mentioned in
405
A
'
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 B
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,
c
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
D
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 commisSipn
of corrupt practice under section 123(4) of The E
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 F
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
G
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,
H
406 SUPREME COURT REPORTS [2014) 11 S.C.R •
A 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
B 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
C 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').
D 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.
E
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
F 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.-
G 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
H Technoloqv Act, 2000(21 of 2000)., is a relevant fact.
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.] 407
Explanation.-For the purposes of this section, an A
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 B
the contents of documents or electronic records, may be
proved by oral evidence."
10. Section 65A reads as follows:
c
"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
658."
11. Section 65B reads as follows: D
"658. Admissibility of electronic records:
(1) Notwithstanding anything contained in this Act, any
information contained in an electronic record which is E
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, F
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 G
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 H
408 SUPREME COURT REPORTS [2014] 11 S.C.R..
A 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
B
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 (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
D 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.
E
(3) Where over any period, the function of storing or
processing information 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
F computers, whether -
(a) by a combination of computers operating over that
period; or
(b) by different computers operating in succession
G over that period; or
(c) by different combinations of computers operating
in succession over that period; or
H
• ANVAR P.V. v. P.K. BASHEER (KURIAN, J.]
(d) in any other manner involving the successive
409
operation over that period, in whatever order, of one
A
or more computers and one or more combinations
of computers,
all the computers used for that purpose during that 8
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 C
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 o
was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer; E
(c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying F
a responsible official position in relation to the
operation of the relevant device or the management
of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-section G
it shall be sufficient for a matter to be stated to the
best of the knowledge and belief of the person
stating it.
(5) For the purposes of this section, -
H
410 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A (a) information shall be taken to be supplied to a
computer if it is supplied thereto in any appropriate
form and whether it is so supplit>d directly or (with
or without human intervention) by means of any
appropriate equipment;
B
(b) whether in the course of activities carried on by any
official, information is supplied with a view to its
being stored or processed for the purposes of
those activities by a computer operated otherwise
than in the course of those activities, that
c information, if duly supplied to that computer, shall
be taken to be supplied to it in the course of those
activities;
(c) a computer output shall be taken to have been
D produced by a computer whether it was produced
by it directly or (with or without human intervention)
by means of any appropriate equipment.
Explanation: For the purposes of this section any
reference to information being derived from other .
E
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process."
These are the provisions under the Evidence Act relevant
F to the issue under discussion.
12. In the Statement of Objects and Reasons to the IT Act,
it is stated thus:
"New communication systems and digital technology have
G
made drastic changes in the way we live. A revolution is
occurring in the way people transact business."
In fact, there is a revolution in the way the evidence is
produced before the court. Properly guided, it makes the
H systems function faster and more effective. The guidance
• ANVAR P.V. v. P.K. 8ASHEER [KURIAN, J.]
relevant to the issue before us is reflected in the statutory
provisions extracted above.
411
A
13. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65A,
can be proved only in accordance with the procedure 8
prescribed under Section 658. Section 658 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 c
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 0
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 658(2). Following are the
specified conditions under Section 658(2) of the Evidence Act:
E
(i) The electronic record containing the information
should have been produced by the computer during ..
the period over which the same was regularly used
to store or process information for the purpose of
any activity regularly carried on over that period by F
the person having lawful control over the use of that
computer;
(ii) The information of the kind contained in electronic
record or of the kind from which the information is G
derived was regularly fed into the computer in .the
ordinary course of the said activity;
(iii) During the material part of the said period, the
computer was operating properly and that even if
it was not operating properly for some time, the H
412 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A break or breaks had not affected either the record
or the accuracy of its contents; and
(iv) The information contained in the record should be
a reproduction or derivation from the information fed
into the computer in the ordinary course of the said
8
activity.
14. Under Section 658(4) of the Evidence Act, if it is
desired to give a statement in any proceedings pertaining to
an electronic record, it is permissible provided the following
C conditions are satisfied:
(a) There must be a certificate which identifies the
electronic record containing the statement;
(b) The certificate must describe the manner in which
D
the electronic record was produced;
(c) The certificate must furnish the particulars of the
device involved in the production of that record;
E (d) The certificate must deal with the applicable
conditions mentioned under Section 658(2) of the
Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation
F to the operation of the relevant device.
15. It is further clarified that the person need only to state
in the certificate that the same is to the best of his knowledge
and belief. Most importantly, such a certificate must accompany
G the electronic record like computer printout, Compact Disc
(CD), Video Compact Disc (VCD), pen drive, etc., pertaining
to which a statement is sought to be given in evidence, when
the same is produced in evidence. All these safeguards are
taken to ensure the source and authenticity, which are the two
H hallmarks pertaining to electronic record sought to be used as
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
evidence. Electronic records being more susceptible to
413
tampering, alteration, transposition, excision, etc. without such
A
safeguards, the whole trial based on proof of electronic records
can lead to travesty of justice.
16. Only if the electronic record is duly produced in terms 8
of Section 658 of the Evidence Act, the question would arise
as to the genuineness thereof and in that situation, resort can
be made to Section 45A - opinion of examiner of electronic
evidence.
17. The Evidence Act does not contemplate or permit the C
proof of an electronic record by oral evidence if requirements
under Section 658 of the Evidence Act are not complied with,
as the law now stands in India.
18. It is relevant to note that Section 69 of the Police and D
Criminal Evidence Act, 1984 (PACE) dealing with evidence on
computer records in the United Kingdom was repealed by
Section 60 of the Youth Justice and Criminal Evidence Act,
1999. Computer evidence hence must follow the common law
rule, where a presumption exists that the computer producing
E
the evidential output was recording properly at the material time.
The presumption can be rebutted if evidence to the contrary is
adduced. In the United States of America, under Federal Rule
of Evidence, reliability of records normally go to the weight of
evidence and not to admissibility.
F
19. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65A of the Evidence
Act, read with Sections 59 and 658 is sufficient to hold that the
special provisions on evidence relating to electronic record G
shall be governed by the procedure prescribed under Section
658 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.
H
414 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A 20. In State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru', 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 computerized
records of the calls pertaining to the cellphones, it was held at
B Paragraph-150 as follows:
"150. According to Section 63, secondary evidence
means and includes, among other things, "copies made
from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies
c compared with such copies". Section 65 enables
secondary evidence of the contents of a document to be
adduced if the origi~al is of such a nature as not to be
easily movable. It is not in dispute that the information
·contained in the call records is stored in huge servers
D which cannot be easily moved and produced in the court.
That is what the High Court has also observed at para 276.
Hence, printouts taken from the computers/servers by
mechanical process and certified by a responsible official
of the service-providing company can be led in evidence
E through a witness who can identify the signatures of the
certifying officer or otherwise speak of the facts based on
his personal knowledge. Irrespective of the compliance with
the requirements of Section 65-B, which is a provision
dealing with admissibility of electronic records, there' is no
F bar to adducing secondary evidence under the other
provisions of the Evidence Act,' namely, Sections 63 and
65. It may be that the certificate containing the details in
sub-section (4) of Section 65-B is not filed in the instant
case, but that does not mean that secondary evidence
G cannot be given even if the law permits such evidence to
be given in the circumstances mentioned in the relevant
provisions, namely, Sections 63 and 65."
21. It may be seen that it was a case where a responsible
H 1. (2005) 11 sec 600.
• ANVAR P.V. v. P.K. 8ASHEER [KURIAN, J.] 415
official had duly certified the document at the time of production
itself. The signatures in the certificate were also identified. That
A
is apparently in compliance with the procedure prescribed
under Section 658 of the Evidence Act. However, it was held
that irrespective of the compliance with the requirements of
Section 658, which is a special provision dealing with 8
admissibility of the electronic record, there is no bar in adducing
secondary evidence, under Sections 63 and 65, of an electronic
record.
22. The evidence relating to electronic record, as noted
herein before, being a special provision, the general law on C
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yie!d to the same. Generalia specia/1bus
non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59
and 65A dealing with the admissibility of electronic record. D
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65A and 658. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this court in Navjot E
Sandhu case (supra), does not lay down the correct legal
position. It requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be admitted in
evidence unless the requirements under Section 658 are
satisfied. Thus, in the case of CD, VCD, chip, etc., the same F
shall be accompanied by the certificate in terms of Section 658
obtained at the time of taking the document, without which, the
secondary evidence pertaining to that electronic record, is
inadmissible.
G
23. The appellant admittedly has not produced any
certificate in terms of Section 658 in respect of the CDs,
Exhibits-P4, PB, P9, P10, P12, P13, P15, P20 and P22.
Therefore, the same cannot be admitted in evidence. Thus, the
whole case set up regarding the corrupt practice using songs,
H
416 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A announcements and speeches fall to the ground.
24. The situation would have been different had the
appellant adduced primary evidence, by making available in
evidence, the CDs used for annou'ricement and songs. Had
those CDs used for objectionable songs or announcements
8
been duly got seized through the police or Election Commission
and had the same been used as primary evidence, the High
Court could have played the same in court to see whether the
allegations were true. That is not the situation in this case. The
speeches, songs and announcements were recorded using
C other instruments and by feeding them into a computer, CDs
were made therefrom which were produced in court, without
due certification. Those CDs cannot be admitted in evidence
since the mandatory requirements of Section 658 of the
Evidence Act are not satisfied. It is clarified that notwithstanding
D what we have stated herein in the preceding paragraphs on the
secondary evidence on electronic, record with reference to
Section 59, 65A and 658 of the Evidence Act, if an electronic
record as such is used as primary evidence under Section 62
of the Evidence Act, the same is admissible in evidence,
·E without compliance of the conditions in Section 658 of the
Evidence Act.
25. Now, we shall deal with the ground on publication of
Exhibit-P1-leaflet which is also referred to. as Annexure-A. To
F quote relevant portion of Paragraph-4 of the election petition:
"4. · On the 12th of April, 2011, the day previous to the
alection, one Palliparamban Aboobacker, S/o
Ahamedkutty, Palliparamban House,
Kizhakkechathalloor, Post Chathalloor, who was a
G member of the Constituency Committee of the UDF
and the Convenor of Kizhakkechathalloor Ward
Committee of the United Democratic Front, the
candidate of which was the first respondent, falling
within the Eranad Mandalam Election Committee
H
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
and was thereby the agent of the first respondent,
actively involved in the election propaganda of the
417
A
first respondent with the consent and knowledge of
the first respondent, had got printed in the District
Panchayat Press, Kondotty, at least twenty five
thousand copies of a leaflet with the heading "PP B
Manafinte Rakthasakshidhinam Nam
Marakkathirikkuka April 13" (Martyr Day of P P
Manaf - let us not forget April 13) and in the leaflet
there is a specific reference to the petitioner who
is described as the son of the then President of the c
Edavanna Panchayat Shri P V Shaukat Ali and the
allegation is that he gave leadership to the murder
of Manaf in Cinema style. The name of the
petitioner is specifically mentioned in one part of the
· leaflet which had been highlighted with a black D
circle around it specifically making the allegation
that it was the petitioner under whose leadership
the murder was committed. Similarly in another part
of the leaflet the name of the petitioner is specifically
mentioned with a black border in square. The E
leaflet comprises various excerpts from newspaper
reports of the year 1995 highlighting the comments
in big letters, which are the deliberate contribution
of the publishers. The excerpts of various
newspaper reports was so printed in the leaflet to
expose the petitioner as a murderer, by intentionally F
concealing the fact that petitioner was honourably
acquitted by the Honourable Court... ."
26. The allegation is that at least 25,000 copies of Exhibit-
P1-leaflet were printed and published with the consent of the G
first respondent. Exhibit-P1, it is submitted, contains a false
statement regarding involvement of the appellant in the murder
of one Manaf on 13.04.1995 and the same was made to
prejudice the prospects of the appellant's election. Evidently,
Exhibit-P1 was got printed through Haseeb by PW-4- H
418 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A Palliparamban Aboobakar and published by Kudumba
Souhrida Samithi (association of the friends ot' the families),
though PW-4 denied the same. The sarnt:J was printed at
District Panchayat Press, Kondotty with the assistance of one
V. Hamza.
B
27. At Paragraph-4 of the election petition, it is further
averred as follows:
"4. . .. Since both the said Aboobakar and V. Hamza
are agents of the first respondent, who had actively
C participated in the election campaign, the printing,
publication and distribution of annexure-A was
made with the consent and kAowledge of the first
respondent as it is gathered from Shri P V Mustafa
a worker of the petitioner that the expenses for
D printing have been shown in the electoral ret1Jrn of
the first respondent. ... "
At Paragraph-18 of the election petition, it is stated thus:
"18. . .. As far as the printing arid publication of annexure-
E A leaflet is concerned, the same was not only done
with the knowledge and connivance of the 1st
respondent, it was done with the assistance of the
his official account agent Sri V. Hamza, who
happened to be the General Manager of the Press
F in which the said leaflets were printed .... "
28. PW-4-Palliparamban Aboobakar has completely
denied the allegations. Strangely, Shri Mustafa and Shri Hamza,
referred to above, have not beeri examined. Therefore,
G evidence on printing of the leaflets is of PW-4-Aboobakar and
PW-42. According to PW-4, he had not seen Exhibit-P1-leaflet
before the date of his examination. He also denied that he was
a member of the election committee. According to PW-42, who
was examined to prove the printing of Exhibit-P1, the said
H Hamza was never the Manager of the Press. Exhibit-X4-copy
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.] 419
of the order form, based on which the leaflet was printed, shows
that the order was placed by one Haseeb only to print 1,000
A
copies of a supplement and the order was given in the name
of PW-4 in whose name Exhibit-P1 was printed, Exhibit-X5-
receipt for payment of printing charges shows that the same
was made by Haseeb. The said Haseeb also was not B
examined. Still further, the allegation was that at least 25,000
copies were printed but it has come out in evidence that only
1,000 copies were printed.
29. It is further contended that Exhibit-P1 was printed and C
published with the knowledge and consent of the first
respondent. Mere knowledge by itself will not imply consent,
though, the vice-versa may be true. The requirement under
Section 123(4) of the RP Act is not knowledge but consent. For
the purpose of easy reference, we may quote the relevant
provision: D
"123. Corrupt practices.-The following shall be deemed
to be corrupt practices for the purposes of this Act:-
(1) xxx xxx xxx xxx E
(2) xxx xxx xxx xxx
(3) xxx xxx xxx xxx
(4) The publication by a candidate or his agent or by any F
other person with the consent of a candidate or his
election agent, of any statement of fact which is false, and
which he either believes to be false or does not believe to
be true, in relation to the personal character or conduct of
any candidate, or in relation to the candidature, or G
withdrawal, of any candidate, being a statement
reasonably calculated to prejudice the prospects of that
candidate's election."
30. In the grounds for declaring election to be void under
Section 100(1 )(b), the court must form an opinion "that any H
420 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A corrupt practice has been committed by a returned candidate
or his election agent or by any other person with the consent
of a returned candidate or his election agent". In other words,
the corrupt practice must be committed by (i) returned
candidate, (ii) or his election agent (iii) or any other person
B acting with the consent of the returned candidate or his election
agent. There are further requirements as well. But we do not
think it necessary to deal with the same since there is no
evidence to prove that the printing and publication of Exhibit-
P1-leaflet was made with the consent of the first respondent
c or his election agent, the sixth respondent. Though it was
vehemently contended by the appellant that the printing and
publication was made with the connivance of the first
respondent and hence consent should be inferred, we are
afraid, the same cannot be appreciated. 'Connivance' is
0 different from 'consent'. According to the Concise Oxford
English Dictionary, 'connive' means to secretly allow a wrong
doing where as 'consent' is permission. The proof required is
of consent for the publication and not connivance on public.ation.
In Charan Lal Sahu v. Giani Zail Singh and another2, this
Court held as under:
E
"30 .... 'Connivance' may in certain situations amount to
consent. which explains why the dictionaries give 'consent'
as one of the meanings of the word 'connivance'. But it is
not true to say that 'connivance' invariably and necessarily
F means or amounts to consent, ~hat is to say, irrespective
of the context of the given situation. The two cannot,
therefore, be equated. Consent implies that parties are ad
idem. Connivance does not necessarily imply that parties
are of one mind. They may or may not be, depending upon
G the facts of the situation .... "
31. Learned Counsel for the appellant vehemently contends
that consent needs to be inferred from the circumstances. No
doubt, on charges relating to commission of corrupt practices,
H 2. (1984) 1 sec 390.
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.) 421
direct proof on consent is very difficult. Consent is to be inferred
from the circumstances as held by this Court in Sheopat Singh
A
v. Harish Chandra and another3 . The said view has been
consistently followed thereafter. However, if an inference on
consent from the circumstances is to be drawn, the
circumstances put together should form a chain which should B
lead to a reasonable conclusion that the candidate or his agent
has given the consent for publication of the objectionable
material. Question is whether such clear, cogent and credible
evidence is available so as to lead to a reasonable conclusion
on the consent of the first respondent on the alleged publication c
of Exhibit-P1-leaflet. As we have also discussed above, there
is no evidence at all to prove that Exhibit-P1-leaflet was printed
at the instance of the first respondent. One Haseeb, who placed
the order for printing of Exhibit-P1 is not examined. Shri Hamza,
who is said to be the Manager of the Press at the relevant time,
0
was not examined. Shri Mustafa, who is said to have told the
appellant that the expenses for the printing of Exhibit-P1 were
borne by the first respondent and the same have been shown
in the electoral return of the first respondent is also not
examined. No evidence of the electoral returns pertaining to the
E
expenditure on printing of Exhibit-P1 by the first respondent is
available. The allegation in the election petition is on printing
of 25,000 copies of Exhibit-P1. The evidence available on
record is only with regard to printing of 1,000 copies. According
to PW-24-Sajid, 21 bundles of Exhibit-P1 were kept in the
house of first respondent as directed by wife of the first F
respondent. She is also not examined. It is significant to note
that Sajid's version, as above, is not the case pleaded in the
petition; it is an improvement in the examination. There is further
allegation that PW-7-Arjun and PW-9-Faizal had seen bundles
of Exhibit-P1 being taken in two jeeps bearing registration nos. G
KL 138 3159 and KL 1 OJ 5992 from the residence of first
respondent. For one thing, it has to be seen that PW-7-Arjun
was an election worker of the appellant and Panchayat
3. AIR 1960 SC 1217. H
422 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A Secretary of DYFI, the youth wing of CPl(M) and the member
of the local committee of the said party of Edavanna and Faizal
is his friend. PW-29 is one Joy, driver of jeep bearing
registration no. KL 1OJ 5992. He has completely denied of any
such material like Exhibit-P1 being transported by him in the
B jeep. It is also significant to note that neitherPW-7-Arjun nor
PW-9-Faizal has a case that the copies of Exhibit-P1 were
taken from the house of the first respondent. Their only case is
that the vehicles were coming from the house of the first
respondent and PW-4- Palliparamban Aboobakar gave them
c the copies. PW-4 has denied it. It is also interesting to note that
PW-9-Faizal has stated in evidence that he was disclosing the
same for the first time in court regarding the receipt of notice
from PW-4. It is also relevant to note that in Annexure-P3-
complaint filed by the chief electoral agent of the appellant on
13.04.2011, there is no reference to the number of copies of
0
Exhibit-P1-leaflet, days when the same were distributed and the
people who distributed the same, etc., and most importantly,
there is no allegation at all in Annexure-P3 that the said leaflet
was printed by the first respondent cir with his consent. The only
allegation is on knowledge and connivance on the part of the
E first respondent. We have already held that knowledge and
connivance is different from consent. Consent is the requirement
'for constituting corrupt practice under Section 123(4) of the RP
Act. In such circumstances, it cannot be said that there is a
complete chain of circumstances which would lead to a
F reasonable inference on consent by the first respondent with
regard to printing of Exhibit-P1-leaflet. Not only that there are
missing· links, the evidence available is also not cogent and
credible on the consent aspect of first respondent.
G 32. Now, we shall deal with distribution of Exhibit-P1-
leaflet. Learned counsel for the appellant contends that consent
has to be inferred from the circumstances pertaining to
distribution of Exhibit-P1. Strong reliance is placed on the
evidence of one Arjun and Faizal. According to them, bundles
,H of Exhibit-P1-leaflet were taken in two jeeps and distributed
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
throughout the constituency at around 08.00 p.m. on
12.04.2011. To quote the relevant portion from Paragraph-5 of
423
A
the election petition:
"5 .... Both the first respondent and all his election agents
and other persons who were working for him knew that the
B
contents of Annexure A which was got printed in the
manner stated above are false and false to their knowledge
and though the petitioner was falsely implicated in the
Manaf murder case he has been honourably acquitted in
the case and declared not guilty. True copy of the judgment C
in S.C. No. 453 of 2001 of the Additional Sessions Court
(Adhoc Np.2), Manjeri, dated 24.9.2009 is produced
herewith and marked as Annexure B. Though this fact is
within the knowledge of the first respondent, his agents
referred to above and other persons who were working for
him in the election on the 12th of April, 2011 at about 8 D
AM bundles of Annexure A which were kept in the house
of the first respondent at Pathapiriyam, within the
constituency were taken out from that house in two jeeps
bearing Nos KL 13-B 3159 and KL 10-J 5992 which were
seen by two electors, Sri V Arjun aged 31 years, Kottoor E
House, S/o Narayana Menon, Pathapiriyam Post,
Edavanna and C.P. Faizal aged 34 years, S/o Muhammed
Cheeniyampurathu Pathapiriyam P.O., who are residing in
the very same locality of the first respondent and the jeeps
were taken around in various parts of the Eranad Assembly F
Constituency and Annexure A distributed throughout the
constituency from the aforesaid jeeps by the workers and
agents of the first respondent at about 8 PM that night. The
aforesaid publication also amounted to undue influence as
the said expression is understood in Section 123(2)(a)(ii) G
of The Representation of the People Act, in that it
amounted to direct or indirect interference or attempt to
interfere on the part of the first respondent or his agent and
other persons who were his agents referred to below with
the consent of the first respondent, the free exercise of the H
424 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A electoral right of the voters of the Eranad Constituency and
is also a corrupt practice falling under Section 123(4) of
The Representation of the People Act, 1951 .... "
33. The allegation is on distribution of Exhibit-P1 at about
B 08.00 p.m. on 12.04.2011. But the evidence is on distribution
of Exhibit-P1 at various places at 08.00 a.m., 02.00 p.m., 05.00
p.m., 06.30 p.m., etc. by the UDF workers. No doubt, the
details on distribution are given at Paragraph-5 (extracted
above) of the election petition at different places, at various
timings. The appellant as PW-1 stated that copies of Exhibit-
C P1 were distributed until 08.00 p.m. Though the evidence is on
printing of 1,000 copies of Exhibit-P1, the evidence on
distribution is of many thousands. In one panchayat itself,
according to PW-22-KV Muhammed around 5,000 copies
were distributed near Areakode bus stand. Another allegation
D is that two bundles were entrusted with one Sarafulla at
Areakode but he is not examined. All this would show that there
is no consistent case with regard to the distribution of Exhibit-
P1 making it difficult for the Court to hold that there is credible
evidence in that regard.
E
34. All that apart, the definite case of the appellant is that
the election is to be declared void on the ground of Section
100(1)(b) of the RP Act and that too on corrupt practice
committed by the returned candidate, viz., the first respondent
F and with his consent. We have already found that on the
evidence available on record, it is not possible to infer consent
on the part of the first respondent in the matter of printing and
publicatiori of Exhibit-P1-leaflet. There is also no evidence that
the distribution of Exhibit-P1 was with the consent of first
G respondent. The allegation in the election petition that bundles
of Exhibit-P1 were kept in the house of the first respc>ndent is
not even attempted to be proved. The only connecting link is
of the two jeeps which were used by the UDF workers and not
exclusively by the first respondent. It is significant to note that
there is no case for the appellant that any corrupt practice has
H
• ANVAR P.V. v. P.K. BASHEER [KURIAN, J.]
been committed in the interest of the returned candidate by an
agent other than his election agent, as per the ground under
425
A .
Section 100(1 )(d)(ii) of the RP Act. The definite case is only of
Section 100(1)(b) of the RP Act.
35. In Ram Sharan Yadav v. Thakur Muneshwar Nath B
Singh and others4, a two-Judge Bench of this Court while
dealing with the issue on appreciation of evidence, held as
under:
"9. By and large, the Court in such cases while
appreciating or analysing the evidence must be guided by C
the following considerations:
(1) the nature, character, respectability and
credibility of the evidence,
D
(2) the surround,ing circumstances and the
improbabilities app~aring in the case,
(3) the slowness of. the appellate court to disturb a
finding of fact arrived at by the trial court who had
the initial advantage of observing the behaviour, E
character and demeanour of the witnesses
appearing before it, and
(4) the totality of the effect of the entire evidence
which leaves a lasting impression regarding the
F
corrupt practices alleged."
On the evidence available on record, it is unsafe if not
difficult to connect the first respondent with the distribution of
Exhibit-P1, even assuming that the allegation on distribution of
Exhibit-P1 at various places is true. G
36. Now, we shall deal with the last ground on
announcements. The attack on this ground is based on Exhibit-
4. (1984) 4 sec 649. H
A
426 SUPREME COURT REPORTS [2014] 11 S.C.R.
P10-CD. We have already held that the CD is inadmissible in
evidence. Since the very foundation is shaken, there is no point
•
in discussing the evidence of those who heard the
announcements. Same is the fate of the speech of PW-4-
Palliparamban Aboobakar and PW-30-Mullan Sulaiman.
B
37. We do not think it necessary to deal with the aspect
of oral evidence since the main allegation of corrupt practice
is of publication of Exhibit-P1-leaflet apart from other evidence
based on CDs. Since there is no reliable evidence to reach
C the irresistible inference that Exhibit-P1-leaflet was published
with the consent of the first respondent or his election agent,
the election cannot be set aside on the ground of corrupt
practice under Section 123(4) of the RP Act.
38. The ground of undue influence under Section 123(2)
D of the RP Act has been given up, so also the ground on
publication of flex boards.
a
39. It is now the settled law that charge of corrupt practice
is substantially akin to a criminal charge. A two-Judge Bench
E of this Court while dealing with the said issue in Razik Ram
v. Jaswant Singh Chauhan and others 5 , held as follows:
"15 .... The same evidence which may be sufficient
to regard a fact as proved in a civil suit, may be
considered insufficient for a conviction in a criminal action.
F While in the former, a mere preponderance of probability
may constitute an adequate basis of decision, in the latter
a far higher degree of assurance and judicial certitude is
requisite for a conviction. The same is largely true about .
proof of a charge of corrupt practice, which cannot be
G established by mere balance of probabilities, and, if, after
giving due consideration and effect to the totality of the
evidence and circumstances of the case, the mind of the
Court is left rocking with reasonable doubt - not being
H 5. (1975) 4 sec 769.
ANVAR P.V. v. P.K. BASHEER [KURIAN, J.) 427
the doubt of a timid, fickle or vacillating mind - as-to the A
veracity of the charge, it must hold the same as not proved."
The same view was followed by this Court P.C. Thomas
v. P.M. Ismail and others 6 , wherein it was held as follows:
"42. As regards the decision of this Court in Razik B
Ram and other decisions on the issue, relied upon on
behalf of the appellant, there is no quarrel with the legal
position that the charge of corrupt practice is to be equated
with criminal charge and the proof required in support
thereof would be as in a criminal charge and not C
preponderance of probabilities, as in a civil action but
proof "beyond reasonable doubt". It is well settled that if
after balancing the evidence adduced there still remains
little doubt in proving the charge, its benefit must go to the
, returned candidate. However, it is equally well settled that D
while insisting upon the standard of proof beyond a
reasonable doubt, the courts are not required to extend or
stretch the doctrine to such an extreme extent as to make
it well-nigh impossible to prove any allegation of corrupt
practice. Such an approach would defeat and frustrate the E
very laudable and sacrosanct object of the Act in
maintaining purity of the electoral process. (please see S.
Harcharan Singh v. S. Sajjan Singh)"
40. Having regard to the admissible evidence available on
record, though for different reasons, we find it extremely difficult F
to hold that the appellant has founded and proved corrupt
practice under Section 100(1)(b) read with Section 123(4) of
the RP Act against the first respondent. In the result, there is
no merit in the appeal and the same is accordingly dismissed.
' G
41. There is no order as to costs.
Devika Gujral Appeal dismissed.
e. (2009) 1o sec 239.
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