Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: The Certificate, the Original Device and the Power to Compel under the Bharatiya Sakshya Adhiniyam, 2023

Six years after Anvar P.V., the law on electronic evidence was in disarray. Two decisions had departed from it, one by reverting to the old permissive view and one by relaxing the certificate requirement for parties who could not obtain it. A three-Judge Bench was constituted to resolve the conflict. It restored Anvar P.V., dealt with both departures, and added the answer that had been missing all along — a party who cannot obtain a certificate is not remediless, because the court can compel its production.

1. The Facts

The dispute arose from an election to the Maharashtra Legislative Assembly. The appellant was declared elected. An election petition was filed contending that the nomination papers of certain other candidates had been improperly accepted, the papers having been filed after the prescribed hour.

The proceedings before the Returning Officer had been video-recorded, as election procedure required. The petitioners sought to rely on those recordings to establish the time at which the nomination papers had been presented.

What was produced were video compact discs containing copies of the recordings, obtained from the office of the Returning Officer and the Election Commission. The recordings had not been made onto those discs, and the original recording devices were not produced.

The petitioners had repeatedly applied to the Election Commission and to the Returning Officer for the certificate required by Section 65B(4), and had been unable to obtain it. The High Court nevertheless admitted the recordings and allowed the petition, holding that the requirement had been substantially complied with. The appeal raised the question whether that was permissible.

2. The State of the Law Before the Decision

Four decisions were in play, and they could not all stand together.

The difficulty Shafhi Mohammad had tried to solve was real and is worth stating, because it is the problem Arjun Panditrao actually answers. A certificate under Section 65B(4) had to be signed by a person occupying a responsible official position in relation to the device. Where the device belonged to somebody else — an opponent, a public authority, a telecommunications operator — the party relying on the record had no means of compelling that person to sign anything. On a strict reading, his evidence was simply unavailable to him through no fault of his own.

3. The Decision

4. The Three Holdings Examined

4.1 The certificate is mandatory

The Court reaffirmed the complete-code reasoning of Anvar P.V. The provisions governing electronic records are special provisions, they exclude the general provisions on secondary evidence, and the certificate is a condition precedent rather than a formality.

The observation that oral evidence cannot take the place of the certificate is the practical heart of this holding. Parties had commonly sought to prove a record by calling a witness to depose to the matters the certificate would have covered. The Court held that this will not do: the statute requires a certificate, and a witness saying the same things is not a certificate.

4.2 Production of the original device

The second holding elaborates the qualification Anvar P.V. had stated in a sentence. Where the owner of the device steps into the witness box and proves that the device on which the information was first stored is his or is operated by him, the record is primary evidence and no certificate arises.

Three features of the formulation matter. It requires the owner or operator to give evidence, not merely for the device to be produced by somebody. It requires proof that the information was first stored on that device — a device onto which material was later copied is not the original. And it applies to ordinary personal devices by name, which settled a question that had been argued about phones and tablets.

4.3 The power to compel

The third holding is the innovation, and it is what made the strict rule workable.

A party who requires a certificate from a person who will not give it may apply to the court, and the court may issue the appropriate process to compel production — a summons for production in a criminal matter, an order under the provisions governing production of documents in a civil suit, or the court's own power to order the production of any document it thinks necessary.

Two conditions are implicit and are worth stating. The party must have made the attempt — the remedy is for a person who has sought the certificate and been refused, not for one who has not asked. And the application must identify the person who can give the certificate, because the court compels a named custodian rather than dispensing with the requirement at large.

5. Timing

The Court addressed the stage at which a certificate must be produced, an issue that had generated inconsistent practice.

The general position stated was that the certificate should be furnished as soon as it can be — with the record where possible, and in any event at a stage that allows the other side to deal with it. In a criminal trial the Court observed that it should ordinarily accompany the charge sheet, and that a court retains discretion to permit production at a later stage where the interests of justice require, having regard to whether the party has been diligent and whether the other side is prejudiced.

The Adhiniyam has since put the matter beyond argument. Section 63(4) requires the certificate to be submitted at each instance where the record is being submitted for admission — words that did not appear in Section 65B(4).

6. The Directions on Retention

A practical feature of the judgment, less discussed than its holdings, is a set of observations directed at the source of much electronic evidence.

The Court observed that cellular companies and internet service providers should maintain call detail records and other relevant records for the relevant period in a segregated and secure manner, where a particular record is seized during investigation, so that the material remains available for the duration of the proceedings rather than being purged on the ordinary retention cycle.

The observation reflects a difficulty every practitioner encounters: records are retained for months, litigation runs for years, and material that existed when the case began has gone by the time it is needed. It has practical force for an investigating agency, which should seek segregation rather than merely a copy, and for a private litigant, who should send a preservation request at the earliest opportunity.

7. The Concurring Judgment and the Call for Amendment

The Bench delivered a concurring judgment surveying the treatment of electronic evidence in other jurisdictions and examining the practical difficulties the Indian provision had produced.

The concurrence noted that the certificate mechanism placed a burden on litigants that comparable systems handled differently, and it suggested that the legislature consider revisiting the provision so as to keep pace with technology while preserving the assurance the certificate was meant to supply.

The Bharatiya Sakshya Adhiniyam, 2023 answered in a way the Court may not have anticipated. It did not relax the certificate; it tightened it, adding an expert signature and a prescribed form disclosing a hash value. But it simultaneously removed a large body of material from the requirement altogether by adding Explanations 3 to 6 to Section 57, which deem several classes of electronic output to be primary evidence — which is, in substance, a very considerable widening of the exception this case identified.

8. The Decision Under the Adhiniyam

Each holding has a counterpart in the present statute, and the decision remains directly applicable.

9. Using the Decision in Practice

Four practical consequences follow, and they are the reason the case is cited daily.

1. Produce the device wherever possible. The owner or operator steps into the witness box, proves the device is his and that the information was first stored on it, and the certificate question disappears. This is frequently simpler than obtaining a certificate and is under-used.
2. Do not attempt to substitute oral evidence. A witness deposing to the matters the certificate would cover does not satisfy the requirement, and time spent on such evidence is wasted.
3. Ask for the certificate before applying to compel. The remedy is available to a party who has sought it and been refused, and the correspondence should be on record.
4. Name the custodian in the application. The court compels an identified person to furnish a certificate; it does not dispense with the requirement.

10. The Position Stated Shortly

1. The facts — an election petition in which video recordings of nomination proceedings were produced as copies, the certificate having been sought from the authorities and refused.
2. The conflict — Anvar P.V. on one side, Tomaso Bruno and Shafhi Mohammad on the other.
3. The first holding — the certificate is mandatory for secondary electronic evidence, and oral evidence cannot take its place.
4. The second holding — no certificate is required where the owner produces the original device and proves the information was first stored on it.
5. The third holding — a party unable to obtain a certificate may apply, and the court may compel production from the person who can give it.
6. The disposal of the conflict — Shafhi Mohammad not good law; Tomaso Bruno per incuriam.
7. The directions — service providers should maintain seized records in a segregated and secure manner for the duration of proceedings.
8. Under the Adhiniyam — every holding survives, and the primary-evidence exception is very considerably widened by Explanations 3 to 6 to Section 57.

11. Related Topics and Provisions