Arjun Panditrao Khotkar v.

Kailash Kushanrao Gorantyal And Others – Case

Analysis.
- TUPAKULA NIKHIL

I. INTRODUCTION
Concerning Sections 65A and 65B of the Indian Evidence Act, 1872 (‘the Act’), the law was demystified
in the case of Anwar P.V v. P.K. Basheer and others1 (‘Anwar’). Although Anwar’s judgment was
delivered in the year 2015 yet the Hon’ble Supreme Court (‘the court’) and several High Courts,
subsequent to 2015, did not compley with the law laid down by Anwar case.
The contradiction was laid to rest in the recent judgment of Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal and others2(‘Arjun Panditrao’) wherein the court held that Anwar’s case lays down
the apposite law and declared other conflicting verdicts as per incuriam.

II. BACKGROUND
In the case of Arjun Panditrao, two election petitions were filed by the respondents before the Bombay
High Court under Sections 80 and 81 of the Representation of the People Act, 1951. Via these petitions,
the election of the appellant (who is the Returned Candidate belonging to Shiv Sena party) was
challenged. His term commenced in November, 2014. The respondent, being the representative of the
Congress party, was defeated by the appellant with a marginal vote difference of 296 votes. The entire
averment of respondents revolved around the four sets of papers (‘papers’) which were filed by the
appellant. The respondents contended that the papers suffered substantial defects and hence, the
election shall be set aside. The respondents further averred that the Nomination Form Nos. 43 and 44
(‘nomination forms’) were filed by the appellant after the prescribed period and thus, rendering the
nomination forms null and void.
To espouse the contention, the respondent intended to rely on the video-camera arrangements, which
were arranged in the premises of the Returning Officer. The video-camera portrayed that the nomination
papers, which were ought to be filed prior to 3 p.m., were filed subsequent to 3 p.m. The High Court, in
view of these facts, ordered the appropriate authorities to produce a certificate as necessary under
Section 65B(4)3 of the Act as the authorities denied the certificate at the request of the appellant. The
concerned authorities have not produced the relevant certificate by citing lame reasons. The High Court,
by relying on the statements of the concerned in-charge, considered that the provisions of Section
65B(4) were substantially complied with and the video-camera could be admitted as evidence. Basing
on the electronic evidence and other pertinent evidence, the High Court concluded that the nomination
papers were filed after the prescribed period and the election of the appellant was liable to be set aside.
Aggrieved by this, the appellant filed a civil appeal before the Court.


Student of B.A.LL.B (Hons), DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY (AUTHORED ON 21-01-2021)
1
MANU/SC/0899/2014.
2
MANU/SC/0521/2020.
3
The Indian Evidence Act, 1872 (Act 1 of 1872), s.65(B)(4) reads as under:
“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate (emphasis supplied)
doing any of the following things.”

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Pertinent issues:
Although the below-mentioned issues haven’t been specifically framed by the court yet for the sake of
convenience and understanding, issues are framed as follows:
a. Whether certificate, as mandated under Section 65B(4) of the Act, is sine qua non to make an
electronic record admissible?
b. Whether Sections 65A and 65B of the Act are a complete code in relation to the admissibility
of electronic records?
c. Whether there exists a panacea in case where the party tried to avail the certificate in a bona
fide manner and yet failed to get the certificate?
d. Whether the certificate can be produced at any stage of the trial?
III. ANALYSIS
In terse, the above-mentioned issues were dealt in the ratio decidendi of the court.
Issue-1:
In relation to whether a certificate is required to make an electronic record4 admissible, the appellant
vehemently argued that the law laid down in the Anwar case holds good and the subsequent judgments
shall be declared per incuriam as they haven’t considered the Anwar’s judgment while declaring the
contrary opinion. Per contra, the respondents argued that since Section 65B is an embodiment of
procedural law, it cannot be mandated in cases where it’s impossible to obtain the certificate. Since the
respondents and the High Court had endeavoured to obtain the certificate and subsequently failed to
procure it, this provision may be relaxed. To espouse their contention, the respondents relied on the
decision of Shafi Mohammad v. State of Himachal Pradesh 5 (‘Shafi Mohammad’).
The Court, after elucidating the conclusions reached by the several conflicting judgments, analysed the
Sections 65A6 and 65B of the Act. Section 65B is a special provision regarding the admissibility of
electronic records as evidence and provides a deeming fiction about an electronic record being a
document. The deeming fiction takes effect if the further conditions enunciated in the Section are
complied with in relation to both information and computer in question. Section 65B differentiates
between the original information contained in the computer itself and the copies made thereof. The
latter one comes under the ambit of secondary evidence and the former one is an embodiment of
primary evidence. In case, the electronic record is placed before the court as primary evidence then
Section 65B need not be complied with. If an electronic record is tendered as evidence in the court as
secondary evidence then Section 65B shall be complied with.
The Court, in the case of Anwar, partially overruled the case of State (NCT of Delhi) v. Navjot Sandhu7
(‘Navjot Sandhu’). In the case of Navjot Sandhu, it was held that although the certificate isn’t placed
before the court as required under Section 65B of the Act yet the electronic record may be admitted
with the aid of Sections 63 and 65 of the Act. Negating this conclusion, the Court, in Anwar’s case, held

4
The Information Technology Act, 2000 (Act 21 of 2000), s. 2(t) reads as under:
“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.”
5
MANU/SC/0058/2018.
6
Supra note 3, s.65A reads:
“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.”
7
MANU/SC/0465/2005.

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that the non-obstantive clause in section 65B itself portrays the exclusion of other provisions of the Act
and hence to this extent, the case of Navjot Sandhu was overruled. Subsequent to this judgment,
Tomaso Bruno and Anr v. State of Uttar Pradesh 8 (‘Tomaso Bruno’) was delivered by the Court. It’s
interesting to note that although the Navjot Sandhu’s case was overruled yet this case relied on that
case and concluded that the parties may take recourse under Section 65 of the Act in order to admit
the electronic record. In addition to this, it’s bewildering to note that this case did not consider the case
of Anwar. Since Anwar’s case wasn’t considered and an overruled case was relied, the court declared
this judgment as per incuriam.
Since Shafi Mohammad’s case relied on the above-mentioned judgment i.e. Tomaso Bruno, the Court
held that it isn’t the good law. Finally, the Court concluded that the Anwar’s case is the apposite law
and the certificate required under Section 65B is sine qua non in order to admit an electronic record as
evidence. The court held that the last sentence in Anwar’s case, which reads as ‘if an electronic record
as such is used as primary evidence under Section 62 of the Evidence Act…’, shall be read without the
words ‘under Section 62 of the Evidence Act.’ Nevertheless, the law laid down by the Anwar’s case was
held to be the good law.
Issue-2:
In relation to whether Sections 65A and 65B are a complete code in relation to admissibility of electronic
records, the appellant argued that the law related to it was laid down in the case of Anwar and the
subsequent judgments, being per incuriam, aren’t applicable. To the contrary, it was contended by the
respondents that since it’s procedural in nature, it may be proved under the aegis of Sections 63 and
65 of the Act.
The Court, in the case of Anwar, clarified that the Sections 65A and 65B are a complete code in relation
to admissibility of electronic records. Although the court differed in the subsequent judgments i.e.
Tomaso Bruno etc., yet they haven’t considered the case of Anwar. Since the cases of Tomaso Bruno
and Shafi Mohammad were considered as bad laws, the apposite law is that the Sections 65A and 65B
are a complete code in relation to the admissibility of electronic records. The Court espoused the case
of Anwar with reference to the non-obstantive clause in Section 65B.
Issue-3:
In relation to whether any panacea exists in case where the parties tried to avail the certificate but failed
to get, the appellant argued that the certificate is indispensable to consider an electronic record. Per
contra, the respondents contended that in case of inability to avail the certificate even after several
endeavours, the stringent rule may be relaxed.
The court initially clarified that in case the party finds it difficult to produce the certificate, the concerned
Court is empowered to direct the authorities to provide a certificate. The party may entreat the court to
order the production of the certificate. The Court may order the production of the certificate by utilizing
the powers under Section 1659 of the Act. Under Section 165 of the Act, the court may order the

8
MANU/SC/0057/2015.
9
Supra note 3, s.165 reads:
“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any
time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing
(emphasis supplied); and neither the parties nor their agents shall be entitled to make any objection to any such question or
order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question”

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production of any document. The court may take recourse to Order XVI Rule 7 10 of the Civil Procedure
Code, 1908. Similarly, under Section 91 of Criminal Procedure Code, 1973,11 the Court may require
any person to produce the document. The concern raised in the case of Shafi Mohammad is wholly
incorrect. In case one of the parties fails to obtain the certificate then the Court may, after taking
recourse under above-mentioned provisions, order for production of documents.
In this case, albeit the appellant and the Court endeavoured for the production of the certificate yet the
concerned authorities failed to deliver the certificate. It’s apposite to mention two latin maxims. One is
lex non cogit ad impossibilia (the law doesn’t demand the impossible) and the other is imptentia excusat
legem (when there is a disability that makes it impossible to obey the law, the alleged disobedience of
the law may be excused). It can be gleaned out that the Courts never seek anything impossible and if
it’s impossible to obey the law then the disobedience may be condoned.12 When one cannot possibly
perform an act then the court will not compel to perform it. 13
On an application of the above-mentioned legal maxims to the present case, it’s unambiguous that
although Section 65B(4) is mandatory yet the respondents have done everything possible to obtain the
certificate. It was to be given by a third-party, on whom the respondents had no control. Hence, the
respondents shall be relieved of the mandatory obligation contained under Section 65B(4). The video-
cameral arrangements can be adduced as evidence.
Issue-4:
In relation to whether the certificate can be produced at any stage of the trial, the court referred to the
verdict of Anwar. In that case, it was held that the necessary certificate shall accompany the electronic
record when the record is adduced as an evidence. The Court, in this case, limited its scope to cases
where the certificate could be produced by the party seeking to rely on the electronic record. In civil
cases, where the certificate isn’t given albeit it’s demanded, the court may summon the person/ persons
and seek the certificate. It’s always subject to the discretion of the judge and shall be in due
consideration of facts of each case.
In criminal cases, the principles are subtly different. In criminal law, the accused shall be supplied with
all the documents that the prosecution intends to rely before the commencement of the trial.14 The
premise is that the accused shall be given a fair opportunity to defend himself and shall be given a fair
trial. Another premise is that the prosecution cannot fill up any lacunae during the trial. 15 It’s envisaged
that the investigation is completed and the prosecution has a concrete case against the accused prior
to commencement of the trial. Except in cases where the prosecution had mistakenly failed to file a
document, all documents shall be provided to the accused prior to the commencement of the trial.

10
The Civil Procedure Code, 1908 (Act 5 of 1908), Ord. XVI Rule 7 reads as under:
“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.”
11
The Criminal Procedure Code, 1973 (Act 2 of 1974), s.91 reads as under:
“Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such
Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power
such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in
the summons or order.”
12
Chandra Kishore Jha v. Mahavir Prasad MANU/SC/0594/1999.
13
Raj Kumar Dubey v. Tarapda Dey MANU/SC/0018/1987.
14
Supra note 11, s.207.
15
Central Bureau of Investigation v. R.S. Pai, MANU/SC/0246/2002.

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Hence, the certificate may be produced at a subsequent stage subject to lack of prejudice being caused
to the accused. The Court shall ensure that the subsequent production of the certificate shall not hinder
the fair trial and shall not cause any prejudice to the accused.
IV. CONCLUSION
The Court did not interfere with the verdict of the High Court. The appeal was dismissed. This judgment
is commendable as:
a. It’s in conformity with the statutory provisions, as laid down under
Sections 65A and 65B of the Act;
b. The case, in the interests of justice and good conscience, allowed the video-camera recordings
to be produced as evidence albeit the certificate isn’t produced before the Court;
c. Justice Ramasubramanian, in his obiter dicta, suggested amending these provisions as they
aren’t in nexus with the contemporary era. Sections 65A and 65B are in pari materia with those
of the erstwhile English law;
d. It isn’t amiss to mention that in the contemporary era, an electronic record shall not be
differentiated from a document. They shall not be distinguished and the special provisions for
electronic evidence aren’t needed.
e. Hence, the time is ripe to amend the law and remove the differences between a document and
an electronic record. The want of certificate shall be dispensed with subject to the compliance
of authenticity and genuineness of electronic evidence adduced.

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