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Saturday, October 4, 2014

Electronic Records - Admissibility -Secondary Evidence ? - Primary Evidence ? - Apex court held that Navjot 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 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible. The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, 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, announcements and speeches fall to the ground.The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements 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 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 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B 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, without compliance of the conditions in Section 65B of the Evidence Act. = CIVIL APPEAL NO. 4226 OF 2012 Anvar P.V. … Appellant (s) Versus P.K. Basheer and others … Respondent (s) = 2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41931

Electronic Records - Admissibility - Secondary Evidence ? - Primary Evidence ? -Apex court held that Navjot  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 65B are satisfied. Thus, in the case of CD,  VCD,  chip,  etc.,  the same shall be accompanied  by  the  certificate  in  terms  of  Section  65B obtained at the time of taking the document, without  which,  the  secondary evidence pertaining to that electronic record, is inadmissible. The appellant admittedly has  not  produced  any  certificate  in  terms  of Section 65B in respect of the CDs, Exhibits-P4, P8, 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,  announcements and speeches fall to the ground.The situation would have been different had the  appellant  adduced  primary evidence, by making available in evidence, the  CDs  used  for  announcement and songs. Had those CDs used for objectionable songs or announcements  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 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 65B of the Evidence Act are not  satisfied.  It  is  clarified  that notwithstanding what we have stated herein in the  preceding  paragraphs  on the secondary evidence on electronic record with reference  to  Section  59, 65A and 65B 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, without compliance of the conditions in Section  65B of the Evidence Act. =

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. =

 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.=

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.=

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.
The guidance relevant to the issue before us is reflected in  the
statutory provisions extracted above.=

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 prescribed under Section  65B.  Section  65B  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 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 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  65B(2).
Following  are  the  specified
conditions under Section 65B(2) of the Evidence Act:

(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 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  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 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 activity.

Under Section 65B(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 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  the  electronic
record was produced;

(c)   The certificate must furnish the particulars of  the  device  involved
in the production of that record;

(d)   The certificate must deal with  the  applicable  conditions  mentioned
under Section 65B(2) of the Evidence Act; and

(e)   The certificate must be signed by a  person  occupying  a  responsible
official position in relation to the operation of the relevant device.

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 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  hallmarks  pertaining
to electronic record sought to  be  used  as  evidence.
Electronic  records
being more susceptible to tampering,  alteration,  transposition,  excision,
etc. without such safeguards, the whole trial based on proof  of  electronic
records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of  Section  65B  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.

The Evidence Act does not contemplate or permit the proof of  an  electronic
record by oral evidence if requirements under Section 65B  of  the  Evidence
Act are not complied with, as the law now stands in India.

It is relevant to note that Section 69 of the Police and  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 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.

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  65B  is
sufficient to hold that the  special  provisions  on  evidence  relating  to
electronic record shall  be  governed  by  the  procedure  prescribed  under
Section 65B 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.
To  that
extent,  the  statement  of  law  on  admissibility  of  secondary  evidence
pertaining to electronic record, as stated by this court  in  Navjot  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 65B are satisfied. Thus, in the case of CD,  VCD,  chip,  etc.,  the
same shall be accompanied  by  the  certificate  in  terms  of  Section  65B
obtained at the time of taking the document, without  which,  the  secondary
evidence pertaining to that electronic record, is inadmissible.

The appellant admittedly has  not  produced  any  certificate  in  terms  of
Section 65B in respect of the CDs, Exhibits-P4, P8, 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,  announcements
and speeches fall to the ground.

The situation would have been different had the  appellant  adduced  primary
evidence, by making available in evidence, the  CDs  used  for  announcement
and songs. Had those CDs used for objectionable songs or announcements  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
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 65B of the Evidence Act are not  satisfied.
It  is  clarified  that
notwithstanding what we have stated herein in the  preceding  paragraphs  on
the secondary evidence on electronic record with reference  to  Section  59,
65A and 65B 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, without compliance of the conditions in Section  65B
of the Evidence Act.=

Having regard to the admissible evidence available  on  record,  though  for
different  reasons,  we  find  it  extremely  difficult  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.


2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41931

                 IN THE SUPREME COURT OF INDIA

                       CIVIL  APPELLATE  JURISDICTION

                        CIVIL APPEAL NO. 4226 OF 2012



Anvar P.V.                                         … Appellant (s)

                                   Versus

P.K. Basheer and others                            … Respondent (s)



                               J U D G M E N T


KURIAN, J.:



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.

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              xxx             xxx

2)          xxx              xxx             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              xxx              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?”



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.

Heard Shri Vivek Chib, learned Counsel appearing for the appellant and  Shri
Kapil Sibal, learned Senior Counsel appearing for the first respondent.

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.

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.

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.”



 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.”



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.”



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.”



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  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 computers, whether –


(a)   by a combination of computers operating over that period; or


(b)   by different computers operating in succession over that period; or


(c)   by different combinations of computers operating  in  succession  over
that period; or


(d)   in any other manner  involving  the  successive  operation  over  that
period, in whatever order,  of  one  or  more  computers  and  one  or  more
combinations of computers,


all the computers used for that purpose during that 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 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 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;


(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  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 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, -


 (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  supplied
directly  or  (with  or  without  human  intervention)  by  means   of   any
appropriate equipment;


(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 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 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 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 to the issue  under
discussion.



In the Statement of Objects and Reasons to the IT Act, it is stated thus:

“New communication systems and digital technology have 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 systems function  faster  and  more
effective. The guidance relevant to the issue before us is reflected in  the
statutory provisions extracted above.

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 prescribed under Section  65B.  Section  65B  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 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 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  65B(2).  Following  are  the  specified
conditions under Section 65B(2) of the Evidence Act:

(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 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  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 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 activity.

Under Section 65B(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 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  the  electronic
record was produced;

(c)   The certificate must furnish the particulars of  the  device  involved
in the production of that record;

(d)   The certificate must deal with  the  applicable  conditions  mentioned
under Section 65B(2) of the Evidence Act; and

(e)   The certificate must be signed by a  person  occupying  a  responsible
official position in relation to the operation of the relevant device.

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 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  hallmarks  pertaining
to electronic record sought to  be  used  as  evidence.  Electronic  records
being more susceptible to tampering,  alteration,  transposition,  excision,
etc. without such safeguards, the whole trial based on proof  of  electronic
records can lead to travesty of justice.

Only if the electronic record is duly produced in terms of  Section  65B  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.

The Evidence Act does not contemplate or permit the proof of  an  electronic
record by oral evidence if requirements under Section 65B  of  the  Evidence
Act are not complied with, as the law now stands in India.

It is relevant to note that Section 69 of the Police and  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 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.

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  65B  is
sufficient to hold that the  special  provisions  on  evidence  relating  to
electronic record shall  be  governed  by  the  procedure  prescribed  under
Section 65B 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.

In State (NCT of Delhi) v. Navjot Sandhu alias Afsan  Guru[1],  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 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  compared  with
such copies”. Section 65 enables secondary evidence of  the  contents  of  a
document to be adduced if the original 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 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  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 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 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.”


It may be seen that it was a case where  a  responsible  official  had  duly
certified the document at the time of production itself. The  signatures  in
the certificate were also identified. That is apparently in compliance  with
the procedure prescribed under Section 65B of the Evidence Act. However,  it
was held that irrespective  of  the  compliance  with  the  requirements  of
Section 65B, which is a special provision dealing with admissibility of  the
electronic record, there is no bar in  adducing  secondary  evidence,  under
Sections 63 and 65, of an electronic record.

The evidence relating to electronic record, as noted herein before, being  a
special provision, the general law on secondary evidence  under  Section  63
read with Section 65 of the Evidence Act shall yield to the same.  Generalia
specialibus 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.  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  65B.  To  that
extent,  the  statement  of  law  on  admissibility  of  secondary  evidence
pertaining to electronic record, as stated by this court  in  Navjot  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 65B are satisfied. Thus, in the case of CD,  VCD,  chip,  etc.,  the
same shall be accompanied  by  the  certificate  in  terms  of  Section  65B
obtained at the time of taking the document, without  which,  the  secondary
evidence pertaining to that electronic record, is inadmissible.

The appellant admittedly has  not  produced  any  certificate  in  terms  of
Section 65B in respect of the CDs, Exhibits-P4, P8, 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,  announcements
and speeches fall to the ground.

The situation would have been different had the  appellant  adduced  primary
evidence, by making available in evidence, the  CDs  used  for  announcement
and songs. Had those CDs used for objectionable songs or announcements  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
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 65B of the Evidence Act are not  satisfied.  It  is  clarified  that
notwithstanding what we have stated herein in the  preceding  paragraphs  on
the secondary evidence on electronic record with reference  to  Section  59,
65A and 65B 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, without compliance of the conditions in Section  65B
of the Evidence Act.

Now, we shall deal with the  ground  on  publication  of  Exhibit-P1-leaflet
which is also referred to  as  Annexure-A.  To  quote  relevant  portion  of
Paragraph-4 of the election petition:



“4.   On the 12th of April, 2011, the day  previous  to  the  election,  one
Palliparamban   Aboobacker,   S/o    Ahamedkutty,    Palliparamban    House,
Kizhakkechathalloor, Post Chathalloor, who was a 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  and  was
thereby the  agent  of  the  first  respondent,  actively  involved  in  the
election propaganda of the 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    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
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  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
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 concealing the fact that petitioner was  honourably  acquitted
by the Honourable Court. …”



The allegation is that at least 25,000  copies  of  Exhibit-P1-leaflet  were
printed and published with the consent of the 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-Palliparamban   Aboobakar   and
published by Kudumba Souhrida Samithi (association of  the  friends  of  the
families), though PW-4 denied the same. The same  was  printed  at  District
Panchayat Press, Kondotty with the assistance of one V. Hamza.

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 participated  in  the  election  campaign,  the
printing, publication and distribution  of  annexure-A  was  made  with  the
consent and knowledge of the first respondent as it is gathered from Shri  P
V Mustafa a worker of the petitioner that the  expenses  for  printing  have
been shown in the electoral return of the first respondent. …”



At Paragraph-18 of the election petition, it is stated thus:



“18.  … As far as the printing and  publication  of  annexure-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 in which the said leaflets were printed. ...”



PW-4-Palliparamban  Aboobakar  has  completely   denied   the   allegations.
Strangely, Shri Mustafa and Shri Hamza, referred to  above,  have  not  been
examined. Therefore, 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 Hamza was never the Manager of  the  Press.
Exhibit-X4-copy 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  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
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.

It is further contended that Exhibit-P1 was printed and 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:

“123. Corrupt  practices.—The  following  shall  be  deemed  to  be  corrupt
practices for the purposes of this Act:—

(1)         xxx        xxx        xxx        xxx

(2)         xxx        xxx        xxx        xxx

(3)         xxx        xxx        xxx        xxx

(4) The publication by a candidate or his agent or by any 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  withdrawal,  of  any
candidate,  being  a  statement  reasonably  calculated  to  prejudice   the
prospects of that candidate's election.”





In the grounds for declaring election to be void  under  Section  100(1)(b),
the court  must  form  an  opinion  “that  any  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 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 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
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 publication. In Charan Lal Sahu  v.  Giani
Zail Singh and another[2], this Court held as under:



“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 means or amounts to consent, that 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 the facts of the                       situation. …”



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, direct proof on consent is very  difficult.
Consent is to be inferred from the circumstances as held by  this  Court  in
Sheopat Singh v. Harish Chandra and  another[3].  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  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  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, 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 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 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.  KL
13B 3159 and KL 10J 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 Secretary of DYFI, the youth wing of CPI(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
10J 5992. He has completely denied of  any  such  material  like  Exhibit-P1
being transported by him in the jeep. It is also significant  to  note  that
neither PW-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 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  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  or
with his consent. The only allegation is on knowledge and connivance on  the
part of the 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 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.

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 of Exhibit-P1-leaflet were  taken  in  two  jeeps
and  distributed  throughout  the  constituency  at  around  08.00  p.m.  on
12.04.2011. To quote the relevant portion from Paragraph-5 of  the  election
petition:

“5.   … Both the first respondent and all  his  election  agents  and  other
persons who were working for him knew that the 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 in S.C. No. 453 of 2001 of the  Additional
Sessions Court (Adhoc No.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  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 KL13-B 3159 and KL10-J 5992 which  were  seen  by  two
electors,    Sri V Arjun aged 31 years, Kottoor 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  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) 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 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. …”



The allegation is on distribution of  Exhibit-P1  at  about  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-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  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.

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 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  publication  of
Exhibit-P1-leaflet. There is also  no  evidence  that  the  distribution  of
Exhibit-P1 was with the consent of first respondent. The allegation  in  the
election petition that bundles of Exhibit-P1 were kept in the house  of  the
first respondent 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  been  committed
in the interest of the  returned  candidate  by  an  agent  other  than  his
election agent, as per the ground under  Section  100(1)(d)(ii)  of  the  RP
Act. The definite case is only of Section 100(1)(b) of the RP Act.

In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh  and  others[4],  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 the following considerations:
[pic](1) the  nature,  character,  respectability  and  credibility  of  the
evidence,
(2) the surrounding circumstances and the improbabilities appearing  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, 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 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.

Now, we shall deal with the last ground  on  announcements.  The  attack  on
this ground is based on Exhibit-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.

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 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.

The ground of undue influence under Section 123(2) of the RP  Act  has  been
given up, so also the ground on publication of flex boards.

It  is  now  the  settled  law  that  a  charge  of  corrupt   practice   is
substantially akin to a criminal charge. A two-Judge  Bench  of  this  Court
while dealing with the said issue in Razik Ram v. Jaswant Singh Chouhan  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. 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 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 the doubt of a  timid,  fickle  or  vacillating
mind — as to the 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 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 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 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 very laudable and sacrosanct  object  of  the
Act  in  maintaining  purity  of  the  electoral  process.  (please  see  S.
Harcharan Singh v. S. Sajjan Singh)”





Having regard to the admissible evidence available  on  record,  though  for
different  reasons,  we  find  it  extremely  difficult  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.

There is no order as to costs.

                                                        …………....……………………CJI.
                                              (R. M. LODHA)

                                                        .………….....……………………J.
     (KURIAN JOSEPH)

                                                        …………......……………………J.
                                                     (ROHINTON FALI NARIMAN)
New Delhi;
September 18, 2014.
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[1]
       (2005) 11 SCC 600
[2]    (1984) 1 SCC 390
[3]    AIR 1960 SC 1217
[4]    (1984) 4 SCC 649
[5]    (1975) 4 SCC 769
[6]    (2009) 10 SCC 239

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                                                                  REPORTABLE


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