~ National University of Study and Research in Law, Ranchi ~

CASE ANALYSIS

CASE: ANVAR P.V. V. P.K. BASHEER

SUBMITTED BY: SUBMITTED TO:

VISHAKHA RAJGARHIA

SEMESTER V A

ROLL NO. 417

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~ CASE ANALYSIS ON ANVAR P.V. V. P.K. BASHEER ~
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S.NO. PARTICULARS DATA

1 NAME OF THE CASE Anvar P.K v. P.V. Basheer

2 CITATION (AIR 2015 SC 180)

3 SECTIONS () 22-A, 45-A, 59, 65-A and 65-B of the Evidence Act.

4 PETITIONER Anvar P.K.

5 RESPONDENT P.V. Basheer

6 HONBLE JUDGES R.M. Lodha, C.J.I., Kurian Joseph and Rohinton Fali
Nariman
7 OVERRULED CASE State (NCT of Delhi) v. Navjot Sandhu alias Afsan
Guru [(2005) 11 SCC 6000] (the Parliament attack
Case) which had held a print out of cell phone calls
to be admissible without the underlying digital data.

INTRODUCTION:

In this significant judgment, the Supreme Court has settled the controversies arising from the
various conflicting judgments as well as the practices being followed in the various High Courts
and the Trial Courts as to the admissibility of the Electronic Evidences. The Court has
interpreted the Section 22A, 45A, 59, 65A & 65B of the Evidence Act and held that secondary
data in CD/DVD/Pen Drive are not admissible without a certificate U/s 65 B(4) of Evidence
Act. It has been elucidated that electronic evidence without certificate U/s 65B cannot be proved
by oral evidence and also the opinion of the expert U/s 45A Evidence Act cannot be resorted to
make such electronic evidence admissible.

BRIEF FACTS:

In 2011, the First respondent was a candidate of Indian Union Muslim League who was declared
elected to 034 Eranad Legislative Assembly Constituency with 58,698 votes as against 47452
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votes secured by the petitioner, who contested as an independent candidate, allegedly supported
by the Left Democratic Front. It was alleged that the first respondent disseminated false
information/ statement regarding involvement of the petitioner in the murder of one Manaf by
using various promotional tactics with the intention to deliberately raked up to prejudice the
prospects of the petitioner. Thereafter, the petitioner sought for a declaration before the High
Court of Kerala to set aside the election of the first respondent void for use of corrupt practice of
undue influence under section 100(1)(b) read with section 123(2)(ii) and (4) of Representation of
People Act, 1951 and also to declare the petitioner as the duly elected candidate from 034 Eranad
Assembly Constituency.

The electronic records involved were Video CDs containing the election propaganda
announcements, interviews, and public meetings alleged to have been made by the respondents
side, which were originally recorded in mobile phones and movie cameras, and the same were
transferred to computers, and by using the said computers as devices for data transferring, the
CDs were produced. The CDs so produced were marked before the court as evidence, without
being produced the originals.

ISSUE:

Whether any documentary evidence in the form of an electronic record can be proved only in
accordance with the procedure prescribed under Section 65B of the Evidence Act?

HIGH COURT:

High Court dismissed election petition holding that corrupt practices pleaded in petition were not
proved and, hence, election could not be set aside under Section 100(1)(b) of Representation of
People Act, 1951. Aggrieved by the order of High Court, the Petitioner approached Supreme
Court.

SUPREME COURT:

1. It was held that electronic records are more susceptible to tampering, alteration,
transposition, excision, etc., so without safeguards taken to ensure the source and
authenticity, the whole trial based on proof of electronic records can lead to travesty of

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justice. Section 65B of the Evidence Act being a not obstante clause would override the
general law on secondary evidence under Section 63 and 65 of the Evidence Act. The section
63 and section 65 of the Evidence Act have no application to the secondary evidence of the
electronic evidence and same shall be wholly governed by the Section 65A and 65B of the
Evidence Act.
2. It was also held in aforesaid precedent that the evidence relating to electronic record, being a
special provision, the general law on secondary evidence under Section 63 read with Section
65 of The Indian Evidence Act shall yield to be same; Generalia specialibus non derogant,
special law will always prevail over the general law.
3. Further held that 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.
4. Furthermore, held in aforesaid precedent that 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 only if all the conditions provided under section 65B (4) of the Indian Evidence
Act is fulfilled.
5. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with
the certificate in terms of Section 65B of The Indian Evidence Act obtained at the time of
taking of document, without which, the secondary evidence pertaining to that electronic
record, is inadmissible.

CONCLUSION

The admissibility of the secondary electronic evidence has to be adjudged within the parameters
of Section 65B of Evidence Act and the proposition of the law settled in the recent judgment of
the Apex Court and various other High Courts as discussed above. The proposition is clear and
explicit that if the secondary electronic evidence is without a certificate u/s 65B of Evidence Act,
it is not admissible and any opinion of the forensic expert and the deposition of the witness in the
court of law cannot be looked into by the court. However, there are few gaps which are still
unresolved as what would be the fate of the secondary electronic evidence seized from the
accused wherein, the certificate u/s 65B of Evidence Act cannot be taken and the accused cannot

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be made witness against himself as it would be violative of the Article 19 of the Constitution of
India.

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