Anvar P.V. v P.K. Basheer

Facts

In an election petition under the Representation of the People Act, 1951, the appellant—runner-up in the 2011 election to the 034 Eranad Legislative Assembly Constituency in Kerala—challenged the election of the returned candidate, P.K. Basheer, alleging corrupt practices. The alleged corrupt practices included the distribution of a defamatory leaflet (Exhibit-P1) and the broadcast of defamatory songs and announcements recorded on CDs. The CDs were tendered as electronic evidence but were not accompanied by certificates under Section 65B of the Evidence Act. The trial outcome turned on whether such electronic records could be admitted as secondary evidence without the statutory certificate.

Issues

• Whether an electronic record produced as secondary evidence is admissible without a certificate under Section 65B of the Indian Evidence Act, 1872.
• Whether the general provisions on secondary evidence (Sections 63 and 65) apply to electronic records, or whether Sections 65A and 65B constitute a complete and exclusive code.
• Whether the earlier ruling in State (NCT of Delhi) v Navjot Sandhu, permitting secondary electronic evidence under Sections 63 and 65, was correct.

Arguments

The appellant contended that the CDs were admissible as secondary evidence under the general provisions of Sections 63 and 65, relying on Navjot Sandhu, and that the recordings proved the corrupt practices alleged. The respondent contended that electronic records are governed exclusively by Sections 65A and 65B, and that without the mandatory certificate under Section 65B(4) the CDs were inadmissible, leaving the allegations unproved.

Held

The Supreme Court held that an electronic record by way of secondary evidence shall not be admitted unless the requirements of Section 65B are satisfied, the certificate under Section 65B(4) being mandatory and to be obtained at the time of producing the document. The Court reasoned that Sections 65A and 65B form a special and complete code governing the admissibility of electronic records, and that special law prevails over the general provisions on secondary evidence in Sections 63 and 65. It clarified that this requirement applies only to secondary electronic evidence; where the electronic record is itself produced as primary evidence under Section 62 (the original being adduced), no certificate is needed. Applying this, the CDs lacking Section 65B certificates were inadmissible, causing the corrupt-practice allegations to collapse, and the leaflet allegation also failed for want of proof of the returned candidate's consent. The Court expressly overruled the contrary view in Navjot Sandhu, which had overlooked Sections 59 and 65A.

Ratio decidendi

All matters concerning the admissibility of an electronic record as secondary evidence are wholly governed by Sections 65A and 65B of the Evidence Act, which override the general provisions in Sections 63 and 65. Secondary electronic evidence is inadmissible unless accompanied by the certificate prescribed by Section 65B(4), obtained at the time of producing the record; primary electronic evidence under Section 62 needs no such certificate.

Significance

A landmark on the admissibility of electronic evidence, it made the Section 65B certificate mandatory for secondary electronic records and overruled State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600. It was later refined in Shafhi Mohammad v State of Himachal Pradesh (2018), then the conflict was resolved by a three-judge bench in Arjun Panditrao Khotkar v Kailash Kushanrao Gorantyal (2020), which reaffirmed Anvar P.V. and overruled Shafhi Mohammad. Under the new code, the same scheme is carried forward by Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023; Section 63 BSA retains the certificate requirement (now requiring a certificate from both the person in charge of the device and an expert), so the Anvar principle continues to apply.

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