Mahendra Kumar Dixit vs State of Madhya Pradesh

S.C. Sharma, J.

The present revision has been filed u/S. 397 / 401 of the Code of Criminal Procedure, 1973 against the order dated 31/10/2014 passed by the learned Special Sessions Judge (Prevention of Corruption Act), Ujjain in Special Case No. 13/14.

Facts of the case, as stated, reveal that a case has been registered against the present applicant for an offence u/Ss. 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and u/S. 120-B of the Indian Penal Code. After registration of the First Information Report and completion of investigation, a charge sheet has been filed and the applicant has been put to trial for the offences, as stated above. It has been further stated that at the time of investigation, the Investigating Agency has filed some documents along with the charge sheet which are Computer Printouts and it has been alleged that in regard to the same, the mandatory requirement of Sec. 65-B of the Indian Evidence Act, has not been complied with. It has been further stated that during the pendency of the trial, the prosecution has examined one witness namely; Ajay Kumar Gupta (PW 3) and he is a witness to the documents which are Computer Printouts. He is a witness to the panchnama transcript and seizure of CD and pre-trap panchnama. It has been further stated that an objection was raised on behalf of the applicant regarding non compliance of the provision of Sec. 65B of the Evidence Act and the same has been turned down. It has been argued before this Court that the impugned order deserves to be set aside and the documents which have been got exhibited on account of non compliance of Sec. 65B of the Evidence Act, deserves to be expunged. He has placed reliance upon the judgment delivered by the apex Court in the case of Anvar P.V. Vs. P.K. Basheer and others (Civil Appeal No. 4226 / 2012) and the same is also on record.

On the other hand, learned counsel for the respondent has vehemently argued before this Court that the revision petition deserves to be dismissed as Sec. 65(4) of the Indian Evidence Act permits a document to be exhibited and in the light of Sec. 64 of the Indian Evidence Act, the order passed by the learned Judge does not warrant any interference.

Heard learned counsel for the parties at length and perused the record.

This Court has very carefully gone through Sec. 65B of the Indian Evidence Act and the same reads as under :

65-B(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.

Similarly, Sec. 65(4) of the Indian Evidence Act reads as under:

65(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 purpose of this sub-section it shall be sufficient for a matter to be stated to the best of knowledge and belief of the person stating it.

The apex Court has very minutely considered Sec. 65B of the Indian Evidence Act in the matter Anvar P.V. (supra). The aforesaid judgment was also brought to the notice of the trial Court. The trial Court has certainly not at all considered the aforesaid judgment delivered by the apex Court though it has mentioned in the opening paragraph that the counsel has placed reliance upon the aforesaid judgment.

The apex Court in the case of Anvar P.V. (supra) in paragraphs 14 to 19 and 37 to 41, has held as under :

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.

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, 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, 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.

In the light of the aforesaid judgment and the fact that the trial Court has not taken into account the judgment delivered by the apex Court in the case of Anvar P.V. (supra), the impugned order dated 31/10/2014 is hereby set aside. The matter is remanded back to the trial Court to decide the objection afresh by taking into account the law laid down by the apex Court in the case of Anvar P.V. (supra).

With the aforesaid, the revision petition stands allowed. No order as to costs.