65B. Admissibility of electronic records
Supreme Court of India
Anvar P.V vs P.K.Basheer &
Ors Author: Kurian
Bench: Chief Justice, Kurian
Joseph, Rohinton Fali Nariman 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 J U D G M E N T
Anvar P.V. v. P.K. Basheer and others, 2014 (10) SCALE
660 and P.V. v. P. K. Basheer
(2014)10 SCC 473
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:
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?
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?
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?
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?
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?
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?
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?
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?
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?
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.
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:
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.
The
conditions referred to in sub-section (1) in respect of a computer output shall
be the following, namely: -
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;
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;
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
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.
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
“
by a
combination of computers operating over that period; or
by
different computers operating in succession over that period; or
by
different combinations of computers operating in succession over that period; or
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.
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, -
identifying
the electronic record containing the statement and describing the manner in
which it was produced;
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;
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.
For
the purposes of this section, -
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;
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;
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 there from 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:
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;
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;
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
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:
There
must be a certificate which identifies the electronic record containing the
statement;
The
certificate must describe the manner in which the electronic record was
produced;
The
certificate must furnish the particulars of the device involved in the production
of that record;
The
certificate must deal with the applicable conditions mentioned under Section
65B(2) of the Evidence Act; and
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 andPW-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.
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