Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal

In the 2014 Maharashtra Legislative Assembly Elections for the Jalna Legislative Assembly Constituency, the appellant, Arjun Panditrao Khotkar (Shiv Sena), was declared elected, defeating the respondent, Kailash Kushanrao Gorantyal (Indian National Congress). The respondent filed an Election Petition before the Bombay High Court challenging the election under the Representation of the People Act, 1951, alleging that the nomination papers filed by the appellant were submitted past the mandatory statutory deadline of 3:00 PM on the final date of nominations.

To substantiate this claim, the election petitioner sought to rely on CCTV footage recorded by surveillance cameras installed in and around the office of the Returning Officer. The Election Commission produced copies of the CCTV video recordings burned onto compact discs (CDs) and visual display units. However, despite multiple summons issued by the High Court and repeated written requisitions by the election petitioner, the competent election officials failed to furnish a certificate under Section 65B(4) of the Evidence Act certifying the computer system and recording parameters.

The Bombay High Court held that since the election petitioner was a private party who had no physical custody or control over the Election Commission's CCTV servers, insisting on a Section 65B certificate would result in an impossible burden (lex non cogit ad impossibilia), and admitted the CCTV footage into evidence based on oral testimony of the recording technician. The High Court set aside the appellant's election. The returned candidate appealed to the Supreme Court. A Division Bench referred the matter to an authoritative Three-Judge Bench to resolve severe conflicts between Anvar P.V. (2014) and the later two-judge bench decision in Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801, which had relaxed the Section 65B requirement for parties not in possession of the electronic device.

1. Validity of the Device Control Exemption in Shafhi Mohammad: Was the two-judge bench decision in Shafhi Mohammad (2018) correct in holding that a party who is not in possession or control of an electronic device is legally exempt from producing a Section 65B(4) certificate?
2. Remedy for Litigants Unable to Procure Certificates: What legal recourse is available to a party who wishes to rely on secondary electronic evidence held by an uncooperative third party, telecom company, or public authority?
3. Stage of Production of Section 65B Certificate: At what precise procedural stage must the Section 65B certificate be produced in civil and criminal proceedings? Can a defective or missing certificate be cured before judgment?
4. Pan-India Directives to Telecom & Law Enforcement: What institutional directions must be issued to mobile network operators and police departments regarding digital preservation and data retention?

The Three-Judge Bench of the Supreme Court of India answered the reference by reaffirming the binding rule in Anvar P.V., expressly overruling Shafhi Mohammad, and setting down exhaustive guidelines for procuring certificates from third parties.

On the facts of the case, the Court upheld the High Court's final decision setting aside the appellant's election, holding that the primary election records and substantial other oral and documentary evidence established the corrupt practice.

• Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473: Laid down the foundational certificate requirement; approved and reinforced by Arjun Panditrao Khotkar.
• Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801: Held certificate dispensable for third parties; expressly overruled in Arjun Panditrao Khotkar.
• Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1: Authoritative 3-Judge Bench settling electronic evidence law across India.
• State of Karnataka v. T. Naseer (2023) 10 SCC 431: Applied Arjun Panditrao Khotkar to permit the prosecution to produce Section 65B certificates at the stage of defense evidence.