1. The same principle as to restoration under Order IX Rule 13 CPC apply to Restoration under Order IX Rule 9 CPC since both rules, in substance, require ‘sufficient cause’ for restoration.
2. Where a suit is dismissed for default, no appeal is provided under Order XLIII CPC. (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249)
3. When an application under Order IX Rule 9 or Order IX Rule 13 CPC is itself dismissed for default, petition to restore it can be filed (other than an appeal under Order XLIII).
4. When such a (second round) restoration petition — akin to an application under Order IX Rule 9 — is also dismissed for default, an appeal under Order XLIII Rule 1(c) can be filed (See: Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249).
Restoration Petition Dismissed for Default. Application to restore it is akin to O 9, r 9
The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, held as under:
“57. The application filed by Ranjit Singh, predecessor-in-interest of the appellants under Order 9, Rule 13 C.P.C. was dismissed on 19.10.2001 in default. When the appellants filed application dated 21.08.2002 to recall the order dated 19.10.2001, their application in the nature of proceeding seeking recall of an order dismissing the application, the miscellaneous proceedings dated 21.08.2002 were akin to application under Order 9, Rule 9 C.P.C. seeking recall of order dismissing their application under Order 9, Rule 13 C.P.C.. … Hence, against such order the appeal was clearly maintainable under Order 43, rule 1 (c) C.P.C.”
Referring Jaswant Singh v. Parkash Kaur : AIR 2017 SC 5275, it is held by the Kerala High Court in Sam Sabu v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.), as under:
“Dismissal of an application filed under Order IX Rule 13 of the Code for default is an order passed in miscellaneous proceedings and it is expressly included in the explanation provided to Section 141 of the Code. It follows that, Annexure-10 application filed by the defendants (Application for restoration of the application filed under Order IX Rule 13 which was dismissed in default) is maintainable under Order IX Rule 9 of the Code.”
Suit Dismissed for Default, No Appeal: For it is Not Specifically Conferred
Jaswant Singh v. Parkash Kaur (A.K. Sikri, Ashok Bhushan, J.), AIR 2017 SC 5275; 2018-12 SCC 249, is the Authority on this matter.
The Supreme Court of India held in this case (Jaswant Singh v. Parkash Kaur) as under: Appeal is Not a Substantive Right. No Appeal Unless Appeal Specifically Conferred.
“58. There cannot be any dispute to the view taken by the different High Courts in various judgments as noticed above that an appeal is a substantive right and not a mere matter of procedure and unless the right to appeal is specifically conferred it cannot be inferred under Section 141 of the C.P.C.”
By Section 141 – Order IX is Made applicable to all Proceedings
In Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, it is continued as under:
“58. ….. The present is not a case where we are reading the right of appeal from Section 141 CPC. Section 141 now expressly provides that Order 9 is applicable to all proceedings in civil jurisdiction. When Order 9 is made applicable to the proceedings in the nature of application seeking recall of the order dismissing the application under Order 9, Rule 13 C.P.C. the order passed by the civil court rejecting such application is clearly referable to Order 9, Rule 9 C.P.C. and an order which is clearly referable to Order 9, Rule 9 C.P.C. shall also be appealable by virtue of Order 43, Rule 1 (c) C.P.C.
Rejection of application for restoration which is referable to Order 9, we cannot refuse to treat an order rejecting application under Order 9, Rule 9 C.P.C.for the purposes of Order 43, Rule 1 (c) C.P.C.”
Second Application for Restoration of O IX r. 9 Application is Maintainable
The Supreme Court, in Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275; 2018-12 SCC 249, further continued as under:
“58. …. The Full Bench judgment of Madhya Pradesh High Court in so far as it answered question No.1 as framed in paragraph 1 of the judgment lays down the correct law. However, the view of the Full Bench that when application under Order IX Rule 9 C.P.C. for restoration of suit is rejected, the second application for restoration of the original application although falls under the purview of the Order IX Rule 9 C.P.C. read with Section 141, rejection of the application does not fall under Order XLIII Rule 1(c) C.P.C., to the above extent, the view of the Full Bench cannot be approved. When the second application as held by Full Bench falls under Order IX Rule 9 C.P.C., hence the right of appeal shall also accrue when such application is rejected. In view of the above discussion, we are of the considered opinion that the appeal filed by the appellants against order dated 23.12.2005 was clearly maintainable and the High Court erred in holding that such appeal was not maintainable.”
The Kerala High Court, following Jaswant Singh v. Parkash Kaur, AIR 2017 SC 5275, it is held in Latha Menon v. Ponnamma (Anil K.Narendran, P.G. Ajithkumar, JJ.), 2022-3 KLT 583, as under:
“The Apex Court in Jaswant Singh v. Parkash Kaur [2018-12 SCC 249] was concerned with the question, where an application for restoration of application under Order IX, Rule 13 of the Code is dismissed for non-appearance of the applicant, would not that order be amenable to appeal under Order XLIII, Rule 1(c) or 1(d). The Apex Court has considered the extent of applicability of Section 141 of the Code to the interlocutory applications. After referring to various decisions of the Apex Court as well as different High Courts including what has been held by this Court in Kallianikutty Amma v. State of Kerala [AIR 1974 Kerala 171] it was observed that the provisions of Section 141 of the Code could not be applied except to the procedural matters; it could not be invoked in cases where a substantive right is involved.”
Application under O IX, R 13 must be liberally construed
In G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54, it was held that the words ‘was prevented by any sufficient cause from appearing’ in Order IX, Rule 13 CPC must be liberally construed to enable the court to do complete justice between the parties, particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order IX, Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case.
In Restoration, Sufficient Cause for Non-Appearance Material, Not conduct of Party
In Sam Sabu, v. The General President, Indian Pentecostal Church Of God (IPC), 2020-2 KHC 363; 2020-2 KLT(SN) 13 (R. Narayana Pisharadi, J.) held that in a restoration matter, past conduct of the defendants is not material. What is material to be considered is only whether the party has shown sufficient cause for non-appearance on the date of hearing of the application which was dismissed for default.
The Kerala High Court (Sathish Ninan, P. Krishna Kumar, JJ.) in Ambily M.M v. Santha, 2025 KER 60255, referring its earlier decision in Shivananda v. Susheela, 2021 (5) KLT 1189, held that the suit being one for partition, the bar of a suit under Order IX Rule 9 of CPC has no application, and that therefore another suit could always be filed for the relief. It is also pointed out that there is no point in driving the parties to another litigation.
The Supreme Court of India examined the contours of ‘bona fide requirement’, in Recovery Proceedings under Rent Control Enactments, in Madan Mohan v. Thakar Dass, July 21, 2026, 2026 INSC 730 (Sanjay Karol, Augustine George Masih, JJ.), as under:
“6.1 First and foremost, the existence of the landlord-tenant relationship is essential. While it is true that a landlord has the right to enjoy his own property, the law does not grant its refuge to any arbitrary action, and so a landlord simply by virtue of that status, cannot show someone the door without the due process of law. It is here that bona fide requirement comes in. Bona fide translates to ‘in good faith’ which then predicates the requirement that may be faced by a landlord. A co-ordinate Bench in Shiv Sarup Gupta v. Mahesh Chand Gupta, (1999) 6 SCC 222, held thus:
“13… “The degree of intensity contemplated by “requires” is much more higher than in mere desire. The phrase “required bona fide” is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the court. The judge of facts should place himself in the armchair of the landlord and then ask the question to himself — whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against.”
In Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, ‘bona fide requirement’ was discussed in the following terms with reference to the earlier decisions in Bega Begum v. Abdul Ahad Khan, (1979) 1 SCC 273; Surjit Singh Kalra v. Union of India, (1991) 2 SCC 87,
“14. The phrase “bona fide requirement” or “bona fide need” or “required reasonably in good faith” or “required”, occurs in almost all Rent Control Acts with the underlying legislative intent which has been considered and demonstrated innumerable times by various High Courts as also by this Court, some of which we would like to refer to. In Ram Dass v. Ishwar Chander [(1988) 3 SCC 131] it is said that the bona fide need should be genuine and honest, conceived in good faith. It was also indicated that the landlord’s desire for possession, however honest it might otherwise be, has inevitably a subjective element in it, and that desire, to become a “requirement” in law must have the objective element of a “need”, which can be decided only by taking all the relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down.”
(emphasis supplied)
7. As can be seen from the above, the Court has actively engaged with the question of ‘bona fide requirement’ right from the advent of Rent Control legislations. Across the country and across numerous statutes, this requirement is found and defined.
8. Whether or not, in a particular set of circumstances a landlord’s decision to ask his tenant to vacate, falls within ‘bona fide requirement’ is not something that can be determined by a mathematical formula. As such, let us examine the facts of the present case.
9. The primary reason why the High Court overturned the decision of the Courts below was that the landlady (Kamla Devi) had not come to the Court with clean hands and had concealed the availability of the third shop. It was observed that the said shop was used to store garbage. If the shop that is alleged to be an alternate accommodation was being used for storing waste material as has been held by both the RA and the AA, then that being the finding of fact, what occasioned the High Court to take a different view in civil revisional jurisdiction? The old saying is, ‘one man’s trash is another man’s treasure’. So, even if the statement is accepted as it is, we fail to see what is wrong with it. Let it be used as such. After all, right from beginning the ‘bona fide requirement’ was pleaded for by both Kamla Devi and Madan Mohan. It was concurrently held as such by the RA and the AA. The one that had hitherto been rented, will now be used as a shop to run a boutique.”
The High Court of Kerala, in Harrisons Malayalam Ltd. v. State of Kerala and others (Anil K. Narendran & S. Muralee Krishna, JJ.), discussed, inter alia, on 5th March 2026 (2026:KER:19290), the following with respect to the payment of Land Tax by the petitioner, Harrisons Malayalam Ltd.:
1. Whether the petitioner (Harrisons Malayalam Ltd.) has a legal right to seek a writ of mandamus to effect the Transfer of Registry, though it has not chosen to submit a proper application, with supporting documents, before the competent authority.
2. Whether the condition imposed in the Government Order – the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees, shall be subject to the final decision in the civil suit proposed to be filed by the State, is sustainable in law.
Contention of the State
Land tax can be accepted only from the registered holder, as provided under the Kerala Land Tax Act, 1961 and Rules made thereunder.
The land is the absolute property of the Government.
The Government has taken steps to file civil suit against the petitioner.
Contention of Harrisons Malayalam Limited
Malayalam Plantations Ltd. has been shown as the holder of the Estate in the revenue records.
Unless and until the Government establishes its title in a competent civil court, the Government is not entitled to decline acceptance of land tax from the petitioner.
Right to property is a right guaranteed under Article 300A of the Constitution of India.
It includes the right to enjoy the property without being subjected to any restrictions other than any restrictions imposed by law.
Being the registered holder of the land, the petitioner is entitled to remit land tax
Harrisons Malayalam Ltd., is successor in title from Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act.
Harrisons Malayalam Ltd., is successor in title from predecessor in title, i.e., Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act
Were there findings on Title in the previous decision – 2018 (2) KLT 369?
In Harrisons Malayalam Ltd. v. State of Kerala and Others (2026:KER:19290), the petitioner (Harrisons Malayalam Ltd.) contended that there were findings on the title in the previous decision – Harrisons Malayalam Ltd. v. State of Kerala and Others, 2018 (2) KLT 369.
The High Court met the argument observing as under:
“14. On the aforesaid contention raised by the learned Senior Counsel for the petitioner, we notice the specific contention raised by the learned Advocate General, after referring to paragraphs 27, 98 and 141 of the decision of the Division Bench in Harrisons Malayalam Ltd. [2018 (2) KLT 369], that no such findings on title of the subject properties are there in the said decision. Relevant portion of paragraphs 27, 98 and 141 of the said decision are extracted hereunder;
“27. ……….. The essential contention urged is on jurisdiction, or the absolute lack of it under the KLC Act to proceed against the properties which cannot be said to be either “Government land” or “puramboke land” as defined under the KLC Act. HML asserts their title and possession on the various properties as described in the Schedules. The Special Officer appointed under the KLC Act has absolutely no jurisdiction to proceedagainst lands owned by anyone other than the Government. The title is traced without interruption to about 100 years prior and has been obtained by the petitioner, a Company registered under the Companies Act, 1956 (for brevity “Companies Act”), by way of an indenture of 08.03.1923 bearing Deed No.1006 of 1923. The original of the said deed has been deposited before this Court and a copy has been produced as Ext.P22(b). The submissions revolve on this indenture; the efficacy of which is seriously put to test by the State and the party respondents. HML and its assignees having raised the ground of title, as had been accepted by the Government too, evident from the revenue records; the proceedings are ill motivated, for reason of it having originated on mere paper reports. Further the question of valid title having been raised, the Special Officer appointed under the KLC Act is divested of jurisdiction to further proceed.
xxx xxx
98. ……….. We, however, make it clear that we are not called upon to examine the title of the lands, as asserted by HML. We would hence not be required to examine all of the title deeds or the purchase certificates, tax receipts, inter-parte decisions, etc. We remind ourselves that we are only looking at the question of jurisdiction under the KLC Act. If, prima facie, a bona fide dispute is discernible on title, then necessarily the parties would have to be relegated to the Civil Court; without ourselves venturing on an enquiry, which we find ourselves incompetent to embark upon, in a proceeding under Article 226.
xxx xxx
141. …………Title cannot be adjudicated under the KLC Act intended only at eviction of unauthorized occupation. Title to establish it or to controvert it, has to be adjudicated before a civil court. Title we reiterate, in this contest, we have not found on the petitioners, which we are incompetent to do in the present proceedings. Title has to be found after adducing evidence in a properly initiated civil proceedings, if the State ventures so, to institute. There is no cause of action for the petitioners to approach the civil court to establish title under Section 20 of the KLC Act, the proceedings under the Act having been set aside by us.”
15. A reading of paragraph 141 of the decision would make it explicitly clear that the Division Bench did not decide the question of the title of the petitioner, since the High Court is incompetent to decide such an issue in a proceeding under Article 226 of the Constitution of India. Therefore, we find no force in the argument of the learned Senior Counsel for the petitioner that the facts relating to the ownership and possession of the plantations, including the estates which are subject matter of these writ petitions, were concluded by the Division Bench, in favour of the petitioner, in the decision in Harrisons Malayalam Ltd. [2018 (2) KLT 369] and the 1st respondent State has issued the Government order dated 06.06.2019 to overreach the said decision of the Division Bench.”
Other Secondary Evidence Admissible Even if Regn. Copy Destroyed
The Madras High Court recognised that where both the original title deed and the registration copy maintained by the registering authority have perished, the law does not fail merely because a certified copy cannot be produced. In Kottaichamy v. Kannan (25 April, 2008 in S.A. (MD) No. 478 of 2007) P.R. Shivakumar, J., it is held as under:
“When the original is shown to be destroyed or lost and the registration copy of the document available with the registering authority is also said to be destroyed, then it is quite justifiable that in such cases other form of secondary evidence also can be permitted in line with the provision found in Section 65 of Act.”
Non-availability of Certified Copy – Deterioration of Registration Record
In R. Parameswaran Pillai v. The Special Deputy Collector LA (NH) & Competent Authority (T. R. Ravi, J.), 2022 KER 74351, the writ petition is filed for a direction to the respondent to release the compensation amounts due to the petitioner as part of the land acquisition proceedings. The contention of the petitioner is that the partition deed No.2065 of the year 1090 M.E. registered before the Kazhakootam Sub-Registrar Office was irretrievably lost, and certified copy of the document was also not issued by the Sub-Registrar as the original of the same has deteriorated.
In Sree Narayana Dharma Sangham Trust v. Surendranath, 2022 (6) KHC 33 : 2022 (4) KLJ 158, the Kerala High Court (A. Badharudeen, J.) held that where the original document has become unavailable and the Sub-Registrar reports that the document has deteriorated to such an extent that no certified copy can be issued, the case falls within Section 65(c) of the Evidence Act and secondary evidence is admissible. It is held as under:
“Sub section (c) of Section 65 deals with the situation when the original has been destroyed or lost, or when the party offering evidence of its own contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the given facts of this case, the petitioner attempted to get an authenticated copy of the settlement deed from the Sub Registrar concerned and the said attempt failed as it was reported that the document was torn akin to a situation as near to ‘destruction’ of the document mentioned in sub-section (c) of Section 65 and as such secondary evidence is permissible in the case of the document in question.”
Title May Be Established by Other Legally Admissible Evidence
The High Court of Kerala, in R. Parameswaran Pillai v. The Special Deputy Collector, 2022 KER 74351, directed the respondent officials to consider the claim of the petitioner based on the documents like the tax receipts, possession certificates, the extract from the Basic Tax Register, etc., in the absence of the title deed and the copy of the paper publication effected by the petitioner regarding the loss of the document. Although the Court did not expressly formulate a rule of evidence, its directions clearly indicate that, in the absence of the original title deed and its certified copy, the claimant’s title may be established by other legally admissible evidence such as the available revenue records and other contemporaneous materials.
Illustrative Modes of Proving Title in the Absence of the Title Deed
A title deed is evidence or a legal expression of ownership. Or, it represents ownership. But it does not represent unfailing ownership by itself. The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition). Therefore, depending upon the facts of the case, in the Absence of the Title Deed, ownership may be established by one or more of the following:
long and continuous possession;
origin of title of neighbouring or similarly situated lands;
enactments concerning the origin of title;
mutation and revenue records (including the Basic Tax Register and possession certificates);
land tax receipts;
admissions made by the opposite party;
recitals in subsequent deeds and connected documents;
reliable contemporaneous writings and public records;
admissible secondary evidence, including oral evidence of the contents of the lost document where legally permissible;
boundary descriptions contained in neighbouring title deeds or survey records; and
other surrounding circumstances relevant to the ownership and identity of the property.
Loss of the Title Deed Does Not Extinguish Ownership
A title deed is not the source of ownership; it is evidence of ownership. The right to property exists independently of the document by which it is ordinarily proved. That is, the title to immovable property does not reside in the title deed; the deed is only the best evidence of title. Accordingly, the accidental loss of the original deed, or the inability to obtain a certified copy owing to the deterioration or destruction of the registration records, does not extinguish ownership. Once the foundational facts regarding the loss or destruction of the document are satisfactorily established, the law permits proof by secondary and other legally admissible evidence. The owner is therefore not left remediless.
Constitutional Perspective
To hold otherwise would mean that the accidental destruction of a document—or the deterioration of public records maintained by the State—would itself extinguish proprietary rights. Such a consequence would be wholly inconsistent with the law of evidence, the law relating to declaration of title, and the constitutional protection of property under Article 300A.
1. Article 300A is a constitutional safeguard against unlawful State action against Right to Property of citizens. That is, Article 300A is a limitation on the State’s power of Eminent Domain.
The Supreme Court of India also declared the Right to Property a ‘Human Right’ and applied it in private disputes.
2. There being a Constitutional Guarantee protecting property against arbitrary State action, there will be –
(i) No limitation for seeking corrections to revenue entries (unless specific statutory bar).
(ii) Right to property cannot be taken away on technical grounds of delay, especially when the fault lies with the authorities.
The March of Law
Right to property was a Fundamental Right till 1978.
Its status is reduced to a Constitutional right.
It was done by the 44th Constitutional Amendment (1978).
Article 300A reads – ‘No person shall be deprived of his property save by authority of law’.
Article 300A is held to be an effective constitutional safeguard against arbitrary deprivation of property by State action.
Through judicial interpretation, the Supreme Court has recognised the right to property as a human right.
Thus, today, the right to property in India is simultaneously a constitutional right and a human right, though no longer a fundamental right.
No Limitation for Seeking Corrections To Revenue Entries (unless specific statutory bar**) for the following:
Article 300A ensures an effective constitutional safeguard.
Mutation does not establish title.
The power to expunge forged or manipulated revenue entries is not subject to general limitation periods.
Mutation is for fiscal purposes; ‘title’ is a matter for the determination of the civil court.
**Note: 1. Only a few States in India enacted provisions in the ‘revenue legislation’ prescribing ‘limitation’ in this regard.
2. Even if there are jurisdictional or otherwise limitation for the Revenue Authorities to order correction of revenue entries, proper civil courts have jurisdiction to adjudicate the suit regarding the declaration of rights, there being a constitutional guaranteeto the property (Article 300A) one legally holds.
In such a case, a declaration of title may not be necessary, and even if it is sought, it may not deter the court from giving relief on the ground of delay – under Article 58 of the Limitation Act.
The Constitution as Enacted in 1950
Under the Constitution as originally enacted in 1950, the right to property was guaranteed by two provisions.
Article 19(1)(f) conferred upon every citizen the fundamental right to acquire, hold and dispose of property.
Article 31 protected persons against deprivation of property except by authority of law and, in specified circumstances, upon payment of compensation.
These provisions enabled citizens to approach the Supreme Court directly under Article 32 for enforcement of their property rights.
Right To Property – Subject of Constitutional and Political Debate
However, the right to property soon became the subject of intense constitutional and political debate. Land reform legislation enacted by the States, intended to abolish intermediaries and redistribute agricultural land, frequently came into conflict with these constitutional guarantees. A series of constitutional amendments and judicial decisions followed, reflecting the continuing tension between individual property rights and the State’s socio-economic objectives.
The matter was finally settled by the Constitution (Forty-fourth Amendment) Act, 1978. This Amendment repealed Articles 19(1)(f) and 31, thereby removing the right to property from the list of Fundamental Rights. Simultaneously, a new provision—Article 300A—(No person shall be deprived of his property save by authority of law) was inserted into Part XII of the Constitution.
Consequence of New Provision—Article 300A
The consequence is significant. The right to property is no longer enforceable as a Fundamental Right under Article 32. Instead, the challenge lies before the High Courts under Article 226 or before other competent civil or revenue courts.
The expression “authority of law” in Article 300A is not an empty formality. The law authorising deprivation must itself satisfy constitutional requirements. It must be validly enacted by a competent legislature, must not be arbitrary or illusory, and must conform to other constitutional limitations, particularly Articles 14 and 21.
The Supreme Court has repeatedly emphasised – though Article 300A does not restore the status of property as a Fundamental Right, it nevertheless embodies an important constitutional guarantee.
“Constitutional Balance cannot be Upset“
In State of Punjab v. Gurdial Singh, (1980) 2 SCC 471, it is laid down as follows:
“8. First, what are the facts? A grain market was the public purpose for which government wanted land to be acquired. Perfectly valid. Which land was to be taken? This power to select is left to the responsible discretion of government under the Act, subject to Articles 14, 19 and 31 (then). The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.”
No doubt, this “constitutional balance” continues under Article 300A.
Art. 300AEnsures – State Acts Only under Authority of Law
Accordingly, while the constitutional status of the right to property has been downgraded since 1978, its protection has not been abolished. Article 300A continues to ensure that the State acts only under the authority of law and within the limits imposed by the Constitution whenever it seeks to deprive a person of property.
The following are the most important decisions on Article 300A:
1. Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp (1) SCC 596
One of the earliest leading cases. The Court held that Article 300A protects property from deprivation except by authority of law. Executive action alone cannot deprive a person of property.
2. Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39
Even after deletion of Article 31, the State cannot interfere with private property without legal authority. Every deprivation must be supported by law.
3. Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627
Though concerning land acquisition, the Court stressed that deprivation of property must strictly comply with statutory procedure and constitutional safeguards.
4. Delhi Airtech Services Pvt. Ltd. v. State of Uttar Pradesh, (2011) 9 SCC 354
Property is still a constitutional and human right. The State must strictly comply with statutory requirements before depriving a person of property.
5. K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1
The leading Constitution Bench decision on Article 300A. The Court held that Article 300A is not a mere formality. The law authorising deprivation must be just, non-arbitrary and serve a public purpose. Though compensation is not expressly guaranteed, wholly illusory compensation may render the law unconstitutional.
6. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404
The Court described the right to property as a human right as well as a constitutional right and strongly criticised arbitrary attempts by the State to appropriate private property through adverse possession.
7. Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation, (2013) 1 SCC 353
The State cannot occupy private land for decades without acquisition or compensation. Such conduct violates Article 300A.
8. Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569
One of the strongest modern decisions. The Court held that forcible possession of private land without acquisition proceedings or compensation is unconstitutional and violates Article 300A. Property remains both a constitutional and a human right.
9. Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356
The Government cannot simply record private land as public property in revenue records without following due process. Article 300A requires authority of law.
10. B.K. Ravichandra v. Union of India, (2021) 2 SCC 401
The Court reaffirmed that Article 300A protects individuals against arbitrary deprivation of property and that due process prescribed by law must be observed.
11. Dharnidhar Mishra v. State of Bihar, (2024) 10 SCC 605.
Although the right to property is ceased to be a fundamental right, it continues to be a human right in a welfare state, and a constitutional right under Article 300-A of the Constitution. Accordingly, the State cannot dispossess a citizen of his property except in accordance with the procedure established by law.
12. Kolkata Municipal Corporation v. Bimal Kumar Shah, (2024) 10 SCC 533
Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569: Referred to.
13. The Deputy Commissioner and Special Land Acquisition Officer v. S.V. Global Mill Limited. (2026) INSC 138.
Article 300A of the Constitution reflects the constitutional commitment to the rule of law by ensuring that deprivation of property cannot occur arbitrarily and must be backed by valid law.
Right to Property, a Human Right –AlsoApplied in Private Civil Disputes
The Supreme Court has not confined the Constitutional and Human Right status of the right to property to cases of State acquisition under Article 300A. It has also invoked those principles while adjudicating private civil disputes where one private party seeks to defeat or diminish another’s proprietary (adverse possession and pre-emption) rights through a statutory or common-law claim. Lachhman Dass v. Jagat Ram is the clearest illustration of this principle. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404, extends the same approach in the context of adverse possession.
In Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448, the Supreme Court considered the impact of the Constitutional and Human Right status of the right to property on a private claim of pre-emption. The Court observed as under:
“…. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-à-vis the Constitutional and human right of the owner thereof.
Thus, the Supreme Court applied the constitutional and human-right character of the right to property even in resolving competing claims between private parties.
CBI has No Authority to issue directions on Immovable Property of Accused
In Shaibin Kaippenchery @ Shaibin Ashraf v. Inspector of Police, Central Bureau of Investigation (CBI) a question came before the High Court of Kerala, 2026 KER 39440 (P. V. Balakrishnan, J.) – whether the CBI possesses the legal authority to issue directions preventing all transactions relating to the immovable properties of an accused person to prevent them from escaping the law. The court found that the respondent failed to place any provision of law authorising such a restriction, and the court observed that even if an individual is considered a hardcore criminal, it does not justify denying the constitutional right to enjoy property under Article 300A of the Constitution of India. (See also: Haris v. Union of India, 2026 KER 3787.)
Inaction of Employer Cannot Defeat a Constitutional Right
In Bhikhani Devi v. Union of India, 2026 3 BBCJ(SC) 71; 2026 4 BLJ(SC) 29; 2026 INSC 612, it is found that the pension is a hard-earned benefit amassed by an employee by virtue of long and continuous service and is in the nature of “property” within the meaning of Article 300A of the Constitution. Once pension is recognised as a constitutional right in the nature of property, it cannot be taken away except by authority of law. A statutory right cannot be rendered illusory on account of inaction of the employer, and such inaction cannot defeat or deny a constitutional right.
The Following Decisions Say – the Govt. has Similar Rights over Public Properrty
1. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 —
This is a strong judgment on the protection of Government property. Government property cannot be grabbed. The Court emphasised that public property belongs to the people and Government officials are under a constitutional duty to preserve it. The Court said that public property is held by the Government as a trustee for the people, and it must protect such property against encroachers. However, the Court also made it equally important – “The Government, including all instrumentalities of the State, cannot be permitted to perfect title over private property by invoking the doctrine of adverse possession.” This case is often cited both: to protect private property against the State; and to emphasise the Government’s duty to safeguard public property.
2. Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 —
Protection of village common and Government land This is a landmark judgment. The Supreme Court directed all State Governments to remove encroachments from Gram Sabha, Panchayat, and other public lands. The Court observed – public lands belong to the community; courts should not encourage regularisation of illegal occupations; Government authorities are under a legal duty to recover public lands from encroachers. The Court remarked that such lands are meant for the benefit of the entire village community and Public land cannot be allowed to be appropriated by private persons.
3. Intellectuals Forum, Tirupathi v. State of Andhra Pradesh, (2006) 3 SCC 549
Public trust doctrine, imposes a fiduciary obligation oon the Government to preserve it. The Court reiterated that: lakes, parks, Government lands, public resources are held by the State as trustee for the public. Government has an affirmative constitutional duty to preserve such properties and cannot permit their illegal occupation.
The Court ordered restoration of village pond land illegally allotted to private persons. It held that community lands must be protected and restored because they serve public purposes.
The Court held that public property cannot be diverted or alienated contrary to law. Municipal authorities hold public property in trust for the public and cannot deal with it as if it were private property. This decision applies the public trust doctrine to Government-owned land.
Public Trust Doctrine imposes Limits and Obligations
In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571, our Apex Court held as under:
“53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”
Erroneous Revenue Entries will not defeat rights under Art. 300-A
The Bombay High Court (Siddheshwar S. Thombre, J.), Aurangabad Bench, in Rama S/o Gunda Malkapure v. The State of Maharashtra, 2026:BHC-AUG:20436, quashed and set aside the Order of the Minister upholding the property rights of the landowners, under Article 300A of the Constitution. It held to the following effect:
Erroneous revenue entries that led to a reduction in area will not defeat the rights of the landowners, under Article 300-A of the Constitution of India.
The revenue authorities, being custodians of the record, are required to explain how such reduction occurred. The petitioner cannot be blamed for incorrect entries maintained by the authorities.
A legal-constitutional right cannot be taken away on technical grounds of delay when the fault lies with the authorities.
There will be no specific period of limitation for seeking corrections to such wrong entries. (The failure of authorities to issue statutory notices often prevents landowners from discovering errors in real-time.)
No Limitation for Seeking Corrections To Revenue Entries
The Bombay High Court (Rama v. The State of Maharashtra) pointed out that no specific period of limitation is stated either in the Maharashtra Prevention of Fragmentation and in the Consolidation of Holdings Act, 1947 or in the Maharashtra Land Revenue Code, 1966. Therefore not bars for an an owner for seeking corrections to such entries. It was also found that the failure of authorities to issue statutory notices often prevents landowners from discovering errors in real-time.
Title Deed Lost and Certified Copy Unavailable: The Law Does Not Leave the Owner Without a Remedy
Other Forms of Secondary Evidence Admissible Even if Regn. Copy Destroyed: The Madras High Court recognised that where both the original title deed and the registration copy maintained by the registering authority have perished, the law does not fail merely because a certified copy cannot be produced. In Kottaichamy v. Kannan (25 April, 2008 in S.A. (MD) No. 478 of 2007), P. R. Shivakumar, J., it is held as under:
“When the original is shown to be destroyed or lost and the registration copy of the document available with the registering authority is also said to be destroyed, then it is quite justifiable that in such cases other form of secondary evidence also can be permitted in line with the provision found in Section 65 of Act.”
Non-availability of Certified Copy – Deterioration of Registration Record
In R. Parameswaran Pillai v. The Special Deputy Collector LA (NH) & Competent Authority, 2022 KER 74351, the writ petition is filed for a direction to the respondent to release the compensation amounts due to the petitioner as part of the land acquisition proceedings. The contention of the petitioner is that the partition deed No.2065 of the year 1090 M.E. registered before the Kazhakootam Sub-Registrar Office was irretrievably lost, and certified copy of the document was also not issued by the Sub-Registrar as the original of the same has deteriorated.
In Sree Narayana Dharma Sangham Trust v. Surendranath, 2022 (6) KHC 33 : 2022 (4) KLJ 158, the Kerala High Court (A. Badharudeen, J.) held that where the original document has become unavailable and the Sub-Registrar reports that the document has deteriorated to such an extent that no certified copy can be issued, the case falls within Section 65(c) of the Evidence Act and secondary evidence is admissible. It is held as under:
“Sub section (c) of Section 65 deals with the situation when the original has been destroyed or lost, or when the party offering evidence of its own contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In the given facts of this case, the petitioner attempted to get an authenticated copy of the settlement deed from the Sub Registrar concerned and the said attempt failed as it was reported that the document was torn akin to a situation as near to ‘destruction’ of the document mentioned in sub-section (c) of Section 65 and as such secondary evidence is permissible in the case of the document in question.”
Title May Be Established by Other Legally Admissible Evidence
The High Court of Kerala, in R. Parameswaran Pillai v. The Special Deputy Collector LA (NH) & Competent Authority (T. R. Ravi, J.), directed the respondent officials to consider the claim of the petitioner based on the documents like the tax receipts, possession certificates, the extract from the Basic Tax Register, etc., in the absence of the title deed and the copy of the paper publication effected by the petitioner regarding the loss of the document. Although the Court did not expressly formulate a rule of evidence, its directions clearly indicate that, in the absence of the original title deed and its certified copy, the claimant’s title may be established by other legally admissible evidence such as the available revenue records and other contemporaneous materials.
Illustrative Modes of Proving Title in the Absence of the Title Deed
A title deed is evidence or a legal expression of ownership. Or, it represents ownership. But it does not represent unfailing ownership by itself. The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition). Therefore, depending upon the facts of the case, in the Absence of the Title Deed, ownership may be established by one or more of the following:
long and continuous possession;
origin of title of neighbouring or similarly situated lands;
enactments concerning the origin of title;
mutation and revenue records (including the Basic Tax Register and possession certificates);
land tax receipts;
admissions made by the opposite party;
recitals in subsequent deeds and connected documents;
reliable contemporaneous writings and public records;
admissible secondary evidence, including oral evidence of the contents of the lost document where legally permissible;
boundary descriptions contained in neighbouring title deeds or survey records; and
other surrounding circumstances relevant to the ownership and identity of the property.
Loss of the Title Deed Does Not Extinguish Ownership
A title deed is not the source of ownership; it is evidence of ownership. The right to property exists independently of the document by which it is ordinarily proved. That is, the title to immovable property does not reside in the title deed; the deed is only the best evidence of title. Accordingly, the accidental loss of the original deed, or the inability to obtain a certified copy owing to the deterioration or destruction of the registration records, does not extinguish ownership. Once the foundational facts regarding the loss or destruction of the document are satisfactorily established, the law permits proof by secondary and other legally admissible evidence. The owner is therefore not left remediless.
Constitutional Perspective
To hold otherwise would mean that the accidental destruction of a document—or the deterioration of public records maintained by the State—would itself extinguish proprietary rights. Such a consequence would be wholly inconsistent with the law of evidence, the law relating to declaration of title, and the constitutional protection of property under Article 300A.
Fraudulent Revenue Entries can be Expunged
In Dr. Kashmir Singh v. Board of Revenue, Lko. Thru. Chairman,2026 AHC 38092, it is held that mutation entries are only fiscal records and do not establish property title. Fraudulent revenue entries can be expunged by authorities without being bound by general limitation periods, as fraud vitiates the transaction, and specialized revenue codes prevail over general limitation regulations.
The High Court of Madhya Pradesh (Vivek Jain, J) in Anju Thakur v. General Public (WP No. 15190 of 2015) held on 18-11-2025 that for effecting mutation and correction of revenue entry, no limitation is prescribed under the Land Revenue Code for moving an application for record correction pursuant to a valid declaratory decree of a Civil Court.
The High Court of Punjab & Haryana (L.N. Mittal, J.) in Mange v Ramesh, 2011-4 RCR(Civ) 72, held that the court held that the civil court had jurisdiction to adjudicate the suit regarding declaration of rights of the plaintiffs in the suit land, despite the jurisdictional limitation to order correction of revenue entries.
Two (Diametrically Opposite) Views on Raising Objection to Mode of Proof of Documents
First: Objection as to irregular or insufficient mode of proof of a document (such as secondary evidence) should be raised at the time while it is marked as an exhibit; and its failure amounts to waiver. Such objection cannot be allowed to be raised at any subsequent stage.
(Classic Decision on this view is – R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752, R.C. Lahoti, Ashok Bhan, JJ.)
Second: Secondary evidence is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65 are established. The court has also an obligation to decide the question of admissibility before making it as a secondary evidence. That is, mere marking, or marking on admission, does not automatically prove its contents.
(Latest decision on this view is – Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, Pankaj Mithal, S.V.N.Bhatti, JJ.)
Crux of Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938
1. Secondary evidence is NOT admissible –
until the non-production of the original is accounted for –
that is, until the foundational facts or the conditions of Section 65, Evidence Act are established.
The court relied on –
H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
This view is also found in:
LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491
Yeshoda v. Shoba Ram AIR 2007 SC 1721
State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] ,
Mal Singhvi v. Anand Purohith 1988 (Supp) SCC 604.
Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457].
2. The court has an obligation to decide the question of admissibility before making it as a secondary evidence.
That is, mere admission of a document, or
marking it on admission,
does not dispense with the requirement of proving it in accordance with the law or
mere marking, or marking on admission, does not automatically prove its contents.
Following are the facts of the decision in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938:
Plaint schedule property was alienated by the defendant.
Plaintiff claimed it to be joint family property.
The plaintiff challenged the authority of the defendant to alienate.
The plaintiff contended that there was no valid Power of Attorney in favour of the defendant.
Only a notarised photocopy of the alleged Power of Attorney was produced.
The original document was not placed on record.
No foundational evidence was given for leading secondary evidence.
The Trial Court decreed the suit finding that the the Power of Attorney was not proved.
The Trial Court found:
If the procedure under Sections 65 and 66 of the Evidence Act is not followed, a photostat copy does not satisfy the requirements of secondary evidence.
The non-marking of the original of the PoA, coupled with non-compliance with Sections 65 and 66 of the Evidence Act, would render the assertions on the document untenable.
The First Appellate Court reversed the Trial Court’s findings, accepting the PoA.
The High Court restored the findings of the Trial Court.
The Supreme Court of India accepted the views of the High Court and dismissed the Appeal.
Important Findings by the Apex Court
“19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, implies that Exh. B-2 is, at best, secondary evidence. Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source. Section 63 of the Indian Evidence Act providesan exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party’s possession or reach, they cannot introduce inferior proof (secondary evidence).
Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.2 Before secondary evidence can be admitted, the party relying on it must lay a factual foundation.
This involves two steps:
First, the party must prove that the original document actually existed and was executed.
Secondly, the party must establish valid reasons as to why the original cannot be furnished.
Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758
20.3 Secondary evidenceis inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.4 Section 65 of the Evidence Act is exhaustiveand states the specific circumstances under which secondary evidence is permissible.
To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.
20.5 Further, admitting a documentas secondary evidence does not automatically prove its contents.
The secondary evidence must be authenticated byfoundational evidence showing that the alleged copy is, in fact, atrue copyof the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstancesunder which the copy was prepared and who possessed the original at the time the photograph was taken.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
20.6 Mere admission of a document or making it an exhibit doesnot dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibilitybefore making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
20.7 There is no requirement that an applicationmust be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
Dhanpat v. Sheo Ram 2020 (16) SCC 209
Condition for Secondary Evidence# Statutory Clause #Type of Secondary Evidence Allowed Adversary Possession Section 65(a) Any secondary evidence (after notice). Written Admission Section 65(b) The written admission itself. Loss or Destruction Section 65(c) Any secondary evidence. Immovable Original Section 65(d) Any secondary evidence. Public Document Section 65(e) Only a certified copy. Law-Specified Document Section 65(f) Only a certified copy. Voluminous Records Section 65(g) Testimony of a skilled examiner.
21. Therefore, the introduction of secondary evidence is atwo-step process, wherein,
first, the party must establish thelegalright to lead secondary evidence, and
second, theymustprove the contentsof the documents through that evidence.
The twin requirementsareconjunctive.
22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It isaxiomaticthatsecondary evidence is permissibleonly as an exceptionto the requirement of adducing primary evidence.
23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. Aphotocopyof a document is no evidenceunless the same isproved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”
End Notes
Legal Findings (Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938) Summarised
The FACTS have to be established by primary evidence.
DOCUMENTS must be proved by primary evidence.
Primary evidence is the rule, while secondary evidence is an exception.
A factual foundationmust be laid before admitting secondary evidence
This involves two steps:
First, prove that the original document actually existed and was executed.
Secondly, establish valid reasons as to why the original cannot be furnished.
Secondary evidenceis inadmissible until the non-production of the original is accounted.
Section 65 of the Evidence Act is exhaustive
The introduction of secondary evidence is a two-step process.
First, the party must establish the legal right to lead secondary evidence, and
Second, they must prove the contents of the documents through that evidence.
The twin requirements are conjunctive.
Admitting a secondary evidencedoes not prove its contents.
The secondary evidence must be shown to be,in fact, a true copy.
Section 63provides an exhaustive list of what constitutes secondary evidence.
Mere admission of a document as an exhibit does not dispense with proof.
The court has an obligation to examine the probative value of the document and decide the question of admissibility before making the secondary evidence.
If the foundational facts (loss of the original) are not established, the court cannot legally allow the party to adduce secondary evidence.
There is no requirement that an application must be filed to lead secondary evidence.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy
In R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.), held as under:
“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes:-
.(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in superior Court.”
This view is also found in
Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: five-Judge Bench
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718;
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239
Oriental Insurance Co v. Premlata: 2007-8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63
Narbada Devi v. Birendra Kumar: 2003-8 SCC 745.
Chapter V of the Evidence Act deals with Documentary Evidence
Sections 61 to 65 deal generally with Preliminary Aspects as to Admissibility. It can be summarised as under:
Section 61. The contents of documents may be proved either by primary or by secondary evidence.
Section 62. Primary evidence means the document itself
Section 63. Secondary evidence. Secondary evidence means and includes–
.(1) certified copies
(2) copies made by mechanical processes
(3) copies compared with the original
(4) counterparts of documents
(5) oral accounts
Section 64 Documents must be proved by primary evidence.
Section 65. Cases in which secondary evidence may be given.
.(a) when the original is in the possession of the person against whom…
(b) when the existence, condition or contents admitted in writing
(c) when the original has been destroyed or lost,
(d) when the original is not to be easily movable
(e) when the original is a public document
(f) when a certified copy is permitted to be given in evidence
(g) when the originals consist of numerous accounts …
Proof on Documents- General Provisions
1. Section 91 expressly bars oral evidence to prove the terms of a contract if they are reduced to writing.
2. Sec. 22 and 144 of the Evidence Act postulate that the oral assertions as to contents of documents are not.
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission (Sec. 17, 21, 58, 67, 70).
Evidence of a person who has seen – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of one who is acquainted with the writing (Sec. 47).
Evidence of one in the ordinary course of his business or official duty (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)
Suit for Specific Performance – if co-owner’s share is a marketable one; it will not be a suspicious circumstance.
Evidence of fraud could not substitute omission to plead collateral transaction.
High Court ought not to have revisited findings of facts.
Clause for refund – If, only a consequence it will not curtail right of sp. performance.
Mere naming a sum as penalty – not defeat specific performance.
High Court not to interfere findings of fact (ready and willing) given by first appellate court.
Effect of no express clause in the agreement for specific performance through court.
Jaspal Singh v. Ashwani Kumar, 2026 INSC 700
The Supreme Court, in Jaspal Singh v. Ashwani Kumar, 2026 INSC 700 (Justice K.V. Viswanathan and Justice Alok Aradhe), held that existence of a clause for refund of earnest money does not, by itself, bar specific performance, unless the contract clearly shows an option to the defaulting party to pay money instead of performing the contract – as provided in Section 23 of the Specific Relief Act, 1963.
Section 23 of the Specific Relief Act, 1963
23. Liquidation of damages not a bar to specific performance— (1)A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.
(2)When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.
Effect of No Express Clause for Specific Performance Through Court
The Supreme Court did not agree with the view of the High Court that the purchaser was not entitled to the relief, for the agreement did not contain an express clause enabling specific performance through the court.
The Apex Court observed as under:
“The High Court construed this clause as conferring upon the respondent an option to walk away from the bargain upon refund of the earnest money, holding that the absence of an express stipulation enabling the appellant to enforce the Agreement through court rendered the remedy of specific performance unavailable to him. In our opinion, such a construction cannot be sustained, either on the plain terms of the clause or on the settled position of law.”
HC Not to Interfere Findings of Fact (Ready and Willing) Given by First Appellate Court
The Supreme Court observed as under:
“It is trite law that First Appellate Court is the final court of fact and the High Court, in a Second Appeal cannot interfere with findings of fact merely because it would have arrived at a different conclusion on the appreciation of the same evidence; interference is permissible only where the findings are recorded without evidence, or by ignoring material evidence, or are otherwise vitiated by perversity. This test finds its origin in a decision of this Court rendered in 1962 and was reaffirmed later. Subsequently, the aforesaid principles have been reiterated in recent years to state that a finding of fact will not be disturbed unless it is vitiated for want of perversity.”
The Court referred to
Sir Chunilal v. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd. (1962),
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999),
Jaichand v. Sahnulal (2024), and
Russi Fisheries P. Ltd. v. Bhavna Seth (2026).
Mere Naming a Sum as Penalty – Not Defeat Specific Performance
Relying on M.L. Devender Singh v. Syed Khaja (1973), the Apex Court approved the principle that the mere naming of a sum as damages or penalty is not sufficient to defeat a claim for specific performance. The Court observed as under:
“The said principles have been referred to with approval by this Court wherein this Court held that Section 23 of the 1963 Act contains a comprehensive statement of the principles governing construction of such clauses and if mere naming of a sum of damages or penalty were by itself sufficient to defeat the claim for specific performance of a contract for transfer of immovable property, the provision would be rendered wholly meaningless. It was reiterated that the mere naming of an amount which may sound in damages is not, by itself, sufficient to defeat a claim for specific performance unless it is clear on the facts that the sum was named in lieu of performance, and that a party in breach cannot resist specific performance merely on the ground that the agreement contains no express stipulation for that relief.”
Clause for Refund –Says only Consequence;Not Curtail Right of Sp. Performance
Applying the principle to the agreement under consideration, the Bench stated:
“Tested on this touchstone, the clause in question does no more than provide that, in case the Sale Deed could not be executed for any reason, the respondent would be bound to refund the earnest money. There is neither any language of election, nor any stipulation entitling the respondent to discharge the bargain, at his option, by payment of any sum in lieu of executing the Sale Deed. The clause records no more than bare consequence flowing from non-execution of the Sale Deed; the stipulation for refund operates as a deterrent reinforcing the obligation to perform, and not as a substitute for it. It protects the purchaser’s minimum entitlement in the event of default, without in any manner curtailing his right to insist upon performance”.
HC Ought Not to have Revisited Findings of Facts
The Apex Court took note of the following facts:
Trial Court and First Appellate Court had rejected the defence of the defendant that the agreement was fabricated from blank signed papers.
The defendant had admitted signatures on the documents.
The defendant did not produce expert evidence to support the allegation of fabrication.
The High Court permitted the very suspicion underlying the discarded defence – “an aspect it ought not to have revisited.”
Evidence of Fraud Could Not Substitute Omission to Plead Collateral Transaction
The Court held it as under:
“Suppression of a collateral financial dealing between parties who admittedly had continuing dealings with one another may reflect on the completeness of the plaint and go to the credibility of the appellant on that peripheral matter, but it does not, without more, establish that the Agreement to Sell, itself proved through the unimpeached testimony of the scribe and the attesting witnesses, was a fabrication superimposed on blank signatures. An omission bearing on a collateral transaction cannot be permitted to do the work of positive proof of fraud that the respondent himself failed to discharge, particularly where the cheque relied upon was not shown to correspond to the structured terms of the very arrangement he had pleaded, and the High Court erred in allowing this circumstance to colour its view of the genuineness of the Agreement.”
Co-Owner’s Share is a Marketable Subject Matter; Not a Suspicious Circumstance
The Supreme Court rejected the view of the High Court saying as under:
“Nor could the mere fact that the subject matter of the Agreement was an undivided half share in a jointly owned property support an inference that the transaction was not genuine. A co-owner’s undivided share in immovable property is a valid and marketable subject matter of transfer, and an Agreement to Sell such a share cannot be viewed with suspicion merely because the vendor’s co-sharer brother was not made a signatory. It is well settled that a transfer of an undivided share is a legally recognised and enforceable transaction in its own right, the only consequence being that the transferee’s remedy for actual enjoyment of the property lies in a suit for partition, and a consequence bearing upon the mode of enjoyment following the decree; has no bearing whatsoever on the genuineness or enforceability of the underlying Agreement to Sell.”
The Apex Court relied on the following decisions –
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh (1953),
M.V.S. Manikayala Rao v. M. Narasimhaswami (1966), and
Ramdas v. Sitabai (2009).
Time Gap for Execution of Deed, and Extensions Granted – Not to Doubt Genuineness
The Court also rejected the views of the High Court on ‘time gap’ and extensions as under:
“Equally unsustainable is the interference that the time gap between the Agreement and the stipulated date for execution of Sale Deed, and the two extensions granted, indicated that the transaction was not genuine. In any event, the delay was not unreasonable: the date originally fixed as 22.06.2004 was extended, with the consent of parties, only to 22.01.2005 – a total period of barely seven months from the original date. There was, moreover, no material on record to substantiate the respondent’s plea that the parties had entered into a separate transaction relating to his travel to the USA. Extensions of time granted by consent, without more, are wholly consistent with the genuineness of the transaction cannot, by themselves, found an interference to the contrary.
The Supreme Court (Justice Dipankar Datta and Justice Vipul M. Pancholi) held in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, held the following:
1. Rectification Deed: Intention must be to correct clerical mistake
2. By Rectification Deed One Cannot Alter Subject Matter
3. Survey Records or Commissioner’s Report to Establish Identity
4. S. 26 of the SR Act is not meant to substitute one property for another
5. Nemo Dat Quod Non Habet – No Person Can Convey a Better Title
6. Plaintiff Seeking Declaration of Title Must Establish His Own Case
7. Second Appeal: Substantial Question of Law must be Framed
8. Plaintiff’s Conduct: No Effort was made to Change the Revenue Entries
Fact-Summary of the Case
Thimmadasappa had property in Sy. No. ¼. By a series of registered sale deeds it was handed down from one person to another. The plaintiff (Venkatamuniyappa) got it in 1973. In all deeds the property was consistently described as one in Sy. No. 1/4.
In 1982, Thimmadasappa obtained (as government re-granted) another property, in Sy. No. 162.
In 1997 a rectification deed was executed between the defendant No.4 (plaintiff’s vendor) and the plaintiff, purportedly correcting the survey number (in the 1973 sale deed) from Sy. No. 1/4 to Sy. No. 162. Thimmadasappa, the original owner, was not a party to this rectification deed.
In 2005, Thimmadasappa executed a partition deed for Sy. No. 162 among his sons, the appellants.
The plaintiff filed the suit in 2007, challenging this partition. He sought a declaration of title, possession, an injunction, claiming ownership over Survey No. 162 on the strength of the 1997 rectification deed, so also another declaration that the 2005 partition deed executed in favour of the defendants was not binding.
The plaintiff admitted in cross-examination that the two survey numbers were distinct properties.
The trial court dismissed the suit, holding that the plaintiff had failed to prove that Survey Nos. 1/4 and 162 referred to the same property.
The first appellate court reversed this finding after comparing property boundaries recorded in the documents.
The High Court affirmed the first appellate court’s decree. It invoked Section 43 of the Transfer of Property Act, 1882 (Transfer by unauthorised person who subsequently acquires interest in property transferred – Doctrine of Feeding the Grant by Estoppel), to support its decision.
Thimmadasappa’s sons filed the SLP.
Legal Principles Applied by the Apex Court
1. Rectification Deed: Intention must be to correct a clerical mistake
The Court held in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, as under:
“A rectification deed cannot, in the guise of correcting an error, substitute the very subject matter of a prior conveyance without participation of the original transferor. What was sought to be achieved through the rectification deed was not correction of a clerical mistake simpliciter but substitution of one property having a specific survey number by another altogether distinct property. Such unilateral alteration could not divest the appellants of the rights flowing from the subsequent grant and partition.”
2. By Rectification Deed One Cannot Alter Subject Matter
The Apex Court held as under:
“If the very fulcrum of rectification is the common intention of the parties to the original transaction, the participation of the original executant assumes obvious importance. A transferee deriving title under an instrument cannot, together with his successor, lawfully alter the subject matter of a conveyance executed by another person. To hold otherwise would permit derivative holders of title to enlarge the estate conveyed by their predecessor without the predecessor’s concurrence.”
No relief can be granted on a Case not Pleaded
Relying on Trojan & Co. Ltd. v. Nagappa Chettiar (1953-1 SCC 456) and Bachhaj Nahar v. Nilima Mandal (2008-17 SCC 491), the Court held that relief cannot be granted on a case not pleaded. The Court observed as under:
“The first appellate court …. had, in fact, proceeded on the footing that there had been an interchange of northern and southern boundaries, although no amendment in this regard was effected in the plaint. A relief, which is premised on a case not pleaded, cannot be sustained in law.”
3. Survey Records or Commissioner’s Report to Establish Identity
The Court observed as under:
“The High Court, by proceeding directly to apply those principles without first returning a clear finding on identity, in effect, placed the legal cart before the factual horse.”
4. S. 26 of the SR Act is not meant to substitute one property for another
The Court explained it as under:
“Does Section 26 of the Specific Relief Act, 196314 have any application here? The said provision embodies a limited equitable jurisdiction. The provision kicks into operation on the assumption that the parties to an instrument had arrived at a common intention which, by reason of fraud or mutual mistake, was inaccurately reflected in the document executed between them. Rectification, therefore, rectifies the expression of a concluded bargain; it does not substitute one bargain for another. The provision is intended to remove an error in recording the transaction and not to alter the essential subject matter of the transaction itself.”
5. Nemo Dat Quod Non Habet – No Person Can Convey a Better Title
Applying this principle, the Court held as under:
“The matter may also be examined from another perspective. The principle embodied in the maxim nemo dat quod non habet admits of no exception in the present case. No person can convey a better title than he himself possesses. If Thimmadasappa never conveyed Sy. No.162, the defendant No.3 acquired no title thereto. The defendant No.4 too could not, therefore, acquire any such title. It necessarily follows that the defendant no.4 could not convey Sy. No.162 to the plaintiff merely by executing a rectification deed. A derivative title cannot outvalue the title from which it is derived.”
6. Plaintiff Seeking Declaration of Title Must Establish His Own Case
The Court expressed it as under:
“Even as the very preliminary step, the plaintiff’s title over Sy. No.162 is nebulous. A plaintiff seeking declaration of title must succeed on the strength of his own case and not on the perceived weakness of the defence. It is trite that title cannot rest on surmises or probabilities. The burden squarely rested on the plaintiff to establish that the property conveyed under Sale Deeds I, II and III, though described throughout as Sy. No.1/4, was in reality Sy. No.162. Such burden remained undischarged.”
7. Second Appeal: Substantial Question of Law must be Framed
The Court observed:
“First, the substantial question of law framed at the threshold required the High Court to examine whether the judgment of the first appellate court, reversing the well-reasoned findings of the trial court, did not suffer from any perversity. However, instead of testing the legality of the reversal, the High Court too proceeded to re-affirm findings founded upon assumptions and conjectures. In doing so, the High Court overlooked that the first appellate court had travelled beyond the pleadings and had discarded material admissions without assigning cogent reasons.”
The Bench further held:
“Secondly, the High Court also introduced an entirely new legal edifice by invoking Section 43 of the ToP Act, although the plaintiff never pleaded the ingredients thereof nor premised any of his reliefs on the said provision. A fortiori, neither the trial court nor the first appellate court had anchored their conclusions on the said provision. A conclusion based on a contention never advanced, in our considered opinion, renders itself perverse.”
8. Plaintiff’s Conduct: No Effort was made to Change the Revenue Entries
The Apex Court pointed out as under:
“The conduct of the plaintiff is equally relevant. Although the rectification deed is of the year 1997, admittedly no effort was made to have the revenue entries changed in his favour. Even until the institution of the suit in 2007, the revenue entries consistently stood in the name of Thimmadasappa and, thereafter, in the names of the appellants. While it is trite that revenue entries themselves do not confer title, they may be seen as evidence regarding possession. A total absence of any contemporaneous assertion of right by the plaintiff over Sy. No.162 for nearly a decade after the alleged rectification deed is a circumstance which the first appellate court failed to accord due weight.”
The words “Notwithstanding Anything Contained in this Adhiniyam” in Section 63 of the Bharatiya Sakshya Adhiniyam are capable of rendering two views:
First: It overrides every other provision of the Adhiniyam relating to the proof and admissibility of electronic evidence (including Sections 58 and 60 dealing with secondary evidence). Because of the non obstante clause, the only way to prove the copy of electronic evidence is — invoking the procedure in Section 63. It was the view taken in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908.
Second: The core of Section 63 is a deeming provision. The non obstante clause is used to say thatthe ‘copy’ shall be DEEMED to be ‘original‘, and it shall be admissible,as evidence, without FURTHER proof. Therefore, a party can prove a copy either by invoking Section 63 (that is by using the ‘Certificate’ stated in this Section) or by any other legally recognised mode of proof given under the Bharatiya Sakshya Adhiniyam, 2023 including the evidence of a witness [that is by the oral evidence — to show that the copy is a genuine one — invoking Section 58 Clause (iii) which permits: “copies made from or compared with the original”].
PART I
(The View of the Supreme Court of India)
Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, holds the field on Law on Electronic Evidence. It was rendered on a reference to a three-Judge Bench
History of Reference
The history of reference can be seen from para 2 of the Judgment.
“2. These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 (“Evidence Act”) by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength.”
The March of Law
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision.
It is held:
“Irrespective of the compliance with the requirements of Section 65B, 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 26 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.”
Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision.
It is held that the new provisions (Sections 65A & 65B) make a complete code in itself holding as under:
“Being a special law, the general law under Sections 63 and 65 has to yield.”
But finally held:
“It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 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 with the conditions in Section 65-B of the Evidence Act.”
Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.
It is held, as to make CCTV footage admissible, as under:
“Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.
Sonu v. State of Haryana (2017-8 SCC 570) two- judge bench decision.
It is held:
“The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”
Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ) two- judge bench decision.
Tomaso Bruno (2015) was followed in. It was held as under:
“(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”
It substantially followed PV Anwar (2014) with a ‘clarification’.
Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’ ”.
It is further found – Tomaso Bruno v. State of UP is per-incurium. It is held as under:
“What is clear from this judgment is that the judgment of Anvar P.V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P.V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra), following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible, would be in the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”
Arjun Panditrao: Findings on Reference
“72. The reference is thus answered by stating that:
(a) Anvar P.V. (Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.
These appeals are dismissed with costs of INR One Lakh each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary.”
Arjun Panditrao:Authoritative Exposition of the Law
The decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, came in the backdrop of the judicial evolution or ‘march of law’ outlined above. It represents the culmination of that line of judicial reasoning and presently constitutes the authoritative exposition of the law governing the proof and admissibility of electronic evidence in India. The decision has been consistently followed and accepted by courts across the country as the binding declaration of law under Article 141 of the Constitution.
…
PART II
(The Author’s view on S. 63 BSA is presented, Strictly on First Principles)
Contents in a Nutshell
Question 1. What exactly does the Non Obstante Clause Override – Deeming Provision alone, or the Entire Law relating to Computer Outputs?
•• • Is the non obstante clause in sub-section (1) of Section 63 (“Notwithstanding anything contained in this Adhiniyam”) confined to the statutory deeming provision alone—namely, that a computer output (copy) shall be deemed to be an electronic record (original document) and shall be admissible?
•• • Or, does it override the entire law relating to computer outputs, so that a computer output (copy) can be proved only in the manner prescribed by Section 63—namely, by producing the certificate under Section 63(4)—to the exclusion of every other mode of proof recognised by the Adhiniyam as was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908?
•• • Answer
•• • The core of Section 63 is a deeming provision. The non obstante clause is used to say thatthe ‘copy’ shall be DEEMED to be ‘original‘, and it shall be admissiblewithout FURTHER proof,as evidence. •• Therefore, a party can prove a copy either by invoking Section 63 (that is by using the ‘Certificate’ stated in this Section) or by any other legally recognised mode of proof given under the Bharatiya Sakshya Adhiniyam, 2023 including the evidence of a witness [that is by the oral evidence — to show that the copy is a genuine one — invoking Section 58 Clause (iii) which permits: “copies made from or compared with the original”].
Question 2. Is it legitimate to deny the computer output(copy), for the ‘conditions’ cannot be satisfied?
•• • “Computer output (copy) shall be deemed to be also a document“, if only the conditions mentioned in Section 63(2) are satisfied. Where, in a given case, the conditions cannot be satisfied, does it follow that such a computer output is incapable of proof?
•• • Answer
•• • It is reasonable to allow (and the Adhiniyam permits) — the computer output to be proved by any other lawful mode.
Question 3. Can Photographs andVideos be Proved with S. 63(4) Certificate? Is Hash Value Certificate Necessary for CCTV footages, CDs & Videos?
•• • Answer
•• • Sub-section (4) of Section 63 prescribes an enabling mode, using the certificate and Hash Value, for proving the ‘STATEMENTS’ alone, and not photographs, CCTV footages, CDs and videos.
•• • The mode of evidence under Section 63(4), by way of certificate, itself is optional — for it is permitted to be invoked only when it is “desired to give a statement in evidence by virtue of this section“.
The Non Obstante Clause is Confined to the Statutory Deeming Provision
The non obstante clause in Section 63(1), Bharatiya Sakshya Adhiniyam, 2023, is the following –
“Notwithstanding anything contained in this Adhiniyam …… the computer output shall be DEEMED to be ALSO a document …… and shall be ADMISSIBLE without FURTHER proof ….. as evidence …..“
Bothgrammatically and contextually, the non obstante clause is confined to the ‘deeming provision‘ and its consequence only. The following are the ‘deeming provision’ and the ‘consequence’ –
(i) a computer output (copy) shall beDEEMEDto be an (original) document and
(ii) its consequence—that the computer output (copy) shall beADMISSIBLE without FURTHER proof ….. as evidence.
“Shall beADMISSIBLE without FURTHER proof” — It is the Result of the ‘Deeming Clause’
There are several strong contextual and grammatical reasons to say that the second part (“the computer output shall be deemed to be also a document…”) is not an independent provision, but is the result of (or dependent upon) the first part (“and shall be admissible without further proof…”).
Reasons:
1. The conjunction “and” and the expression “without FURTHER proof“ affirm the relation.
The non obstante clause introduces one integrated statutory mechanism. Read as a whole, Section 63(1) confers a single evidentiary benefit: the computer output is first treated as though it were the original electronic record, and, because it is so treated, it becomes admissible without FURTHER proof.
If detached from the deeming provision, the words “without FURTHER proof“ become contextually incomplete and lose their statutory foundation.
2. The adjective “FURTHER” presupposes antecedent proof.
The expression “without FURTHERproof“ necessarily assumes that some proof has already been supplied. What is that proof? It is the statutory proof created by the legal fiction. Once the computer output is deemed to be the document itself, no further proof of the original electronic record is required.
3. The rider, “if theCONDITIONS mentioned in this section are satisfied” stands attached to the deeming clause — “and shall be deemed to be ALSO a document”.
Had it been intended that the admissibility clause — “shall be admissible … without further proof …. of the original” — in the second limb should operate independently, the ‘conditional clause‘ would have been linked to that limb alone; on the contrary, the two limbs are joined together with the words “and shall be” (repeating the wordsshall be).
4. The admissibility clause is the legal consequence of the deeming fiction.
In the words (‘predicates’) “…shall be deemed to be also a document” and “shall be admissible without further proof“, grammatically, share a single ‘subject’ — “the computer output.” It indicates that the admissibility is not an independent rule.
Note: The admissibility provision is not enacted as a separate sentence, such as: “It shall also be admissible without further proof.”
5. The statutory sequence is significant, and it affirms — ‘admissibility’ is not an independent rule.
This subsection first elevates the computer output to the status of a document (original) by providing that it “shall be deemed” to be original (document). Only thereafter does it declare that it “shall be admissible without further proof.” The latter is thus the legal consequence of the former.
S. 63, Bharatiya Sakshya Adhiniyam
Section 63, Bharatiya Sakshya Adhiniyam, 2023 reads as under:
“63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall bedeemedto beALSOa document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall beadmissible in any proceedings, without FURTHER proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”
Proof Invoking the Deeming Provision in S. 63 is only an Optional Mode
As shown above, the non obstante clause is confined to the statutory deeming provision (shall bedeemed to be also a documentif the conditions in sub-section (2) are satisfied). Consequently, resorting to that deeming fiction will be optional. It will not be mandatory. A party may therefore prove a computer output either by invoking Section 63 or by any other legally recognised mode of proof under the Bharatiya Sakshya Adhiniyam, 2023.
Note: Section 63(2) prescribes the conditions under which Section 63(1) operates. Thus, Section 63(1) has a direct nexus with sub-section (2). Such a nexus is not with sub-section (4), which deals with ‘statement’ and ‘Certificate’.
Proof by Certificate u/S. 63(4) is (Independent and Optional) Enabling Mode
The certificate contemplated by Section 63(4) is an enabling (optional) mode of proof; that too for proving a STATEMENT alone. It is not the exclusive mode. Section 63(4) does not control Section 63(1) and 63(2). To that extent, it is independent. Sub section (4) of Section 63 begins as under:
“(4) In any proceeding where it is desired to give aSTATEMENTin evidence by virtue of this section, a certificate doing any (?) of the following things shall be submitted along with the electronic record (computer output?) at each instance…“
S. 63 Deals with Admissibility; Not Truth of Contents
S. 63 Deals with admissibility of ‘computer output’ (copy), and it does not affect the truth of the contents of the original.
S. 63 Does Not Override Every Other Provision of the Adhiniyam
For the above, Section 63(1) cannot be construed as a provision that overrides every other provision of the Adhiniyam relating to the proof and admissibility of electronic evidence (including Sections 58 and 60 dealing with secondary evidence), as was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908.
Other Provisions that deal with the Proof of ‘Computer Output’
Other provisions of the Adhiniyam that deal with the proof of ‘computer output’ are the following –
First, Section 58: Secondary evidence: Secondary evidence includes— (i)…. (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies (iii) copies made from or compared with the original ……
Second, Section 60: Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: — (a) when the original is shown or appears to be in the possession or power-(i) of the person against whom the document is sought to be proved; or(ii) of any person out of reach of, or not subject to, the process of the Court; or(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it; (b) …. (c) …. (d) when the original is of such a nature as not to be easily movable……
When Section 58 or Section 60 is invoked, it may become necessary (particularly when it is objected to or questioned) to give oral evidence as to the fact that (i) copies made from or compared with the original and (ii) the original is lost or it is of such a nature as not to be easily movable.
The Cotton Corporation of India Ltd. v. Chakolas Spinning and Weaving Mills Ltd., 2009 2 AllMR 117 (Bom)
Bank of India v. M/s. Allibhoy Mohammed, AIR 2008 Bom 81
New India Assurance Company Limited v. Gulam Rasool (S.B. Sinha, J.), 1993 ACJ 1132; 1993-1 BLJR 331
New India Assurance Co. Ltd. v. Shakuntala Devi S.K. Mahajan, J., 2003-105 DLT 1020; 2003-5 AD(Del) 505; 2003-3 ACC 72; 2003 AIHC 4288; 2004 ACJ 1528
Harijiwan Sahu v. Jairam Sahu, 1989 AIR Pat 96 ; 1989 KHC 2295.
Section 63 does not Constitute an Exhaustive Code.
A computer output can be proved under Section 63, only if the conditions prescribed in Section 63(1), read with Section 63(2), are satisfied. In such a case, the statutory deeming fiction is attracted, and the computer output (being a copy) is deemed to be an electronic record (original document) and is admissible without further proof or production of the original.
If the strict interpretation adopted in Arjun Panditrao is accepted, then whenever the conditions prescribed by Section 63 cannot be satisfied—or are impossible to satisfy—the computer output would become incapable of being received in evidence. Such a consequence is both harsh and illogical. The inability to invoke the statutory deeming fiction should not render an otherwise relevant and reliable computer output inadmissible or incapable of proof.
On the contrary, if the non obstante clause is confined to the statutory deeming provision, Section 63 merely provides a special statutory mode of proof. Where its conditions are not satisfied, a party remains free to prove the computer output by any other lawful mode of proof recognised under the Bharatiya Sakshya Adhiniyam, 2023.
Accordingly –
Section 63 does not constitute an exhaustive code governing the proof of computer outputs or electronic evidence. It merely provides one statutory method of proof by conferring the benefit of a legal fiction upon a computer output that satisfies the requirements of the section.
CCTV footages, CDs & Trap Videos: Cannot be Proved with a Certificate
Following are the conditions for admissibility of a computer output under Section 63(2)—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the personhaving lawful controlover the use of the computer or communication device;
(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 fedinto the computer or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device 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 or communication device in theordinary course of the said activities.
Copied Item
Section
Why not attracted
CCTV Footage
63(2)(a)
The device is NOT used regularly … for … any activity regularly carried on…. by (any) person having lawful control.
Photograph, Trap-Video or CDs of speech Videograph of the scene of the crime.
63(2)(b)
NOT regularly fed into the device in the ordinary course.
63(2)(d)
NOT derived from such information fed in the ordinary course.
Settled Principles Governing Non Obstante Clauses
The following are the settled principles governing non obstante clauses –
1. In a non-obstante clause, the court applies a harmonious interpretation giving a restricted meaning, and the purport will be to avoid conflict with other provisions of the Act and the intention of the legislation.
See: • Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022-4 SCC 489 (Ajay Rastogi, Abhay S. Oka, JJ).
Geeta v. State of U.P., AIR 2011 SC 414 ; 2010-13 SCC 678, (G.S. Singhvi and Asok Kumar Ganguly, JJ.),
Central Bank of India v. State of Kerala, , (2009) 4 SCC 94.
ICICI Bank Ltd. v. SIDCO Leathers Ltd., , (2006) 10 SCC 452,
A.G. Varadarajulu v. State of Tamil Nadu, , (1998) 4 SCC 231,
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, , (1986) 4 SCC 447,
Aswini Kumar Ghose v. Arabinda Bose, , AIR 1952 SC 369,
2. A non obstante clause overrides only to the extent of inconsistency. It should not be given a wider operation than the legislative purpose requires. Once Parliament creates a legal fiction, courts must give full effect to it, but not extend it beyond its purpose.
See: East End Dwellings Co., Ltd. v. Finsbury Borough Council, (HL) Lord Asquith, J., (1952) A.C. 109; (1951) 2 All.E.R 587.
Referred to in:
Dineshchand Surana v. UCO Bank, 2026 KLT(Online) 4261 ; 2026 KHC(Online) 6425 (J.B. Pardiwala, K. V. Viswanathan, JJ.)
Nirmiti Developers v. The State Of Maharashtra, AIR 2025 SC 1495 ; 2025 KLT(Online) 1446 (J.B. Pardiwala, R Mahadevan, JJ.)
Union of India v. Rajeev Bansal 2024 KLT(Online) 2422; 2024-10 SCR 1633 (DY Chandrachud, CJI, J.B. Pardiwala, Manoj Misra, JJ.)
Canara Bank v. D.R.P. Sundharam, 2016-1 Scale 525 ; 2016-1 SCT 803 ; 2016 KHC 6932, (Ranjan Gogoi, Arun Mishra, Prafulla C. Pant, JJ.)
Oswal Agro Furane Ltd. v. Oswal Agro Furane Workers Union, AIR 2005 SC 1555; 2005-3 SCC 224 (N. Santosh Hegde & S.B. Sinha, JJ.)
Why the Non Obstante Clause in Section 63(1)?
Under the ordinary law of evidence, a computer output represents a copy or reproduction of information. Section 63(1) creates a legal fiction by treating such a computer output (copy) as an electronic record (original document) for evidentiary purposes. The legal effect of this deeming provision is twofold:
1. The non obstante clause is confined to enabling the statutory deeming fiction to operate notwithstanding anything contained elsewhere in the Act, particularly the provisions relating to secondary evidence in Sections 58 and 60.
Consequently, a computer output need not satisfy the ordinary requirements applicable to secondary evidence—for example, it need not be a “compared copy” within Section 58, nor is it necessary to establish the conditions prescribed by Section 60 for leading secondary evidence, such as proving that the original is in the possession of the opposite party.
2. Although Section 63(1) elevates a computer output (a copy) to the status of an electronic record (original document), the deeming fiction goes no further. It does not override the general law of evidence or dispense with the ordinary requirements governing admissibility, including relevance, authenticity, reliability, and proof.
Section 63(4)– Only One Mode of Proving the Computer Output
The Supreme Court decision in Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, had established a strict interpretation. It laid down — for admitting all categories of computer outputs (copies), “the only means” can be the requisite certificate under Section 65B(4).
But, sub-section (4) of Section 63 prescribes evidence by the mode of certificate, only for proving the ‘STATEMENTS’ (and not photographs or videos). This mode itself is optional — for it is permitted to be invoked only when it is “desired to give a statement in evidence by virtue of this section“. Section 63(4) reads as under:
“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission ….”
It is plain — Section 63(4) is not the exclusive route for proving all categories of computer outputs, as was held in Arjun Panditrao.
No Hash Certificate is Needed for CCTV footages, CDs & Videos
As shown above, sub-section (4) of Section 63 prescribes an enabling mode, using the certificate and Hash Value, for proving the ‘STATEMENTS’ alone (and not photographs or videos).
S. 61 BSA is to Override Arjun Panditrao
The above interpretation is reinforced by Section 61. If Section 63, actually constituted a complete overriding code governing the admissibility of computer output, there would have been little necessity for Parliament to enact Section 61. The existence of Section 61 indicates that Section 63 performs a narrower function.
It is also clear — Section 61 is a provision intended to ensure alternative routes for admitting computer outputs (copies of electronic records), that is, other than through the certificate contemplated under Section 63. It is the harmonious interpretation. If Section 61 is not read as stated above, it becomes redundant.
Section 61 of the BSA, was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam reads as under:
“61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
Note: The words “subject to section 63” connote — if Section 63 is invoked, all requirements and conditions therein must be complied with.
Drastic Legislative Change to Arjun Panditrao
Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by Arjun PanditraoKhotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.
In any event, Section 61 is worded with the definite view that it must be understood as a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records); that is, otherwise than through the certificate contemplated under Section 63(4).
It is time to consider – Whether the Courts in India Failed to Read and Understand: “Notwithstanding Anything Contained in this Adhiniyam”, the Non Obstante Clause in Section 63(1), Bharatiya Sakshya Adhiniyam, 2023.
Conclusion
The opening words of Section 63(1) of the Adhiniyam —”Notwithstanding anything contained in this Adhiniyam” do not establish a general overriding code governing electronic evidence, as interprets by the courts in India. These words merely ensure that, notwithstanding anything elsewhere in the Act, the statutory deeming fiction created by Section 63(1)—namely, that a computer output (a copy) shall be deemed to be an electronic record (an original document)—prevails.
Whether the reasoning in Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, is ultimately found to be correct or requires reconsideration (especially in view of the new provision in Section 61 of the Adhiniyam), is a matter for the Supreme Court. Until it is reconsidered, clarified, or overruled by a Bench of coequal or larger strength, it continues to hold the field and must be faithfully applied by all courts and tribunals in India.
Sections 61, 62, 63 of the BSA deal with electronic or digital evidence. They read as under:
61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.
62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (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 or 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 or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(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 or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device 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 or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in stand-alone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information creation or providing information processing and storage; or
(e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a STATEMENT in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(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 or a communication device referred to in clauses (a) to (e) of sub-section (3);
(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 in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert 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 in the certificate specified in the Schedule.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device 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;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).
Contents in a Nutshell •••1. Sec. 63 BSA: Status of Copy (computer output) is raised to Original •••2. Thereby, the admissibility of such a copy is not subject toS. 58(recognised forms of secondary evidence) & S. 60 (when secondary evidence is admissible). •••3. S. 63 Certificate – an Enabling Provision (See words: ALSO & DESIRED) •••4. S. 63 Certificate – confined to “STATEMENTS” (Not “computer output“) •••5. S. 61 BSA is a New Provision; It is to Override Arjun Panditrao •••6. Arjun Panditrao: ‘Statements’ Embrace even Video and Photograph •••7. Drastic Legislative Change to Arjun Panditrao – (to secure alternative routes) •••8. S. 63 Applies only “If the Conditions …. Are Satisfied” •••9. Contents of Section 63(4) Certificate •••10. The words “Subject to S. 63” in S. 61 do not Suggest Certificate Compulsory. ••• 11. HASH Value Certificate – Logic requires hash values (of copy) at the time of ‘copying’.
1. Sec. 63 BSA: Status of Copy (computer output) is raised to Original
Section 63, Bharatiya Sakshya Adhiniyam, 2023, speaks as to copy (computer output) as under –
“ (1) Notwithstanding anything contained in the Act … any information contained in an electronic record which is printed on paper…. or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document …..”
Three important legal effects of Section 63(1)
1. The opening words, “Notwithstanding anything contained in this Act,” in Section 63(1) are directed only to the statutory fiction that a computer output shall be deemed to be an electronic record (i.e., the original document). The non- obstante clause is confined to this deeming provision. It should not be construed as overriding every provision of the Act relating to the proof or admissibility of electronic evidence. Its function is only to support the legal fiction created by Section 63(1), not to govern the admissibility of electronic evidence generally.
2. Under Section 63(1), a ‘computer output‘ (copy) is deemed to be a document. The computer output is raised to the status ofan electronic record (original) for the purposes of admissibility.
3. The effect of sub-section (4) is that the admissibility of a ‘computer output’ (copy) is not subject to the requirements of Section 58(which defines the recognised forms of secondary evidence), or Section 60 (which specifies the circumstances in which secondary evidence is admissible).
Note: When the document is defined in Section 2(1)(d), it is laid down as under: ”
” ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.”
2. S. 63 Certificate – an Enabling Provision
Section 63, Certificate is not mandatory; it is only an enabling provision for the following:
1. Section 62, BSA says –
The contents of electronic records MAYbeproved (not shall be proved) in accordance with the provisions of section 63.
2. Section 63(1), BSA reads –
… “the computer output shall be deemed to be ALSO a document”
3. Section 63(4) lays down:
“where it is desired to give a statementin evidence, by virtue of this section”, it can be had by a “certificate”.
Note: Though there is a contradiction in terms on “Notwithstanding anything” on one hand and “also” and “desire” in another, on a harmonious reading, it is definite that it is an enabling provision. (If the strict interpretation is applied, admission by the other side will also not enable marking an electronic document.)
Therefore, an electronic document can be dealt with in accordance with the general principlesapplicable to documentary evidence in other provisions of the Evidence Act/ Adhiniyam. The certificate requirement (marking a document otherwise than through a witness) operates as an enabling or facilitative provision.
Section 63 does not Constitute an Exhaustive Code. Why?
Where the conditions prescribed in Section 63(1), read with Section 63(2), are not satisfied, or the deeming provisions cannot be invoked, the consequence is only that the benefit of the statutory deeming fiction (admissible without further proof or production of the original) cannot be invoked.
The inability to prove a computer output, invoking the statutory deeming provision, does not render the computer output inadmissible or incapable of proof.
It can still be proved by any other lawful mode of proof recognised by the Bharatiya Sakshya Adhiniyam, 2023, if the facts of the case permit.
Accordingly, Section 63 does not constitute an exhaustive code governing the proof of computer outputs or electronic evidence. It merely provides one statutory method of proof by conferring the benefit of a legal fiction upon a computer output that satisfies the requirements of the section.
S. 63 Certificate – Confined to “STATEMENTS” (Not “computer output“)
It is definite from the very statute – Section 63(4), BSA Certificate is confined to “STATEMENTS”.
It reads as under:
“In any proceeding where it is desired to give a STATEMENTin evidence, by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record”.
Note: 1. What is stated is NOT – where it is desired to give a‘computer output‘ in evidence. Instead, it speaks of giving a “statement”.
Note: 2. Nevertheless, the Supreme Court (Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908) does not accept this view. It is held –
“The drill of Section 65A and 65B alone be followed when it comes to admissibility of information contained in electronic records.”
Note: 3. “STATEMENT” according to BSA is –
that which can be expressed in the form of ‘oral evidence’. It is clear from the following
“STATEMENT” according to BSA is – expressed in ‘oral evidence’.
Sec: 2(1)(e) – Evidence is statements of witnesses
15 -19 – Admission is statement of witness
26 – Statement of a dead person
28 – Entries in books of account
30 – Statements in maps, plans
31 – Statements in Acts Notification
32 – Statements in law books
33 – If longer statements
79 – Statement of accused
Also See Sections: 89, 94, 95, 125, 147,
Also See Sections: 148, 158, 160, 161.
CCTV footage, CDs & Trap Video: Cannot be Proved with a Certificate
Following are the conditions for admissibility of a computer output under Section 63(2) —
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(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 fedinto the computer or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device 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 or communication device in theordinary course of the said activities.
Item
Section
Why not attracted
CCTV Footage
63(2)(a)
Device was NOT used regularlyforany activity regularly carried onby the personhaving lawful control.
Photograph, Trap-Video or CDs of speech Videograph of the scene of the crime,
63(2)(b)
NOT regularly fed into the device in the ordinary course.
63(2)(d)
NOT derived from such information fed in the ordinary course.
Arjun Panditrao: ‘STATEMENT’ Embrace even Video and Photograph
In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court adopted an expansive interpretation of the expression “statements.” It pressed the requirement of a certificate under Section 65B as a general condition for the admissibility of all forms of computer output (copies).
In other words, the term “statement” was construed to embrace all forms of computer output, regardless of their nature—whether a video, a photograph, or any other digital record. However, such an expansive construction does not appear to be supported either by the text of the provision or by its underlying rationale and intended scope.
Section 63, Adhiniyam, now requires expert opinion or hash value certification over and above the Certificate laid down in the former provision under Section 65B of the Indian Evidence Act.
S. 61 BSA is a New Provision; it is to Override Arjun Panditrao
Section 61 of the BSA, is a new provision. It was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam says as under:
“61. Electronic or digital record. Nothing in this Adhiniyam shall applyto deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
It is plain — Section 61 is a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records), that is, otherwise than through the certificate contemplated under Section 63.
The Supreme Court decision in Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, had established a strict interpretation. It laid down that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence. Thus, it is clear – S. 61 BSA is to override Arjun Panditrao.
Drastic Legislative Change to Arjun Panditrao
Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by Arjun PanditraoKhotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.
In any event, Section 61 is worded with a view that it must be understood as a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records); that is, otherwise than through the certificate contemplated under Section 63.
Section 63(4) Certificate
Section 63(4) BSA reads as under:
“(4) In any proceeding where it is desired to give astatement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
.(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 or a communication device referred to in clauses (a) to (e) of sub-section (3);
The following are the clauses (a) to (e) of sub-section (3) .(a) in stand-alone mode; or (b) on a computer system; or (c) on a computer network; or (d) on a computer resource ….; or (e) through an intermediary.
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
The conditions in sub-section (2)— .(a) …. during the period …. used regularly …; (b) …. information ….. regularly fed; (c) …. operating properly ….; and (d) information …. fed … in the ordinary course …
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expertshall 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 in the certificate specified in the Schedule.”
Do the words “Subject to S. 63” in S. 61 Suggest Certificate Compulsory?
Section 61 reads as under:
“Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
Do the words “subject to Section 63” in Section 61 suggest that the admissibility of a computer output depends upon the compulsory production of the certificate under Section 63?
This argument can be responded as under:
1. The above interpretation (based on the words “subject to Section 63”) would defeat the very purpose of introducing the new provision (Section 61), which expressly states – “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record”.
2. If the certificate under Section 63 were to remain as an inflexible rule, Section 61 would be rendered surplusage or otiose.
3. The harmonious construction would therefore be the following-
4. Section 61 seeks to mitigate the rigidity of the earlier position (as reflected in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal), which was understood to require that a computer output be proved only through a certificate under Section 63(4). And, Section 61 permits proof through any recognised mode, while retaining Section 63 as one of the available methods of proof.
HASH Value Certificate – Logic Requires Hash Values (of copy) at the time of ‘Copying’
The Certificate required in Sec. 63(4)(c) of the Sakshya Adhiniyam (BSA) must be:
(i) “purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate” and
(ii) “in the form specified in the Schedule”.
Note:
Sec. 63(4)(c) of the BSA does not specifically mandate hashing of copy, and it must be done at the time of copying.
But logic and the judicial precedents strongly support recording the hash values (of copy)at the time of ‘copying’.
Conclusion
Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, restores flexibility by recognising alternative modes of proof, while reserving Section 63 for a specific, certificate-based method of admissibility.
Section 61 has been introduced with the following clear and purposeful objectives:
1. To clarify that a computer output (i.e., a copy of an electronic record) can be proved byexamining a competent witness, and not exclusively by producing a certificate under Section 63(4).
2. To make it clear that the procedural requirements under Section 63(4), such as furnishing a certificate and hash value apply only when a party opts to rely on that mode of proof (without examining a witness).
Viewed in this light, Section 61 can be seen –
(i) as a legislative response to the strict and mandatory approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, and
(ii) as an attempt to ensure flexibility in the law relating to electronic evidence to align with global trends in jurisdictions such as the United Kingdom, the United States and Canada.
(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(iii) copies made fromorcompared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions;
(vii) written admissions;
(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.”
59. Primary evidence. Primary evidence means the documentitselfproduced for the inspection of the Court.
60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:
(a) when the original is shown or appears to be in the possession or power-(i) of the person against whom the document is sought to be proved; or(ii) of any person out of reach of, or not subject to, the process of the Court; or(iii) of any person legally bound to produce it, and when, after the noticementioned in section 64 such person does not produce it;
Section 64. Rules as to notice to produce. Secondary evidence …. in clause (a) of section 60, shall not be given unless …. previously given …. such notice to produce it: Provided that such notice shall not be required .(a) (b) when, from the nature of the case, the adverse party must know that he will be required to produce it; (c) …(d) ….. (e) when the adverse party or his agent hasadmitted the lossof the document; (f) ….. “Adverse Party Must Knowthat He Will Be Required To Produce It” Some instances: 1. A photocopy of a document was produced before the court by him. 2. The owner of a goods vehicle was questioned as to the contents of a permit to suggest that it did not contain a permit to take passengers. 3. When a witness “is about to make any statement as to the contents of a document, the opposite party objected it”, under Section 147 of the BSA.
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
Explanation. – For the purposes of-
(i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
(ii) clause (b), the written admission is admissible;
(iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;
(iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.
Sections 61, 62, 63 of the BSA deal with electronic or digital evidence. They read as under:
61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.
62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (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 or 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 or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(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 or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device 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 or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in stand-alone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information creation or providing information processing and storage; or
(e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a STATEMENT in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(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 or a communication device referred to in clauses (a) to (e) of sub-section (3);
(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 in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert 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 in the certificate specified in the Schedule.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device 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;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).
Section 63 deals with Admissibility, Not Relevancy or Truth
Section 63 reads as under:
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, …. computer output shall be deemed to be also a document, … and shall be admissible in any proceedings….
S. 63 deals with Method of Proving a Computer Output (Copy); Not Original
Section 63 reads as under:
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic recordwhich is printed on paper, stored, recorded or copied in optical or magnetic media … (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …..
If one produces original computer, mobile phone, Digital Video Recorder (DVR) or Network Video Recorder of a CCTV, or a chip/card to which a photo or video is captured, it does not need a Section 63(4) certificate – because, original is produced.
Time for Giving the Certificate – ‘along with the electronic record‘
Section 63(4) reads as under:
“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record** at each instance where it is being submitted for admission ……”
The Expression “Electronic Record” in Section 63(4): Another Drafting Anomaly
** Or should it read: “along with the computer output (copy)“?
The expression “electronic record“ in Section 63(4) can be justified only on the basis that: (i) the opening words, “Notwithstanding anything contained in this Act,” in Section 63(1) are confined to the statutory deeming fiction contained in that sub-section; and (ii) by virtue of that deeming fiction, a computer output is “deemed to be also a document“—that is, it is treated as the original document, namely, an electronic record, for the purposes of Section 63.
End Notes:
The schedule in the Bharatiya Sakshya Adhiniyam, 2023
THE SCHEDULE
[See section 63(4)(c)]
CERTIFICATE
PART A
(To be filled by the Party)
I, _____________________ (Name), Son/daughter/spouse of ___________________ residing/employed at __________________________ do hereby solemnly affirm and sincerely state and submit as follows:—
I have produced electronic record/output of the digital record taken from the following device/digital record source (tick mark):—
Computer / Storage Media # DVR # Mobile # Flash Drive # CD/DVD # Server # Cloud # Other #
Other: ________________________________________ Make & Model: _______________ Color: _______________ Serial Number: _______________ IMEI/UIN/UID/MAC/Cloud ID _____________________ (as applicable) and any other relevant information, if any, about the device/digital record ____ (specify).
The digital device or the digital record source was under the lawful control for regularly creating, storing or processing information for the purposes of carrying out regular activities and during this period, the computer or the communication device was working properly and the relevant information was regularly fed into the computer during the ordinary course of business. If the computer/digital device at any point of time was not working properly or out of operation, then it has not affected the electronic/digital record or its accuracy. The digital device or the source of the digital record is:—
Owned # Maintained # Managed # Operated by me (select as applicable).
I state that the HASH value/s of the electronic/digital record/s is _________________, obtained through the following algorithm:—
I, ____________________ (Name), Son/daughter/spouse of _____________________ residing/employed at _________________________ do hereby solemnly affirm and sincerely state and submit as follows:—
The produced electronic record/output of the digital record are obtained from the following device/digital record source (tick mark):—
Computer / Storage Media # DVR # Mobile # Flash Drive # CD/DVD # Server Cloud # Other # Other: ________________________________________
Make & Model: _______________ Color: _______________
Serial Number: _______________
IMEI/UIN/UID/MAC/Cloud ID_____________________ (as applicable) and any other relevant information, if any, about the device/digital record _______ (specify).
I state that the HASH value/s of the electronic/digital record/s is _____________________, obtained through the following algorithm:—
Saji Koduvath Associates 