Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal: the 2020 reconciliation of Section 65B

The Arjun Panditrao Khotkar litigation arose, like Anvar P.V., from an election petition. The petitioner before the Bombay High Court was Kailash Kushanrao Gorantyal, the defeated Congress (I) candidate from the 101-Jalna Legislative Assembly Constituency for the term commencing November 2014. The election of Arjun Panditrao Khotkar, of the Shiv Sena party, was challenged on grounds engaging electronic evidence — including video compact discs alleged to record corrupt practices.

The doctrinal posture of the matter, however, made it more than an election case. By 2017, when the Civil Appeals reached the Supreme Court (CA Nos. 20825-20826 of 2017, with companion appeals), the Anvar P.V. framework had been the operative law for three years. But a two-judge Bench in Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 had appeared to soften the framework — taking the view that the Section 65B(4) certificate could be dispensed with where the device producing the record was not in the control of the producing party.

The matter was referred to a three-judge Bench. On 14 July 2020, Rohinton F. Nariman, S. Ravindra Bhat and V. Ramasubramanian JJ. delivered judgment. The case is reported at (2020) 7 SCC 1. The disposition reaffirmed Anvar, overruled Shafhi Mohammad, and supplied a framework for the boundaries — primary vs secondary electronic evidence, the procedural remedies where certification is unavailable, and the relationship between the certificate and other forms of authentication.

The doctrinal problem the Bench had to solve

By 2020, the bar's reading of the certificate framework was confused. Three positions were in circulation:

• The Anvar P.V. (2014) position: certificate mandatory; Sections 65A and 65B form a complete code; no general secondary-evidence backdoor.
• The Shafhi Mohammad (2018) position: certificate ordinarily required, but dispensable where the device was not in the producing party's control.
• A residual Navjot Sandhu (2005) position, surviving in some trial-court practice notwithstanding Anvar's overruling of it.

The bar needed a single, settled framework. The Bench supplied one.

The holding

The reasoning

The Bench's reasoning had four threads.

Affirmation of Anvar P.V.

The first thread was the affirmation. The 2014 holding — Sections 65A and 65B form a complete code; the certificate is a condition precedent — was correct. The textual, doctrinal and policy reasoning supplied in Anvar was endorsed. To the extent that subsequent decisions had read the framework loosely, those readings were doctrinally mistaken.

The overruling of Shafhi Mohammad

The second thread was the overruling. Shafhi Mohammad had reasoned that where the device was not in the control of the producing party, requiring the certificate would produce injustice — and that the requirement could, therefore, be dispensed with on grounds of impracticality. The 2020 Bench rejected this reasoning. The certificate requirement is not a matter of convenience; it is a legislative design choice about the integrity of electronic evidence. Impracticality in a particular case does not authorise the court to dispense with the legislative requirement — it requires the party to find the appropriate procedural mechanism for compliance.

Primary vs secondary electronic evidence

The third thread, and the most practically useful, was the clarification on primary versus secondary electronic evidence. The Bench drew the distinction:

• Where the original device itself is produced in court and the witness testifies about the information it contains, the position is one of primary evidence. The certificate requirement, designed for secondary-evidence scenarios, does not engage in the same way. A witness with personal knowledge of the device and its operation can, on production of the original, testify directly to its contents.
• Where a copy of the electronic record is being adduced — printed extracts, transferred files, derived images — the position is secondary evidence within the meaning of Section 65A. The Section 65B(4) certificate is required.

The doctrinal clarification was important because it solved a practical problem: small-business records on a single laptop, personal devices, mobile phone records — where the original device was available and a witness with knowledge of it was available — could now be brought through the primary-evidence route without the certificate. The certificate framework was preserved for its intended cases: where electronic records have been copied, transferred, or extracted for adduction in proceedings.

Procedural remedies for genuine difficulty

The fourth thread addressed the genuine cases — present in many investigations — where the certificate is difficult to procure. The Bench provided guidance:

• Where the certificate is unavailable because the responsible person has not supplied it despite reasonable demand, the party seeking admission may approach the court for an order directing production.
• Where the device is not in the producing party's control, applications for production through formal channels (subpoena, court directions to third parties) are available.
• The substantive certificate requirement is not waived; what the framework supplies is the procedural mechanism for satisfying it.

The Section 65B(4) certificate is mandatory. Impracticality in a particular case is the trigger for procedural remedy, not for doctrinal dispensation.

The architecture, post-Arjun Panditrao

The combined doctrinal architecture — Anvar (2014) plus Arjun Panditrao (2020) — produces a framework that practitioners can apply in three steps.

Step 1 — Is the original device being produced? If yes, the matter is primary evidence and a witness with knowledge of the device can testify directly. The certificate requirement does not engage in the same way.

Step 2 — Is the certificate available? If yes, the framework is satisfied: the certificate must identify the device, confirm proper operation, describe the production of the record, and be signed by a responsible person. The electronic record is admissible.

Step 3 — Is the certificate genuinely unavailable? If yes, the procedural remedies are available — applications to the court for production directions, formal demands on the responsible person, subpoena to third parties holding the device. The substantive requirement is preserved; the procedural route is provided.

There is no fourth step. Dispensation with the certificate on grounds of difficulty is not in the framework. The Shafhi Mohammad doctrine is dead.

Travel onto the Bharatiya Sakshya Adhiniyam

The Bharatiya Sakshya Adhiniyam, 2023, replaced the Indian Evidence Act on 1 July 2024. The electronic-evidence framework is now in §Sections 61, 62 and 63 of the BSA. The architecture preserves the Anvar / Arjun Panditrao discipline:

• Electronic records are treated as a category requiring specific authentication and certification.
• The certificate framework — broadly tracking Section 65B(4) of the Evidence Act — remains the foundation of admissibility for secondary electronic evidence.
• The BSA modernises the framework by expressly recognising hash values, digital signatures, and other contemporary authentication mechanisms as components of the certification regime.
• The primary-vs-secondary distinction, clarified in Arjun Panditrao, carries over to BSA practice.

For the practitioner, the position under the BSA is: the Anvar / Arjun Panditrao line is the controlling doctrine. The BSA's modernisations supplement but do not displace the certification framework. Where the BSA expressly accommodates new authentication mechanisms (hash, digital signatures), the certification can be structured to take advantage of them — but the substantive requirement remains.

A note on Section 138 NI Act practice

The most cited domain where the certificate framework engages high-volume practice is Section 138 of the Negotiable Instruments Act — the cheque-bounce jurisdiction. Electronic records used in these proceedings — bank statements, SMS notifications, email correspondence — must, where adduced as secondary evidence, satisfy the Anvar / Arjun Panditrao discipline.

For Section 138 practitioners, the practical guidance:

• Bank statements adduced electronically should be accompanied by certification from the bank under Section 65B(4) / BSA s. 63.
• SMS and email correspondence should ideally be authenticated at the source — through certification by the service provider, where available, or through the testimony of the responsible person where it is not.
• Where the original mobile device or computer is produced and the witness with knowledge testifies, the primary-evidence route is available without the certificate.

The trial-court practice in Section 138 matters has, by and large, settled into a workable rhythm — but where the certificate is overlooked, the matter is exposed to Anvar-grounded objection at the trial stage and on appeal.

What practitioners take from Arjun Panditrao in 2026

Three operational guides.

Treat the certificate as a pre-trial discipline. The certificate must be obtained at the point of evidence collection, not at the trial stage. By the time of trial, the device may have been overwritten and the responsible person may be unavailable. The discipline of building the certification framework into investigation and evidence collection is the working practice for criminal investigators, civil litigants and forensic teams.

Use the primary-evidence route where it is available. Where the original device is available and the witness with knowledge of it is available, the primary-evidence route is faster and procedurally cleaner. The Arjun Panditrao clarification supplies the doctrinal basis for it.

Apply for production directions where the certificate is genuinely unavailable. Where compliance is impossible because the device or the responsible person is outside the producing party's control, the procedural framework provides remedies. The remedy is the application to the court, not the dispensation argument.

The bottom line

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal is the operative doctrinal architecture for electronic evidence in Indian practice. The Anvar P.V. framework is affirmed. The Shafhi Mohammad relaxation is overruled. The primary-vs-secondary distinction is clarified. The procedural remedies are made explicit. Six years on, the framework continues to govern; and as Indian evidentiary practice transitions to the Bharatiya Sakshya Adhiniyam, the Anvar / Arjun Panditrao discipline travels onto the new code without doctrinal modification. For the bar, the working rule is the simplest possible — get the certificate, or use the primary-evidence route, or seek a court direction. There is no fourth option.

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Verify against the reported judgment. The BSA framework, while modernised at the margins, preserves the substantive Anvar / Arjun Panditrao discipline.