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2019 DIGILAW 227 (GAU)

Mamata Bhowmik v. Union of India

2019-02-19

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

body2019
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. A.I. Ali, learned counsel for the Election Commission of India, Mr. A. Kalita, learned counsel for the State of Assam appearing for the Foreigners' Tribunal and Border Areas, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police, (Border) Sonitpur, Case No. F.T. (IMDT) 92/2016 was registered in the Foreigners Tribunal 7th, Tezpur, Balipara. In the proceeding amongst others, the petitioner exhibited the voter list of 1966 of village Lokhopara, Mouza-Missamari, Sub-division-Tezpur (Sadar) containing the name of Bijendra Sarkar Son of Jamini aged 48 years in order to establish that Bijendra Sarkar is the father of the petitioner. The Exhibit-4 voter list of 1966 is a certified copy of the electoral roll of 1966 and it contains the signature of the approving authority with the following:- "Signature valid Digitally signed by Prabir Kumar Dutta Date: 2016.09.27 16:26:31 IST Reason: e-District Portal Location: Assam" 3. Apart from the endorsement, the certified copy also contains a further note that the certificate is digitally signed and therefore, needs no physical signature and the authenticity of the certificate can be verified from http://www/assam.gov.in/certificate-verification and that the certificate is legally valid under the Information Technology Act, 2000. 4. The aforesaid reference was given a final consideration by the Tribunal by its order dated 02.08.2018 declaring the petitioner to be a foreigner who entered the State of Assam on or after 25.03.1971. In arriving at such conclusion, while discussing the evidentiary value of the Exhibit-4 voter list of 1966, the Tribunal arrived at the following conclusion:- ".... No digital signature of the issuing authority is seen on the voter lists nor had it signed physically by the issuing authority under (65-B) of the Indian Evidence Act." 5. By taking such view, Exhibit-4 voter list was rejected by the Tribunal leading to an opinion that the petitioner is a foreigner who came to Assam on or after 25.03.1971. 6. Being aggrieved, the present writ petition is preferred and one of the grounds taken in the writ petition is that the Tribunal in its order dated 02.08.2018 had incorrectly rejected the Exhibit-4 voter list of 1966. 7. 6. Being aggrieved, the present writ petition is preferred and one of the grounds taken in the writ petition is that the Tribunal in its order dated 02.08.2018 had incorrectly rejected the Exhibit-4 voter list of 1966. 7. The law as regards the admissibility of a document which is a printed form on paper of any information contained in electronic record is provided under Section 65-B of the Evidence Act, 1872. Section 65-B(1) of the Evidence Act, 1872 is as under:- 65B. Admissibility of electronic record----(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible." 8. Section 65-B(1) clearly provides that if any information contained in an electronic record is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document if the other condition mentioned in Section 65(B) are satisfied and the same shall be admissible in any proceeding without further proof or production of the original, as evidence of any of the contents of the original or of any evidence stated therein. 9. 9. Section 65(B)(4) provides as under:- In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say ----- (a) Identifying the electronic record containing the statement and describing the manner in which it was produced; (b) Giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) Dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the 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. 10. Section 65B(4) inter-alia provides that if it is desirable to give a statement in evidence through a document having the information contained in an electronic record, the same is required to be signed by a person occupying a responsible official position in relation to the operation of the relevant electronic device from which such information had been obtained. In other words, Section 65B(4) clearly provides that such documents having the information contained in an electronic record is required to be signed by the person occupying a responsible official position in relation to the operation of the relevant electronic device, meaning thereby that it requires to contain the signature of the responsible official, who is in-charge of the electronic device. 11. A question has arisen as to whether the signature of the person in a responsible official position is a mandatory requirement in order to validate any document having the information contained in an electronic record, where the said question was answered by the Supreme Court in Shafhi Mohammad Vs. The State of Himachal Pradesh in its order dated 30.01.2018 in Special Leave Petition (Crl) No. 9431/2011 and 9631-9634/2012, wherein in paragraph-11, it was held as follows:- "11. The State of Himachal Pradesh in its order dated 30.01.2018 in Special Leave Petition (Crl) No. 9431/2011 and 9631-9634/2012, wherein in paragraph-11, it was held as follows:- "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(4) is not always mandatory." 12. Paragraph-11 of Shafhi Mohammad (supra) clearly provides that the procedural requirement of Section 65B(4) i.e. the requirement of the signature of the person in a responsible official position is to be applied only when the electronic evidence is produced by a person, who is in a position to produce such certificate being in control of the device and not of the opposite party and that in a case where the electronic evidence is produced by a party who is not in possession of a device, the applicability of Sections 63 and 65 of the Evidence Act cannot be excluded and in such case, the procedure under Sections 63 and 65 can certainly be invoked. It further provided that in the event the person relying upon such documents having the information contained in the electronic record is not permitted to invoke Sections 63 and 65 of the Evidence Act, it would amount to be a denial of justice to the person who is in possession of the authentic evidence/witness but is kept out of consideration by the court for the absence of a certificate under Section 65B(4). It further provides that accordingly the requirement of a certificate under Section 65B(4) is not always mandatory. 13. It further provides that accordingly the requirement of a certificate under Section 65B(4) is not always mandatory. 13. As we understand the propositions laid down by the Supreme Court in Shafhi Mohammad (supra) would be that in the absence of signed certificate as required under Section 65B(4) of the Evidence Act of 1872, a person relying upon such document having the information contained in an electronic record cannot be ousted from rendering his evidence merely because of the absence of such certificate and in such event, the person concerned would have to be given the benefit of adducing further evidence under Sections 63 and 65 of the Evidence Act of 1872. 14. In the instant case, we take note of that the Exhibit-4 voters list of 1966 does contain a digital signature of a person Prabir Kumar Dutta, who had signed it on 27.09.2016. It being so, the only requirement now would be to arrive at a conclusion as to whether such digital signature of the person concerned can be construed to be a signature of a person occupying a responsible official position in relation to the operation of the relevant electronic device. 15. Digital signature is defined under Section 2 (p) of the Information Technology Act of 2000 (in short Act of 2000), which provides that digital signature means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of Section 3. Again Section 2(ta) defines electronic signature to mean an authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature. Again digital signature certificate means a digital certificate under Section 35(4) of the Act of 2000. Section 5 of the Act of 2000 provides that where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of electronic signature affixed in such manner as may be prescribed by the Central Government. 16. 16. Section 5 of the Act of 2000 is a non-obstante provision, which provides that notwithstanding anything contained in any other law, if a document having the information contained in an electronic record is authenticated by a digital or an electronic signature, such digital or electronic signature is also deemed to be a signature to such document. 17. Reading the provisions of the authentication of digital signature and electronic signature under the Act of 2000 and the provision of Section 5 of the Act of 2000, the requirement of Section 65B(4) of the Evidence Act of 1872 requiring that a document having the information contained in an electronic record is required to be signed by a person occupying a responsible official position in relation to the operation of the relevant device, would also be satisfied if such document contains the digital signature or the electronic signature of the person having a responsible official position in relation of the operation of the relevant device. 18. From the aforesaid aspect of the matter, the digital signature of Prabir Kumar Dutta contained in the Exhibit-4 voters list of 1966 would have to be construed to be a document which satisfies the requirement of Section 65B(4) of the Evidence Act of 1872 meaning thereby that the Exhibit-4 voters list is a duly certified document under the said provision. 19. It being so, the provisions of Section 65B(1) of the Evidence Act of 1872 would also be applicable in respect of the Exhibit-4 voters list of 1966. Accordingly, as the Exhibit-4 voters list of 1966 satisfies the requirement of the other provisions of Section 65B of the Evidence Act of 1872, the said document having the information contained in an electronic record and duly certified under Section 65B(4) would be admissible in any proceeding without any further proof or production of the original, to be an evidence in respect of the contents of the electronic record. 20. It is further taken note of that the digital signature in the Exhibit-4 voters list of 1966 is of Prabir Kumar Dutta, who apparently as stated by the parties, is not a person who is occupying a responsible official position in relation of the operation of the relevant electronic device. 20. It is further taken note of that the digital signature in the Exhibit-4 voters list of 1966 is of Prabir Kumar Dutta, who apparently as stated by the parties, is not a person who is occupying a responsible official position in relation of the operation of the relevant electronic device. For the purpose, we have taken note of the Assam Information Technology (Electronic Service Delivery) Rules, 2017 (in short Rules of 2017), which inter-alia provides for the concept of an authorized service provider. Rule-2(e) of the Rules of 2017 defines an authorized service provider to mean a body corporate approved by a competent authority of an Administrative Department of the Government of Assam to establish and manage a system of delivering public services electronically in accordance with these Rules. Rule-2(g) provides that a certificate means a certificate or the certified copies required to be issued by an authority empowered under any Act, Rule, Regulation or Order of the Government, etc which includes a certificate in electronic form printed and issued by an Authorized Agent or Authorized Service Provider or the State Electronic Records Repository. In other words, if the certificate required under Section 65B(4) of the Evidence Act of 1872 is issued by an authorized service provider under the Assam Information Technology (Electronic Service Delivery) Rules, 2017, such certificate shall also have to be deemed to be a certificate issued by the person occupying a responsible official position in relation of the operation of the relevant electronic device. 21. In view of the provisions of the Assam Information Technology (Electronic Service Delivery) Rules, 2017, the digital signature of Prabir Kumar Dutta, who is not disputed to be a signatory of the authorized service provider, is therefore, an acceptable signature under Section 65B(4) of the Evidence Act of 1872. 22. In view of the aforesaid conclusion, the view taken by the Tribunal that the Exhibit-4 voters list of 1966 is inadmissible in evidence is found to be contrary to the law indicated above as well as to the facts involved as regards the said exhibit. 23. 22. In view of the aforesaid conclusion, the view taken by the Tribunal that the Exhibit-4 voters list of 1966 is inadmissible in evidence is found to be contrary to the law indicated above as well as to the facts involved as regards the said exhibit. 23. Accordingly, the order dated 02.08.2018 in Reference Case No. F.T.(IMDT).92/2016 passed by the Foreigners Tribunal 7th, Tezpur, Balipara is set aside and the matter is remanded back to the Tribunal for a fresh adjudication by taking into account the evidentiary value of the Exhibit-4 voters list of 1966 as well as all such other exhibits of similar nature and character that may have been produced by the petitioner. 24. The petitioner shall appear before the Tribunal on 20.04.2019 and upon such appearance; the Tribunal shall re-adjudicate the matter in the manner as indicated above and deliver its final opinion within a period 15 days therefrom. 25. The writ petition stands allowed to the extent indicated above.