1 AEP 6 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPLICATION NO.6 OF 2011 IN ELECTION PETITION NO.1 OF 2009 Indur Kartar Chhugani .. Applicant -versus Ms. Priya Dutt .. Respondent. Mr. Indur K. Chhugani, the petitioner in person. Mr. P. K. Dhakephalkar, Senior Counsel alongwith Mr. L.M. Acharya i/b Satyam Acharya for respondents in application/original respondent No.3 in Election Petition . CORAM: R.C. CHAVAN, J. DATED: 26th September, 2011 P.C. 1. This application by the petitioner is for direction to the officer of this Court to give copies of two CDs which had been produced by the Returning Officer pursuant to the order of this Court dated 4th February, 2011, and to exhibit those CDs to meet the ends of justice. 2. The context in which this application came to be filed is somewhat as under:- Applicant had filed Application No.25 of 2010, praying for a direction to call for video recording, receipts and 2 AEP 6 of 2011 document collected with filing nomination forms and subsequent scrutiny from respondent Nos 1 and 2 i.e. Returning Officer or the Chief Election Commissioner of India. This application was allowed by order dated 4th February, 2011 in the following terms. (i) Mr. Mahendra Warbhuvan, Former Returning Officer of 29 Mumbai North Central Loksabha Constituency, is directed to produce on record the original documents more particularly described in item Nos 5, 6, 7, 8, 9, 18 and 19 of the list of documents annexed to the election petition. Mr. Warbhuvan is also directed to produce video recording of nomination process and scrutiny procedure. (ii) It is made clear that the issue regarding proof of documents and the proof of video recording is kept open. 3. In the penultimate para before giving this direction, this Court also observed since video cassettes are sought to be produced from the custody of the Returning Officer himself, the authenticity thereof cannot be normally doubted. 4. After this order was passed the CDs were produced on 13th April, 2011. The Returning Officer stepped into the witness box on 29th April, 2011 as witness of the petitioner. His examination was over by 7th June, 2011. Thereafter on 20th 3 AEP 6 of 2011 July, 2011, the Returning Officer seems to have produced on record a certificate to the following effect. CERTIFICATE. To the best of my knowledge and belief I state that I have submitted in Election Petition No.1 of 2009 on 13.4.2011 two Compact Discs showing the video recording of nominations and scrutiny of nomination process dated 09/04/2009 and 11/04/2009 respectively to the Hon’ble High Court. I further state that the said Compact Discs conform to section 65/B of the Indian Evidence Act. 5. The video recording was not seen by anyone and had not been proved by the Returning Officer Shri. Warbhuvan or any other witness. 6. Application was opposed by filing affidavit in reply by the contesting respondent, candidate who had been declared as elected. In the reply it was stated that in the order dated 4th February, 2011, question of proof of document and proof of video recording was kept open. It was further stated that after evidence of Returning Officer was recorded, petitioner was asked if he was still desirous of examining the remaining witnesses. In the petitioner’s affidavit in rejoinder, petitioner has stated that on 7th June, 2011, after this Court had asked him if he wanted to examine any witnesses, the petitioner specifically informed that any further examination of 4 AEP 6 of 2011 witnesses would delay the hearing of the above Election Petition and thereafter the Court recorded that the petitioner appearing in person had closed his evidence. 7. Thereafter on 10th June, 2011, learned counsel for the respondent also stated to the Court that the respondent did not wish to lead any evidence. Thereafter this Court asked parties whether they would like to make any written submissions. The petitioner-in-person now submits orally that he did not understand this to mean that he was to submit any final arguments. He claims that he had reminded the Hon’ble Judge that the Court had not viewed the Compact Discs, whereupon the Judge remarked that Video Compact Discs could be viewed only after they were admitted in evidence. It is in this context the petitioner wants copies of CDs to be given to him and CDs to be marked and exhibited as evidence in this case. 8. I have heard the petitioner in person in support of his application and learned counsel for the contesting respondent as also the petitioner-in-person’s reply to the arguments advanced by the learned counsel for respondent. Before proceeding to pass further order, I had asked both the parties if they had actually seen what is contained in the CDs. The petitioner in person states that he has not seen what is 5 AEP 6 of 2011 contained in the CDs or what is recorded in the CDs. Learned counsel for the respondent also has not seen the contents of CDs. When nobody has seen CDs, to expect the CDs to contain some material which may be useful for deciding the issues involved would amount to groping in dark. 9. Possibly because the petitioner appearing in person is a Mechanical Engineer and not a professional Lawyer, though he claims to have been appearing in public interest litigation personally, lack of familiarity with rules or procedure has possibly led the petitioner to this situation. Even a document on a piece of paper is required to be proved by either examination on oath, the author or any person in whose presence document was made or person who is familiar with the writing of the author of the document before it could be read by the Judge. As far as electronic record is concerned as observed by the Hon’ble Supreme Court in Tukaram Dighole -vs- Manikrao Shivaji Kokate, (2010) 4 Supreme Court Cases 329, proof of recording and its not having been tampered with has to be exceedingly stringent. In the present case nobody knows who is the person, who actually made that video recording, where video recording was stored, how CDs were prepared, in whose custody the recording was kept and whether the persons who recorded or person who had custody of the storage medium from which this recording was made had ensured that it could not be tampered with. Therefore 6 AEP 6 of 2011 unless such proof was tendered before this Court, there would be no question of admitting anything contained on the electronic medium as evidence in case. Question of veracity or probative value would arise only thereafter. Even for admitting the CDs in evidence, it would have to be proved that the medium contained recording made by a person who appears as a witness and states that he had recorded it. The person in whose custody recording was kept enters the witness box and states that he had preserved it in the same form in which it was made over to him. All these questions are incorporated in Section 65B of the Evidence Act. The Returning Officer’s certificate is far too inadequate to gather the authenticity of the record, since Returning Officer himself could not be imagined to have done video recording personally in his own office or to have preserved the medium on which such record was made. Therefore, in the absence of evidence from the Videographer and the person in whose custody, the recording was preserved, production of two CDs in the Court would be of absolutely no use, inspite of certificate of the Returning Officer. Therefore, whether the petitioner was led to believe something or not, the fact remains that two CDs containing video recording have not been proved. Therefore, there is no question of exhibiting them if a medium CD is not proved, there is no question of this Court giving the copies of the medium, likewise, authenticity 7 AEP 6 of 2011 whereof is itself not ascertained by the Court, to a party. Therefore, both the prayers regarding marking CDs as Exhibits or granting copies thereof to the petitioner cannot be allowed. Application is, therefore, rejected. (R. C. CHAVAN, J.)