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SUPREME COURT OF INDIA
ADARSH KUMAR GOEL, UDAY UMESH LALIT, JJ.
Shafhi Mohammad - Petitioner
Versus
The State of Himachal Pradesh - Respondent
Special Leave Petition (Crl.) Nos. 2302 of 2017; 9431 of 2011 & 9631-9634 of 2012
Decided On : 30-01-2018
(a) Code of Criminal Procedure, 1973 – Section 54-A – Videography of scene of crime and scene of recovery – High Cost and technical restraints – Held, use of digital still cameras with secured portals for data storage will meet the needs. (Para 3)
SLP (Crl.) No. 9431 of 2011
(b) Code of Criminal Procedure, 1973 – Section 54-A r/w section 65B, Evidence Act – Videography of scene of crime and scene of recovery – Use of new technology should not be denied – Adequate care should be taken to rule out tampering. (Para 3, 6)
(c) Evidence Act, 1872 – Section 65B(4) – Electronic evidence – Certificate – Can be produced by a person in control of the device, and not of opposite party – Otherwise section 63 and 65 get attracted – Requirement of certificate not always mandatory – Party not in possession of the device cannot be required to produce the certificate. (Para 11, 12, 14)
1985 (Supp) SCC 611; (2010) 4 SCC 329; (2015) 7 SCC 178; (2012) 9 SCC 1; (2014) 10 SCC 473 – Relied upon
(1965) 2 AllER 464; (1972) 2 AllER 699; (2005) 11 SCC 600 – Referred
Facts of the case:
The question arising in the matter is whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
Finding of the Court:
Requirement of section 65B is not always mandatory.
Certainly. Based on the provided legal document, the key points are as follows:
Electronic evidence is admissible in court proceedings, provided it meets certain criteria for authenticity and relevance (!) (!) (!) .
The statutory requirement of producing a certificate under Section 65B(4) of the Evidence Act is not always mandatory, especially when the electronic evidence is produced by a person who is not in control of the device from which the evidence originates (!) (!) (!) .
The procedural provisions under Sections 65A and 65B of the Evidence Act serve as clarifications and are not a complete code; they facilitate the admissibility of electronic evidence but do not override the general principles of evidence law (!) (!) .
The term "electronic record" encompasses data, records, images, or sounds stored or transmitted electronically, and "data" refers to information prepared or processed in a formalized manner within a computer system (!) (!) .
When electronic evidence is produced by a party in control of the device, a certificate under Section 65B(4) is generally required to establish its authenticity. However, if the evidence is produced by a party not in possession of the device, the requirement of such a certificate can be relaxed to serve the interests of justice (!) (!) .
The Court emphasizes that safeguards such as verifying the accuracy of recordings, ruling out tampering, and establishing the identity of speakers or sources are crucial for assessing the reliability of electronic evidence (!) .
The Court advocates for the use of technology such as digital cameras and secured data storage portals to enhance the integrity of evidence collection, with the aim of improving investigation procedures (!) .
The Court recognizes the importance of establishing standard operating procedures (SOP) and guidelines for the use of videography and other electronic evidence collection methods to ensure their admissibility and reliability (!) .
The Court underscores that the admissibility of electronic evidence depends on its authenticity, relevance, and the safeguards adopted to prevent tampering, rather than solely on procedural formalities (!) (!) .
The Court has adjourned further proceedings to a future date to finalize guidelines and procedures for the use of videography and electronic evidence in investigations (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this document.
ORDER :
SLP (Crl.) No. 2302 of 2017 :
1. One of the questions which arose in the course of consideration of the matter was whether videography of the scene of crime or scene of recovery during investigation should be necessary to inspire confidence in the evidence collected.
2. In Order dated 25th April, 2017 statement of Mr. A.N.S. Nadkarni, learned Additional Solicitor General is recorded to the effect that videography will help the investigation and was being successfully used in other countries. He referred to the perceived benefits of “Body-Worn Cameras” in the United States of America and the United Kingdom. Body-worn cameras act as deterrent against anti-social behaviour and is also a tool to collect the evidence. It was submitted that new technological device for collection of evidence are order of the day. He also referred to the Field Officers' Handbook by the Narcotics Control Bureau, Ministry of Home Affairs, Government of India. Reference was also made to Section 54-A of the Cr.P.C. providing for videography of the identification process and proviso to Section 164(1) Cr.P.C. providing for audio video recording of confession or statement under the said provision.
3. Thereafter, it was noted in the Order dated 12th October, 2017, that the matter was discussed by the Union Home Secretary with the Chief Secretaries of the States in which a decision was taken to constitute a Committee of Experts (COE) to facilitate and prepare a road-map for use of videography in the crime scene and to propose a Standard Operating Procedure (SOP). However, an apprehension was expressed about its implementation on account of scarcity of funds, issues of securing and storage of data and admissibility of evidence. We noted the suggestion that still-photography may be useful on account of higher resolution for forensic analysis. Digital cameras can be placed on a mount on a tripod which may enable rotation and tilting. Secured portals may be established by which the Investigation Officer can e-mail photograph(s) taken at the crime scene. Digital Images can be retained on State's server as permanent record.
SLP (Crl.) No. 9431 of 2011 :
1. Since identical question arose for consideration in this special leave petition as noted in Order dated 12th October, 2017, we have heard learned amicus, Mr. Jayant Bhushan, senior advocate, Ms. Meenakshi Arora, senior advocate, assisted by Ms. Ananya Ghosh, Advocate, on the question of admissibility of electronic record. We have also heard Mr. Yashank Adhyaru, learned senior counsel, and Ms. Shirin Khajuria, learned counsel, appearing for Union of India.
2. An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence.
3. We have been taken through certain decisions which may be referred to. In Ram Singh and Others v. Col. Ram Singh, 1985 (Supp) SCC 611, a Three-Judge Bench considered the said issue. English Judgments in R. v. Maqsud Ali, (1965) 2 AllER 464, and R. v. Robson, (1972) 2 AllER 699, and American Law as not
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