REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL)NO. 2302 OF 2017

SHAFHI MOHAMMAD …Petitioner

Versus

THE STATE OF HIMACHAL PRADESH …Respondent

WITH SPECIAL LEAVE PETITION (CRIMINAL)NO. 9431 OF 2011 (Ravinder Singh @ Kaku  versus  The State of Punjab)

AND

SPECIAL LEAVE PETITION (CRIMINAL)NOS.9631-9634 OF 2012 (The State of Punjab  versus  Ravinder Singh @ Kaku and Anr.)

O  R  D  E  R

SLP(Crl.)No.2302 of 2017

1. Use  of  videography  of  the  scene  of  crime  is  the  subject

matter of consideration herein.  We may note the proceedings in

the case on earlier hearings.  In order dated 25th April, 2017, it

was observed:

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“Mr. A.N.S. Nadkarni, Additional Solicitor General, has accordingly put in appearance and made his submissions. He has also submitted a note to the effect that such videograph will indeed help the investigation and such concept is being used in some  other  advanced  countries.  The  National Institute  of  Justice  which  is  an  agency  of  U.S. Department of Justice in its report has noted the perceived  benefits  for  using  the  “Body-Worn Cameras”  and  also  the  precautions  needed  in doing  so.  The  British  Transport  Police  has  also found body worn cameras as deterrent against anti-social  behaviour  and  tool  to  collect evidence.  He also referred to  judgment of  this Court  in  Karnail  Singh  Vs.  State  of  Haryana, (2009) 8 SCC 539 wherein reference to use of technology  during  search  and  seizure  under Narcotic Drugs and Psychotropic Substances Act, 1985 has been made. Reference has also been made  to  Information  Technology  Act (Amendment) 2006, particularly, Section 79A. In (1976) 2 SCC 17, Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., this Court noted that new techniques and devices are the order  of  the  day.  Audio  and  video  tape technology has emerged as a powerful medium through which  a  first  hand information  can be gathered and can be crucial evidence.  

Learned  Additional  Solicitor  General  has  also drawn  our  attention  to  the  Field  Officers' Handbook  issued  by  the  Narcotics  Control Bureau, Ministry of Home Affairs, Government of India, inter-alia, suggesting that logistic support be  provided  to  the  search  teams.  It  further suggests  that  all  recovery  and  concealment methods  should  be  videographed simultaneously.  The  said  handbook  3  also suggests that permission should be taken under Section  52A  of  the  Narcotic  Drugs  and Psychotropic  Substances  Act,  1985  for  pretrial disposal  of  the  contraband.  Further,  reference

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has  been  made  to  the  Narcotic  Drugs  and Psychotropic Substances (Amendment) Bill, 2016 moved by a private member in the Lok Sabha. He submits that in his view such Bill will advance the  interests  of  justice  and  he  will  advice  the Government  of  India  to  consider  and  oversee adoption for these measures in the Country by investigating agencies.  

Mr. A.I. Cheema, learned Amicus points out that Second  Proviso  to  Section  54A  of  the  Cr.P.C. provides  for  videography  of  identification process  in  circumstances  specified  in  the  said provision.  He  also  stated  that  there  should  be videography  of  confessional  statement  under Section 164 Cr.P.C. He states that such measures can  also  be  adopted  for  recording  dying declarations,  identification  processes  and  the post-mortem.  

Since,  we  find  that  at  the  ground  level  these measures have not been fully adopted, we direct the  Home  Secretary,  Government  of  India  to ascertain  from  different  Investigating  Agencies to how far such measures can be adopted and what  further  steps  be  taken  to  make  use  of above technology for effective investigation and crime prevention.”

2. Thereafter,  in  the  order  dated  12th October,  2017

consideration of the matter was as follows:

“Mr. A.N.S. Nadkarni, learned Additional Solicitor General, has filed a note stating that the matter was discussed by the Union Home Secretary with the  Chief  Secretaries  of  the States.  A  decision was taken to constitute a Committee of Experts (COE)  to  facilitate  and  prepare  a  report  to formulate a road-map for use of videography in crime investigation and to  propose a Standard

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Operating Procedure (SOP). The Committee has held its meetings. The response of the States is in  support  of  use  of  videography.  The  Central Investigation Agencies have also supported the said concept. However, certain reservations have been expressed in the implementation such as funding,  securing  the  data  and  storage  of  the same.  It  has  also  been  submitted  that  the production and admissibility of evidence are also issues which may need to be addressed.  

We had requested Mr.  Jayant Bhushan, learned senior counsel, to assist the court who has also submitted a note to the effect that videography will be a beneficial step for effective prosecution subject  to  the  issue  of  admissibility  being resolved  to  make  the  use  of  videography compatible  and useful.  He also  submitted that the  direction  ought  to  be  issued  for  use  of videography  in  investigation  and  such  use  be made mandatory.  

We have also requested Mr. Arun Mohan, learned senior counsel, present in the Court, to assist the Court  on the subject  as  amicus.  He submitted that  equipments  which  may  be  useful  for scientific  investigation have been suggested in certain publications on the subject. A copy each of the said 3 publications has been furnished to Mr. Nadkarni so that the same can be considered by the Committee of Experts. He submitted that still  photography  may  be  more  useful  as  it enables  much  higher  resolution  for  forensic analysis.  Digital  camera  can  be  placed  on  a mount  on  a  tripod  which  may  enable  rotation and tilting. Secured portals may be established to  which  Investigation  Officer  can  e-mail photographs taken at the crime scene. To give authenticity  and  prevent  manipulation,  digital images  can  be  retained  on  State’s  server  as permanent record. The State server can re-mail the  digital  files  back  to  the  police  station  for

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further use. Special cameras may be selected by the BPR&D. Till  this is done, smart-phones can also  be used.  BPR&D may prepare a guidance manual  for  the Investigation Officers  for  crime scene  photography  and  video  recording  of statements of witnesses. He stated that a further note on the subject may be submitted by him.”

3. In order dated 30th January, 2018 it was observed:

“(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 All ER 464, and R. v. Robson, (1972) 2 ALL ER 699, and American Law as noted in American Jurisprudence 2d (Vol.29) page 494, were cited with approval to the effect that it  will  be  wrong  to  deny  to  the  law  of  evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording it was observed that voice of the speaker must be duly identified, accuracy of the  statement  was  required  to  be  proved  by  the maker of the record, possibility of tampering 5 was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the  facts  and  circumstances  of  a  fact  situation. However,  threshold  admissibility  of  an  electronic evidence cannot be ruled out on any technicality if the same was relevant.  

(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329, the same principle was reiterated. This  Court  observed  that  new  techniques  and devices are order of the day. Though such devices are  susceptible  to  tampering,  no  exhaustive  rule could be laid down by which the admission of such evidence  may  be  judged.  Standard  of  proof  of  its

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authenticity and accuracy has to be more stringent than other documentary evidence.

(5)  In  Tomaso  Bruno  and  Anr.  v.  State  of  Uttar Pradesh,  (2015)  7  SCC  178,  a  Three-Judge  Bench observed  that  advancement  of  information technology and scientific temper must pervade the method  of  investigation.  Electronic  evidence  was relevant to establish facts. Scientific and electronic evidence  can  be  a  great  help  to  an  investigating agency. Reference was made to the decisions of this Court  in  Mohd.  Ajmal  Amir  Kasab  v.  State  of Maharashtra,  (2012)  9  SCC  1  and  State  (NCT  of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.”

4. On  the  issue  of  interpretation  of  Section  65B(4)  of  the

Evidence  Act  with  regard  to  the  admissibility  of  the  electronic

evidence it was observed :

“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.

13. To  consider  the  remaining  aspects, including finalization of the road-map for use of the  videography  in  the  crime  scene  and  the Standard Operating Procedure (SOP), we adjourn the matter to 13th February, 2018.”

5. We have now taken up the issue for further consideration.

An affidavit dated 21st March, 2018 has been filed by the Director,

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Ministry of  Home Affairs  (MHA) annexing thereto Report  of  the

Committee constituted by the MHA about use of videography in

police investigation dated 22nd November, 2017. The Committee

considered various issues including the present infrastructure and

usage,  concerns/problems  raised  by  various  States  for  use  of

videography  during  investigations,  admissibility  of  electronic

evidence in absence of a certificate under Section 65B(4) of the

Evidence  Act,  operational  difficulties,  lack  of  training,  funding,

forensic  facilities.   The Committee observed that  though crime

scene  videography  was  a  “desirable  and  acceptable  best

practice”,  the  mandatory  videography  required  major  issues

being  addressed.   Videography  may  be  done  on  “Best  Effort”

basis.  The timeline should be different for different States and

the Central  Investigating  Agencies.   The Committee  suggested

two  alternative  timelines.   The  second  option  i.e.  Option-B

suggested by the Committee is as follows:

“7.3 Option-B: Centrally Driven Plan of Action:

The  second  approach  suggested  is  for implementation  of  the  directions  in  a  phased manner  with  milestone  based  review mechanism.

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a.  Phase-I:  Three  Months:  Concept, Circulation and Preparation.

* The  concept  for  videography  of  the recommended  categories  of  tasks, preparations for pilot project launch in i)Cities  of  50  lakhs  population  or more;  and,  ii)at  least  one district  of every remaining State/Union Territory; within three months of the orders of the  Hon’ble  Supreme  Court.   In  the selected district(s), at least five police stations  may  be  identified  for implementation  of  the  scheme  on best effort basis as a pilot project

* Capacity  Building  by  organizing training  programme for  personnel  in the police station on the Videography Techniques for them to be qualified as the  Trained  Police  Videographer  by the  end  of  three  months.   Each selected Police Station should identify personnel  for  Trained  Police Videographer qualification, at the rate of two (2) Trained Police Videographer for  every  25  heinous/grave  crime cases reported in that  police station in a year.

* Selected  Districts  be enabled/provided finances to procure the equipment required for use by the Trained Police Videographer.

* A representative of the FSL trained in handling digital  evidences should be identified  by  each  of  the  states  to mentor  and  hand  hold  the  Pilot Project  implementation  district Trained Police Videographers.  Where

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FSL  has  no  resources  to  offer,  the SP/DCP  of  the  concerned  district should be authorized to hire a private technical  person  proficient  in  digital imaging and back-up technologies to handhold/mentor  the  Trained  Police Videographers.

* Preparation  of  Trainer  Police Videographer  Training  Modules  and Training  of  Trainers  courses  by BPR&D/CDTS/State Police Academies.

b.  Phase-II:  Six  Months:  Pilot  Project Implementation

* After  the  three  months  of  Concept, Circulation and Preparation stage, the pilot project should be launched in the selected  police  stations  of  the shortlisted Districts of the States.

* The concerned  District Superintendent  of  Police  /  Deputy Commissioner  of  Police,  shall designate  an  officer  of  the  rank  of Deputy  Superintendent  of Police/Assistant  Commissioner  of Police,  to  supervise  the implementation  of  the  Pilot  Project and  to  chronicle  the  Pilot implementation.  Any implementation issues  shall  immediately  be  flagged and brought to the notice of the SP / DCP  concerned.   The  officer designated will be responsible for the uninterrupted  implementation  of  the Pilot.

* Launch of Trained Police Videographer Training  Programmes/  Training  of

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Trainer Course by BPR&D/CDTS/ State Police Academies.

c.  Phase-III:  Three  Months:  Pilot Implementation Review

* The  Phase  –II  Pilot  implementation should  be  reviewed  by  an independent  consultant  and, suggestions  for  seamless implementation  on  a  wider  scale should be prepared.

* The report  of  the  independent consultant to be considered by MHA and select group of officers regarding Pilot  implementation  and  review report preparation.

* The review and findings by MHA to be placed  before  the  Hon’ble  Supreme Court  for  incorporating  necessary changes  as  required  regarding  the Videography during Investigation and obtain necessary instructions.

* During this phase, each state should prepare detailed plans for the launch of the next phase of Videography in Investigations project extending it to i)  all  cities  with  a  population  of  10 lakhs and more; b) in all districts with a  population  of  20  lakhs  and  more, during Phase-IV.

* A representative of the FSL trained in handling digital  evidences should be identified for each of the new unit to mentor  and  hand  hold  the  district Trained  Police  Videographers,  where roll  out  is  proposed  in  Phase-IV. Where FSL has no resources to offer,

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the SP/DCP of the concerned district should be authorized to hire a private technical  person  proficient  in  digital imaging and back-up technologies to handhold/mentor  the  Trained  Police Videographers.

* Each  state  to  submit  plans  for strengthening  the  Forensic  Sciences Laboratories  for  handling  increased Cyber Forensics/Digital Media analysis units.   MHA  to  consider  the requirements  for  this  purpose  under the MPF scheme.

* During  Phase-III,  the  Pilot implementation  districts/cities  will continue  with  the  Videography  in Investigations  project  and  extend them to all their Police Stations.

d.  Phase-IV:  One  Year:  Coverage extension from Pilot Implementation  

* Implementation of the Videography in Investigations project to Cities of 10+ lakhs  population/Districts  of  20+ lakhs  population  identified  during Phase-III.

* During this phase, each state should prepare detailed plans for the launch of  the  Videography  in  Investigations project in all remaining districts/cities, which were  not  covered during  Pilot Phase (Phase-II) and Phase-III.

* A representative of the FSL trained in handling digital  evidences should be identified  for  each  of  the  remaining units  to  mentor  and  hand  hold  the

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district  Trained Police  Videographers, where roll out is proposed in Phase-V. Where FSL has no resources to offer, the SP/DCP of the concerned district should be authorized to hire a private technical  person  proficient  in  digital imaging and back-up technologies to handhold/mentor  the  Trained  Police Videographers.

* MHA  to  work  on  extending  the financial  support  for  implementation of the project for remaining cities and districts during Phase-V.

e.  Phase-V:  One  Year:  Coverage extension to remaining Cities and Districts

* Implementation of the Videography in Investigations project in all remaining districts and cities.  

* Review  of  Phase-IV  implementation learning  based  on  independent consultant’s  report  by  MHA  and submission  of  status  report  to  the Supreme  Court  for modifications/suggestions  for improvement  of  the  Videography  in Investigations project.”

6. Apart from above, the Committee suggested that a group of

experts  may  be  set  up  at  the  level  of  Government  of  India

comprising:

(i) One head of Central  Investigation agencies (CBI, NIA, NCB) as Chairperson;  

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(ii) One head of State Police;  

(iii) One head of CFSL or Senior Forensic Scientist with expertise in the area;  

(iv) A Senior  Legal  Professional  (LA of  CBI  or  NIA or comparable from Ministry of Law); and  

(v) A senior representative from MHA as members.   

7. The group should have the freedom to co-opt members and

private  experts.  The  group  could  periodically  issue

guidelines/advisories.   It  is  further  suggested  that  each  State

Police and the Central Investigating Agency may create a Steering

Committee under HOPF/Head of CPO within the organization to

spearhead  this  drive.   Each  State  Police/Central  Investigating

Agency may also designate a senior officer in the rank of IG/ADG

as  Nodal  Officer  for  spearheading  the  massive  expansion  of

photography and videography in investigation.  Such an officer

should be given authority/responsibility to review the progress at

periodic intervals and take/propose necessary measures.  

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8. After  considering  the  report  of  the  Committee,  the  MHA

prepared an action plan on the use of videography in the police

investigation stipulating  capacity  building  in  terms  of  training,

equipment,  forensic  facilities,  a  scheme  for  requisite  funds,

preparation  of  Standard  Operating  Procedure  (SOP).   For  this

purpose, the timeline suggested is as follows:

“All  Central  Agencies  will  be  asked  to prepare and submit Annual Action Plan on “photography  and  videography  in Investigation for 2018 within three months.

The  Ministry  will  scrutinize  the  plans  and prepare  a  consolidated  requirement  and send  a  formal  proposal/scheme  to  the Ministry  of  Finance  for  concurrence  and obtaining  budget within  two months  from the  finalization/approval  of  the consolidated action plan, insofar as Central Agencies are concerned.

Efforts will  be made to obtain the budget from Ministry of Finance within the financial year 2018-19.

Similar  action  will  have  to  be  taken  by States/UTs with respect to their forces.”

9. We are in agreement with the Report of the Committee of

Experts that videography of crime scene during investigation is of

immense value in improving administration of criminal justice.  A

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Constitution Bench of this Court in Karnail Singh  versus  State

of  Haryana  (2009)  8  SCC  539  noted  that  technology  is  an

important part in the system of police administration1.   It has also

been noted in the decisions quoted in the earlier part of this order

that new techniques and devices have evidentiary advantages,

subject to the safeguards to be adopted.  Such techniques and

devices are the order of the day.  Technology is a great tool in

investigation2.   By  the  videography,  crucial  evidence  can  be

captured and presented in a credible manner.  

10. Thus, we are of the considered view that notwithstanding the

fact that as of now investigating agencies in India are not fully

equipped and prepared for the use of videography, the time is

ripe  that  steps  are  taken  to  introduce  videography  in

investigation,  particularly  for  crime  scene  as  desirable  and

acceptable best practice as suggested by the Committee of the

MHA to strengthen the Rule of Law.  We approve the  Centrally

Driven Plan of Action prepared by the Committee and the timeline 1 Para 34 – (2009) 8 SCC 539 2 Ram Singh and Ors.  vs.  Col. Ram Singh 1985(Supp) SCC 611,  R.   vs.  Maqsud Ali (1965) 2 All  ER 464,  R  vs.  Robson (1972) 2 All  ER 699,  Tukaram S. Dighole  vs. Manikrao Shivaji Kokate (2010) 4 SCC 329,  Tomaso Bruno and anr.  vs.  State of Uttar Pradesh (2015) 7 SCC 178, Mohd. Ajmal Amir Kasab  vs.  State of Maharashtra (2012) 9 SCC 1 and State (NCT of Delhi)  vs.  Navjot Sandhu (2005) 11 SCC 600.

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as  mentioned  above.   Let  the  consequential  steps  for

implementation thereof be taken at the earliest.

11. We direct that with a view to implement the  Plan of Action

prepared by the Committee, a Central Oversight Body (COB) be

set up by the MHA forthwith.  The COB may issue directions from

time to time.   Suggestions of the Committee in its report may

also  be  kept  in  mind.  The  COB will  be  responsible  for  further

planning and implementation of use of videography.  We direct

the Central Government to give full support to the COB and place

necessary funds at its disposal.  We also direct that the COB may

issue  appropriate  directions  so  as  to  ensure  that  use  of

videography becomes a reality in a phased manner and in first

phase  of  implementation  by  15th July,  2018  crime  scene

videography must be introduced at least at some places as per

viability and priority determined by the COB.  

12. We place on record the suggestion of  the learned  amicus

that funding for this project may be initially by the Centre to the

extent  possible  and  a  central  server  may  be  set  up.   These

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suggestions may be considered by the COB.  We also note that

law and order is a State subject.

13. We may also refer to a connected issue already dealt with by

this Court in  D.K. Basu  versus  State of West Bengal and

ors.  (2015) 8 SCC 744.  This Court directed that with a view to

check human rights abuse CCTV cameras be installed in all police

stations  as  well  as  in  prisons.    There  is  need  for  a  further

direction that in every State an oversight mechanism be created

whereby an independent committee can study the CCTV camera

footages and periodically publish report of its observations.  Let

the  COB  issue  appropriate  instructions  in  this  regard  at  the

earliest.  The COB may also compile information as to compliance

of such instructions in the next three months and give a report to

this Court.   

14. Compliance  of  above  directions  may  be  ensured  by  the

Secretary, Ministry of Home Affairs in the Central Government as

well as Home Secretaries of all the State Governments.

15. An  affidavit  of  progress  achieved  may  be  filed  by  the

Oversight Body on or before 31st July, 2018.

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  Put up the matter for further consideration on 1st August,

2018.

…………………………………..J. [Adarsh Kumar Goel]

…………………………………..J. [Rohinton Fali Nariman]

New Delhi; 3rd April, 2018.

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