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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.)No.2302 of 2017 SHAFHI MOHAMMAD                                  Petitioner(s)                                 VERSUS THE STATE OF HIMACHAL PRADESH                   Respondent(s)

WITH  SLP(Crl) No. 9431/2011  

AND SLP(Crl) No(S). 9631-9634/2012  

O R D E R 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

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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

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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

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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 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

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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 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 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.

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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.

(6) We may, however, also refer to judgment of this Court in Anvar P.V. v.  P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench.  In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Evidence Act was required to be followed and  a  contrary  view  taken  in  Navjot  Sandh (supra)  that secondary evidence of electronic record could be covered under Sections  63  and  65  of  the  Evidence  Act,  was  not  correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act.

(7) Though in view of Three-Judge Bench judgments in  Tomaso Bruno and  Ram  Singh (supra),  it  can  be  safely  held  that electronic  evidence  is  admissible  and  provisions  under Sections 65A and 65B of the Evidence Act are by way of a clarification  and  are  procedural  provisions.   If  the

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electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(h).

(8) Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.  In  Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act.  Primary evidence is the document produced before Court and the expression “document” is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

(9). The term “electronic record” is defined in Section 2(t) of the Information Technology Act, 2000 as follows:

“Electronic record” means data, record or data generated,  image  or  sound  stored,  received  or sent  in  an  electronic  form  or  micro  film  or computer generated micro fiche.”

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(10). Expression “data” is defined in Section 2(o) of the Information Technology Act as follows.   

“Data”  means  a  representation  of  information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised  manner,  and  is  intended  to  be processed,  is  being  processed  or  has  been processed  in  a  computer  system  or  computer network,  and  may  be  in  any  form  (including computer  printouts  magnetic  or  optical  storage media, punched cards, punched tapes) or stored internally in the memory of the computer.”

(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

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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(h) is not always mandatory.

(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 finalisation 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.

(14)  We  place  on  record  our  deep  appreciation  for  the valuable  assistance  rendered  by  learned  amicus,  Mr.  Jayant Bhushan,  senior  advocate,  Ms.  Meenakshi  Arora,  senior advocate, who was assisted by Ms. Ananya Ghosh, Advocate, as well as by Mr. Yashank Adhyaru, learned senior counsel, and

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Ms. Shirin Khajuria, learned counsel, appearing for Union of India.

..........................J.                (ADARSH KUMAR GOEL)

..........................J.         (UDAY UMESH LALIT)

New Delhi, January 30, 2018.