Use of videography of the scene of crime – guidelines = 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.

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:

1

“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

2

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

3

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

4

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 ThreeJudge

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

5

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 13

th

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,

6

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.

7

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

8

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

9

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,

10

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

11

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;

12

(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.

13

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

14

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.

15

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

16

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.

17

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

2018.

…………………………………..J.

[Adarsh Kumar Goel]

…………………………………..J.

[Rohinton Fali Nariman]

New Delhi;

3

rd April, 2018.

18