SHAFHI MOHAMMAD versus THE STATE OF HIMACHAL PRADESH

[2018] 1 S.C.R. 790

[2018] 1 S.C.R.

SHAFHI MOHAMMAD

THE STATE OF HIMACHAL PRADESH

(Special Leave Petition (Crl.) No.2302 of 2017 )

JANUARY 30, 2018

[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]

Evidence Act, 1872: s.65B(4) – Videography of scene of crimeor scene of recovery during investigation – Electronic evidence –Admissibility of – Procedural requirement – Held: If the electronicCevidence is authentic and relevant the same certainly be admittedsubject to the court being satisfied about its authenticity andprocedure, for its admissibility may depend on fact situation suchas whether the person producing such evidence is in position tofurnish certificate under s.65B(4) – party who is not in possessionDof device from which the document is produced cannot be requiredto produce certificate under s.65B(4) – The applicability ofrequirement of certificate being procedural can be relaxed by Courtwherever interest of justice so justifies – The applicability ofprocedural requirement under s.65B(4) of furnishing certificate isto be applied only when such electronic evidence is produced by aEperson who is in position to produce such certificate being incontrol of the said device and not of the opposite party – In casewhere electronic evidence is produced by party who is not inpossession of device, applicability of ss.63 and 65 cannot beheld to be excluded – In such case, procedure under the said SectionsFcan certainly be invoked – If this is not so permitted, it will be denialof justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document iskept out of consideration by the court in absence of certificate unders.65B(4) which party producing cannot possibly secure – Thus,requirement of certificate under s.65B(4) is not always mandatory –GInformation Technology Act, 2000 – ss.2(t), 2(o).

Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)7 SCC 178 : [2015] 1 SCR 721;Ram Singh and Ors.v. Col. Ram Singh (1985) Supp SCC 611 : [1985] Suppl.SCR 399 – relied on

SHAFHI MOHAMMAD v. THE STATE OF HIMACHALPRADESH

Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010)4 SCC 329 : [2010] 2 SCR 396; Mohd. Ajmal AmirKasab v. State of Maharashtra (2012) 9 SCC 1 : [2012]8 SCR 295; State (NCT of Delhi) v. Navjot Sandhu(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; AnvarP.V. v. P.K. Basheer and Ors. (2014) 10 SCC 473:[2014]11 SCR 399 – referred to

R. v. Maqsud Ali (1965) 2 All ER 464; R. v. Robson(1972) 2 ALL ER 699 – referred to

CRIMINAL APPELLATE JURISDICTION : Special LeavePetition (Criminal) No. 2302 of 2017

From the Judgment and Order dated 26.06.2014 of the High Courtof Himachal Pradesh, Shimla in Criminal Appeal No. 404 of 2009.

WITH

SLP (Crl.) NO. 9431 of 2011

SLP (Crl). NO. 9631-9634 of 2012

Jayant Bhushan, (AC), Ms. Meenakshi Arora .(A.C.), YashankAdhyaru, Ms. V. Mohana, Sr. Advs. Ketan Paul, Ms. Reeja Varghese,Tushar Bhushan, Ms. Ananya Ghosh, Rituj Chopra (For Dr. Arun Mohan,Sr. Adv. (AC), Ms. E. R. Sumathy, Bharat Bhushan, Ms. Jaspreet Gogia,Raj Kamal, Ms. Mandakini Singh, Ms. Shirin Khajuria, Ms. SanskritiBhardwaj, Ms. Ayushi Gaur, B.V. Balaram Das, Ms. Asha G. Nair, ZohebHussain, Ms. Rukmini Bobde, Kumar Shashank, B.V. Balaram Das,Ajay Marwah, Ms. Seema Sharma, Varinder K. Sharma, Karan Thakur,Vikas Mahajan, Vinod Sharma, Arun Singh, Ms. Anuradha Mutatkar,

AMs. Jaspreet Gogia, Raj Kamal, Ms. Mandakini Singh, Bharat Bhushan,Advs. with them for the appearing parties.

The following Order of the Court was delivered:

BSLP(Crl.)No.2302 of 2017:

1. One of the questions which arose in the course of considerationof the matter was whether videography of the scene of crime or sceneof recovery during investigation should be necessary to inspire confidencein the evidence collected.C2. In Order dated 25[[th]] April, 2017 statement of Mr. A.N.S.

C2. In Order dated 25[[th]] April, 2017 statement of Mr. A.N.S.Nadkarni, learned Additional Solicitor General is recorded to the effectthat videography will help the investigation and was being successfullyused in other countries. He referred to the perceived benefits of “Body-Worn Cameras” in the United States of America and the United Kingdom.DBody-worn cameras act as deterrent against anti-social behaviour andis also tool to collect the evidence. It was submitted that newtechnological device for collection of evidence are order of the day. Healso referred to the Field Officers’ Handbook by the Narcotics ControlBureau, Ministry of Home Affairs, Government of India. Referencewas also made to Section 54-A of the Cr.P.C. providing for videographyEof the identification process and proviso to Section 164(1) Cr.P.C.providing for audio video recording of confession or statement under thesaid provision.

3. Thereafter, it was noted in the Order dated 12[th] October, 2017,that the matter was discussed by the Union Home Secretary with theFChief Secretaries of the States in which decision was taken to constitutea Committee of Experts (COE) to facilitate and prepare road-map foruse of videography in the crime scene and to propose StandardOperating Procedure (SOP). However, an apprehension was expressedabout its implementation on account of scarcity of funds, issues ofsecuring and storage of data and admissibility of evidence. We noted theGsuggestion that still-photography may be useful on account of higherresolution for forensic analysis. Digital cameras can be placed on mounton tripod which may enable rotation and tilting. Secured portals maybe established by which the Investigation Officer can e-mailphotograph(s) taken at the crime scene. Digital Images can be retainedHon State’s server as permanent record.

SLP(Crl.)NO.9431 of 2011:

1. Since identical question arose for consideration in this specialleave petition as noted in Order dated 12[th] October, 2017, we have heardlearned amicus, Mr. Jayant Bhushan, senior advocate, Ms. MeenakshiArora, senior advocate, assisted by Ms. Ananya Ghosh, Advocate, onthe question of admissibility of electronic record. We have also heardMr. 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 applicabilityof conditions under Section 65B(4) of the Evidence Act to the effectthat if statement was given in evidence, certificate was required interms of the said provision from person occupying responsible positionin relation to operation of the relevant device or the management ofrelevant activities. It was submitted that if the electronic evidence wasrelevant and produced by person who was not in custody of the devicefrom which the electronic document was generated, requirement of suchcertificate could not be mandatory. It was submitted that Section 65Bof the Evidence Act was procedural provision to prove relevantadmissible evidence and was intended to supplement the law on thepoint by declaring that any information in an electronic record, coveredby the said provision, was to be deemed to be document and admissiblein any proceedings without further proof of the original. This provisioncould not be read in derogation of the existing law on admissibility ofelectronic evidence.3. We have been taken through certain decisions which may bereferred to. In Ram Singh and Othersv. Col. Ram Singh, 1985 (Supp)SCC 611, Three-Judge Bench considered the said issue. EnglishJudgments 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 AmericanJurisprudence 2d (Vol.29) page 494, were cited with approval to theeffect that it will be wrong to deny to the law of evidence advantages tobe gained by new techniques and new devices, provided the accuracyof the recording can be proved. Such evidence should always be regardedwith some caution and assessed in the light of all the circumstances ofeach case. Electronic evidence was held to be admissible subject tosafeguards adopted by the Court about the authenticity of the same. Inthe case of tape-recording it was observed that voice of the speakermust be duly identified, accuracy of the statement was required to be

Aproved by the maker of the record, possibility of tampering was requiredto be ruled out. Reliability of the piece of evidence is certainly matterto be determined in the facts and circumstances of fact situation.However, threshold admissibility of an electronic evidence cannot beruled out on any technicality if the same was relevant.B4. In Tukaram S. Digholev. Manikrao Shivaji Kokate, (2010) 4SCC 329, the same principle was reiterated. This Court observed thatnew techniques and devices are order of the day. Though such devicesare susceptible to tampering, no exhaustive rule could be laid down bywhich the admission of such evidence may be judged. Standard of proofof its authenticity and accuracy has to be more stringent than otherCdocumentary evidence.

5. In Tomaso Bruno and Anr.v. State of Uttar Pradesh, (2015) 7SCC 178, Three-Judge Bench observed that advancement ofinformation technology and scientific temper must pervade the methodof investigation. Electronic evidence was relevant to establish facts.DScientific and electronic evidence can be great help to an investigatingagency. Reference was made to the decisions of this Court in Mohd.Ajmal Amir Kasabv. 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 AnvarEP.V.v. P.K. Basheer and Others, (2014) 10 SCC 473, delivered by aThree-Judge Bench. In the said judgment in para 24 it was observedthat electronic evidence by way of primary evidence was covered bySection 62 of the Evidence Act to which procedure of Section 65B ofthe Evidence Act was not admissible. However, for the secondaryFevidence, procedure of Section 65B of the Evidence Act was requiredto be followed and contrary view taken in Navjot Sandh(supra) thatsecondary evidence of electronic record could be covered under Sections63 and 65 of the Evidence Act, was not correct. There are, however,observations in para 14 to the effect that electronic record can be provedonly as per Section 65B of the Evidence Act.G

7. Though in view of Three-Judge Bench judgments in TomasoBrunoand Ram Singh(supra), it can be safely held that electronicevidence is admissible and provisions under Sections 65A and 65B ofthe Evidence Act are by way of clarification and are proceduralprovisions. If the electronic evidence is authentic and relevant the sameHcan certainly be admitted subject to the Court being satisfied about its

authenticity and procedure for its admissibility may depend on factsituation such as whether the person producing such evidence is in aposition to furnish certificate under Section 65B(h).

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

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

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

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

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

11.The applicability of procedural requirement under Section65B(4) of the Evidence Act of furnishing certificate is to be applied onlywhen such electronic evidence is produced by person who is in aposition to produce such certificate being in control of the said deviceand not of the opposite party. In case where electronic evidence isproduced by party who is not in possession of device, applicability ofSections 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

Ain possession of authentic evidence/witness but on account of mannerof proving, such document is kept out of consideration by the court inabsence of certificate under Section 65B(4) of the Evidence Act, whichparty producing cannot possibly secure. Thus, requirement of certificateunder Section 65B(h) is not always mandatory.

B12.Accordingly, we clarify the legal position on the subject on theadmissibility of the electronic evidence, especially by party who is notin possession of device from which the document is produced. Suchparty cannot be required to produce certificate under Section 65B(4) ofthe Evidence Act. The applicability of requirement of certificate beingprocedural can be relaxed by Court wherever interest of justice soCjustifies.

13.To consider the remaining aspects, including finalisation of theroad-map for use of the videography in the crime scene and the StandardOperating Procedure (SOP), we adjourn the matter to 13[th] February,2018.

14. We place on record our deep appreciation for the valuableassistance rendered by learned amicus, Mr. Jayant Bhushan, senioradvocate, Ms. Meenakshi Arora, senior advocate, who was assisted byMs. Ananya Ghosh, Advocate, as well as by Mr. Yashank Adhyaru,learned senior counsel, and Ms. Shirin Khajuria, learned counsel,Eappearing for Union of India.

Devika Gujral Clarification given.