- (1.) 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: "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 Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., 1976 2 SCC 17 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 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 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 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 AllER 464, and R. v. Robson, 1972 2 AllER 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 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.";