Whether the court should see CCTV footage of 24 hours if any offence is recorded in CCTV?

 

Ans:- The court shall see only relevant CCTV Footage as per S 39 of Evidence Act?

What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers?

1[39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.-- When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.]

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How to appreciate CCTV camera evidence in Rape Case under POCSO Act?

 G] ADMISSIBILITY OF ELECTRONIC EVIDENCE :-

120. Sections 65A and 65B of the Evidence Act, 1872 deal

with the admissibility and contents of evidence of information

contained in electronic records. The Apex Court in the case of

Anwar P. V. vs P. K. Basheer, reported in (2014) 10 SCC 473 has held

that these two sections are a complete Code in themselves on the

admissibility of evidence of information contained in electronic

records.

121. Section 65B(1) differentiates between –

i) the “original document” – the electronic record on

the device in which the original information is first

stored (qualifying it as primary evidence), and

ii) the output from such device which contains

information originating from the original document,

i.e. a copy made therefrom (being secondary

evidence) [Arjun Panditrao Khotkar vs Kailash

Kushanrao Gorantyal, (2020) 7 SCC 1].

122. The Hon’ble Apex Court has in Arjun Panditrao Khotkar

(supra), in para 73.2, expounded the law on admissibility of primary

and secondary evidence in electronic form in the following words–

“ 73.2. The clarification referred to above is that

the required certificate under Section 65B(4) is

unnecessary if the original document itself is

produced. This can be done by the owner of a

laptop computer, computer tablet or even a mobile

phone, by stepping into the witness box and

proving that the concerned device, on which the

original information is first stored, is owned

and/or operated by him. In cases where the

“computer” happens to be a part of a “computer

system” or “computer network” and it becomes

impossible to physically bring such system or

network to the Court, then the only means of

providing information contained in such electronic

record can be in accordance with Section 65B(1),

together with the requisite certificate under

Section 65B(4). The last sentence in Anvar P.V.

(supra) which reads as “…if an electronic record as

such is used as primary evidence under Section 62

of the Evidence Act…” is thus clarified; it is to be

read without the words “under Section 62 of the

Evidence Act…” With this clarification, the law

stated in paragraph 24 of Anvar P.V. (supra) does

not need to be revisited.”

[Emphasis supplied]

123. It is necessary to note that the Hon’ble Apex Court in

Anwar P. V. (supra) has clarified its position on primary evidence

holding that if an electronic record is used as primary evidence under

Section 62 of the Evidence Act, it may be admissible in evidence

without any compliance of conditions under S. 65B. Arjun Panditrao

Khotkar (supra) held this position to be good law when read without

the words, “under Section 62 of the Evidence Act”, while placing its

derivation in S.65B(1). The Hon’ble Apex Court held that the

certificate under S. 65B(4) is unnecessary if the “original document”

itself is produced, since it is being used as primary evidence of the

information contained in the electronic record. This can be done by

the owner of the device (on which the original electronic record is

first stored) by proving that it is owned and/or operated by him.

124. Commonly, the original electronic record of a CCTV

footage is stored on a memory chip/CD/DVD/hard drive or any

similar device on a computer, DVR or NVR wherein the footage is

recorded. The original electronic record stored on a memory

chip/CD/DVD/hard drive, being the place where the electronic

record is first stored, is said to be the original document, qualifying it

as primary evidence. Such information can be led as evidence by

producing the hard drive, wherein the original document is first

stored, before the Court. In order to prove the information contained

in such electronic record, the memory chip/CD/DVD/hard drive on

which the electronic record was first stored can be produced before

the Court. Similarly, in cases where the device happens to be a part

of a “computer system” or “computer network”, such system or

network or server can be produced before the Court, if it is possible.

In case where the device happens to be a part of a “computer system”

or “computer network” and it becomes impossible to physically bring

such system or network to the Court, then the only means of proving

information contained therein can be, as specified above is, “in

accordance with Section 65B(1), together with the requisite

certificate under Section 65B(4).”

125. The prosecution has relied upon the CCTV footage from

camera no. 2 covering the area of the main gate of the office of

APMC Market, Chikhli. The prosecution has examined PI Gulabrao

Wagh (PW14) and Dy.S.P. Baburao Mahamuni (PW15) in order to

prove the said CCTV footage. From the evidence of Dy.S.P. Mahamuni

(PW15), it appears that the prosecution has brought on record the

CCTV footage copied in pendrive (Article-M). It is stated by Dy.S.P.

Mahamuni (PW15), that its Hash value was taken by NPC Sharad

Giri and accordingly certificate under Section 65B of the Evidence

Act (Exhibit 112) was taken. Though evidence of PI Wagh (PW14)

and Dy.S.P. Mahamuni (PW15) has been corroborated by panch

witness Subhash Bhalerao (PW2) regarding CCTV footage, it appears

that the prosecution has failed to adduce evidence of a person

occupying responsible official position in relation to the operation or

the management of the activities in relation to CCTV in the APMC

Market, Chikhli. Since the prosecution has failed to bring on record

the primary evidence in relation to CCTV footage in the form of hard

disc of the said CCTV footage wherein the footage was stored, it was

necessary for the prosecution to satisfy the ingredients of Sub-Section

(4) of Section 65B of the Evidence Act. Merely because the CCTV

footage has been exhibited by the trial Court and no objection was

raised on behalf of the accused, the CCTV footage cannot be read in

evidence. The said issue is no longer res-integra in view of the

judgment of the Hon’ble Apex Court in Arjun Panditrao Khotkar

(supra). We are, therefore, of the considered opinion that in absence

of compliance of Sub-Section (4) of Section 65B of the Evidence Act,

the CCTV footage from camera no.2 covering the area of main gate

of the office of APMC Market, Chikhli cannot be relied upon as

admissible evidence of the prosecution.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL CONFIRMATION CASE NO. 01 OF 2020

 State of Maharashtra, Vs  Sagar Vishwanath Borkar,

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When should the court not accept the defence of police that CCTV Camera of the police station was not working on the day of the incident?

 

When such system is installed, some officer needs to be

appointed to oversee the working of the system and every day the

recording needs to be seen by some officer and entry about it needs

to be made in some register. This procedure must have been

followed by police station. This Court wants to see that the registers

are maintained in respect of CCTV system in concerned police

station to ascertain truthfulness of the submission that CCTV system

was not working on that day. If the CCTV system was not working

on 20/04/2020, ordinarily entry of the same in the register could

have been taken immediately when fault was found with the CCTV

system. There is no such record produced by the learned Addl.

Public Prosecutor. These circumstances create serious suspicion

against the concerned police station. This Court is hereby directing

the District Superintendent of Police, Osmanabad, to look into the

matter personally and make enquiry into the matter. This Court is

again observing that in many cases it is informed to the Court that

on that particular day the CCTV system was not working. This

cannot be allowed to happen as the purpose behind installing the

CCTV system itself is defeated when such submissions are accepted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD

65. CRIMINAL WRIT PETITION NO. 1111 OF 2020

Wajid  Mukhtyarmiya Shaikh Vs The State of Maharashtra and others

C ORAM : T.V. NALAWADE &

M.G. SEWLIKAR , JJ.

DATE : 2nd December, 2020

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Supreme court: Victims Of Human Rights Violations By Police/NIA/CBI/ED Have The Right For CCTV Footage Of Interrogation

Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it.

19. The Union of India is also to file an affidavit in which it will update this Court on the constitution and workings of the Central Oversight Body, giving full particulars thereof. In addition, the Union of India is also directed to install CCTV cameras and recording equipment in the offices of: (i) Central Bureau of Investigation (CBI)

(ii) National Investigation Agency (NIA)

(iii) Enforcement Directorate (ED)

(iv) Narcotics Control Bureau (NCB)

(v) Department of Revenue Intelligence (DRI)

(vi) Serious Fraud Investigation Office (SFIO)

(vii) Any other agency which carries out interrogations and has the power of arrest.

As most of these agencies carry out interrogation in their office(s), CCTVs shall be compulsorily installed in all offices where such interrogation and holding of accused takes place in the same manner as it would in a police station.

The COB shall perform the same function as the SLOC for the offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located.

20. The SLOC and the COB (where applicable) shall give directions to all Police Stations, investigative/enforcement agencies to prominently display at the entrance and inside the police stations/offices of investigative/enforcement agencies about the coverage of the concerned premises by CCTV. This shall be done by large posters in English, Hindi and vernacular language. In addition to the above, it  shall be clearly mentioned therein that a person has a right to complain about human rights violations to the National/State Human Rights Commission, Human Rights Court or the Superintendent of Police or any other authority empowered to take cognizance of an offence. It shall further mention that CCTV footage is preserved for a certain minimum time period, which shall not be less than six months, and the victim has a right to have the same secured in the event of violation of his human rights.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRIMINAL) NO.3543 of 2020

PARAMVIR SINGH SAINI  Vs BALJIT SINGH 

Author:R.F. Nariman, J.

Dated: December 02, 2020.

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When court can rely on Electronic evidence tendered in the form of hard disk,CD and DVD without certificate under S 65B of Evidence Act?

Ourselves witnessing CCTV footages from the Hard Disk, CD and DVD:

114. The Hard Disk at Exhibit 1 contained in the DVR is available on the record of the Sessions Court. The witnesses PW 1 Raghuveer, PW 2, Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal were confronted with the relevant portion in CD-'X' and Annexure DVD CY-66/13 (Article 18A) during the course of their examination-in-chief. We asked the learned counsels appearing for the parties as to whether there is legal impediment for this Court to view the footages from the Hard Disk, DVD and CD, and their response is that there cannot be. In fact, all of them expressed that the Sessions Court should have got the entire system produced on record assembled and the witnesses should have been confronted with the footages recorded in the Hard Disk at Exhibit 1. We, therefore, called upon the Technicians from the establishment in the High Court in our Chamber. We opened the seals of the articles sealed and produced. We got it assembled and have ourselves viewed the footages contained in the Hard Disk at Exhibit 1, which was connected to the DVR, CD-marked as 'X' and DVD at Article 18A.

115. After witnessing the footages in the Hard Disk, CD and DVD, we neither find any difference nor any discontinuity or insertions in the Hard Disk at Exhibit 1. On the contrary, we find that the recordings in the Hard Disk and the DVD and CD are in the same continuity and corresponds with each other. We find that the DVD at Article 18A and CD-'X' are the true and genuine copies of the footages in camera Nos. 1, 2 and 7 in CCTV recorded in the Hard Disk at Exhibit 1. We also find that the entire electronic evidence produced on record is not only consistent with each other, but also consistent with the oral evidence of the witnesses. Probably for this reason, there was no insistence from the defence for showing the footages from the Hard Disk, which is a primary electronic evidence.

116. We do not find it necessary to consider the question as to the admissibility of secondary evidence produced by a person not in power and possession of the CCTV system. We find that the primary as well as secondary evidence of electronic record is produced, and that the secondary evidence is a true and genuine copy of relevant primary evidence available on record. In the absence of any objection or cross-examination of the witnesses, PW 1 Raghuveer, PW 2 Raju, PW 3 Sitaram, PW 4 Pramod, PW 5 Kailash, PW 14 Shubham, PW 16 Rupali and PW 18 Vitthal, on the aspect of CD-marked as 'X' and DVD at Article 18A not being the true and genuine copies of the footages contained in the Hard Disk at Exhibit 1, in our view, the provision of Section 65-B of the Evidence Act is not at all attracted so as to make the electronic evidence in the form of CD and DVD inadmissible to establish the incident and the identity of the assailants. We, therefore, hold that the electronic evidence tendered in the form of Hard Disk at Exhibit 1, CD-'X' and DVD-Article 18A is admissible in the facts and circumstances of the case without a certificate under Section 65-B of the Evidence Act. We, therefore, accept such a view taken by the Sessions Court to be legal, correct and proper.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 254, 255, 393 of 2015, 121, 180 and 181 of 2016

Decided On: 05.06.2018

 Bhupesh Tichkule Vs. The State of Maharashtra

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Process for selection to public posts must be videographed: SC

We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed. It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned.

In the Supreme Court of India

RECORD OF PROCEEDINGS

(Before Adarsh Kumar Goel and Rohinton Fali Nariman, JJ.)

Petition(s) for Special Leave to Appeal (C) No(s). 33995-34027/2017

The State of Meghalaya & Anr. etc. 

v.

Phikirbha Khariah & Ors. etc. 

Decided on April 6, 2018

Citation:2018 SCC OnLine SC 336

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Whether Disgraceful conduct of a person can be proved through CCTV footage?

That, so far as disgraceful conduct of the petitioner is
concerned, there is no room to draw any other inference that the
petitioner did threaten the Chief Officer by showing him a chappal
on 20.02.2014.   A reference is made to the CCTV footage in the
report of the Collector as well as in the impugned order.  The CCTV
footage was made available for perusal of the Court and we have
seen the CCTV footage in the presence of learned Counsel for both
the parties.  On viewing the CCTV footage, it is abundantly clear
that the petitioner did threaten the Chief Officer by showing a
footwear (chappal).  He was standing in a threatening posture.  The
conduct   of   the   petitioner   in   threatening   the   Chief   Officer,   by
showing him footwear and adapting a threatening posture, shall
have to be branded as disgraceful.  We are satisfied in respect of
occurrence   of   incident   upon   viewing   the   CCTV   footage.     It
has neither been contended in the petition  nor  has  been argued

that the CCTV footage is manipulated or morphed. 
So far as expression “disgraceful” is concerned, the
New Oxford American Dictionary explains it to mean shockingly
unacceptable.  In the New International Webster's Comprehensive
Dictionary, 'disgraceful' is set out as characterized by or causing
disgrace,   shameful.     In   P.   Ramanatha   Aiyar's   Law   Lexicon,
'disgraceful   conduct'   is   described   as   shameful   behaviour.     It
further sets out that it need not be circumscribed to something
done in the course of one's duty as member or office bearer.  The

term   “disgraceful   conduct”   would   mean   any   allegation   which,
because   it   is   done   by   an   elected   member   or   office   bearer,   is
sufficiently reprehensible to be classified as disgraceful.  
17 Considering   the   meaning   attached   to   the   term
'disgraceful',   we   are   of   the   considered   view   that   the   alleged
misconduct of the petitioner shall have to be branded as shameful
behaviour and is shockingly unacceptable.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1430 OF 2016
Nandkumar alias Laxman Sahadu V The State of Maharashtra,
     
        CORAM : R.M.BORDE &
                               K.L.WADANE, JJ.
        DATE    : 07th June, 2016

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Leading Judgment on appreciation of evidence of CCTV Footage

The CCTV footage, which was directly and immediately stored in the hard drive of the computer is the original media, that was self generated and created without any human intervention. This CCTV footage is not secondary evidence and does not require certification under Section 65B of the Evidence Act. This issue is no longer res integra and is settled in the decision of the Supreme Court in Anwar P.V. (S) versus P.K. Basir, (2014) 10 SCC 473, which hold:-

"24. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made there from which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65-B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65-A and 65-Bof the Evidence Act, if an electronic record as such is used as primary evidence underSection 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act."

The aforesaid paragraph elucidates difference between primary and secondary evidence. When primary or direct evidence in form of original data be it a CD, hard drive or any other electronic record is produced, the same is admissible and taken on record. This takes care of the contention of the appellant that the CCTV footage should be discarded and not read in evidence in the absence of a certificate under Section 65B of the Evidence Act.

14. The CCTV footage is captured by the cameras and can be stored in the computer where files are created with serial numbers, date, time and identification marks. These identification marks/ details are self generated and recorded, as a result of pre-existing software commands. The capture of visual images on the hard disc is automatic in the sense that the video images get stored and recorded suo-moto when the CCTV camera is on and is properly connected with the hard disc installed in the computer. It is apparent in the present case from the evidence led that no one was watching the CCTV footage when it was being stored and recorded. The recording was as a result of commands or instructions, which had already been given and programmed. The original hard disc, therefore, could be the primary and the direct evidence. Such primary or direct evidence would enjoy a unique position for anyone who watches the said evidence would be directly viewing the primary evidence. Section 60 of the Evidence Act states that oral evidence must be direct, i.e., with reference to the fact which can be seen, it must be the evidence of the witness, who had seen it, with reference to the fact, which could be heard, it must be evidence of the witness, who had heard it and if it relates to the fact, which could be perceived by any other sense or any other manner, then it must be the evidence of the witness, who says who had perceived it by that sense or by that manner. Read in this light, when we see the CCTV footage, we are in the same position as that of a witness, who had seen the occurrence, though crime had not occurred at that time when the recording was played, but earlier.

15. HG wells in his book "The Time Machine" had said "Now I want you clearly to understand that this lever, being pressed over, sends the machine gliding into the future, and this other reverses the motion. This saddle represents the seat of a time traveler. Presently I am going to press the lever, and off the machine will go. It will vanish, pass into future Time, and disappear. Have a good look at the thing. Look at the table too, and satisfy yourselves there is no trickery." Time machine is friction, albeit seeing the CCTV footage with your own eyes as a judge gives you an insight into the real world in the past. In the present case, the court has itself seen the CCTV footage, and has travelled back in time to the time when the occurrence took place and thereby has seen the occurrence in the same position as that of a witness, who would have seen the occurrence, if he was present. There cannot be a more direct evidence. This video recording which captures the occurrence, would be per se and mostly discerningly reliable and compellingly conclusive evidence, unless its authenticity and genuineness is in question.

16. Per force, we must rule out any possibility of manipulation, fabrication or tampering. The hard-disk CCTV footage must pass the integrity test. It is a two fold test, system integrity and record integrity. It is with this over cautious and pensive approach, that we have proceeded and have bestowed our consideration. We would accept the genuineness and authenticity of the CCTV footage played before us, for good and sound reasons. System integrity test is satisfied by ocular testimonies of Rakesh Bhargawa (PW-4), Ram Milan (PW-15) and police officers H.C. Rajpal Singh (PW-7) and Inspt. B.S. Rana (PW-18). System was working and contemporaneously storing data. They had viewed the data. On record integrity, i.e., contents of the record have remained unchanged, we were anxious as it was noticed that the list of documents at Sr. No. 27, filed with the charge-sheet, mentions compact disc (CD) indicative that the hard drive had been examined and secondary evidence was created. Examination of the police case file had revealed that the CD was created at the behest of the public prosecutor, before the charge-sheet was filed. This was certainly a lapse and the hard disc sealed and deposited in the malkhana should not have been opened, even for the purpose of making copies of the video files. However, in the facts of the present case, this transgression and deviation would not unsettle and nullify the authenticity of the CCTV footage for there is no evidence or even a suggestion that the appellant Kishan Tripathi was at any time under compulsion or force, was asked to enact the crime at the place of occurrence. Moreover, the CCTV footage was seen on 23rd February, 2009 by Rakesh Bhargava (PW-4) and the police officers HC Rajpal Singh (PW-7), Insp. B.S. Rana (PW-18) and Ram Milan (PW-15) who had operated and played the CCTV footage. We are satisfied that the recorded CCTV footage has not been interpolated or tampered in the light of the original hard drive, which has been played before us. The footage recorded consists of 405 files starting from 2:06 P.M. on 21.02.2009 till 2:14 P.M. on 23.02.2009, with self generated numbers. Time and date are mentioned on the files and the video. These are not one, two or three files, but more than 400 files, created over a span of several hours. This "internal evidence" establishes its genuineness. Hard disk in the present case is not only a physical object, but a document within the meaning of section 3 of the Evidence Act [See Shamsher Singh Verma Vs. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, has held that execution of a document can also be proved by the "internal evidence" contained in the contents of the document. The circumstantial evidence enforces our belief that the original document, i.e. hard drive, is original and authentic.

Delhi High Court

Kishan Tripathi @ Kishan Painter vs The State on 12 February, 2016

CRIMINAL APPEAL NO. 108/2013

 CORAM:
  HON'BLE MR. JUSTICE SANJIV KHANNA
  HON'BLE MR. JUSTICE R.K. GAUBA

Citation:2016 CRLJ(NOC)274 Del

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Procedure to be followed by Magistrate when CCTV footage and video recordings is produced by police at the time of filing of chargesheet

During the hearing of the case, we noticed that the trial Court had not played the DVR (MO-2) and seen the CCTV footages in the presence of the accused. In this regard we propose to dispel misgivings, if any, in the mind of trial Judges about their power to view such evidences. There will be instances where, by the time the case comes up for trial in one court, the electronic record would have had a natural death for want of proper storage facilities in the Court property room. To obviate these difficulties, we direct that, on a petition filed by the prosecution, the Judicial Magistrate, who receives the electronic record, may himself view it and take a back up, without disturbing the integrity of the source, in a CD or Pendrive or any other gadget, by drawing proceedings. The back up can be kept in safe custody by wrapping it in anti static cover and should be sent to the Sessions Court at the time of committal. The present generation of Magistrates are computer savvy and they only require legal sanction for taking a back up. They can avail the service of an expert to assist them in their endeavour. Recently the Supreme Court in Shamsher Singh Verma v. State of Haryana, MANU/SC/1345/2015 : 2015 (12) Scale 597, has held that CD is a 'document' within the meaning of Section 3 of the Indian Evidence Act, 1872. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, MANU/SC/0277/1975 : (1976) 2 SCC 17, the Supreme Court has held that tape records of speeches are 'documents' as defined in Section 3 of the Indian Evidence Act, 1872. This Judgment has been relied upon in Shamsher Singh Verma's case (cited supra). Therefore, we hold that articles like Memory Card, Hard Disc, CD, Pen-drive, etc., containing relevant data in electronic form are 'documents' as defined under Section 3 of the Indian Evidence Act, 1872, albeit, marking them as material objects. After all, nomenclature cannot have the effect of altering the characteristics of an object. The words 'proved' and 'disproved' in section 3 of the Evidence Act have the following common denominator;

"A fact is said to be proved/disproved when, after considering the matters before it............ "

(emphasis supplied)

Without viewing the CCTV footage, how can any Court, "consider the matter before it " to conclude that a fact has been 'proved' or 'disproved' ? That apart, Section 62 of the Indian Evidence Act, 1872 states,

"Primary evidence means the document itself produced for the inspection of the Court."

(emphasis supplied).

This does not mean that, if a secondary evidence of a document is admitted lawfully, the Court is denuded of the power to inspect it. Such an inference will lead to absurdity. Therefore, we hold that a Court has the power to view CCTV footage and video recordings, be it primary or legally admissible secondary evidence, in the presence of the accused for satisfying itself as to whether the individual seen in the footage is the accused in the dock. The trial Court should also specifically put questions to the accused when he is examined under Section 313 Cr.P.C. about his overt acts appearing in the footage and record his answers.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated:      27-1-2016

Coram:  Mr.Justice R.SUDHAKAR

and  Mr.Justice P.N.PRAKASH

Criminal Appeal No.110 of 2015

K. Ramajayam @ Appu Vs.  The Inspector of Police,

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When adverse inference should not drawn against bank for non production of CCTV Footage recording?

ATM—Unauthorised withdrawal--Since there is no R.B.I. guidelines in India regarding C.C.T.V. Footage recording in the ATM Booth, the non-production of the said C.C.T.V. Footage from the side of the Bank does not impair the defence of the Bank in any way.
ATM—C.C.T.V FOOTAGE RECORDING NOT PRODUCED BY BANK—NO ADVERSE INFERENCE CAN BE DRAWN.
A perusal of the records of the District Forum shows that no such application was ever moved by the complainant before the District Forum. However, the following order was passed by this Commission on 7.11.2012:-

"The main dispute between the parties as alleged by the appellant is that Video clips were not supplied by the respondent. On the other hand, counsel for the respondent submitted that CCTV was not available at that time in the ATM Cabin, and as such the same was not supplied to the appellant/customer. Whether the CCTV was compulsory to be installed in the ATM cabin or not and what were the directions/regulations of the RBI. The documents be produced by the parties."

 In spite of that order, no such document was produced by either of the parties. As the onus was upon the complainant so he was required to place on record the directions/regulations of the RBI that the installation of CCTV Camera in the ATM booth at the relevant time was mandatory. For the non-production of any such direction or regulation an adverse inference is to be drawn against the complainant himself. 

State Consumer Disputes Redressal Commission

Mehar Singh vs Centurion Bank Of Punjab Ltd. on 25 March, 2013

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
  PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH

                 FIRST APPEAL NO. 722 OF 2008

                                      

Quorum:

Hon'ble Mr. Justice Gurdev Singh, President Sh. Baldev Singh Sekhon, Member 

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Whether Railway can terminate contract granted in favour of contractor due to act of moral turpitude on his part?

Though it has been contended on behalf of the petitioner
that for any instance of licensee himself/his agent or staff, if found in
drunken condition/indulging in bad conduct or involved in activities
amounting to moral turpitude in Railway premises, the Contractor may be
penalized up to Rs. 5,000/- as per clause -19 of the Contract agreement,
we are of the view that Clause-23 referred to hereinabove is of
supervening import authorizing the Railway to terminate the contract
agreement in case of breach of any of the condition embodied therein and
effect forfeiture of the deposits as contemplated.
IN THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 9555 of 2012
An application under Articles 226 & 227 of the Constitution of India.
M/s. Sagar Vision Advertising

-Versus-
Sr. Divisional Commercial Manager,
East Coast Railway, Khurda Road
Division & Another.

PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. AMITAVA ROY
AND
THE HON’BLE DR JUSTICE B. R. SARANGI


Date of Order
:
26.08.2014
Citation;AIR 2015(NOC)349(ORISSA)

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Whether omission to produce CCTV footage will be fatal to prosecution case?

The Supreme Court of India in Tomaso Bruno & Anr. Vs. State of U.P. dated 20-01-2015 viewed that "omission to produce CCTV footage which is the best evidence, raises serious doubts about the prosecution case."

A full bench of Justices Anil R. Dave, Kurian Joseph and R. Banumathi held that "to invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. 

Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. 

CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. 

CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case." Court added.

Allowing the appeal and setting aside the convictions of the accused under Section 302/34 IPC the Court further held that:

With the advancement of information technology, scientific temper in the individual and at the institutional level is to pervade the methods of investigation. With the increasing impact of technology in everyday life and as a result, the production of electronic evidence in cases has become relevant to establish the guilt of the accused or the liability of the defendant. 

Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. 

The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. 

Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it.

Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. 

Relevance of electronic evidence 

The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, noncollection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.

As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. 

Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. 

Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.

The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. 

The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence–CCTV footage ought to have produced the same. 

In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.

In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and also have not noticed the absence of symptoms of strangulation in the medical reports. 

Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside", the Court Said.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 142 OF 2015

(Arising out of S.L.P.(Crl.) No. 1156/2013)

TOMASO BRUNO Vs STATE OF U.P.

Date;January 20, 2015

R. BANUMATHI, J.
Citation(2015) 7 SCC178

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