Admissible Yet Unsafe: CCTV, Gait Analysis, and the Judicial Craft of Electronic Evidence

 In State of Tamil Nadu v. Ponnusamy & Ors., the Supreme Court’s discussion of CCTV footage and gait analysis offers a practical lesson of lasting importance for criminal courts. The decision shows that the law of electronic evidence cannot be reduced to a single question of admissibility. A digital record may be legally receivable in theory, yet still be too weak, too poorly proved, or too compromised in its handling to carry evidentiary weight in practice.

That distinction matters greatly in day-to-day criminal adjudication. Session Judges increasingly encounter prosecutions built around CCTV clips, mobile phone videos, cloned storage devices, extracted pen drives, call data, and expert reports from private or government laboratories. Advocates, in turn, often attack or defend such material at the wrong level. They either argue broad doctrine without addressing the actual source trail, or focus on scattered procedural lapses without explaining how those lapses affect authenticity, continuity, and reliability. The judgment under discussion is valuable because it compels a more disciplined method.

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Re-Enactment, Self-Incrimination, and the Architecture of Proof: A Critical Reading of Supreme Court judgment State of Tamil Nadu v. Ponnusamy & Ors.

Supreme Court decision of THE STATE OF TAMIL NADU Vs   PONNUSAMY & ORS, Dated: May 19, 2026, 2026 INSC 507 arising out of the murder of Dr. Subbiah in Chennai presents a dense intersection of conspiracy law, approver testimony, electronic evidence, recoveries under Section 27, and the constitutional limit against self-incrimination under Article 20(3). The case travelled from a trial court conviction, including death sentences for several accused, to a complete acquittal by the Madras High Court, and then back to the Supreme Court, which subjected both the evidentiary record and the High Court’s reasoning to close scrutiny.

Case setting

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Supreme Court: Crime Scene Re-Enactment Won't Violate Right Against Self Incrimination In All Situations

 As far as the evidence related to CCTV footage and gait analysis report is concerned, there are two aspects which require discussion – first, whether re-enactment of a crime scene by the accused amounts to personally incriminating testimony barred by Article 20(3) of the Constitution and second, whether the CCTV footage and gait analysis report are admissible in evidence and can be relied upon.{Para 83}

11 Now Sections 23(1) and 23(2) of Bharatiya Sakshya Adhiniyam, 2023(“BSA”) emerge primarily because the larger public interest in adopting technically advanced investigations often comes in a conflict with the constitutional and statutory rights of the accused which ensure fairness and lie at the heart of our criminal justice system. Therefore, such issues demand appropriate balance.

86. Invariably, the core test that has been applied in resolving

these issues is whether the act in question merely requires an

accused to act in a certain manner or to perform an act, without

giving any personal testimony, or in alternative, whether it

compels him to disclose incriminating information from his

personal knowledge. If it is the former, the act is constitutionally

valid as it merely amounts to assistance in the course of

investigation and the act, in itself, does not amount to any

personal testimony. However, if it is the latter, the act becomes

constitutionally impermissible as it effectively compels an

accused to be a “witness against himself”.

88. The re-enactment or demonstration of an occurrence by an

accused is often based on eye-witness accounts of the offence or

on the basis of CCTV footage extracted from nearby cameras

installed in public spaces. Nevertheless, it cannot be held as a

general proposition that every re-enactment or demonstration of

a crime scene per se amounts to personal testimony of the

accused. If the re-enactment is merely based on a direction to

walk or to act a certain way or to imitate a visual sequence, it

does not necessarily involve any physical manifestation or

disclosure of the personal knowledge of the accused. In that

sense, it does not amount to any personal testimony. However, if

the accused is somehow led into demonstrating the incriminating

acts committed by him from his own knowledge, the same would

amount to testimonial compulsion and would be squarely hit by

Section 25 and 26 of Evidence Act. Therefore, it would be

dangerous to lay down a general rule against the admissibility of

evidence based on re-enactment or demonstration of the

occurrence, as it would effectively kill a potent and scientific

investigative technique. The right approach is to tread a

proportionate path and see whether the re-enactment is merely a

directed demonstration to analyse physical attributes of the

suspects or a manifestation of the personal knowledge of the

accused. Although, we must be mindful of the fact that

inherently, by its very nature, an exercise of re-enactment of

occurrence is carried out as per the directions given by the

investigating officer and the re-enacted version does not amount

to a personal version of the accused. Rather, it remains an

enactment or demonstration of the version of the investigating

officer. Per se, a re-enactment of an occurrence is merely

‘created’ document/evidence and on its own, it hardly proves

anything. On the basis of such re-enactment, expert analysis such

as gait analysis is carried out, which gives rise to a distinct piece

of evidence, with distinct implications. Such expert evidence is

not based on the personal testimony of the accused and is merely

an analysis of the physical attributes of the accused, which could

be used for the purpose of identification during trial. Thus, the

thin line between ‘re-enactment’ and ‘evidence based on re-enactment’ needs to be acknowledged.

89. Importantly, it needs to be noted that evidence based on a

re-enactment or demonstration is not a substantive piece of

evidence of the actual commission of the offence. It is merely

corroborative evidence which may be useful to corroborate the

identities and physical attributes of the suspects, sequence of the

alleged occurrence, physical attributes of the place of occurrence

etc. On its own, re-enacted evidence cannot be made the basis to

arrive at a finding of conviction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 2493-2502 OF 2025

THE STATE OF TAMIL NADU Vs   PONNUSAMY & ORS. 

Author: SATISH CHANDRA SHARMA, J.

Citation: 2026 INSC 507

Dated: May 19, 2026.

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The Jailbreak File: A Sessions Judge’s Guide to Panchanamas, Section 27 Recoveries, and CCTV Proof (IPC 224–225)

 The record is familiar: a prison, a sudden burst of violence, a weapon that appears “from nowhere”, and a case diary full of panchanamas. The danger for a trial judge is also familiar—either to treat the paperwork as conclusive, or to reject the entire prosecution story because the panch witnesses are “official”. The correct judicial method lies in disciplined separation: (i) admissibility vs. weight, (ii) narrative vs. discovery, and (iii) primary proof vs. corroboration. Print Page

Important Supreme Court Judgments on electronic evidence

 

1) Supreme Court: Not Required To Play Video Evidence Before Witness Or Transcribe Its Contents For Admissibility

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4041 of 2025 (Arising out of SLP (Criminal) No. 4646 of 2025)

Decided On: 15.09.2025

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Manoj Misra, J.

Citation: 2025 INSC 1117,MANU/SC/1283/2025

https://www.lawweb.in/2025/09/supreme-court-not-required-to-play.html

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CCTV in Muddemal Doesn't Mean 'No Copies': Supreme Court's Clear Mandate

 Subtitle: When police misuse “material object” status to avoid furnishing electronic evidence contents under Section 207 CrPC 

OPENING: THE SYSTEMATIC ABUSE IN YOUR COURT

It happens in hundreds of courts across India every week.

A pen drive containing CCTV footage of a crime arrives at the police station. The investigating officer seizes it, documents it, and files a chargesheet saying the video shows the accused committing the crime. The pen drive then goes into the muddemal (evidence room) of the court.

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ELECTRONIC EVIDENCE & CHAIN OF CUSTODY : Why Your Court’s Computer Room Must Never Touch Electronic Evidence?

 

A Judicial Guide to Protecting Digital Evidence in the Age of Bharatiya Sakshya Adhiniyam 2023

OPENING: THE OPERATIONAL TRAP MOST COURTS FALL INTO

Your muddemal room receives a pen drive containing critical CCTV footage. The prosecutor and defence counsel walk into your chambers and ask the same simple question: “Your Honour, can your court’s computer room just copy this for us?”

Your administrative officer is standing by, computer room staff are available, and it seems like a five-minute fix.

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The Supreme Court's Definitive Ruling on Video Evidence Admissibility: Kailash vs. State of Maharashtra Sets New Standards for Digital Evidence in Criminal Trial

 

The Supreme Court's recent judgment in Kailash S/o Bajirao Pawar vs. State of Maharashtra (2025 INSC 1117) has delivered a landmark clarification on the admissibility of video recordings in criminal proceedings, setting crucial precedents for how courts should handle electronic evidence under the Indian Evidence Act, 1872. This decision, delivered by Justices Manoj Misra and Ujjal Bhuyan on September 15, 2025, fundamentally reshapes the legal landscape surrounding digital evidence while reinforcing the exceptional nature of re-trial orders in criminal cases.

Read full judgment here: click here

The Case Background: NDPS Raid and Video Documentation

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Supreme Court: Not Required To Play Video Evidence Before Witness Or Transcribe Its Contents For Admissibility

As far as admissibility of video recording i.e., Compact Disc (CD) is concerned, the author of the video i.e., SW No. 2 not only deposed that he recorded the video, but he also gave a certificate, as contemplated Under Sub-section (4) of Section 65B of the Evidence Act, to make the CD admissible in evidence. Interestingly, the High Court did not dispute that the electronic record was duly exhibited as there existed a certificate envisaged Under Sub-section (4) of Section 65B. However, strangely, the High Court opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video. In our view, this is a strange and unacceptable reasoning for the simple reason that the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s). No doubt, there may be an occasion where to appreciate contents of a video an explanatory statement may be needed, but that would depend on the facts of a case. However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video. Besides that, in the instant case, the search and seizure operation was sought to be proved by oral evidence of witnesses. The video, therefore, was perhaps to corroborate the oral testimony. Even the judgment of the trial court makes it clear that the video was played in court in the presence of all Accused as well as both sides counsels and the presiding officer, upon seeing the video, could spot and confirm the presence of witnesses as well as the Accused at the time of search and seizure. In such circumstances, in our view, a re-trial is not required only to explain the video. {Para 19}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4041 of 2025 (Arising out of SLP (Criminal) No. 4646 of 2025)

Decided On: 15.09.2025

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Manoj Misra, J.

Citation: 2025 INSC 1117,MANU/SC/1283/2025

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How to prove electronic evidence including WhatsApp posts, CCTV footage, digital camera photographs, and digital pictures under Bharatiya Sakshya Adhiniyam?

 The digital transformation of Indian society has fundamentally altered the evidentiary landscape in judicial proceedings, requiring courts to adapt their evaluation frameworks to accommodate the complexities of electronic evidence authentication. The Bharatiya Sakshya Adhiniyam 2023 represents a paradigmatic shift in how Indian courts approach the admissibility and proof of electronic documents, moving beyond the colonial-era constraints of the Indian Evidence Act 1872 to establish a comprehensive framework specifically designed for the digital age. This transformation has particular significance for courts dealing with increasingly prevalent forms of electronic evidence, including WhatsApp communications, CCTV footage, digital camera photographs, and various forms of digital pictures that have become central to modern litigation. The judicial system's approach to these digital records requires a nuanced understanding of both legal requirements and technological realities, as courts must balance procedural rigor with practical considerations to ensure that justice is not compromised by overly technical requirements.

Evolution of Electronic Evidence Framework: IEA 1872 vs BSA 2023

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Supreme Court: Last seen theory based on CCTV footage- Prosecution failed to produce Certificate under S 65-B(4) in its support-CCTV Footage is not admissible in evidence

 In this case, learned Counsel Mr. Shri Singh contends that even though there was no objection when PW-1 marked the exhibits; question was put to PW-38 Vyanket Bhanudas Patil about the need for Section 65-B certificate and its absence in the case of CCTV footage particularly when Section 65-B certificate was furnished for CDR report by the police. Relevant part of the deposition of PW-38 reads as under:

It is correct to say that while calling the CDR reports, I called the certificates Under Section 65-B of Evidence Act. It is correct to say that I was aware that while collecting the electronic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server. It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. {Para 41}

42. The deposition of PW-38, when this question was put, was recorded on 18.06.2015 when the judgment in Anvar P.V. (supra) was holding the field. The prosecution ought to have taken a cue and attempted to remedy the situation. They have not done so.

43. We are dealing with a criminal case where the Accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW- 1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence. On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B(4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage.

51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the Appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

Read full Judgment here: Click here. 

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Supreme Court: Under which circumstances the CCTV footage will not tantamount to "last seen together evidence"?

According to the learned Counsel, the CCTV footage will not tantamount to "last seen together evidence" as identification of the Appellant and the deceased in the same footage has not been proved. Learned Counsel submits that no witness identified both the deceased and the Appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the Appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform No. 4 of LTT Station and PW-27 saw the footage and identified the Appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any girl, contends the learned Counsel. Learned Counsel contends that PW-27's identification did not inspire confidence as it was as late as on 26.03.2014; that the police brought him into the picture and nothing was there to establish that PW-27 knew the Appellant as a person who roams in the area. Learned Counsel further contends that PW-38 Vyanket Bhanudas Patil admitted that he did not collect the address proof of PW-27. According to the learned Counsel, it is unclear as to how the police knew that the persons PW-18 and PW-19 were speaking to the same person who was seen in the footage.

{Para 33}

34. We find that the infirmities referred to by the defence namely, about the life span of the CCTV footage in DVR-II being 12 days; the absence of identification of both the Appellant and deceased in the same footage by the witnesses; the absence of explanation as to how the Police knew that the person PW-18 and 19 were speaking to was the same person in the footage and other infirmities raised have not been adequately answered by the prosecution in its evidence. Learned Additional Solicitor General Mr. Raja Thakare painstakingly took us through the available evidence and objectively placed the matter before us. However, from the material available on record, these lingering doubts in our mind have not been adequately addressed.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 879 of 2019

Decided On: 28.01.2025

Chandrabhan Sudam Sanap Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: MANU/SC/0112/2025.

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Bombay HC: The Session Judge must record evidence of Chemical analyser in NDPS Case to Prove CA Report

The next important flaw which can be seen is the failure of the prosecution to examine the CA. It is noticed that in the Vidarbha region, in the trials under the NDPS Act, the CA is not examined. In my view, this is a serious mistake on the part of the prosecution. It needs to be placed on record that in Greater Mumbai, in every case under the NDPS Act, the CA is examined. In Vidarbha region, while deciding the appeals against the conviction and sentence in NDPS cases, it is noticed that this aspect is taken for granted by the prosecution. It needs to be stated that in Vidarbha region, the majority of the cases under the NDPS Act are with regard to the seizure of the ganja. The examination of the CA, in the case of the analysis of ganja, is very important because, in the report of the CA the description of the substance in detail is recorded invariably. The description of the substance, seized as a ganja, is required to be proved to bring it within the ambit of the definition of ganja under Section 2(iii)(b) of the NDPS Act. In this case, the prosecution has failed to examine the CA. In this case, the learned prosecutor did not produce remnant samples received from the office of CA. Similarly, the prosecutor did not produce the representative samples drawn at the time of the seizure on the spot as well as drawn in presence of the learned Magistrate at the time of the inventory. The remnant samples are required to be shown to the CA to bring on record the nature of the narcotic drug and the description of the drugs. Similarly, the representative samples are required to be opened before the Court at the time of the evidence of the concerned witness. The presiding officer is required to note down the description of the narcotic drug/substance found in the sample packets. It is further pertinent to mention that if the seized drug is not destroyed, then the same shall also be produced before the Court while recording the evidence of the witness. The description of the substance found in the packets/sacks shall also be recorded. The learned presiding officer is required to record this part of the evidence very meticulously and note down the description of substance.

{Para 18}

 19. I am conscious of the fact that under Section 293 of the Code of Criminal Procedure, the reports of certain Government scientific experts may be used as evidence in an inquiry, trial or other proceedings. The record shows that no specific order was passed by the learned Judge, while admitting the CA report. It is to be noted that, in cases under the NDPS Act, as and when a CA report is tendered, the Court shall insist the prosecutor to examine the CA. If the CA is available, then the learned Judge shall not exhibit the report without examining the CA. The trial of the offences under the NDPS Act cannot be taken lightly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 449 of 2023 and 457 of 2024

Decided On: 25.10.2024

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

G.A. Sanap, J.

Citation: MANU/MH/7026/2024.

Read full Judgment here: Click here.

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Bombay HC: What procedure the court should adopt while recording evidence of CD or pen drive or any other electronic gadget in criminal trial?

 

It is to be noted that the video recording of the entire process was the best evidence in the possession of the prosecution. The question that was required to be addressed by the learned Judge while recording such evidence was as to how it has to be converted into legally admissible evidence. The learned Judge and the learned prosecutor have committed a procedural error. The proper procedure had not been followed. In this case, the main witnesses are the panch witnesses, the photographer, other members of the raiding party and the investigating officer. If the evidence consists of a video recording of the particular incident or part of the incident, the recorded incident must be proved through the concerned witness. As far as the video recording or recorded CCTV footage is concerned, the witness who is an eyewitness to the incident or acted as a panch witness or in other capacity, must describe the incident on oath before the Court. In such a case, at the time of recording the evidence of the concerned witness, the video recording, either recorded in the CD or pen drive or any other electronic gadget, must be played on the screen. The witness, after playing the CD, must describe or translate the video recording or the contents of the recording in his own words on oath before the Court. If it is an audio recording, then the part of the audible conversation must be transcribed and placed on record under the signature of the investigating officer. Unless and until the recorded video or CCTV footage is played at the stage of evidence of the witness, the witness would not be able to describe or narrate the incident in his or her own words on oath before the Court. In this way, at the stage of recording of evidence, each and every witness concerned with the video recording of the incident or any part of the incident must describe or narrate the incident in his or her own words on oath before the Court. If it is not so done, then it would be very difficult to understand or read that video recording by the presiding officer, prosecutor or Advocate. This procedure has to be scrupulously followed. This has not happened in this case. The CD was not played while recording the evidence of the panch witnesses, the photographer, the other members of the raiding party and the investigating officer. It is therefore apparent that the legally admissible evidence as to the contents of the recording/CD has not at all been recorded. {Para 15}

16. The CD is a part of the record. At the stage of the arguments in these appeals, the CD was played in the Court. It is evident that the video recording commenced with the apprehension of the appellant. The CD contains the recording of the inspection of hut, recovery of the substance, the description of the substance and further part of the proceedings. The CD further contains the recording of the raid and recovery at the house of Shatrughna. The learned Judge was required to play the CD at the time of recording evidence of each witness and record the contents appearing on the screen with the help of the concerned witness. If this procedure had been followed, then the contents of the CD would have become legally admissible evidence. This procedure had not been followed. This has caused prejudice to the appellants as well as to the prosecution. The important evidence collected in the form of the video recording has not been converted into legally admissible evidence. In order to verify the correct factual position, at the stage of the argument of the appeals, the video recording was played. It was very difficult to understand the contents of the CD. If the evidence of the witnesses had been recorded on playing the video recording at the time of the evidence, then the oral testimony of the witnesses on oath, as to the contents of the CD would have been part of the record.

17. It is evident that in this case the detailed description of the ganja has not been recorded in the panchanama. Similarly, the detailed description of the ganja has not been stated by the witnesses. The substance seized from the possession of the appellant can be seen from the video recording. It was necessary to show this part of the recording to the witnesses and record the description of the substance in detail through each and every witness. In my view, this is a fundamental flaw in this case. The appellants could not be held responsible for this mistake or rather a mess. It was the responsibility of the learned prosecutor to insist before the learned Judge to play the CD when the witnesses were in the witness box. It was not done by the learned Prosecutor/ incharge of the case. Similarly, the learned Judge did not follow this procedure scrupulously. It seems that the learned Judge did not act diligently while recording the evidence of the witnesses with regard to the incident or a part of the incident video-graphed by the investigating officer. Learned Judge has observed in his judgment that there was no objection as such on the part of the appellants to this CD. In my view, this observation is totally perverse. This observation is not only against the appellants, but it is also against the prosecution. In this case, the required evidence as to the contents of the video recording or CD has not been properly recorded. There is a procedural error. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 449 of 2023 and 457 of 2024

Decided On: 25.10.2024

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

G.A. Sanap, J.

Citation: MANU/MH/7026/2024.

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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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Bombay HC: Electronic evidence cannot be used for cross-examination without a certificate as per S 65B of Evidence Act

 Emphasizing this facet of sub-section (4) the decision in Anvar holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence. Reliance was placed on the earlier decision in Union of India v. CDR Ravindra V Desai [(2018) 16 SCC 273] wherein it was emphasised that non-production of a certificate under Section 65-B of Evidence Act on an earlier occasion is a curable defect. Reliance was also placed on the judgment of the Supreme Court in Sonu @ Amar v. State of Haryana [(2017) 8 SCC 570], wherein it was held that the crucial test was whether the defect could have been cured at the stage of marking the document. Applying the said test it was held that if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. Thus, though it may be considered that the production of certificate is a curable defect; yet, accused in present case should explain from whose custody he has procured the said CCTV Footage. Unless the basic authenticity of the said document/electronic record is shown, it can not be even used in cross-examination.

20. The procedure adopted by learned Magistrate was wrong. When the accused had not explained any reason in his application Ex.38, which was for production of document; there was no question of allowing the informant to re-call for cross. Further the learned Magistrate has failed to see that he had not allowed the production of document first, but then went on to re-call the witness in advance. Neither in application Ex.38 nor in Ex.37, the accused has disclosed the source from where he has secured the CCTV footage. There was no attempt on his part earlier to call the owner of the said shop, where the CCTV cameras are installed. He also says that he has downloaded the said footage on the CD and has produced it. That means the manner in which the copy of the original record was made has not been explained. It appears that the CD has been got produced without its transcription. When the authenticity of the document was raised, then at least certain prima facie compliance ought to have been got done, before re-calling the witness by the learned Magistrate. When all these facts and circumstances were not observed by the learned Magistrate, though in normal course it ought not to have been observed, it will have to be observed that the impugned orders below Ex.37 and 38 are sheer example of non-application of mind and non-adherence of basic provisions of law. They are patently illegal, hence, deserve to be set aside by invoking the constitutional powers under Article 226 and 227 of Constitution of India and inherent powers of this Court under Section 482 of the Code of Criminal Procedure.

In the High Court of Bombay,Aurangabad Bench

(Before Vibha Kankanwadi, J.)

X   Vs  State of Maharashtra 

Criminal Writ Petition No. 1579 of 2019

With

Criminal Application No. 3214/2019

Decided on January 13, 2020

Citation: 2020 SCC OnLine Bom 143

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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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