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

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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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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How to appreciate 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) v. 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-B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 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 v. State of Haryana, 2015 (12) Scale 597]. The Supreme Court in Mobarik Ali Ahmed v. 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.

In the High Court of Delhi at New Delhi

(Before Sanjiv Khanna and R.K. Gauba, JJ.)

Kishan Tripathi @ Kishan Painter 

v.

The State .

Mr. Varun Goswami, APP.

Criminal Appeal No. 108/2013

Decided on February 12, 2016

Citation:2016 SCC OnLine Del 1136 : (2016) 230 DLT (CN) 3 (DB)

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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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