SHAFHI MOHAMMAD versus THE STATE OF HIMACHAL PRADESH
[2018] 3 S.C.R. 1096, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Facts
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SHAFHI MOHAMMAD
v.
THE STATE OF HIMACHAL PRADESH
(Special Leave Petition (Criminal) No. 2302 of 2017)
APRIL 03, 2018
[ADARSH KUMAR GOEL AND R. F. NARIMAN, JJ.]
Investigation – Use of videography on the scene of crime –
Videography of crime scene during investigation is of immense value
in improving administration of criminal justice – Technology is a
great tool in investigation – By videography, crucial evidence can
be captured and presented in a credible manner – Notwithstanding
the fact that as of now investigating agencies in India are not fully
equipped and prepared for the use of videography, the time is ripe
that steps are taken to introduce videography in investigation,
particularly for crime scene as desirable and acceptable best
practice as suggested by the Committee of the MHA to strengthen
the Rule of Law – Therefore, the Centrally Driven Plan of Action
prepared by the Committee and the timeline is approved – It is
directed that with a view to implement the Plan of Action prepared
by the Committee, a Central Oversight Body (COB) be set up by the
MHA forthwith – Suggestions of the Committee in its report may
also be kept in mind – The COB will be responsible for further
planning and implementation of use of videography – Central
Government is directed to give full support to the COB and place
necessary funds at its disposal – The COB may issue appropriate
directions so as to ensure that use of videography
becomes a reality
in a phased manner and in first phase of implementation by 15th
July, 2018, crime scene videography must be introduced at least at
some places as per viability and priority determined by the COB –
The suggestion that funding for this project may be initially by the
Centre to the extent possible and a central server may be set up,
may also be considered by the COB – There is need for a further
direction that in every State an oversight mechanism be created
whereby an independent committee can study the CCTV camera
footages and periodically publish report of its observations – The
COB to issue appropriate instructions in this regard at the earliest.
Karnail Singh  v.  State of Haryana (2009) 8 SCC 539
: [2009] 11 SCR 470 – followed.
[2018] 3 S.C.R. 1096
1096
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D.K. Basu  v.  State of West Bengal and Ors. (2015) 8
SCC 744 : [2015] 7 SCR 814 – relied on.
Ram Singh and Ors. v. Col. Ram Singh (1985) Supp
SCC 611 : [1985] Suppl. SCR 399; Tukaram S. Dighole
v.  Manikrao Shivaji Kokate (2010) 4 SCC 329 : [2010]
2 SCR 396; Tomaso Bruno and anr.  v.  State of Uttar
Pradesh (2015) 7 SCC 178 : [2015] 1 SCR 721; Mohd.
Ajmal Amir Kasab  v.  State of Maharashtra (2012) 9
SCC 1 : [2012] 8 SCR 295; State (NCT of Delhi)  v.
Navjot Sandhu (2005) 11 SCC 600 : [2005] 2 Suppl.
SCR 79 – referred to.
R.   v.  Maqsud Ali (1965) 2 All ER 464; R  v. Robson
(1972) 2 All ER 699 – referred to.
Case Law Reference
[2009] 11 SCR 470
followed
Para 9
[1985] Suppl. SCR 399
referred to
Para 9
[2010] 2 SCR 396
referred to
Para 9
[2015] 1 SCR 721  
referred to
Para 9
[2012] 8 SCR 295
referred to
Para 9
[2005] 2 Suppl. SCR 79
referred to
Para 9
[2015] 7 SCR 814
relied on
Para 13
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 2302 of 2017.
From the Judgment and Order dated 26.06.2014 of the High Court
of Himachal Pradesh, Shimla in Criminal Appeal No. 404 of 2009.
WITH
SLP (Crl.) Nos. 9431 of 2011 and 9631-9634 of 2012.
ANS Nadkarni, ASG, Abhinav Mukerji, AAG,  Dr. Arun Mohan,
(AC), Jayant Bhushan, (AC), Y. P. Adhyaru, Sr. Advs.,  Rituj Chopra,
Ketann Paul, Tushar Bhushan, Ms. E. R. Sumathy, Bharat Bhushan,
Ms. Jaspreet Gogia, Ms. Manjakini Singh, Ms. Shirin Khajuria, Ms. Asha
Gopalan Nair, Zoheb Hussain, Ms. Rukhmini S. Bobde,
Salvador S.
Rebello, Ms. Nivedita Nair, Ms. Sneha Prabhu Tendulkar, Amogh Prabhu,
B.V. Balram Das, Vikas Mahajan, Vinod Sharma, Shyam Sundar Rai,
Ms. Jaspreet Gogia, Ms. Manjakini Singh, Bharat Bhushan, Ms. Anuradha
SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL
PRADESH
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Mutatkar, Mrs. Bihu Sharma, Ms. Purnima Krishna, Advs. for the
appearing parties.
The following Judgment of the Court was delivered:
O R D E R
SLP(Crl.)No.2302 of 2017
1. Use of videography of the scene of crime is the subject matter
of consideration herein.  We may note the proceedings in the case on
earlier hearings.  In order dated 25th April, 2017, it was observed:
“Mr. A.N.S. Nadkarni, Additional Solicitor General, has
accordingly put in appearance and made his submissions.
He has also submitted a note to the effect that such videograph
will indeed help the investigation and such concept is being
used in some other advanced countries. The National Institute
of Justice which is an agency of U.S. Department of Justice
in its report has noted the perceived benefits for using the
“Body-Worn Cameras” and also the precautions needed in
doing so. The British Transport Police has also found body
worn cameras as deterrent against anti-social behaviour and
tool to collect evidence. He also referred to judgment of this
Court in Karnail Singh Vs. State of Haryana, (2009) 8 SCC
539 wherein reference to use of technology during search
and seizure under Narcotic Drugs and Psychotropic
Substances Act, 1985 has been made. Reference has also been
made to Information Technology Act (Amendment) 2006,
particularly, Section 79A. In (1976) 2 SCC 17, Ziyauddin
Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.,
this Court noted
that new techniques and devices are the order
of the day. Audio and video tape technology has emerged as
a powerful medium through which a first hand information
can be gathered and can be crucial evidence.
Learned Additional Solicitor General has also drawn our
attention to the Field Officers’ Handbook issued by the
Narcotics Control Bureau, Ministry of Home Affairs,
Government of India, inter-alia, suggesting that logistic
support be provided to the search teams. It further suggests
that all recovery and concealment methods should be
videographed simultaneously. The said handbook 3 also
suggests that permission should be taken under Section 52A
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of the Narcotic Drugs and Psychotropic Substances Act, 1985
for pretrial disposal of the contraband. Further, reference
has been made to the Narcotic Drugs and Psychotropic
Substances (Amendment) Bill, 2016 moved by a private
member in the Lok Sabha. He submits that in his view such
Bill will advance the interests of justice and he will advice the
Government of India to consider and oversee adoption for
these measures in the Country by investigating agencies.
Mr. A.I. Cheema, learned Amicus points out that Second
Proviso to Section 54A of the Cr.P.C. provides for videography
of identification process in circumstances specified in the said
provision. He also stated that there should be videography of
confessional statement under Section 164 Cr.P.C. He states
that such measures can also be adopted for recording dying
declarations, identification processes and the post-mortem.
Since, we find that at the ground level these measures have
not been fully adopted, we direct the Home Secretary,
Government of India to ascertain from different Investigating
Agencies to how far such measures can be adopted and what
further steps be taken to make use of above technology for
effective investigation and crime prevention.”
2. Thereafter, in the order dated 12th October, 2017 consideration
of the matter was as follows:
“Mr. A.N.S. Nadkarni, learned Additional Solicitor General,
has filed a note stating that the matter was discussed by the
Union Home Secretary with the
Chief Secretaries of the States.
A decision was taken to constitute a Committee of Experts
(COE) to facilitate and prepare a report to formulate a road-
map for use of videography in crime investigation and to
propose a Standard Operating Procedure (SOP). The
Committee has held its meetings. The response of the States is
in support of use of videography. The Central Investigation
Agencies have also supported the said concept. However,
certain reservations have been expressed in the
implementation such as funding, securing the data and storage
of the same. It has also been submitted that the production
and admissibility of evidence are also issues which may need
to be addressed.
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We had requested Mr. Jayant Bhushan, learned senior
counsel, to assist the court who has also submitted a note to
the effect that videography will be a beneficial step for
effective prosecution subject to the issue of admissibility being
resolved to make the use of videography compatible and
useful. He also submitted that the direction ought to be issued
for use of videography in investigation and such use be made
mandatory.
We have also requested Mr. Arun Mohan, learned senior
counsel, present in the Court, to assist the Court on the subject
as amicus. He submitted that equipments which may be useful
for scientific investigation have been suggested in certain
publications on the subject. A copy each of the said 3
publications has been furnished to Mr. Nadkarni so that the
same can be considered by the Committee of Experts. He
submitted that still photography may be more useful as it
enables much higher resolution for forensic analysis. Digital
camera can be placed on a mount on a tripod which may
enable rotation and tilting. Secured portals may be established
to which Investigation Officer can e-mail photographs taken
at the crime scene. To give authenticity and prevent
manipulation, digital images can be retained on State’s server
as permanent record. The State server can re-mail the digital
files back to the police station for further use. Special cameras
may be selected by the BPR&D. Till this is done,
smart-phones
can also be used. BPR&D may prepare a guidance manual
for the Investigation Officers for crime scene photography
and video recording of statements of witnesses. He stated that
a further note on the subject may be submitted by him.”
3. In order dated 30th January, 2018 it was observed:
“(3) We have been taken through certain decisions which may
be referred to. In Ram Singh and Others v. Col. Ram Singh,
1985 (Supp) SCC 611, a Three-Judge Bench considered the
said issue. English Judgments in R. v. Maqsud Ali, (1965) 2
All ER 464, and R. v. Robson, (1972) 2 ALL ER 699, and
American Law as noted in American Jurisprudence 2d (Vol.29)
page 494, were cited with approval to the effect that it will be
wrong to deny to the law of evidence advantages to be gained
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by new techniques and new devices, provided the accuracy
of the recording can be proved. Such evidence should always
be regarded with some caution and assessed in the light of all
the circumstances of each case. Electronic evidence was held
to be admissible subject to safeguards adopted by the Court
about the authenticity of the same. In the case of tape-
recording it was observed that voice of the speaker must be
duly identified, accuracy of the statement was required to be
proved by the maker of the record, possibility of tampering 5
was required to be ruled out. Reliability of the piece of
evidence is certainly a matter to be determined in the facts
and circumstances of a fact situation. However, threshold
admissibility of an electronic evidence cannot be ruled out
on any technicality if the same was relevant.
(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010)
4 SCC 329, the same principle was reiterated. This Court
observed that new techniques and devices are order of the
day. Though such devices are susceptible to tampering, no
exhaustive rule could be laid down by which the admission
of such evidence may be judged. Standard of proof of its
authenticity and accuracy has to be more stringent than other
documentary evidence.
(5) In Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015)
7 SCC 178, a Three-Judge Bench observed that advancement
of information technology and scientific temper must pervade
the method of investigation. Electronic
evidence was relevant
to establish facts. Scientific and electronic evidence can be a
great help to an investigating agency. Reference was made to
the decisions of this Court in Mohd. Ajmal Amir Kasab v.
State of Maharashtra, (2012) 9 SCC 1 and State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.”
4 On the issue of interpretation of Section 65B(4) of the Evidence
Act with regard to the admissibility of the electronic evidence it was
observed :
“12. Accordingly, we clarify the legal position on the subject
on the admissibility of the electronic evidence, especially by
a party who is not in possession of device from which the
document is produced.  Such party cannot be required to
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produce certificate under Section 65B(4) of the Evidence Act.
The applicability of requirement of certificate being
procedural can be relaxed by Court wherever interest of justice
so justifies.
13. To consider the remaining aspects, including finalization
of the road-map for use of the videography in the crime scene
and the Standard Operating Procedure (SOP), we adjourn
the matter to 13th February, 2018.”
5. We have now taken up the issue for further consideration.  An
affidavit dated 21st March, 2018 has been filed by the Director,  Ministry
of Home Affairs (MHA) annexing thereto Report of the Committee
constituted by the MHA about use of videography in police investigation
dated 22nd November, 2017. The Committee considered various issues
including the present infrastructure and usage, concerns/problems raised
by various States for use of videography during investigations, admissibility
of electronic evidence in absence of a certificate under Section 65B(4)
of the Evidence Act, operational difficulties, lack of training, funding,
forensic facilities.  The Committee observed that though crime scene
videography was a “desirable and acceptable best practice”, the
mandatory videography required major issues being addressed.
Videography may be done on “Best Effort” basis.  The timeline should
be different for different States and the Central Investigating Agencies.
The Committee suggested two alternative timelines.  The
second option
i.e. Option-B suggested by the Committee is as follows:
“7.3 Option-B: Centrally Driven Plan of Action:
The second approach suggested is for implementation of the
directions in a phased manner with milestone based review
mechanism.
a. Phase-I: Three Months: Concept, Circulation and
Preparation.
*  The concept for videography of the recommended
categories of tasks, preparations for pilot project launch
in i)Cities of 50 lakhs population or more; and, ii)at
least one district of every remaining State/Union
Territory; within three months of the orders of the
Hon’ble Supreme Court.  In the selected district(s), at
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least five police stations may be identified for
implementation of the scheme on best effort basis as a
pilot project
*  Capacity Building by organizing training programme
for personnel in the police station on the Videography
Techniques for them to be qualified as the Trained
Police Videographer by the end of three months.  Each
selected Police Station should identify personnel for
Trained Police Videographer qualification, at the rate
of two (2) Trained Police Videographer for every 25
heinous/grave crime cases reported in that police station
in a year.
*  Selected Districts be enabled/provided finances to
procure the equipment required for use by the Trained
Police Videographer.
*  A representative of the FSL trained in handling digital
evidences should be identified by each of the states to
mentor and hand hold the Pilot Project implementation
district Trained Police Videographers.  Where FSL has
no resources to offer, the SP/DCP of the concerned
district should be authorized to hire a private technical
person proficient in digital imaging and back-up
technologies to handhold/mentor the Trained Police
Videographers.
*  Preparation of Trainer Police Videographer Training
Modules and Training of Trainers courses by BPR&D/
CDTS/State Police Academies.
b. Phase-II: Six Months: Pilot Project Implementation
*  After the three months of Concept, Circulation and
Preparation stage, the pilot project should be launched
in the selected police stations of the
shortlisted Districts
of the States.
*  The concerned District Superintendent of Police / Deputy
Commissioner of Police, shall designate an officer of
the rank of Deputy Superintendent of Police/Assistant
Commissioner of Police, to supervise the implementation
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of the Pilot Project and to chronicle the Pilot
implementation. Any implementation issues shall
immediately be flagged and brought to the notice of the
SP / DCP concerned. The officer designated will be
responsible for the uninterrupted implementation of the
Pilot.
*  Launch of Trained Police Videographer Training
Programmes/ Training of Trainer Course by BPR&D/
CDTS/ State Police Academies.
c. Phase-III: Three Months: Pilot Implementation Review
*   The Phase –II Pilot implementation should be reviewed
by an independent consultant and, suggestions for
seamless implementation on a wider scale should be
prepared.
*   Thereport of the independent consultant to be considered
by MHA and select group of officers regarding Pilot
implementation and review report preparation.
*  Thereview and findings by MHA to be placed before the
Hon’ble Supreme Court for incorporating necessary
changes as required regarding the Videography during
Investigation and obtain necessary instructions.
*  During this phase, each state should prepare detailed
plans for the launch of the next phase of Videography
in Investigations project extending it to i) all cities with
a population of 10 lakhs and more; b) in all districts
with a population of 20 lakhs and more, during Phase-
IV.
*   A representative of the FSL trained in handling digital
evidences should be identified for each of the new unit
to mentor and hand hold the district Trained Police
Videographers, where roll out is proposed in Phase-IV.
Where FSL has no resources to offer, the SP/DCP of the
concerned district should be authorized to hire a private
technical person proficient in digital imaging and back-
up technologies to handhold/mentor the Trained Police
Videographers.
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*    Each state to submit plans for strengthening the Forensic
Sciences Laboratories for handling increased Cyber
Forensics/Digital Media analysis units.  MHA to
consider the requirements for this purpose under the
MPF scheme.
*  During Phase-III, the Pilot implementation districts/cities
will continue with the Videography in Investigations
project and extend them to all their Police Stations.
d. Phase-IV: One Year: Coverage extension from Pilot
Implementation
*  Implementation of the Videography in Investigations
project to Cities of 10+ lakhs population/Districts of
20+ lakhs population identified during Phase-III.
*  During this phase, each state should prepare detailed
plans for the launch of the Videography in
Investigations project in all remaining districts/cities,
which were not covered during Pilot Phase (Phase-II)
and Phase-III.
*  A representative of the FSL trained in handling digital
evidences should be identified for each of the remaining
units to mentor and hand hold the district Trained Police
Videographers, where roll out is proposed in Phase-V.
Where FSL has no resources to offer, the SP/DCP of the
concerned district should be authorized to hire a private
technical person proficient in digital imaging and back-
up technologies to handhold/mentor the Trained Police
Videographers.
*  MHA to work on extending the financial support for
implementation of the project for remaining cities and
districts during Phase-V.
e. Phase-V: One Year:
Coverage extension to remaining
Cities and Districts
*  Implementation of the Videography in Investigations
project in all remaining districts and cities.
*  Review of Phase-IV implementation learning based on
independent consultant’s report by MHA and submission
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of status report to the Supreme Court for modifications/
suggestions for improvement of the Videography in
Investigations project.”
6. Apart from above, the Committee suggested that a group of
experts may be set up at the level of Government of India comprising:
(i) One head of Central Investigation agencies (CBI, NIA, NCB)
as Chairperson;
(ii) One head of State Police;
(iii) One head of CFSL or Senior Forensic Scientist with expertise
in the area;
(iv) A Senior Legal Professional (LA of CBI or NIA or comparable
from Ministry of Law); and
(v) A senior representative from MHA as members.
7. The group should have the freedom to co-opt members and
private experts. The group could periodically issue guidelines/advisories.
It is further suggested that each State Police and the Central Investigating
Agency may create a Steering Committee under HOPF/Head of CPO
within the organization to spearhead this drive.  Each State Police/Central
Investigating Agency may also designate a senior officer in the rank of
IG/ADG as Nodal Officer for spearheading the massive expansion of
photography and videography in investigation.  Such an officer should
be given authority/responsibility to review the progress at periodic intervals
and take/propose necessary measures.
8. After considering the report of the Committee, the MHA
prepared an action plan on the use of videography in the police
investigation stipulating capacity building in
terms of training, equipment,
forensic facilities, a scheme for requisite funds, preparation of Standard
Operating Procedure (SOP).  For this purpose, the timeline suggested is
as follows:
“All Central Agencies will be asked to prepare and submit
Annual Action Plan on “photography and videography in
Investigation for 2018 within three months.
The Ministry will scrutinize the plans and prepare a
consolidated requirement and send a formal proposal/scheme
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to the Ministry of Finance for concurrence and obtaining
budget within two months from the finalization/approval of
the consolidated action plan, insofar as Central Agencies are
concerned.
Efforts will be made to obtain the budget from Ministry of
Finance within the financial year 2018-19.
Similar action will have to be taken by States/UTs with respect
to their forces.”
9. We are in agreement with the Report of the Committee of
Experts that videography of crime scene during investigation is of
immense value in improving administration of criminal justice.  A
Constitution Bench of this Court in Karnail Singh  versus  State of
Haryana (2009) 8 SCC 539 noted that technology is an important part
in the system of police administration1.   It has also been noted in the
decisions quoted in the earlier part of this order that new techniques and
devices have evidentiary advantages, subject to the safeguards to be
adopted.  Such techniques and devices are the order of the day.
Technology is a great tool in investigation2.  By the videography, crucial
evidence can be captured and presented in a credible manner.
10. Thus, we are of the considered view that notwithstanding the
fact that as of now investigating agencies in India are not fully equipped
and prepared for the use of videography, the time is ripe that steps are
taken to introduce videography in investigation, particularly for crime
scene as desirable and acceptable best practice as suggested by the
Committee of the MHA to strengthen the Rule of Law.  We approve the
Centrally Driven Plan of Action prepared by the Committee and the
timeline as mentioned above.  Let the consequential steps for
implementation thereof be taken at the earliest.
11. We direct that with a view to implement the Plan of Action
prepared by the Committee, a Central Oversight Body (COB) be set up
by the MHA forthwith.  The COB may issue directions from time to
 1 Para 34 – (2009) 8 SCC 539
 2 Ram Singh and Ors.  vs.  Col. Ram Singh 1985(Supp) SCC 611,  R.   vs.  Maqsud
Ali (1965) 2 All ER 464,  R  vs.  Robson (1972) 2 All ER 699, Tukaram S. Dighole  vs.
Manikrao Shivaji Kokate (2010) 4 SCC 329, Tomaso Bruno and anr.  vs.  State of
Uttar Pradesh (2015) 7 SCC 178, Mohd. Ajmal Amir Kasab  vs.  State of Maharashtra
(2012) 9 SCC 1 and State (NCT of Delhi)  vs.  Navjot Sandhu (2005) 11 SCC 600.
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time.   Suggestions of the Committee in its report may also be kept in
mind. The COB will be responsible for further planning and implementation
of use of videography.  We direct the Central Government to give full
support to the COB and place necessary funds at its disposal.  We also
direct that the COB may issue appropriate directions so as to ensure
that use of videography becomes a reality in a phased manner and in
first phase of implementation by 15th July, 2018 crime scene videography
must be introduced at least at some places as per viability and priority
determined by the COB.
12. We place on record the suggestion of the learned amicus that
funding for this project may be initially by the Centre to the extent possible
and a central server may be set up.  These suggestions may be considered
by the COB.  We also note that law and order is a State subject.
13. We may also refer to a connected issue already dealt with by
this Court in D.K. Basu  versus  State of West Bengal and ors. (2015)
8 SCC 744.  This Court directed that with a view to check human rights
abuse CCTV cameras be installed in all police stations as well as in
prisons.   There is need for a further direction that in every State an
oversight mechanism be created whereby an independent committee
can study the CCTV camera footages and periodically publish report of
its observations.  Let the COB issue appropriate instructions in this regard
at the
earliest.  The COB may also compile information as to compliance
of such instructions in the next three months and give a report to this
Court.
14. Compliance of above directions may be ensured by the
Secretary, Ministry of Home Affairs in the Central Government as well
as Home Secretaries of all the State Governments.
15. An affidavit of progress achieved may be filed by the Oversight
Body on or before 31st July, 2018.
Put up the matter for further consideration on 1st August, 2018.
Devika Gujral
Directions issued.