SHAFHI MOHAMMAD versus THE STATE OF HIMACHAL PRADESH

Citation: [2018] 1 S.C.R. 790 · Decided: 30-01-2018 · Supreme Court of India · Bench: ADARSH KUMAR GOEL, UDAY UMESH LALIT
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Judgment (excerpt)

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790
SUPREME COURT REPORTS
[2018] 1 S.C.R.
SHAFHI MOHAMMAD
v.
THE STATE OF HIMACHAL PRADESH
(Special Leave Petition (Crl.) No.2302 of 2017 )
JANUARY 30, 2018
[ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.]
Evidence Act, 1872: s.65B(4) – Videography of scene of crime
or scene of recovery during investigation – Electronic evidence –
Admissibility of – Procedural requirement – Held: If the electronic
evidence is authentic and relevant the same certainly be admitted
subject to the court being satisfied about its authenticity and
procedure, for its admissibility may depend on fact situation such
as whether the person producing such evidence is in a position to
furnish certificate under s.65B(4) – A party who is not in possession
of device from which the document is produced cannot be required
to produce certificate under s.65B(4) – The applicability of
requirement of certificate being procedural can be relaxed by Court
wherever interest of justice so justifies – The applicability of
procedural requirement under s.65B(4) of furnishing certificate is
to be applied only when such electronic evidence is produced by a
person who is in a position to produce such certificate being in
control of the said device and not of the opposite party – In a case
where electronic evidence is produced by a party who is not in
possession of a device, applicability of ss.63 and 65  cannot be
held to be excluded – In such case, procedure under the said Sections
can certainly be invoked – If this is not so permitted, it will be denial
of justice to the person who is in possession of authentic evidence/
witness but on account of manner of proving, such document is
kept out of consideration by the court in absence of certificate under
s.65B(4) which party producing cannot possibly secure – Thus,
requirement of certificate under s.65B(4) is not always mandatory –
Information Technology Act, 2000 – ss.2(t), 2(o).
Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015)
7 SCC 178 : [2015] 1 SCR 721;
Ram Singh and Ors.
v. Col. Ram Singh (1985) Supp SCC 611 : [1985] Suppl.
SCR 399 – relied on
790
[2018] 1 S.C.R. 790
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791
Tukaram S. Dighole v. Manikrao Shivaji Kokate (2010)
4 SCC 329 : [2010] 2 SCR 396; 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; Anvar
P.V. v. P.K. Basheer and Ors. (2014) 10 SCC 473:[2014]
11 SCR 399 – referred to
R. v. Maqsud Ali (1965) 2 All ER 464; R. v. Robson
(1972) 2 ALL ER 699 – referred to
Case Law Reference
[1985] Suppl. SCR 399  
relied on
Para 3
[2010] 2 SCR 396
referred to
Para 4
[2015] 1 SCR 721
relied on
Para 5
[2012] 8 SCR 295
referred to
Para 5
[2005] 2 Suppl. SCR 79
referred to
Para 5
[2014] 11 SCR 399
referred to
Para 6
CRIMINAL APPELLATE JURISDICTION : Special Leave
Petition (Criminal) 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.) NO. 9431 of 2011
SLP (Crl). NO. 9631-9634 of 2012
Jayant Bhushan, (AC), Ms. Meenakshi Arora .(A.C.),  Yashank
Adhyaru,  Ms. V. Mohana, Sr. Advs. Ketan Paul, Ms. Reeja Varghese,
Tushar Bhushan, Ms. Ananya Ghosh, Rituj Chopra (For Dr. Arun Mohan,
Sr. Adv. (AC), Ms. E. R. Sumathy, Bharat Bhushan, Ms. Jaspreet Gogia,
Raj Kamal, Ms. Mandakini Singh, Ms. Shirin Khajuria, Ms. Sanskriti
Bhardwaj, Ms. Ayushi Gaur, B.V. Balaram Das, Ms. Asha G. Nair, Zoheb
Hussain, Ms. Rukmini Bobde, Kumar Shashank, B.V. Balaram Das,
Ajay Marwah, Ms. Seema Sharma, Varinder K. Sharma, Karan Thakur,
Vikas Mahajan, Vinod Sharma, Arun Singh, Ms. Anuradha Mutatkar,
SHAFHI MOHAMMAD v. THE STATE OF HIMACHAL
PRADESH
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792
SUPREME COURT REPORTS
[2018] 1 S.C.R.
Ms. Jaspreet Gogia, Raj Kamal, Ms. Mandakini Singh, Bharat Bhushan,
Advs. with them for the appearing parties.
The following Order of the Court was delivered:
O R D E R
SLP(Crl.)No.2302 of 2017 :
1. One of the questions which arose in the course of consideration
of the matter was whether videography of the scene of crime or scene
of recovery during investigation should be necessary to inspire confidence
in the evidence collected.
2. In Order dated 25th April, 2017 statement of Mr. A.N.S.
Nadkarni, learned Additional Solicitor General is recorded to the effect
that videography will help the investigation and was being successfully
used in other countries.  He referred to the perceived benefits of “Body-
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