Bombay High Court
Nandu Govind Khile vs The State Of Maharashtra on 5 March, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) Cri.Appln.3681/2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3681 OF 2019
NANDU GOVIND KHILE
VS
THE STATE OF MAHARASHTRA
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Joydeep Chatterji, Adv. For applicant;
Mr. PG Borade,APP for State.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 5th MARCH, 2020.
PER COURT:-
1. Present application has been filed, invoking inherent powers of this court under Section 482 of Code of Criminal Procedure, to challenge the order passed below Exhibit-121 in Sessions Case No.79/2016 dated 11.10.2019 by learned Additional Sessions Judge, Dhule.
2. Heard learned Advocate for applicant and learned APP for State.
3. By the said application, the original accused, i.e. present applicant prayed thus, -
" (A) This Criminal Application may kindly be allowed;
(B) The order dated 11.10.2019 passed below Exh.121 in Sessions Case No.79/2016 by the learned Additional Sessions Judge, Dhule, may ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (2) Cri.Appln.3681/2019 kindly be quashed and set aside and the prayers in Exh. 121 may kindly be granted. (C) Pending hearing and final disposal of this Criminal Application, all further proceedings in Sessions Case No. 79/2016 pending before the learned Additional Sessions Judge, Dhule may kindly be stayed."
4. Learned Advocate for applicant, in fairness, submits that, he is not pressing the prayer clause (A) of the application. He also admits that the prayers have not been properly worded and what the applicant-accused wants is, the viewable CD of CCTV footage, which was, in fact, produced on behalf of the prosecution before this court in Criminal Application No.30/2017 and reference to production of the same was made by this court in its order dated 20 th February, 2017.
5. It appears from the impugned order that as per the directions at Exh.111, the DVD of CCTV footage was sought from the police papers. It was kept in a sealed envelope produced with other police papers. The envelope was sealed in police station. It was opened by the court in presence of both the sides and at that time, no complaint of tampering was made. Inference has, therefore, been made by the learned trial court that it was safe to say that for production of DVD in the court till its opening, the DVD was ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (3) Cri.Appln.3681/2019 in safe custody. The allegation of tampering was then made and, therefore, it was stated that without recording evidence of the Investigating Officer, it is not possible to conclude about tampering of DVD or otherwise. Accused No.1, it appears that, is intending to take defence of alibi and for that purpose, according to the accused, the CCTV footage is necessary and it had also come on record that the original was not seized, but the relevant CCTV footage was collected and stored in DVD. It appears that, at the stage of making available a viewable copy, the learned Additional Sessions Judge ought not to have gone into the aspect as to whether the said piece of evidence can be admitted in evidence or not. That would be the subsequent stage when the accused would be intending to put it in the process of recording of evidence. The fact now remains is that, though the copy of the DVD was provided to the accused, the accused says that it is not viewable.
6. One aspect, that has to be considered here is that, when this court had seen the said CCTV footage and had made certain remarks in order dated 20 th February, 2017, the order shows that CCTV footage was produced along with its transcription. Under the said circumstance, ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (4) Cri.Appln.3681/2019 the papers of Criminal Application No.30/2017 were called. However, the said transcription is not available in the CCTV footage, DVD or CD. The Investigating officer was present and he says that back-up copy is available with the police station. Under said circumstance, a cloned copy of the said back-up was provided to the accused in view of the decision in P.Gopalkrishnan @ Dileep Vs. State of Kerala and Anr. (Criminal Appeal No.1794/2019 [arising out of SLP(Cri.) No. 10189/2018] decided by the Hon'ble Apex court on 29.11.2019).
7. It will not be out of place to mention here that neither in the impugned order it is mentioned that transcription of the said DVD was produced by the police along with the DVD, nor, as aforesaid, the said transcription, as was said to have been produced in Criminal Application No.30/2017, is now available on record. The Investigating Officer has made a statement before this court now that, the transcription was not submitted before the learned Additional Sessions Judge along with the DVD. This statement is confirmed from learned Advocate for the applicant-accused as well as by learned APP in respect of the record before the learned trial court. Thus, we can ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (5) Cri.Appln.3681/2019 definitely say that though the trial court appears to have opened the DVD in presence of both the sides and at that time there was no complaint by anybody regarding the tampering; yet the learned Additional Sessions Judge has not adhered to the procedure for accepting the DVD.
8. No doubt, this court has not framed specific rules regarding production of DVDs, however, they are at par with the procedure contained in Criminal Manual Chapter-VI, para 24, viz. "Rules for Production, Use and Recording of the Tape-recorded evidence in Court". The same procedure is then required to be adopted when CCTV footage or any such recording is produced in the form of DVD, CD or pen-drive or any such electronic mode. The basic purpose of adopting the said rules is, to ensure that, at the time of receiving that device/electronic record, the contents are seen and the transcription thereof would support the contents as to what is seen or viewed on the screen. Such digital/electronic record is prone to destruction for so many reasons and, therefore, production of back-up copy of the same will have also to be made to avoid tampering of such digital/electronic record In fact, a hash value of the same is required to be taken. It will not be out of place to mention ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (6) Cri.Appln.3681/2019 here the guidelines, those have been given by the Division bench of this court in Criminal Appeal No.549/2019 with the companion matter (Vaijinath Sominath Rakh Vs. State of Maharashtra and Anr.- Decided on 10th July, 2019). Those guidelines were in respect of CCTV footage. However, they were mainly in respect of the directions to the Investigating agency at the time of seizure of electronic devices/material.
9. In the present case, when the said CD/DVD was accepted by the learned trial judge on record, as aforesaid, no transcription was produced by the Investigating Officer and it appears that though the said sealed packet/envelope, containing the CD was opened by the court in presence of both the sides, it was not viewed in presence of both the sides. Since, at present, the applicant-accused is restricting his relief/prayer to the extent of supplying viewable copy of CCTV footage to him, the learned Trial Judge can be directed to furnish the same to the applicant and he is accordingly directed. However, as regards the admissibility of any part thereof or entire contents, it is left to the applicant-accused to adopt proper and legal procedure.
10. It is also clarified that the learned Trial Judge ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 ::: (7) Cri.Appln.3681/2019 should see as to whether the original DVD, which was produced and is kept on record with the court, is viewable copy or not, and if it is not, then the concerned court to direct the Investigating Officer to make available another cloned copy of the said CCTV footage on the basis of the back-up that is available with the police station. As regards availability of back-up is concerned, panchanama dated 31.1.2017 is clear enough. The learned Advocate for the applicant is also agreeing that the applicant will not insist for a certificate, under Section 65-B of the Indian Evidence Act issued by the police, and makes a statement that he will adopt proper procedure as and when occasion arises.
11. In view of the discussion made herein above, the impugned order dated 11.10.2019 passed by learned Additional Sessions Judge, Dhule below Exh. 121 in Sessions Case No.79/2016 is hereby quashed and set aside.
12. With these observations and directions, the Criminal Application stands disposed of.
(SMT. VIBHA KANKANWADI,J.) BDV ::: Uploaded on - 06/03/2020 ::: Downloaded on - 08/03/2020 00:23:44 :::