Audio Video Recording of Statements and Proceedings

⚠ Note the difference between “may” and “shall”

“Shall”: the videography of forensic collection under section 176(3), and the recording of search and seizure under section 105. These are obligations, and a failure must be explained.

“May”: the recording of a police statement under section 180(3), the taking of evidence by audio-video means under section 308, and the holding of proceedings in electronic mode under section 530. These are facilities, and neither party can insist on them as of right.

And some are conditional. The videography under section 183(6) applies where the victim is temporarily or permanently disabled; the recording under section 356 arises where a witness cannot be examined.

Reading a facility as an obligation, or an obligation as a facility, is the commonest error in this area — and it is avoided by reading the verb.

📖 P. Gopalkrishnan @ Dileep v. State of Kerala, (2020) 9 SCC 161

Facts: The prosecution relied on a memory card containing a video recording said to depict the commission of the offence. The accused applied for a copy of its contents in order to prepare his defence, and the prosecution resisted on the ground that supplying it would violate the privacy and dignity of the victim.

Held: The Supreme Court held that the contents of a memory card or pen drive are a “document” within the meaning of the law, and that where such material forms part of the record on which the prosecution relies, the accused is entitled to be supplied with a copy of it under the provisions requiring documents to be furnished to him — since he cannot meet what he has not seen, and a fair trial requires that he know the case against him. But the Court held that where the contents are of such a nature that supplying a copy would infringe the privacy and dignity of the victim, as with a recording depicting a sexual offence, the court may decline to give a copy and instead permit inspection by the accused and his lawyer, in the court premises and under suitable safeguards, so that the material may be examined without being circulated. It held that the balance is between the right of the accused to a fair trial and the right of the victim to privacy, and that the court must calibrate the relief accordingly.

Ratio: The contents of a memory card are a document, and an accused is ordinarily entitled to a copy of material relied on against him. But where supplying it would infringe the victim’s privacy, the court may permit inspection under safeguards instead.

📖 Nilesh Dinkar Paradkar v. State of Maharashtra, (2011) 4 SCC 143

Facts: A conviction rested substantially on the identification of a voice in an intercepted telephone conversation, the recording having been played to witnesses who claimed to recognise the speaker. The Supreme Court considered the safeguards required before such evidence can be acted upon.

Held: The Supreme Court held that evidence of voice identification from a recording is of a very weak character and must be received with the greatest caution. It held that the prosecution must establish — that the recording is genuine and has not been tampered with or edited; that the voice sample with which comparison is made was properly obtained; that the witness identifying the voice was sufficiently familiar with it; and that the identification was conducted in conditions which did not suggest the answer to him. The Court emphasised that a recording is easily altered, that the absence of the original or of a proper certificate as to how the copy was made is a serious deficiency, and that the custody of the recording from the moment it was made must be accounted for. It held that where these matters are not established, a conviction should not rest on such evidence, and set aside the conviction.

Ratio: Voice identification from a recording is weak evidence requiring the greatest caution. Genuineness, absence of tampering, the familiarity of the identifying witness, and the custody of the recording from the moment it was made must all be established.

⚠ The practical requirements that decide most disputes

The recording must be complete and continuous. One which begins after the search has started, or which stops and resumes, invites the inference that what was omitted was unfavourable.

It must be forwarded without delay. A recording retained by the seizing officer for weeks is worth far less than one placed in judicial custody the same day, because the opportunity to alter it has existed in the meanwhile.

The accused is entitled to access. Where a recording forms part of the material against him he must be supplied with a copy, or — where the contents are such that a copy should not be given — afforded inspection under safeguards. He cannot meet what he has not seen.

And an available recording which is not produced invites an adverse inference. The best evidence of what happened is the recording itself, and its withholding calls for an explanation.

The position stated shortly

1. The Sanhita carries audio-video recording through the whole process — the information, the scene, the search, the statement, the evidence and the hearing.

2. Mandatory: the videography of forensic collection (section 176(3)) and the recording of search and seizure (sections 105 and 185).

3. Permissive: the recording of a police statement (section 180(3)), the taking of evidence by audio-video means (section 308), and electronic mode generally (section 530).

4. Conditional: the videography under section 183(6) where the victim is disabled, and the recording under section 356 where a witness cannot be examined.

5. Reading a facility as an obligation, or an obligation as a facility, is the commonest error — and is avoided by reading the verb.

6. The Sanhita governs whether, by whom, by what means, to whom forwarded and in whose presence. It says nothing about admissibility.

7. Admissibility, certification, originality, genuineness and weight are for the Bharatiya Sakshya Adhiniyam, 2023.

8. The contents of a memory card are a document, and the accused is ordinarily entitled to a copy — or, where privacy requires, to inspection under safeguards: P. Gopalkrishnan.

9. Voice identification from a recording is weak evidence requiring the greatest caution: genuineness, absence of tampering, familiarity of the witness and the custody of the recording must all be established: Nilesh Dinkar Paradkar.

10. A recording must be complete and continuous, forwarded without delay, and accessible to the accused; and an available recording which is not produced invites an adverse inference.