CCTV Footage as Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Proof, Explanation 5, Timestamps and Identification

Closed-circuit footage is the nearest thing a court gets to seeing the occurrence for itself, and it is treated with corresponding weight when it is properly produced. It is also the form of electronic evidence most often lost, because recording systems overwrite themselves on a cycle measured in days and the material disappears before anybody thinks to preserve it. The law about footage is largely the ordinary law of electronic records; the difficulties are practical, and they begin long before the trial.

1. Footage Is a Document

Footage is matter recorded on a substance by means capable of recording it, and it falls within Section 2(1)(d) as an electronic record. The apparatus of Part III therefore applies, together with the special provisions on electronic records in Sections 57, 61 and 63.

It is also, in the older classification, a species of real evidence — the court is looking at a representation of the occurrence rather than hearing an account of it. The second proviso to Section 55 permits the court, where oral evidence refers to the existence or condition of a material thing other than a document, to require its production; footage is a document rather than a material thing, but the underlying idea is the same: the court prefers to see for itself.

2. Explanation 5 to Section 57

This Explanation is new to the Adhiniyam and is directed precisely at modern recording systems. A camera writes to a local recorder and simultaneously streams to a remote server; a body-worn device records locally and uploads; a system records at the premises and at a monitoring centre. Each of these produces several recordings of the same event, created at the same moment by the same process.

Under the earlier law each of these would have been arguable as a copy, requiring a certificate. Explanation 5 declares each stored recording to be primary evidence, so a party producing the copy held at the monitoring centre is producing primary evidence, not a derivative of the recording at the premises.

Explanation 4 also applies frequently: a record produced from proper custody is primary evidence unless disputed. Footage produced by the owner of the premises from his own system is from proper custody.

3. The Original and the Clip

The single most important practical distinction in footage cases is between the recording system and the exported clip.

A recording system — a digital video recorder or a network recorder — holds continuous footage from one or more cameras in a proprietary format, on a hard disk, overwriting the oldest material as the disk fills. What is ordinarily produced in court is not that disk but a clip exported from it, converted to a common format and copied to portable media.

Three consequences follow, and each generates a line of objection.

The export is a selection. Somebody decided which cameras, which period and which angles to export. What was not exported is generally lost when the system overwrites, and the selection is rarely made by anybody neutral. Section 33 applies: enough must be produced for the court to understand the nature and effect of what is shown and the circumstances in which it was recorded.

The export may be a conversion. Proprietary formats are frequently converted on export, and conversion re-encodes the material. A converted clip is not bit-for-bit identical to the source, so its hash will differ from any hash of the source, and the difference must be explained rather than glossed over.

The system itself may be needed. Where authenticity is contested, an examiner will want the recorder or a forensic image of its disk, because the proprietary format, the file structure and the system logs are what allow the clip to be verified against the source. A party who produces a clip and cannot produce the system is in a weaker position than one who preserved both.

The practical rule is therefore to seize or image the recorder, not merely to take a copy of the clip, wherever the footage matters. Where the system cannot be taken — a bank, a public installation — a copy should be obtained with the assistance of the operator, and the system logs and configuration recorded.

4. Retention and the Duty to Preserve

Recording systems overwrite. Retention periods of seven, fifteen or thirty days are ordinary, and once the cycle completes the material is gone. More footage is lost to the passage of time than to any deliberate act.

Where footage existed and was not preserved, the consequence is not merely that the evidence is unavailable. Under Illustration (g) to Section 119 the court may presume that evidence which could be produced and is not would, if produced, be unfavourable to the person who withholds it, and where an investigating agency knew of the existence of footage and allowed it to be overwritten, the inference is available.

For a party whose case may depend on footage, the practical steps are the same in every case: identify the systems covering the place, give written notice to the person in control requiring preservation, and apply for production at once. A notice served within the retention window converts a lost opportunity into an adverse inference against the person who allowed the material to be overwritten.

5. Proof

Where the footage is not primary evidence under Explanation 4 or 5, Section 63 governs and the four conditions in sub-section (2) must be satisfied.

Condition (a) — that the system was used regularly to create and store information for an activity regularly carried on by a person having lawful control. A surveillance system running continuously at premises satisfies this readily.

Condition (b) — that information of that kind was regularly fed in in the ordinary course. Camera input is fed automatically and continuously, which satisfies the condition better than manually entered data does.

Condition (c) — that the system was operating properly, or that any malfunction did not affect the record. This is the condition most worth probing: whether cameras were working, whether any channel was down, whether the disk was failing, whether there were gaps in the recording.

Condition (d) — that the output reproduces or is derived from what was fed in. Where the clip was exported and converted, this is where the process of export must be described.

The certificate under Section 63(4) and the Schedule is then required, signed by the person in charge of the system and by an expert, with the hash value in Part A. Where the clip was converted on export, the certificate should be clear about what the disclosed hash is the hash of — the exported file, and, where available, the source material as well.

6. Timestamps

Footage is almost always relied upon for when something happened as much as for what happened, and the timestamp is generated by the recording system's own clock.

System clocks drift, are set wrongly at installation, are not adjusted for changes, and are sometimes never set at all. A discrepancy of minutes or hours between the displayed time and actual time is common, and it is fatal to a case built on the footage showing a person at a place at a particular moment.

What should be established is therefore: when the clock was last set and against what reference; whether the system synchronises automatically with a time source; whether any drift was measured at the time of seizure by comparing the displayed time against a known accurate time; and whether the displayed time is consistent with other records — a transaction log, a call record, an access-control entry — covering the same moment.

Where the clock is shown to be wrong by a known and constant amount, the footage remains useful and the offset is simply applied. Where the error is unknown or variable, the footage may establish the sequence of events without establishing the time at which they occurred.

7. Identification of Persons

Footage that shows an occurrence still has to be connected to an individual, and this is where most footage cases are actually decided.

Section 7 makes relevant facts which establish the identity of any person whose identity is relevant, and identification from footage proceeds by the ordinary routes.

• Recognition by a witness who knows the person. The strongest route. A witness familiar with the accused deposes that the person shown is he, and is cross-examined on the basis of his familiarity and on the quality of the image.
• Identification by distinctive features — clothing, gait, a physical characteristic, an article carried — established independently of the footage.
• Comparison by an expert under Section 39(1), whose residuary words now accommodate facial comparison and image analysis without any need to argue that it is a 'science'.
• Corroborative records — an access-control log, a transaction record, a call detail record placing the person at the location at that time.

8. Gaps, Angles and What Is Not Shown

Footage establishes what was within the field of view of a working camera during the period recorded. It establishes nothing about anything else, and three limitations recur.

Coverage. A camera sees a cone. What happened outside it did not happen on the footage, and the absence of a person from the footage is not evidence that he was not present unless the coverage is shown to be complete.

Gaps. Systems stop recording for many reasons — power failure, disk failure, a channel going down, motion-triggered recording not triggering. A gap should be explained, and where it coincides with the material moment it will be closely examined.

Selection. What has been produced is what somebody chose to export. The footage before and after the clip, and from other cameras, may show something different, and Section 33 entitles the court to require it.

The defence use of footage is often more powerful than the prosecution use for exactly these reasons. Footage showing the accused elsewhere at the material time operates under Section 9 as a fact inconsistent with a fact in issue, and it supports a plea of alibi with a precision that oral evidence rarely achieves.

9. Recordings Required by the BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 now requires video recording in two situations relevant here, and both produce material governed by the same rules.

Section 105 requires the audio-video recording of search and seizure, which produces a record of what was found, where and in what condition.

Section 176(3) requires, for offences punishable with seven years or more, that a forensic expert visit the scene and that the collection be videographed.

Each of these recordings is an electronic record and must be proved under Sections 57, 61 and 63. Where such a recording was required and was not made, or was made and is not produced, the omission is a legitimate subject of comment and may attract the inference under Illustration (g) to Section 119.

10. A Practical Checklist

1. Identify the systems immediately and give written notice to preserve, because the retention window is short.
2. Seize or image the recorder, not merely a clip, wherever the footage matters.
3. Compute the hash at seizure, and record it in the seizure memo.
4. Record the system clock against a known accurate time at the moment of seizure, so that any offset is established.
5. Export the full relevant period and all covering cameras, not a single clip, because Section 33 requires context and the rest will be overwritten.
6. Document the export — the software used, the format, whether conversion occurred — since condition (d) turns on it.
7. Obtain the certificate under Section 63(4), and state clearly what each disclosed hash relates to.
8. Plan the identification case separately — a witness who knows the person, distinctive features, expert comparison, corroborative records.
9. Establish the coverage, so that what the footage does not show can be explained.

11. The Position Stated Shortly

1. Footage is an electronic record and is governed by Sections 57, 61 and 63 like any other.
2. Explanation 5 to Section 57 is directed at surveillance systems — where a recording is simultaneously stored and transmitted, each stored recording is primary evidence.
3. Explanation 4 fails once the footage is disputed, so the certificate should be obtained in any event.
4. The recorder is the source and the clip is an export, and where authenticity is contested the system or an image of it is needed.
5. Retention periods are short, and footage that is not preserved promptly is lost; the failure may attract an adverse inference under Illustration (g) to Section 119.
6. Tomaso Bruno was declared per incuriam on the electronic-evidence point, and the adverse-inference argument is better founded on Section 119 directly.
7. Timestamps depend on a system clock which must be verified, and an unverified time proves sequence rather than moment.
8. Identification is a separate case and is built from recognition, distinctive features, expert comparison and corroborative records.

12. Related Topics and Provisions