Madras High Court Frames Procedure For Police To Record Witness Statements Through Audio-Visual Electronic Means At Least In Serious Crimes

Justice R Suresh Kumar and Justice KK Ramakrishan said witness statements are often recorded in a "stereo-type manner" and experience goes to show that the Investigation Officers never record the statement of witness as the witnesses had spoken.

"The Investigation Officers do not record the statement as given by the witnesses and the same leads to a number of contradictions and improvement in the eye of the accused."

The court noted that in order to facilitate recording true version of witness’ statement and to prevent growing tendencies of witnesses being threatened, induced, influenced etc, Section 161 CrPC was amended to record statements using electronic means. However, noting that the same was not being implemented the court made the direction.

The court observed that while Investigation officer may orally examine the witness by asking questions to elicit answers, after this, the witness statement may be recorded by audio-visual recorder and the same could be reduced to writing. For this, the court directed that the investigation officer could depute a police personnel with knowledge in handling video camera/body worn camera or mobile phone as well as the process of taking copies.

The court also observed that the videography should cover both the investigating officer and the witness and must be recorded clearly. Further, the court added that the recording should be continuous, without stopping, and in case of inevitable stoppage of recording, the reason for stoppage should be mentioned in the statement of recording officer.

The court added that necessary number of copies could be made of the videography and one copy be sent to the court along with the written statement, one copy be retained by the Investigating officer to be kept in the case diary and further copies be served on the witnesses.

The court also said that the recorded statements, along with CD recording should be produced to the Magistrate without any delay for recording statements under Section 164 CrPC and the same procedure shall be followed for recording further statements.

The court, however, emphasised that the duty of an investigation officer did not end with recording statements electronically and that the officer was duty bound to protect the witnesses under the witness protection program. The court added that the officer was obligated to treat witnesses with dignity and any failure would be dealt with severely.

"Witnesses are not given due respect by the police. More often than not, witnesses are also treated like accused."

Issuance of Certificate Under Section 65B of Evidence Act

The court also laid down certain points to be kept in mind while making secondary evidence and issuance of Section 65B certificate. The court said that the details of electronic devices used for recording the video and those which were used for making copies should be mentioned and certified that they were operating properly assuring the accuracy of its contents. Additionally, the court directed that the details of the storage medium used to store copies also be mentioned.

Further, the court noted that the file name of the video should be mentioned in the certificate and the hash value of the flies be indicated. For easy identification, the court suggested that the file name be changed as per convenience by mentioning the same in the certificate.

The court also directed the courts to verify that the hash value of original filed with the hash value of the copies. The court added that wherever date and time stamp was visible, it should be verified with the date of recording the written statement.

The court directed that the software application used to play the video recording be mentioned so the trial courts could also use the same application. The court added that any editing of the video recording should be avoided to preserve the authenticity of the video and any editing, truncation of the video would result in prosecution for fabrication of records.

Lastly, the court also directed that the 65B certificate be signed by the police official involved in recording/transferring and copying the video.

The above directions were made in a criminal appeal by the State against an acquittal, where the State and the de-facto complainant had argued that the accused persons had intimidated the witnesses which resulted in them turning hostile and thus sought for a retrial. Rejecting this request, the court observed that the prosecution had failed to bring in extraordinary special circumstances to demand a retrial.

Counsel for the Appellant: Mr.R.Manickaraj for M/s.Veera Associates

Counsel for the Respondent: Mr.A.Thiruvadikumar Additional Public Prosecutor for R1, Mr.N.Ananthapadmanabhan Senior Counsel for M/s. APN Law Associates for R2 to R12.

Citation: 2023 LiveLaw (Mad) 286

Case Title: Saibunisha (Died) and Another v. State

Case No: Crl.A.(MD)Nos.423 of 2019 and 181 of 2021

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