# P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR

- **Citation:** [2019] 17 S.C.R. 422
- **Court:** Supreme Court of India
- **Decided:** 2019-11-29
- **Case number:** Criminal Appeal No. 1794 of 2019
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-gopalkrishnan-dileep-v-state-of-kerala-and-anr-33660
- **Pages:** 52

## Headnote

Evidence Act, 1872:
ss.3 and 65B - Document - Whether the contents of a
memory card/pen drive being electronic record as predicated in
s.2(1)(t) of Information Technology Act would qualify as a
document within the meaning of s.3 of Evidence Act and s.29 of
IPC - Held:The basis for classifying an article as a 'document'
depends upon information which is inscribed and not on where it
is inscribed - Definition of 'evidence' as envisaged u/s.3, clearly
takes within its fold documentary evidence to mean and include
all documentary evidence to mean and include all documents
including electronic records produced for the inspection of the
Court - The provisions in s.65B of Evidence Act, s.95(2)(b) of
Cr.P.C., s.29 of IPC, and definition of document in General Clauses
Act, reinforce that electronic records ought to be treated as
'document'.
Code of Criminal Procedure, 1973:
s.207 - Furnishing of documents to the accused - Held:
Furnishing of documents to the accused is a facet of right to the
accused to a fair trial enshrined in Art.21 of the Constitution -
Section 207 does not empower the Magistrate to withhold any
'document' submitted by the Investigating Officer except when it
is voluminous - If the document/record is electronic, the ground
for non-furnishing the document it being voluminous can not be
invoked - Therefore, all documents including 'electronic record'
produced for the inspection of the Court alongwith the police
report and which prosecution proposes to use against the accused,
must be furnished to the accused as per the mandate of s.207 -
The contents of the memory card/pen-drive must be furnished to
the accused in the form of cloned copy.
 [2019] 17 S.C.R. 422
422
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Constitution of India:
Art.21 - Right to fair trial of accused and right to privacy
of victim - In offence of rape - Competing rights - Balancing of
- Held: Though the accused is entitled to have copies of the
statements and documents accompanying the police report, which
the prosecution may use against the accused - Nevertheless, the
Court cannot be oblivious to the nature of offence and the
principles underlying the amendment to s.327(2) of Cr.P.C. and
228A of IPC, for securing the privacy and identity of the victim -
Balancing of rights of both the parties is imperative - In such
cases, the Court may be justified in providing only inspection of
the documents to the accused and his lawyer or expert for
presenting effective defence during the trial - Code of Criminal
Procedure, 1973 - s.327(2) - Penal Code, 1860 - s.228A.
Interpretation of Statutes:
Ongoing statute - Interpretation of - Held: Code of Criminal
Procedure, being an ongoing statute, it is presumed that the
legislature intended the Courts to apply a construction that
continuously updates its wordings to allow for changes and
compatibility with the contemporary situation.
Words and Phrases:
"data" and "electronic record" - Meaning of, in the context
of Information Technology Act, 2000.
"document" - Meaning of in the context of Evidence Act,
1872.
Partly allowing the appeal, the Court
HELD: 1.1 The investigating officer after completing the
investigation u/s.173 Cr.P.C., is obliged to forward a copy of the
police report to a Magistrate empowered to take cognizance of
the offence on such police report. Alongwith the police report,
the investigating officer is also duty bound to forward to the
Magistrate "all documents" or relevant extracts thereof, on
which prosecution proposes to rely other than those sent to the
Magistrate during investigation. Similarly, the statements
recorded under Section 161 of all the persons whom the
prosecution proposes to examine as its witnesses, are required
to be forwarded to the Magistrate alongwith the police report.
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Indeed, it is open to the police officer, if in his opinion, any part
of the "statement" is not relevant to th

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P. GOPALKRISHNAN @ DILEEP
v.
STATE OF KERALA AND ANR.
(Criminal Appeal No. 1794 of 2019)
NOVEMBER 29, 2019
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Evidence Act, 1872:
ss.3 and 65B - Document - Whether the contents of a
memory card/pen drive being electronic record as predicated in
s.2(1)(t) of Information Technology Act would qualify as a
document within the meaning of s.3 of Evidence Act and s.29 of
IPC - Held:The basis for classifying an article as a 'document'
depends upon information which is inscribed and not on where it
is inscribed - Definition of 'evidence' as envisaged u/s.3, clearly
takes within its fold documentary evidence to mean and include
all documentary evidence to mean and include all documents
including electronic records produced for the inspection of the
Court - The provisions in s.65B of Evidence Act, s.95(2)(b) of
Cr.P.C., s.29 of IPC, and definition of document in General Clauses
Act, reinforce that electronic records ought to be treated as
'document'.
Code of Criminal Procedure, 1973:
s.207 - Furnishing of documents to the accused - Held:
Furnishing of documents to the accused is a facet of right to the
accused to a fair trial enshrined in Art.21 of the Constitution -
Section 207 does not empower the Magistrate to withhold any
'document' submitted by the Investigating Officer except when it
is voluminous - If the document/record is electronic, the ground
for non-furnishing the document it being voluminous can not be
invoked - Therefore, all documents including 'electronic record'
produced for the inspection of the Court alongwith the police
report and which prosecution proposes to use against the accused,
must be furnished to the accused as per the mandate of s.207 -
The contents of the memory card/pen-drive must be furnished to
the accused in the form of cloned copy.
 [2019] 17 S.C.R. 422
422
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Constitution of India:
Art.21 - Right to fair trial of accused and right to privacy
of victim - In offence of rape - Competing rights - Balancing of
- Held: Though the accused is entitled to have copies of the
statements and documents accompanying the police report, which
the prosecution may use against the accused - Nevertheless, the
Court cannot be oblivious to the nature of offence and the
principles underlying the amendment to s.327(2) of Cr.P.C. and
228A of IPC, for securing the privacy and identity of the victim -
Balancing of rights of both the parties is imperative - In such
cases, the Court may be justified in providing only inspection of
the documents to the accused and his lawyer or expert for
presenting effective defence during the trial - Code of Criminal
Procedure, 1973 - s.327(2) - Penal Code, 1860 - s.228A.
Interpretation of Statutes:
Ongoing statute - Interpretation of - Held: Code of Criminal
Procedure, being an ongoing statute, it is presumed that the
legislature intended the Courts to apply a construction that
continuously updates its wordings to allow for changes and
compatibility with the contemporary situation.
Words and Phrases:
"data" and "electronic record" - Meaning of, in the context
of Information Technology Act, 2000.
"document" - Meaning of in the context of Evidence Act,
1872.
Partly allowing the appeal, the Court
HELD: 1.1 The investigating officer after completing the
investigation u/s.173 Cr.P.C., is obliged to forward a copy of the
police report to a Magistrate empowered to take cognizance of
the offence on such police report. Alongwith the police report,
the investigating officer is also duty bound to forward to the
Magistrate "all documents" or relevant extracts thereof, on
which prosecution proposes to rely other than those sent to the
Magistrate during investigation. Similarly, the statements
recorded under Section 161 of all the persons whom the
prosecution proposes to examine as its witnesses, are required
to be forwarded to the Magistrate alongwith the police report.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA
AND ANR.
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Indeed, it is open to the police officer, if in his opinion, any part
of the "statement" is not relevant to the subject matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in public interest,
to indicate that part of the "statement" and append a note
requesting the Magistrate to exclude that part from the copies
to be granted to the accused and stating his reasons for making
such request. That discretion, however, is not given to him in
respect of the "documents" or the relevant extracts thereof on
which the prosecution proposes to rely against the accused
concerned. [Para 13] [443-B-E]
1.2 As regards the documents, sub-Section (7) of
Section173 Cr.P.C. enables the investigating officer, if in his
opinion it is convenient so to do, to furnish copies of all or any
of the documents referred to in sub-Section (5) to the accused.
The "documents" on which the prosecution proposes to rely,
the investigating officer has no option but to forward "all
documents" to the Magistrate alongwith the police report.
There is no provision (unlike in the case of "statements")
enabling the investigating officer to append a note requesting
the Magistrate, to exclude any part thereof ("document") from
the copies to be granted to the accused. Sub-Section (7),
however, gives limited discretion to the investigating officer to
forward copies of all or some of the documents, which he finds
it convenient to be given to the accused. That does not permit
him to withhold the remaining documents, on which the
prosecution proposes to rely against the accused, from being
submitted to the Magistrate alongwith the police report. On the
other hand, the expression used in Section 173(5)(a) of Cr.P.C.
makes it amply clear that the investigating officer is obliged to
forward "all" documents or relevant extracts on which the
prosecution proposes to rely against the accused concerned
alongwith the police report to the Magistrate. [Paras 13, 14]
[443-F; 445-G-H; 446-A-C]
1.3 On receipt of the police report and the accompanying
statements and documents by virtue of Section 207 of Cr.P.C.,
the Magistrate is then obliged to furnish copies of each of the
statements and documents to the accused. The first proviso of
s.207 enables the Magistrate to withhold any part thereof
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referred to in clause (iii), from the accused on being satisfied
with the note and the reasons specified by the investigating
officer as predicated in sub-Section (6) of Section 173. However,
when it comes to furnishing of documents submitted by the
investigating officer alongwith police report, the Magistrate can
withhold only such document referred to in clause (v), which in
his opinion, is "voluminous". In that case, the accused can be
permitted to take inspection of the concerned document either
personally or through his pleader in Court. In other words,
Section 207 of Cr.P.C. does not empower the Magistrate to
withhold any "document" submitted by the investigating officer
alongwith the police report except when it is voluminous.
A fortiori, it necessarily follows that even if the investigating
officer appends his note in respect of any particular document,
that will be of no avail as his power is limited to do so only in
respect of 'statements' referred to in sub-Section (6) of Section
173 of Cr.P.C. Thus, the Magistrate's duty under Section 207
at this stage is in the nature of administrative work, whereby
he is required to ensure full compliance of the Section. [Paras
15, 16] [446-C-D; 447-C-F]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1 ; Tarun Tyagi v. CBI (2017) 4 SCC
490 : [2017] 1 SCR 670 - relied on.
 1.4 It is well established position that when statute is
unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences. On a bare reading of Section
207 of Cr.P.C., no other interpretation is possible. [Para 17] [448F-G]
Nelson Motis v. Union of India (1992) 4 SCC 711 :
[1992] 1 Suppl. SCR 325 - relied on.
 1.5 Furnishing of documents to the accused under Section
207 of Cr.P.C. is a facet of right of the accused to a fair trial
enshrined in Article 21 of the Constitution. [Para 18] [448-G]
Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103 ; V.K.
Sasikala v. State (2012) 9 SCC 771 : [2012] 10 SCR
641 - relied on.
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1.6 Though Section 207 of Cr.P.C. permits withholding of
document(s) by the Magistrate only if it is voluminous and for
no other reason. If it is an "electronic record", certainly the
ground predicated in the second proviso in Section 207, of being
voluminous, ordinarily, cannot be invoked and will be unavailable.
[Para 41] [471-F]
2.1 If the contents of the memory card/pen-drive are not
to be treated as "document", the question of furnishing the same
to the accused by virtue of Section 207 read with Section 173 of
Cr.P.C. would not arise. It is nobody's case that the contents
of the memory card/pen-drive be treated as a "statement"
ascribable to Section 173(5)(b) of Cr.P.C.. Notably, the command
under Section 207 is to furnish "statements" or "documents",
as the case may be, to the accused as submitted by the
investigating officer alongwith the police report, where the
prosecution proposes to rely upon the same against the accused.
[Para 20] [452-A-C]
2.2 The basis of classifying article as a "document"
depends upon the information which is inscribed and not on
where it is inscribed. Tape records of speeches and audio/video
cassettes including compact disc have been held to be
"documents" under Section 3 of the Evidence Act, 1872 which
stand on no different footing than photographs and are held
admissible in evidence. It is by now well established that the
electronic record produced for the inspection of the Court is
documentary evidence under Section 3 of the 1872 Act. [Para
21] [453-E-F]
Tukaram S. Dighole v. Manikrao Shivaji Kokate,
(2010) 4 SCC 329 ; [2010] 2 SCR 396 Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdas Mehra &
Ors., (1976) 2 SCC 17 : [1975] Suppl. SCR 281 ;
Shamsher Singh Verma vs. State of Haryana, (2016) 15
SCC 485 : [2015] 12 SCR 234 ; Anwar P.V. vs. P.K.
Basheer, (2014) 10 SCC 473 : [2014] 11 SCR 399 -
relied on.
Grant and Another v. Southwester and County
Properties Ltd. and Another [1975] Ch. 185 - referred
to.
The King v. Daye [1908] 2 K.B. 333 - referred to.
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2.3 The Criminal Procedure Code is an ongoing statute.
In case of an ongoing statute, it is presumed that the Parliament
intended the Court to apply a construction that continuously
updates its wordings to allow for changes and is compatible with
the contemporary situation. [Para 22] [454-A-B]
State of Maharashtra v. Dr. Praful B. Desai (2003) 4
SCC 601 : [2003] 3 SCR 244 - relied on.
2.4 If the prosecution was to rely only on recovery of
memory card and not upon its contents, there would be no
difficulty in acceding to the argument of the respondent/
intervenor that the memory card/pen-drive is a material object.
The video footage/clipping contained in such memory card/pendrive being an electronic record as envisaged by Section 2(1)(t)
of the 2000 Act, is a "document" and cannot be regarded as a
material object. [Para 23] [455-C; 456-D-E]
Hodge M. Malek, Phipson on Evidence, 19th Edn,
2018, pg. 5 and 1450 - referred to.
2.5 On conjoint reading of the relevant provisions, it
would be amply clear that an electronic record is not confined
to "data" alone, but it also means the record or data generated,
received or sent in electronic form. The expression "data"
includes a representation of information, knowledge and facts,
which is either intended to be processed, is being processed or
has been processed in a computer system or computer network
or stored internally in the memory of the computer. [Para 24]
[457-A-B]
2.6 On a bare reading of the definition of "evidence" as
envisaged u/s. 3 of Evidence Act, 1872, it clearly takes within
its fold documentary evidence to mean and include all documents
including electronic records produced for the inspection of the
Court. [Para 25] [457-H]
2.7 Section 65B of Evidence Act, 1872 is reiteration of the
legal position that any information contained in an electronic
record which is printed on a paper, stored, recorded or copied
in optical or magnetic media produced by a computer shall be
deemed to be a "document" and shall be admissible in evidence
subject to satisfying other requirements of the said provision.
[Para 25] [460-E-F]
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2.8 Section 95(2)(b) of Cr.P.C. refers to "document" to
include any painting, drawing or photograph, or other visible
representation. And again, the expression "document" has
been defined in Section 29 of the Penal Code. [Para 26] [460-FG]
2.9 Additionally, it may be apposite to also advert to the
definition of "communication devices" given in Section 2(1)(ha)
of the Information Technology Act, 2000. The Court may also
advert to the definition of "information" as provided in Section
2(1)(v) of the 2000 Act. Even the definition of "document" given
in the General Clauses Act would reinforce the position that
electronic records ought to be treated as "document". [Paras
27-29] [461-F-G; 462-A]
2.10 Considering the 42nd and 156th Reports of Law
Commission of India, it can be concluded that the contents of
the memory card would be a "matter" and the memory card itself
would be a "substance" and hence, the contents of the memory
card would be a "document". [Para 31] [466-E; 467-A]
Forty-Second Report, Law Commission India, Indian
Penal Code, June, 1971, 32-35 ; One Hundred FiftySixth Report on the Indian Penal Code (Volume I),
August, 1997, Law Commission of India, Chapter-XI
- referred to.
2.11 It is crystal clear that all documents including
"electronic record" produced for the inspection of the Court
alongwith the police report and which prosecution proposes to
use against the accused must be furnished to the accused as per
the mandate of Section 207 of Cr.P.C. The concomitant is that
the contents of the memory card/pen-drive must be furnished
to the accused, which can be done in the form of cloned copy of
the memory card/pen-drive. It is cardinal that a person tried
for such a serious offence should be furnished with all the material
and evidence in advance, on which the prosecution proposes to
rely against him during the trial. Any other view would not only
impinge upon the statutory mandate contained in of Cr.P.C, but
also the right of an accused to a fair trial enshrined in Article
21 of the Constitution of India. [Para 32] [467-B-C]
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3.1 In the present case, there are eight named accused
as of now. Once relief is granted to the appellant who is accused
No. 8, the other accused would follow the same suit. In that
event, the cloned copies of the contents of the memory card/
pen-drive would be freely available to all the accused. Certain
conditions need to be imposed in the fact situation of the present
case. However, the safeguards/conditions suggested by the
appellant such as to take help of experts, to impose watermarks
on the respective cloned copies etc., may not be sufficient
measure to completely rule out the possibility of misuse thereof.
In that, with the advancement of technology, it may be possible
to breach even the security seals incorporated in the concerned
cloned copy. Besides, it will be well-nigh impossible to keep
track of the misuse of the cloned copy and its safe and secured
custody. Resultantly, instead of allowing the prayer sought by
the appellant in toto, it may be desirable to mould the relief by
permitting the appellant to seek second expert opinion from an
independent agency such as the Central Forensic Science
Laboratory (CFSL), on all matters which the appellant may be
advised. In that, the appellant can formulate queries with the
help of an expert of his choice, for being posed to the stated
agency. That shall be confidential and not allowed to be accessed
by any other agency or person not associated with the CFSL.
Similarly, the forensic report prepared by the CFSL, after
analyzing the cloned copy of the subject memory card/pen-drive,
shall be kept confidential and shall not be allowed to be accessed
by any other agency or person except the concerned accused
or his authorized representative until the conclusion of the trial.
[Paras 35-37] [468-B-G]
3.2 The accused, who are interested in reassuring
themselves about the genuineness and credibility of the contents
of the memory card in question or that of the pen-drive produced
before the trial Court by the prosecution on which the
prosecution would rely during the trial, are free to take opinion
of an independent expert agency, such as the CFSL on such
matters as they may be advised, which information can be used
by them to confront the prosecution witnesses including the
forensic report of the State FSL relied upon by the prosecution
forming part of the police report. [Para 38] [469-A-B]
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4.1 It is a peculiar case of intra-conflict of fundamental
rights flowing from Article 21, that is right to a fair trial of the
accused and right to privacy of the victim, it is imperative to
adopt an approach which would balance both the rights. [Para
39] [469-C]
Asha Ranjan v. State of Bihar (2017) 4 SCC 397;
Mazdoor Kisan Shakti Sangathan v. Union of India
(2018) 17 SCC 324 : [2018] 11 SCR 586- relied on.
4.2 The accused is entitled to have copies of the
statements and documents accompanying the police report,
which the prosecution may use against him during the trial.
Nevertheless, the Court cannot be oblivious to the nature of
offence and the principle underlying the amendment to Section
327 of Cr.P.C., in particular sub-Section (2) thereof and insertion
of Section 228A of IPC, for securing the privacy of the victim
and her identity. Thus understood, the Court is obliged to evolve
a mechanism to enable the accused to reassure himself about
the genuineness and credibility of the contents of the memory
card/pen-drive from an independent agency so as to effectively
defend himself during the trial. Thus, balancing the rights of both
parties is imperative. The Court is duty bound to issue suitable
directions. Even the High Court, in exercise of inherent power
under Section 482 of Cr.P.C., is competent to issue suitable
directions to meet the ends of justice. [Paras 41, 42] [471-G;
472-A-C]
Superintendent and Remembrancer of Legal Affairs,
West Bengal vs. SatyenBhowmick & Ors. (1981) 2
SCC 109 : [1981] 2 SCR 661 - referred to.
4.3 If the accused or his lawyer himself, additionally,
intends to inspect the contents of the memory card/pen-drive
in question, he can request the Magistrate to provide him
inspection in Court, if necessary, even for more than once
alongwith his lawyer and I.T. expert to enable him to effectively
defend himself during the trial. If such an application is filed,
the Magistrate must consider the same appropriately and
exercise judicious discretion with objectivity while ensuring that
it is not an attempt by the accused to protract the trial. While
allowing the accused and his lawyer or authorized I.T. expert,
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all care must be taken that they do not carry any devices much
less electronic devices, including mobile phone which may have
the capability of copying or transferring the electronic record
thereof or mutating the contents of the memory card/pen-drive
in any manner. Such multipronged approach may subserve the
ends of justice and also effectuate the right of accused to a fair
trial guaranteed under Article 21 of the Constitution. [Para 43]
[472-D-F]
5. Thus, the contents of the memory card/pen drive being
electronic record must be regarded as a document. If the
prosecution is relying on the same, ordinarily, the accused must
be given a cloned copy thereof to enable him/her to present an
effective defence during the trial. However, in cases involving
issues such as of privacy of the complainant/witness or his/her
identity, the Court may be justified in providing only inspection
thereof to the accused and his/her lawyer or expert for
presenting effective defence during the trial. The court may
issue suitable directions to balance the interests of both sides.
[Para 44] [472-G-H]
6. So far as the preliminary objection taken by the
respondent for dismissing the appeal at the threshold because
of the disclosure of identity of the victim in the memo of the
special leave petition forming the subject matter of the present
appeal is concerned, it is found that the prosecution itself had
done so by naming the victim in the First Information Report/
Crime Case, the statement of the victim under Section 161, as
well as under Section 164 of Cr.P.C, and in the chargesheet/
police report filed before the Magistrate. Even the objection
regarding incorrect factual narration about the appellant having
himself viewed the contents of the memory card/pen-drive does
not take the matter any further, once the right of the accused
to get the cloned copies of the contents of the memory card/
pen-drive as being mandated by Section 207 of the 1973 Code
is recognized and more so, because of the right of the accused
to a fair trial enshrined in Article 21 of the Constitution of India.
[Para 34] [467-F-H]
Case Law Reference
[2014] 2 SCR 1
relied on
Para 16
[2017] 1 SCR 670
relied on
Para 16
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[1992] 1 Suppl. SCR 325
relied on
Para 17
[2010] 4 SCR 103
relied on
Para 17
[2012] 10 SCR 641
relied on
Para 19
[1908] 2 K.B. 333
referred to
Para 21
[1975] Ch. 185
referred to
Para 21
[2010] 2 SCR 396
relied on
Para 21
[1975] Suppl. SCR 281
relied on
Para 21
[2015] 12 SCR 234
relied on
Para 21
[2014] 11 SCR 399
relied on
Para 21
[2003] 3 SCR 244
relied on
Para 22
(2017) 4 SCC 397
relied on
Para 39
[2018] 11 SCR 586
relied on
Para 40
[1981] 2 SCR 661
referred to
Para 41
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1794 of 2019.
From the Judgment and Order dated 14.08.2018 of the High
Court of Kerala at Ernakulum in Crl. MC No. 1663 of 2018.
Mukul Rohatgi, Ranjit Kumar, Basant R., Sr. Advs., Philip T.
Varghese, Sujesh Memon, P. Vamshi Rao, Ms. Pragya Baghel,
Ms. Ranjeeta Rohatgi, Abhishek Thakral, Suresan A., G. Prakash,
Jishnu M. L, Ms. Priyanka Prakash, Ms. Beena Prakash, Mohan
Kumar, K. Rajeev, Shinoj K. Darayanan, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. The conundrum in this appeal is: whether the contents of a
memory card/pen-drive being electronic record as predicated in Section
2(1)(t) of the Information Technology Act, 2000 (for short, 'the 2000
Act') would, thereby qualify as a "document" within the meaning of
Section 3 of the Indian Evidence Act, 1872 (for short, 'the 1872 Act')
and Section 29 of the Indian Penal Code, 1860 (for short, 'the 1860
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Code')? If so, whether it is obligatory to furnish a cloned copy of the
contents of such memory card/pen-drive to the accused facing
prosecution for an alleged offence of rape and related offences since
the same is appended to the police report submitted to the Magistrate
and the prosecution proposes to rely upon it against the accused, in terms
of Section 207 of the Code of Criminal Procedure, 1973 (for short, 'the
1973 Code')? The next question is: whether it is open to the Court to
decline the request of the accused to furnish a cloned copy of the
contents of the subject memory card/pen-drive in the form of video
footage/clipping concerning the alleged incident/occurrence of rape on
the ground that it would impinge upon the privacy, dignity and identity
of the victim involved in the stated offence(s) and moreso because of
the possibility of misuse of such cloned copy by the accused (which
may attract other independent offences under the 2000 Act and the
1860 Code)?
3. The appellant has been arrayed as accused No. 8 in connection
with offence registered as First Information Report (FIR)/Crime Case
No. 297/2017 dated 18.2.2017 punishable under Sections 342, 366, 376,
506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of
the 2000 Act, concerning the alleged incident/occurrence at around 2030
hrs. to 2300 hrs. on 17.2.2017, as reported by the victim.
4. For considering the questions arising in this appeal, suffice it
to observe that the investigating officer attached to the Nedumbassery
Police Station, Ernakulam, Kerala, after recording statements of the
concerned witnesses and collecting the relevant evidence, filed police
reports under Section 173 of the 1973 Code before the Judicial First
Class Magistrate, Angamaly. First police report, on 17.4.2017 and the
second, on 22.11.2017. When the appellant was supplied a copy of
the second police report on 15.12.2017, all documents noted in the said
report, on which the prosecution proposed to rely, were not supplied to
the appellant, namely, (i) electronic record (contents of memory card);
(ii) Forensic Science Laboratory (for short, 'the FSL') reports and the
findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V.
footages and (iv) Call data records of accused and various witnesses
etc.
5. It is noted by the concerned Magistrate that the visuals copied
and documented by the forensic experts during the forensic examination
of the memory card were allowed to be perused by the appellant's
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counsel in the presence of the regular cadre Assistant Public Prosecutor
of the Court, in the Court itself. After watching the said visuals, some
doubts cropped up, which propelled the appellant to file a formal
application before the Judicial First Class Magistrate, Angamaly for a
direction to the prosecution to furnish a cloned copy of the contents of
memory card containing the video and audio footage/clipping, in the
same format as obtained in the memory card, alongwith the transcript
of the human voices, both male and female recorded in it. In the said
application, the appellant inter alia asserted as follows:-
"7. It may be noted that the electronic record in the form of copy
of the alleged video footage of the offending act committed by
accused No.1 on the body and person of the defacto complainant
is a crucial and material record relied by the prosecution in this
case. It is the definite contention of prosecution that the above
electronic record is both the evidence of commission of crime
as well as the object of commission of crime and hence
indisputably the most material piece of evidence in this case.
When the injustice, in not serving such a vital piece of evidence
relied on by the prosecution in the case, was immediately brought
to the notice of this Hon'ble Court, without prejudice to the right
of petitioner to obtain copies of the same, the defence side was
allowed to watch the alleged video footages by playing the
contents of a pen drive in the lap top made available before this
Hon'ble Court. Head phones were also provided to the counsel
and also to the learned APP who also was throughout present
during this proceedings.
8. It is most respectfully submitted that by watching the video
footage, although in a restricted environment and with limited
facilities in the presence of the Ld. APP and the Presiding Officer,
it is shockingly realised that the visuals and audio bytes contained
in the video are of such a nature which would completely falsify
the prosecution case in the form presently alleged by the
prosecution. As a matter of fact the video footage is not at all
an evidence of commission of crime as falsely contended by the
prosecution but it is rather a clear case of fabricating false
evidence with intent to foist a false case. It is submitted that it
is after deliberately concealing or withholding the alleged primary
evidence viz. the mobile phone stated to have been used by
accused No.1, by the prosecution in active connivance with
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accused No.1, that the prosecution has produced a memory card
which evidently contains only selected audio and video recording.
9. xxx
xxx
xxx
10. ......The further Verification and close scrutiny of the
images and audio with scientific aid will in all probability provide
more significant materials necessary to find out the truth behind
the recorded images and the extent of tampering and the same
could only be unearthed if the mirror copy of the memory card
is furnished to the petitioner which he is entitled to get without
any further delay. As the prosecution is fully aware that the
tampering could be detected and further female voice could be
retrieved by the defense, the prosecution is trying to prevent the
supply of the copy of the memory card in any form to the
defense. It is illegal and the same will clearly amount to denial
of a just and fair trial.
11. xxx
xxx
xxx
12. A close scrutiny of the contents of mahazar dated 8.3.2017
would show that on 18.2.2017 accused No.1 had entrusted a 8
GB memory card to Adv. E.G. Poulose, who had in turn
produced the same before the Court of JFCM Aluva. The
investigating agency thereafter obtained custody of the above
electronic record and later the 8 GB memory card was sent to
FSL, where, upon examination, Dr. Sunil S.P., Assistant director
(documents), FSL, Thiruvananthapuram has allegedly prepared
a report in that regard. The copy of the report has not been
furnished to the petitioner. The mahazar further shows that the
contents of Memory card was transferred to a pen drive for the
investigation purpose. The above mahazar further categorically
states that the pen drive contained the data transferred from
memory card and the same relates to the video footage of
17.2.2017 from 22:30:55 to 22:48:40 hrs and it is in order to check
and verify whether the voice contained therein belongs to Suni
that the voice sample was allegedly taken. The description in the
mahazar proceeds as if there is only male voice in the video
footage totally screening the fact that the video footage contains
many vital and material utterances in female voice. Those
utterances were revealed to the petitioner and his counsel only
on 15.12.2017. Everybody present had the benefit of hearing the
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said clear female voice. As mentioned earlier the Ld. APP was
also present. But the investigation agency which should have
definitely seen and heard the same has for obvious reason
screened the said material aspects from the records. The
investigation, it appears did not venture to take steps to compare
the female voice in the video footage with the voice of the female
involved in this case, for obvious reasons. On viewing and hearing,
it is revealed that clear attempt have been made by somebody
to delete major portions from the video footage and from the
audio recording.
13. It is respectfully submitted that utterances made by the parties
involved and seen in the video footage determines the nature of
act recorded in the video footage and a transcript of the
utterances and human voices in the video footage is highly just
and necessary especially in view of the shocking revelation, found
when the video footage was played on 15.12.2017.
14. Yet another aspect which is to be pointed out is the
mysterious disappearance of the mobile phone allegedly used for
recording the video footage. The strong feeling of the petitioner
is that the investigating agency has not so far stated the truth
regarding the mobile phone allegedly used to shot the video
footage. The prosecution records itself would strongly indicate
that the mobile phone used to record the occurrence (which now
turns out to be a drama) was with the Police or with the persons
who are behind the fabrication of the video footage as evidence
to launch the criminal prosecution and false implication of the
petitioner. It is revolting to common sense to assume that even
after conducting investigation for nearly one year by a team
headed by a very Senior Police officer like the Addl. DGP of
the Stage, during which accused No.1 was in the custody of the
investigating team for 14 days at a stretch and thereafter for
different spells of time on different occasions the original mobile
instrument used for recording the video footage could not be
unearthed. It appears that the investigating team was a willing
agent to suffer the wrath of such a disgrace in order to suppress
the withholding of the mobile instrument.
15. It is interesting to note that even in the second final report
dated 22.11.2017 the Police has stated that the investigation to
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obtain the original mobile phone is even now continuing. It is
nothing but an attempt to be fool everybody including the Court.
16. It is most respectfully submitted that in view of the startling
revelation in the video footage, the petitioner intends to make
request to conduct proper, just and meaningful investigation into
the matter so as to ensure that the real truth is revealed and the
real culprits in this case are brought to justice. For enabling the
petitioner to take steps in that regard. It is highly just and essential
that the cloned copy of the contents of memory card containing
the video and audio content in the same format as obtained in
the Memory card and the transcript of the human voices recorded
in it are produced before Court and copy of the same furnished
forthwith to the petitioner.
17. As mentioned herein before, the prosecution has chosen to
furnish only a small portion of the prosecution records on
15.12.2017. The petitioner is approaching this Hon'ble Court with
a detailed petition stating the details of relevant documents which
do not form part of the records already produced before this
Hon'ble Court and the details of the other documents which are
not furnished to petitioner.
18. It is submitted that the petitioner as an accused is legally
entitled to get the copies of all documents including the CDs,
Video footage etc., and the prosecution is bound to furnish the
same to the petitioner.
19. In the above premises it is respectfully prayed that this
Hon'ble Court may be pleased to direct the prosecution to furnish
a cloned copy of the contents of Memory Card containing the
video and audio content in the same format as obtained in the
memory card and the transcript of human voices, both male and
female recorded in it, and furnish the said cloned copy of the
memory card and the transcript to the petitioner."
6. The Magistrate vide order dated 7.2.2018, rejected the said
application, essentially on the ground that acceding to the request of
the appellant would be impinging upon the esteem, decency, chastity,
dignity and reputation of the victim and also against public interest. The
relevant portion of the order dated 7.2.2018 reads thus:-
"Heard both sides in detail.
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The petitioner has also filed reply statement to the objection and
counter statement filed by Special Public Prosecutor in the case.
The allegation against the petitioner is that he engaged the first
accused to sexually assault the victim and videograph the same.
On receipt of summons the petitioner entered appearance and
was served with the copies of prosecution records. The learned
Senior Counsel appearing for the petitioner requested for the
copies of the contents of memory card. The same could not be
allowed & the investigation official has already a petition filed
objecting the same, with a prayer to permit them to view the same
in the court. Hence they were permitted to view the video
footage and subsequent to the same they had filed this petition
seeking a direction to the prosecution to furnish the copies of
alleged audio and video footage and its transcript. The prosecution
strongly opposed the same stating that the same will add insult
to the victim who had suffered a lot at the hands of not only the
accused but also the media. Hence they submitted that the
petitioner may be permitted to view the contents of the video
during trial.
Here the offence alleged tantamounts to a serious blow to the
supreme honour of a woman. So as to uphold the esteem,
decency, chastity, dignity and reputation of the victim, and also
in the public interest, I am declining the prayer. But so as to ensure
fairness in the proceedings and for just determination of the truth,
the petitioner is permitted to inspect the contents of the video
footage at the convenience of court."
7. Aggrieved by the above decision, the appellant carried the
matter to the High Court of Kerala at Ernakulam (for short, 'the High
Court') by way of Crl.M.C. No. 1663/2018. The learned single Judge
of the High Court dismissed the said petition and confirmed the order
of the Magistrate rejecting the stated application filed by the appellant.
The High Court, however, after analyzing the decisions and the relevant
provisions cited before it, eventually concluded that the seized memory
card was only the medium on which the alleged incident was recorded
and hence that itself is the product of the crime. Further, it being a
material object and not documentary evidence, is excluded from the
purview of Section 207 of the 1973 Code. The relevant discussion can
be discerned from paragraph 41 onwards, which reads thus:-
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"41. This leads to the crucial question that is to be answered in
this case. Evidently, the crux of the prosecution allegation is that,
offence was committed for the purpose of recording it on a
medium. Memory card is the medium on which it was recorded.
Hence, memory card seized by the police itself is the product of
the crime. It is not the contents of the memory card that is
proposed to be established by the production of the memory card.
The acts of sexual abuse is to be established by the oral testimony
of the victim and witnesses. It is also not the information derived
from the memory card that is sought to be established by the
prosecution. Prosecution is trying to establish that the alleged
sexual abuse was committed and it was recorded. Though, in
the course of evidence, contents of it may be sought to be
established to prove that, it was the memory card created by the
accused, contemporaneously recorded on the mobile, along with
the commission of offence, that does not by itself displace the
status of the memory card as a document. Memory card itself
is the end product of the crime. It is hence a material object and
not a documentary evidence. Hence, it stands out of the ambit
of section 207 Cr.P.C.
42. The evaluation of the above legal propositions clearly
spells out that, the memory card produced in this case is
not a document as contemplated under section 307 IPC
[sic 207 Cr.P.C.]. In fact, it is in the nature of a material
object. Hence, copy of it cannot be issued to the petitioner
herein.
43. Prosecution has a case that, though accused is entitled for
his rights, it is not absolute and even outside section 207 Cr.P.C.,
there can be restrictions regarding the right under section 207
Cr.P.C.