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GOPALAKRISHNAN @ DILEEP VS. STATE OF KERALA AND  ANR., CRIMINAL APPEAL NO.1794 OF 2019 Arising out of SLP(Crl.) No. 10189/2018. – 29 November  2019.

The bench encompassing Justice A.M. Khanwilkar and Justice Dinesh Maheshwari collectively pronounced judgment on memory card being considered as a document. The background of the case will direct us through the proceedings that happened throughout the case. In February 2017, a Malayalam film actress who worked in Tamil and Telugu industries as well was abducted and molested by eight people. The entire act took place in a moving vehicle for about two hours and the same was filmed by to blackmail the actress. The offenders after committing the act subsequently escaped. Malayalam Actor, Dileep, one among the eight was arrested on being accused of the offense. The video taken by the offenders was partly presented considering the privacy of the victim as evidence in the Trial Court. Actor Dileep, in his defense, demanded an unedited version of the document (video) contenting that memory card fell under the same ambit.

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 portions of the order dated 7.2.2018 are presented below:

  1. The allegation against the petitioner was that he engaged the first accused to sexually assault the victim and videograph the same.

  2. The learned Senior Counsel appearing for the petitioner requested for the copies of the contents of memory card, the same was denied and the investigation officer had already filed a petition objecting the same, with a prayer to permit them to view the same in the court.

  3. They had filed a petition seeking a direction to the prosecution to furnish the copies of alleged audio and video footage and its transcript.

  4. 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.

  5. The petitioner was permitted to view the contents of the video only during the trial.

  6. Since the offense alleged tantamounts to a serious blow to the supreme honour of a woman, the prayer was declined so as to uphold the esteem, decency, chastity, dignity, and reputation of the victim, and also in the public interest.

The decision of the Trial Court did not support his contention and thereby he made an appeal to the High Court. The High Court held that memory card was itself an end product of crime and upheld the right to privacy of the victim. It pronounced the following:

“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. 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. It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused.”

The protection of the victim’s rights was given priority in the decision of the High Court. It impliedly held that the right of the victim was wider than that of an accused by stating that the accused was not entitled to an absolute right. It was contended that, if the statutory provision infringed the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. It cited the case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Ors., wherein the Constitutional Bench of the Supreme Court had held that the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Art. 19 does not denude Art.21 of its expansive ambit. It was held that the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom. It further stated, “when there is a conflict between Fundamental Rights of a person and statutory rights of another person, Fundamental Rights will prevail.”

The accused then appealed to the Hon’ble Supreme Court and the issues considered were:

  1. Whether the contents of a memory card/pen drive being electronic record qualify as a document within the meaning of Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860?

  2. Whether it is obligatory to furnish a cloned copy of the contents of such a memory card/pen drive to the accused facing prosecution for an alleged offense in terms of Section 207 of the Code of Criminal Procedure, 1973?

  3. 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 on the ground that it would impinge upon the privacy victim involved and more so because of the possibility of misuse of such cloned copy by the accused?

However, the central issue was about the obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report under Section 207 of the 1973 Code. These two sections were elaborately considered. Section 173 of the 1973 Code ordains that the investigation under Chapter XII of the said Code should be completed without unnecessary delay and as regards the investigation in relation to offenses under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860 Code, the same is required to be completed within two months from the date on which the information was recorded by the officer in charge of the police station. Thereafter, the investigating officer after completing the investigation was obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offense on such police report. Along with the police report, the investigating officer was 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. That discretion, however, was not given to him in respect of the “documents” or the relevant extracts thereof on which the prosecution proposes to rely against the concerned accused. As regards the documents, sub­Section (7) enabled the investigating officer, if in his opinion it was convenient so to do, to furnish copies of all or any of the documents referred to in sub­Section (5) to the accused.

On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. In Section 207, as regards the statements, the first proviso enables the Magistrate to withhold any part thereof 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 sub­Section (6) of Section 173. However, when it was about furnishing documents submitted by the investigating officer along with police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, was “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 the 1973 Code does not empower the Magistrate to withhold any “document” submitted by the investigating officer along with the police report except when it is voluminous.

Mr. Mukul Rohatgi learned senior counsel appeared on behalf of the appellant, Mr. Ranjit Kumar, learned senior counsel appeared on behalf of the respondent­State and Mr. R. Basant, learned senior counsel for the intervenor. The appellants argued that electronic evidence were documents and that included memory card. It was further contended that infringement of the right to privacy of the victim and right to just and fair trial of the accused should be equally balanced. Per contra, the respondents stressed the privacy, dignity, and identity of the victim and contented that the memory card was not a document under section 207 of Cr.P.C.

The provisions taken into consideration were: Sections 95(2)(b), 161, 170, 173, 207, 243,327 and 482  of the 1973 Code; Section 2(1)(t) of the 2000 Act; Sections 29, 228A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860 Code; Section 3, 65B of the 1872 Act;  Article 21 of the Indian Constitution; Phipson on Evidence, page 5; Halsbury’s laws of England: Fourth Edition, 2006 reissue, Vol. 11(3); The primary evidence rule.

The Court relied on the decisions in Hardeep Singh v. State of Punjab; Tarun Tyagi vs. CBI; Nelson Motis v. Union of India; Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi); V.K. Sasikala v. State; The King v. Daye; Grant and Another v. Southwestern and County Properties Ltd. and Another; Anwar P.V. vs. P.K. Basheer; State of Maharashtra vs. Dr. Praful B. Desai; R. v. Maqsud Ali, R. v. Ashiq Hussain; Asha Ranjan v. State of Bihar; Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors; Tukaram S. Dighole v. Manikrao Shivaji Kokate; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors;  Shamsher Singh Verma vs. State of Haryana; and Mazdoor Kisan Shakti Sangathan v. Union of India.

The court considered the following:

  1. It is a well-established position that when a statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences.

  2. 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.

  3. A priori, we must hold that 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.

  4. 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.

  5. 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.”

  6. This is a peculiar case of intra­conflict 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.

  7. Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason.

The court then pronounced the following:

“In conclusion, we hold that 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 defense during the trial. However, in cases involving issues such as 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.  In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the appellant/accused to the extent indicated. Resultantly, the application filed by the appellant before the trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms.  We direct the trial court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six months from the date of this judgment.”

The Court then directed the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL).

– Jumanah Kader



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