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

The bench comprising of Hon’ble Justice A.M Khanwilkar and Hon’ble Justice Dinesh Maheshwari pronounced the judgment on the matter relating to the qualification of memory card under the definition of ‘documents’.

The issues considered before the Hon’ble Supreme Court are;

  1. Whether the contents of a memory card/pen­drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000, thereby 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 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?

  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 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 more so because of the possibility of misuse of such cloned copy by the accused?

The appellant contented that the contents of the memory card, which are replicated in the pen­drive created by the State FSL would be nothing but a “document” within the meaning of the 1973 Code and the provisions of the 1872 Act. And since the prosecution was relying on the same and proposes  to use it against the accused/appellant, it was incumbent to furnish   a   cloned   copy   of   the   contents   thereof   to   the accused/appellant, not only in terms of Section 207 read with Section 173(5) of the 1973 Code, but also to uphold the right of the accused to a fair trial guaranteed under Article 21 of the Constitution of India.  The trial Court rejected the request of the appellant on the ground that it would affect the privacy and dignity of the victim, whereas, the High Court proceeded on the basis that the memory card is a material object and not a “document”.   It is well known that a cloned copy is not a photocopy, but is a mirror image of the original, and the accused has the right to have the same to present his defence effectively. Also it is submitted that the Court could have imposed appropriate conditions while issuing direction to the prosecution to furnish a cloned copy of the contents of memory card to the accused/appellant

The respondent- State and the intervenor (the victim) have vehementaly opposed the present appeal on the argument that the appellant before the court is none other than the master-mind of the conspiracy. The definite case of the respondent is that the memory card seized in this case containing the visuals of sexual violence upon the victim is a material object and the pen­drive into which the contents of memory card were documented through the process of copying by the State FSL and sent to the Court for the purpose of aiding the trial Court to know the contents of the memory card and the contents of the said pen drive is both material object as well as “document”.  It is also urged that the visual contents of the pen­drive would be physical evidence of the commission of crime and not “document” per se to be furnished to the accused along with the police report. Moreover, if a cloned copy of the contents of the memory card is made available to the accused/appellant, there is reason to believe that it would be misused by the accused/appellant to execute the conspiracy of undermining the privacy and dignity of the victim.  It is urged that the appellant has relied on certain decisions to contend that the contents of the memory card must be regarded as “electronic record” and, therefore, a “document”.

The central issue is 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.  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 offences 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. Along with 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.

The Court relied up on Tarun Tyagi vs. CBI, regarding the purport of Section 207 of the 1973 Code. 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.

The respondents and intervenor  contend that the memory card is a material object and not a “document” as such. 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/pen­drive is a material object.

The court considered it as 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. This principle has been enunciated in the case of Asha Ranjan v. State of Bihar 41 (2017) 4 SCC 397.

The court concluded and held 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   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”.

Thus, the Hon’ble Supreme Court partly succeeds this appeal.

Srutha R Elayidom



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