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 (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 Code’)?
whether it is obligatory to furnish a cloned copy of the contents of such
memory card/pendrive 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’)?
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/pendrive 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)?
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 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1794 OF 2019
(Arising out of SLP(Crl.) No. 10189/2018)
P. Gopalkrishnan @ Dileep ..…Appellant(s)
Versus
State of Kerala and Anr. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Leave granted.
2. The conundrum in this appeal is: 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 (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 Code’)? If so, whether it is
2
obligatory to furnish a cloned copy of the contents of such
memory card/pendrive 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/pendrive 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
3
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.
4
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 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
5
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 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
6
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 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
7
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 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.
8
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.
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.
9
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:
“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
10
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. 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. Definitely, in case of Justice
K.S. Puttaswamy (Retd.) and Another v. Union of India and
Ors. (2017) 10 SCC 1 (at page 1), 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, 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. In Sherin V. John’s case (supra), this
Court had held that, when there is a conflict between
Fundamental Rights of a person and statutory rights of
11
another person, Fundamental Rights will prevail. The
possibility of such contention may also arise. Since that
question does not arise in this case in the light of finding
under section 207 Cr.P.C. I do not venture to enter into that
issue.
44. Having considered the entire issue, I am inclined to
sustain the order of the court below in Crl.M.P. No.49 of
2018 in C.P. No.16 of 2017 dismissing the application,
though on different grounds. However, this will not preclude
the Court from permitting the accused to watch the memory
card only in Court, subject to restrictions, to prepare
defence.”
(emphasis supplied)
8. The appellant being dissatisfied, has assailed the reasons
which found favour with the trial Court, as well as the High
Court. The appellant broadly contends that the prosecution case
is founded on the forensic report which suggests that eight video
recordings were retrieved from the memory card and that the
video files were found to be recorded on 17.2.2017 between
22:30:55 hrs. and 22:48:40 hrs. The same were transferred to
the stated memory card on 18.2.2017 between 09:18 hrs. and
09:20 hrs. Be it noted that the original video recording was
allegedly done by accused No. 1 on his personal mobile phone,
which has not been produced by the investigating agency.
However, the memory card on which the offending video
recording was copied on 18.2.2017 was allegedly handed over by
12
an Advocate claiming that the accused No. 1 had given it to him.
He had presented the memory card before the Court on
20.2.2017, which was sent for forensic examination at State FSL,
Thiruvananthapuram. After forensic examination, the same was
returned alongwith FSL report DD No. 91/2017 dated 3.3.2017
and DD No. 115/2017 dated 7.4.2017. A pendrive containing
the data/visuals retrieved from the memory card, was also
enclosed with the report sent by the State FSL.
9. Be that as it may, the prosecution was obviously relying on
the contents of the memory card which have been copied on the
pendrive by the State FSL during the analysis thereof and has
been so adverted to in the police report. 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
13
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.
In the alternative, 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.
10. Per contra, the respondentState and the intervenor (the
victim) have vehementaly opposed the present appeal on the
argument that the appellant before this Court is none other than
the mastermind of the conspiracy. Although he was not
personally present on the spot, but the entire incident has
occurred at his behest. It is urged that the appeal deserves to be
14
dismissed as the appellant has disclosed the identity of the
victim in the memo of the special leave petition from which the
present appeal has arisen. Further, the appellant has falsely
asserted that he had himself perused the contents of the pendrive and even for this reason, the appeal should be dismissed at
the threshold. As a matter of fact, the contents of the pendrive
were allowed to be viewed by the appellant’s counsel and the
regular cadre Assistant Public Prosecutor of the Court. The
asservation of the appellant that after viewing the contents of the
pendrive, he gathered an impression that the contents of the
memory card must have been tampered with, is the figment of
imagination of the appellant and contrary to forensic report(s) by
the State FSL. 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 pendrive is both material object as well as “document”. It is also
15
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 alongwith the police report. The
contents of the memory card or the pendrive cannot be parted to
the accused and doing so itself would be an independent offence.
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 exposition in those decisions are general observations and
would be of no avail to the appellant. The appellant is facing
prosecution for an offence of rape, and the trial thereof would be
an incamera trial before the Special Court. To maintain the
sanctity and for upholding the privacy, dignity and identity of the
victim, it is urged that the accused/appellant in such cases can
seek limited relief before the trial Court to permit him and his
lawyer or an expert to view the contents of the pendrive in Court
16
or at best to permit him to take a second opinion of expert to
reassure himself in respect of the doubts entertained by him.
Such indulgence would obviate the possibility of misuse of the
cloned copy of the video/audio footage/clipping and the same
would be in the nature of a preventive measure while giving a fair
opportunity to the accused to defend himself. The respondent
and the intervenor would urge that the appeal be dismissed
being devoid of merits.
11. As aforesaid, both sides have relied on reported decisions of
this Court, as well as the High Courts and on the provisions of
the relevant enactments to buttress the submissions. We shall
refer thereto as may be required.
12. We have heard Mr. Mukul Rohatgi, learned senior counsel
for the appellant, Mr. Ranjit Kumar, learned senior counsel for
the respondentState and Mr. R. Basant, learned senior counsel
for the intervenor.
13. The central issue is about the obligation of the investigating
officer flowing from Section 173 of the 1973 Code and that of the
17
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. The investigating officer
after completing the investigation, 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.
Indeed, it is open to the police officer, if in his opinion, any part
18
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. As regards the documents, subSection (7) 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
subSection (5) to the accused. Section 173, as amended and
applicable to the case at hand, reads thus:
‘‘173. Report of police officer on completion of
investigation.—(1) Every investigation under this Chapter
shall be completed without unnecessary delay.
(1A) The investigation in relation to an offence under sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or
376E of the Indian Penal Code (45 of 1860) shall be
completed within two months from the date on which the
information was recorded by the officer in charge of the
police station.
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to
19
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating—
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed
and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170;
(h) whether the report of medical examination of the
woman has been attached where investigation relates to
an offence under sections 376, 376A, 376AB, 376B,
376C, 376D, 376DA, 376DB or section 376E of the
Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as
may be prescribed by the State Government, the action
taken by him, to the person, if any, by whom the
information relating to the commission of the offence was
first given.
(3) Where a superior officer of police has been appointed
under section 158, the report, shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the
police station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to
the Magistrate along with the report—
20
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during
investigation;
(b) the statements recorded under section 161 of all
the persons whom the prosecution proposes to
examine as its witnesses.
(6) If the police officer is of opinion that any part of any
such statement is not relevant to the subjectmatter of
the proceedings or that its disclosure to the accused is
not essential in the interests of justice and is
inexpedient in the public interest, he shall 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.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused
copies of all or any of the documents referred to in subsection (5).
(8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under subsection (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of
the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form
prescribed; and the provisions of subsections (2) to (6) shall,
as far as may be, apply in relation to such report or reports
as they apply in relation to a report forwarded under subsection (2).’’
(emphasis supplied)
14. Concededly, as regards 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
21
“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. SubSection (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 the 1973
Code 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.
15. 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. Section 207
reads thus:
22
‘‘ 207. Supply to the accused of copy of police report
and other documents.—In any case where the proceeding
has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of
each of the following:—
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under subsection (3) of section
161 of all persons whom the prosecution proposes to
examine as its witnesses, excluding therefrom any part in
regard to which a request for such exclusion has been made
by the police officer under subsection (6) of section 173;
(iv) the confessions and statements, if any, recorded under
section 164;
(v) any other document or relevant extract thereof forwarded
to the Magistrate with the police report under subsection (5)
of section 173:
Provided that the Magistrate may, after perusing any
such part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or of
such portion thereof as the Magistrate thinks proper, shall
be furnished to the accused:
Provided further that if the Magistrate is satisfied that
any document referred to in clause (v) is voluminous, he
shall, instead of furnishing the accused with a copy thereof,
direct that he will only be allowed to inspect it either
personally or through pleader in Court.’’
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 comes to
23
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 the
1973 Code 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 subSection (6) of Section 173 of the
1973 Code.
16. Be that as it may, 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. We may
24
usefully advert to the dictum in Hardeep Singh v. State of
Punjab1 wherein it was held that:
“47. Since after the filing of the chargesheet, the court
reaches the stage of inquiry and as soon as the court
frames the charges, the trial commences, and therefore, the
power under Section 319(1) CrPC can be exercised at any
time after the chargesheet is filed and before the
pronouncement of judgment, except during the stage of
Sections 207/208 CrPC, committal, etc. which is only a
pretrial stage, intended to put the process into motion.
This stage cannot be said to be a judicial step in the true
sense for it only requires an application of mind rather
than a judicial application of mind. At this pretrial stage,
the Magistrate is required to perform acts in the nature
of administrative work rather than judicial such as
ensuring compliance with Sections 207 and 208 CrPC, and
committing the matter if it is exclusively triable by the
Sessions Court ... … …”
(emphasis supplied)
In yet another case of Tarun Tyagi vs. CBI2
, this Court
considered the purport of Section 207 of the 1973 Code and
observed as follows:
“8. Section 207 puts an obligation on the prosecution to
furnish to the accused, free of cost, copies of the
documents mentioned therein, without any delay. It
includes, documents or the relevant extracts thereof which
are forwarded by the police to the Magistrate with its report
under Section 173(5) of the Code. Such a compliance has
to be made on the first date when the accused appears or
is brought before the Magistrate at the commencement of
the trial inasmuch as Section 238 of the Code warrants the
Magistrate to satisfy himself that provisions of Section 207
have been complied with. Proviso to Section 207 states
that if documents are voluminous, instead of furnishing
the accused with the copy thereof, the Magistrate can allow
1 (2014) 3 SCC 92
2 (2017) 4 SCC 490
25
the accused to inspect it either personally or through
pleader in the Court.”
17. It is well established position that when statute is
unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences as expounded in Nelson Motis
v. Union of India3
. On a bare reading of Section 207 of the
1973 Code, no other interpretation is possible.
18. Be that as it may, furnishing of documents to the accused
under Section 207 of the 1973 Code is a facet of right of the
accused to a fair trial enshrined in Article 21 of the Constitution.
In Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi)4
, this Court expounded thus:
“218. The liberty of an accused cannot be interfered with
except under due process of law. The expression “due
process of law” shall deem to include fairness in trial. The
court (sic Code) gives a right to the accused to receive all
documents and statements as well as to move an
application for production of any record or witness in
support of his case. This constitutional mandate and
statutory rights given to the accused place an implied
obligation upon the prosecution (prosecution and the
Prosecutor) to make fair disclosure. The concept of fair
disclosure would take in its ambit furnishing of a
document which the prosecution relies upon whether filed
in court or not. That document should essentially be
3 (1992) 4 SCC 711
4 (2010) 6 SCC 1
26
furnished to the accused and even in the cases where
during investigation a document is bona fide obtained by
the investigating agency and in the opinion of the
Prosecutor is relevant and would help in arriving at the
truth, that document should also be disclosed to the
accused.
219. The role and obligation of the Prosecutor particularly
in relation to disclosure cannot be equated under our law
to that prevalent under the English system as aforereferred
to. But at the same time, the demand for a fair trial cannot
be ignored. It may be of different consequences where a
document which has been obtained suspiciously,
fraudulently or by causing undue advantage to the accused
during investigation such document could be denied in the
discretion of the Prosecutor to the accused whether the
prosecution relies or not upon such documents, however in
other cases the obligation to disclose would be more
certain. As already noticed the provisions of Section
207 have a material bearing on this subject and make
an interesting reading. This provision not only require
or mandate that the court without delay and free of
cost should furnish to the accused copies of the police
report, first information report, statements,
confessional statements of the persons recorded under
Section 161 whom the prosecution wishes to examine
as witnesses, of course, excluding any part of a
statement or document as contemplated under Section
173(6) of the Code, any other document or relevant
extract thereof which has been submitted to the
Magistrate by the police under subsection (5) of
Section 173. In contradistinction to the provisions of
Section 173, where the legislature has used the
expression “documents on which the prosecution
relies” are not used under Section 207 of the Code.
Therefore, the provisions of Section 207 of the Code
will have to be given liberal and relevant meaning so as
to achieve its object. Not only this, the documents
submitted to the Magistrate along with the report
under Section 173(5) would deem to include the
documents which have to be sent to the Magistrate
during the course of investigation as per the
requirement of Section 170(2) of the Code.
27
220. The right of the accused with regard to disclosure of
documents is a limited right but is codified and is the very
foundation of a fair investigation and trial. On such
matters, the accused cannot claim an indefeasible legal
right to claim every document of the police file or even the
portions which are permitted to be excluded from the
documents annexed to the report under Section 173(2) as
per orders of the court. But certain rights of the accused
flow both from the codified law as well as from equitable
concepts of the constitutional jurisdiction, as substantial
variation to such procedure would frustrate the very basis
of a fair trial. To claim documents within the purview of
scope of Sections 207, 243 read with the provisions of
Section 173 in its entirety and power of the court under
Section 91 of the Code to summon documents signifies and
provides precepts which will govern the right of the accused
to claim copies of the statement and documents which the
prosecution has collected during investigation and upon
which they rely.
221. It will be difficult for the Court to say that the accused
has no right to claim copies of the documents or request
the Court for production of a document which is part of the
general diary subject to satisfying the basic ingredients of
law stated therein. A document which has been obtained
bona fide and has bearing on the case of the prosecution
and in the opinion of the Public Prosecutor, the same
should be disclosed to the accused in the interest of justice
and fair investigation and trial should be furnished to the
accused. Then that document should be disclosed to the
accused giving him chance of fair defence, particularly
when nonproduction or disclosure of such a document
would affect administration of criminal justice and the
defence of the accused prejudicially.”
(emphasis supplied)
19. Similarly, in V.K. Sasikala v. State5
, this Court held as
under:
“21. The issue that has emerged before us is, therefore,
somewhat larger than what has been projected by the State
and what has been dealt with by the High Court. The
5 (2012) 9 SCC 771
28
question arising would no longer be one of compliance
or noncompliance with the provisions of Section 207
CrPC and would travel beyond the confines of the strict
language of the provisions of Cr.PC and touch upon the
larger doctrine of a free and fair trial that has been
painstakingly built up by the courts on a purposive
interpretation of Article 21 of the Constitution. It is not
the stage of making of the request; the efflux of time that
has occurred or the prior conduct of the accused that is
material. What is of significance is if in a given situation
the accused comes to the court contending that some
papers forwarded to the court by the investigating agency
have not been exhibited by the prosecution as the same
favours the accused the court must concede a right to the
accused to have an access to the said documents, if so
claimed. This, according to us, is the core issue in the case
which must be answered affirmatively. In this regard, we
would like to be specific in saying that we find it difficult to
agree with the view taken by the High Court that the
accused must be made to await the conclusion of the trial
to test the plea of prejudice that he may have raised. Such
a plea must be answered at the earliest and certainly
before the conclusion of the trial, even though it may be
raised by the accused belatedly. This is how the scales of
justice in our criminal jurisprudence have to be balanced.”
(emphasis supplied)
20. The next seminal question is: whether the contents of the
memory card/pendrive submitted to the Court alongwith the
police report can be treated as “document” as such. Indubitably,
if the contents of the memory card/pendrive 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 the
1973 Code would not arise. We say so because it is nobody’s
29
case before us that the contents of the memory card/pendrive
be treated as a “statement” ascribable to Section 173(5)(b) of the
1973 Code. 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.
21. The High Court adverted to certain judgments before
concluding that the memory card would be a material object. For
arriving at the said conclusion, the High Court relied on the
decision of the King’s Bench of United Kingdom in The King v.
Daye6
, wherein Darling J., adding to the majority opinion, had
held thus:
“…But I should myself say that any written thing
capable of being evidence is properly described as a
document and that it is immaterial on what the writing
may be inscribed. It might be inscribed on paper, as is
the common case now; but the common case once was
that it was not on paper, but on parchment; and long
before that it was on stone, marble, or clay, and it
might be, and often was, on metal. So I should desire to
guard myself against being supposed to assent to the
argument that a thing is not a document unless it be a
paper writing. I should say it is a document no matter
upon what material it be, provided it is writing or printing
and capable of being evidence.”
(emphasis supplied)
6 [1908] 2 K.B. 333
30
The High Court also relied on the decision of the Chancery Court
in Grant and Another v. Southwester and County Properties
Ltd. and Another7
, wherein it was observed as follows:
“There are a number of cases in which the meaning of
the word "document" has been discussed in varying
circumstances. Before briefly referring to such cases, it
will, I think, be convenient to bear in mind that the
derivation of the word is from the Latin "documentum": it is
something which instructs or provides information. Indeed,
according to Bullokar's English Expositor (1621), it meant
a lesson. The Shorter Oxford English Dictionary has as the
fourth meaning for the word the following: "Something
written, inscribed, etc., which furnishes evidence or
information upon any subject, as a manuscript, titledeed,
coin, etc.," and it produces as the relevant quotation:
"These frescoes... have become invaluable as documents,"
the writer being Mrs. Anna Brownell Jameson who lived
from 1794 to 1860.
I think that all the authorities to which I am about to
refer have consistently stressed the furnishing of
information impliedly otherwise than as to the document
itself as being one of the main functions of a document.
Indeed, in In Re Alderton and Barry's Application (1941) 59
R.P.C. 56, Morton J. expressly doubted whether blank
workmen's time sheets could be classified as documents
within section 11(1)(b) of the Patent and Design Acts 1907
1939 expressly because in their original state they
conveyed no information of any kind to anybody...”
It can be safely deduced from the aforementioned expositions
that the basis of classifying article as a “document” depends
upon the information which is inscribed and not on where it is
inscribed. It may be useful to advert to the exposition of this
7 [1975] Ch. 185
31
Court holding that tape records of speeches8
and audio/video
cassettes9
including compact disc10 were “documents” under
Section 3 of the 1872 Act, 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 Act11
.
22. It is apposite to recall the exposition of this Court in State
of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court
observed that 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. In paragraph 14 of the said
decision, the Court observed thus:
“14. It must also be remembered that the Criminal
Procedure Code is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly
8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17
10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485
11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473
12 (2003) 4 SCC 601
32
set out by the leading jurist Francis Bennion in his
commentaries titled Statutory Interpretation, 2nd Edn., p.
617:
“It is presumed Parliament intends the court to apply to
an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act
was initially framed. While it remains law, it has to be
treated as always speaking. This means that in its
application on any day, the language of the Act though
necessarily embedded in its own time, is nevertheless to
be construed in accordance with the need to treat it as a
current law.
***
In construing an ongoing Act, the interpreter is to
presume that Parliament intended the Act to be applied
at any future time in such a way as to give effect to the
original intention. Accordingly, the interpreter is to
make allowances for any relevant changes that have
occurred since the Act's passing, in law, in social
conditions, technology, the meaning of words and other
matters…. That today's construction involves the
supposition that Parliament was catering long ago for a
state of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of
an enactment, is expected to anticipate temporal
developments. The drafter will foresee the future and
allow for it in the wording.
***
An enactment of former days is thus to be read today, in
the light of dynamic processing received over the years,
with such modification of the current meaning of its
language as will now give effect to the original legislative
intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and
year out. It also comprises processing by executive
officials.””
(emphasis supplied)
23. As aforesaid, the respondents and intervenor would contend
that the memory card is a material object and not a “document”
33
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. In this regard, we may refer to Phipson on
Evidence13, and particularly, the following paragraph(s):
“The purpose for which it is produced determines
whether a document is to be regarded as documentary
evidence. When adduced to prove its physical
condition, for example, an alteration, presence of a
signature, bloodstain or fingerprint, it is real evidence.
So too, if its relevance lies in the simple fact that it
exists or did once exist or its disposition or nature. In
all these cases the content of the document, if relevant
at all, is only indirectly relevant, for example to
establish that the document in question is a lease.
When the relevance of a document depends on the
meaning of its contents, it is considered documentary
evidence.”
... ... ...”
(emphasis supplied)
Again at page 5 of the same book, the definition of “real
evidence14” is given as under:
“Material objects other than documents, produced for
inspection of the court, are commonly called real evidence.
This, when available, is probably the most satisfactory kind
of all, since, save for identification or explanation, neither
testimony nor inference is relied upon. Unless its
13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450
14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5
34
genuineness is in dispute [See Belt v Lawes, The Times, 17
November 1882.], the thing speaks for itself.
Unfortunately, however, the term “real evidence” is
itself both indefinite and ambiguous, having been used in
three divergent senses:
(1) … … …
(2) Material objects produced for the inspection of the
court. This is the second and most widely accepted
meaning of “real evidence”. It must be borne in mind
that there is a distinction between a document used as
a record of a transaction, such as a conveyance, and a
document as a thing. It depends on the circumstances
in which classification it falls. On a charge of stealing a
document, for example, the document is a thing.
(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. Section 2(1)(t) of the
2000 Act reads thus:
‘‘2(1)(t) “electronic record” means data, record or data
generated, image or sound stored, received or sent in an
electronic form or micro film or computergenerated micro
fiche;’’
24. As the above definition refers to data or data generated,
image or sound stored, received or sent in an electronic form, it
35
would be apposite to advert to the definition of “data” as
predicated in Section 2(1)(o) of the same Act. It reads thus:
“2(1)(o) “data” means a representation of information,
knowledge, facts, concepts or instructions which are being
prepared or have been prepared in a formalised manner, and
is intended to be processed, is being processed or has been
processed in a computer system or computer network, and
may be in any form (including computer printouts magnetic
or optical storage media, punched cards, punched tapes) or
stored internally in the memory of the computer;’’
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.
25. Having noticed the above definitions, we may now turn to
definitions of expressions “document” and “evidence” in Section 3
of the 1872 Act being the interpretation clause. The same reads
thus:
36
“3. Interpretation clause.
Document. "Document" means any matter expressed or
described upon any substance by means of letters, figures or
marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording
that matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are
documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
Evidence. "Evidence" means and includes—
(1) all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of
fact under inquiry, such statements are called oral
evidence;
(2) all documents including electronic records produced
for the inspection of the Court,
such documents are called documentary evidence.”
On a bare reading of the definition of “evidence”, it clearly takes
within its fold documentary evidence to mean and include all
documents including electronic records produced for the
inspection of the Court. Although, we need not dilate on the
question of admissibility of the contents of the memory
card/pendrive, the same will have to be answered on the basis
of Section 65B of the 1872 Act. The same reads thus:
37
“65B. Admissibility of electronic records.(1)
Notwithstanding anything contained in this Act, 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 (hereinafter
referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this
section are satisfied in relation to the information and
computer in question and shall be admissible in any
proceedings, without further proof or production of the
original, as evidence of any contents of the original or of
any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in subsection (1) in respect of
a computer output shall be the following, namely:
(a) the computer output containing the information
was produced by the computer during the period
over which the computer was used regularly to
store or process information for the purposes of
any activities regularly carried on over that period
by the person having lawful control over the use
of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind
from which the information so contained is
derived was regularly fed into the computer in the
ordinary course of the said activities;
(c) throughout the material part of the said period,
the computer was operating properly or, if not,
then in respect of any period in which it was not
operating properly or was out of operation during
that part of the period, was not such as to affect
the electronic record or the accuracy of its
contents; and
(d) the information contained in the electronic record
reproduces or is derived from such information
fed into the computer in the ordinary course of
the said activities.”
(3) Where over any period, the function of storing or
processing information for the purposes of any activities
regularly carried on over that period as mentioned in
38
clause (a) of subsection (2) was regularly performed by
computers, whether—
(a) by a combination of computers operating over
that period; or
(b) by different computers operating in succession
over that period; or
(c) by different combinations of computers operating
in succession over that period; or
(d) in any other manner involving the successive
operation over that period, in whatever order, of
one or more computers and one or more
combinations of computers, all the computers
used for that purpose during that period shall be
treated for the purposes of this section as
constituting a single computer; and references in
this section to a computer shall be construed
accordingly.
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say,—
(a) identifying the electronic record containing the
statement and describing the manner in which it
was produced;
(b) giving such particulars of any device involved in
the production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the
conditions mentioned in subsection (2) relate,
and purporting to be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device or
the management of the relevant activities
(whichever is appropriate) shall be evidence of any
matter stated in the certificate; and for the
purposes of this subsection it shall be sufficient
for a matter to be stated to the best of the
knowledge and belief of the person stating it.
(5) For the purposes of this section,—
39
(a) infomation shall be taken to be supplied to a
computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human intervention)
by means of any appropriate equipment;
(b) whether in the course of activities carried on by
any official information is supplied with a view to
its being stored or processed for the purposes of
those activities by a computer operated otherwise
than in the course of those activities, that
information, if duly supplied to that computer,
shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have been
produced by a computer whether it was produced
by it directly or (with or without human
intervention) by means of any appropriate
equipment.
Explanation.—For the purposes of this section any
reference to information being derived from other
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process.”
This provision 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.
26. It may be useful to also advert to Section 95(2)(b) of the
1973 Code, which refers to “document” to include any painting,
40
drawing or photograph, or other visible representation. And
again, the expression “document” has been defined in Section 29
of the 1860 Code, which reads thus:
‘‘29. “Document”.—The word “document” denotes any
matter expressed or described upon any substance by
means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used, as
evidence of that matter.
Explanation 1.—It is immaterial by what means or upon
what substance the letters, figures or marks are formed, or
whether the evidence is intended for, or may be used in, a
Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract, which may be
used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A powerofattorney is a document.
A map or plan which is intended to be used or which may be
used as evidence, is a document.
A writing containing directions or instructions is a
document.
Explanation 2.—Whatever is expressed by means of letters,
figures or marks as explained by mercantile or other usage,
shall be deemed to be expressed by such letters, figures or
marks within the meaning of this section, although the same
may not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable
to his order. The meaning of the endorsement, as explained
by mercantile usage, is that the bill is to be paid to the
holder. The endorsement is a document, and must be
construed in the same manner as if the words “pay to the
holder” or words to that effect had been written over the
signature.’’
41
27. Additionally, it may be apposite to also advert to the
definition of “communication devices” given in Section 2(1)(ha) of
the 2000 Act. The said provision reads thus:
‘‘2(1)(ha) ‘‘communication device’’ means cell phones,
personal digital assistance or combination of both or any
other device used to communicate, send or transmit any
text, video, audio or image’’
28. We may also advert to the definition of “information” as
provided in Section 2(1)(v) of the 2000 Act. The same reads
thus:
‘‘2(1)(v) ‘‘information’’ includes data, message, text, images
sound, voice, codes, computer programmes, software and
data bases or micro film or computer generated micro fiche’’
29. Even the definition of “document” given in the General
Clauses Act would reinforce the position that electronic records
ought to be treated as “document”. The definition of “document”
in Section 3(18) of the General Clauses Act reads thus:
‘‘3(18) ‘‘document’’ shall include any matter written,
expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those
means which is intended to be used, or which may be used,
for the purpose of recording that matter”
42
30. It may be apposite to refer to the exposition in Halsbury’s
laws of England15 dealing with Chapter – “Documentary and Real
Evidence” containing the meaning of documentary evidence and
the relevancy and admissibility thereof including about the audio
and video recordings. The relevant exposition reads thus:
“(12) DOCUMENTARY AND REAL EVIDENCE
1462. Meaning of documentary evidence. The term
‘document’ bears different meanings in different contexts. At
common law, it has been held that any written thing capable
of being evidence is properly described as a document16, and
this clearly includes printed text, diagrams, maps and plans17
.
Photographs are also regarded as documents at common law18
.
Varying definitions have been adopted in legislation19
. A
document may be relied on as real evidence (where its
existence, identity or appearance, rather than its content, is
in issue20), or as documentary evidence. Documentary
15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure
16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.
17 A tombstone bearing an inscription is in this sense a document (see Mortimer v.
M’Callan (1840) 6 M & W 58), as is a coffinplate bearing an inscription (see R v. Edge
(1842) Wills, Circumstantial Evidence (6th Edn.) 309).
18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex
p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler
International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160,
ChD.
19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means
anything in which information of any description is recorded: s. 118 (amended by the Civil
Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act
2003 Pt. 11 (ss. 98141) (as amended) (evidence), the definition is the same (see s. 134(1)),
save that for the purposes of Pt. 11 Ch. 3 (ss 137141) (which includes the provision
relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of
sounds or moving images (see s. 140).
20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855)
11 Exch 360. Documents produced by purely mechanical means may constitute real
evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo
Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film
43
evidence denotes reliance on a document as proof of its terms
or contents21. The question of the authenticity of a document is
to be decided by the jury22
.
1463. The primary evidence rule. Under the ‘primary evidence
rule’ at common law23, it was once thought necessary for the
contents of any private document to be proved by production of the
original document24. A copy of an original document, or oral
evidence as to the contents of that document, was considered
admissible only in specified circumstances, namely: (1) where
another party to the proceedings failed to comply with a notice to
produce the original which was in his possession (or where the
need to produce it was so clear that no such notice was
required)25; (2) where production of the original was shown to be
impossible26; (3) where the original appeared to have been lost or
destroyed27; and (4) where a third party in possession of the
original lawfully declined to produce it28….
xxx xxx xxx
of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator);
Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breathtesting device). See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005]
EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence
generally see para 1466 post.
21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a
document is, following the general rule, a question for the judge: See para 1360
ante. A document which the law requires to be stamped, but which is unstamped,
is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the
Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).
23 As to the related ‘best evidence rule’ see para 1367 ante.
24 As to the admissibility of examined or certified copies of public documents at common
law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.
25 AG v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v.
Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival
(1834) 1 Cr.M. & R 277.
27 R. v. Haworth (1830) 4 C & P 254
28 R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a
document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M &
W 664
44
1466. Real evidence. Material objects or things (other than the
contents of documents) which are produced as exhibits for
inspection by a court or jury are classed as real evidence29. The
court or jury may need to hear oral testimony explaining the
background and alleged significance of any such exhibit, and may
be assisted by expert evidence in drawing inferences or
conclusions from the condition of that exhibit30
.
Where a jury wishes to take an exhibit, such as a weapon, into
the jury room, this is something which the judge has a discretion
to permit31. Jurors must not however conduct unsupervised
experiments32, or be allowed to inspect a thing which has not been
produced in evidence33
.
Failure to produce an object which might otherwise have been
admissible as real evidence does not preclude the admission of oral
evidence concerning the existence or condition of that object,
although such evidence may carry far less weight34
.
xxx xxx xxx
1471. Audio and video recordings. An audio recording is
admissible in evidence provided that the accuracy of the recording
29 This include animals, such as dogs, which may be inspected to see if they are ferocious
(Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been illtreated, etc.
Note however that statements (such as statements of origin) printed on objects may give
rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v.
Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.
30 Expert evidence may often be essential if the court or jury is to draw any kind of
informed conclusions from their examination of the exhibit. It would be dangerous, for
example, for a court or jury to draw its own unaided conclusions concerning the identity of
fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All
ER 768, PC.
31 R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.
32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees
[1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653,
CA.
33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.
34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944]
KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85
Cr.App. Rep. 367, DC. If the object in question is in the possession of the prosecutor or of
a third person, its production may generally be compelled by issue of a witness order under
the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and
amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended)
(see para 1409 ante). The defendant cannot, however, be served with such an order, lest he
be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.
45
can be proved, the recorded voices can be properly identified, and
the evidence is relevant and otherwise admissible35. However, that
evidence should always be regarded with caution and assessed in
the light of all the circumstances36
.
A video recording of an incident which is in issue is
admissible37
. There is no difference in terms of admissibility
between a direct view of an incident and a view of it on a
visual display unit of a camera or on a recording of what the
camera has filmed. A witness who sees an incident on a
display or a recording may give evidence of what he saw in the
same way as a witness who had a direct view38.”
(emphasis supplied)
31. In order to examine the purport of the term “matter” as
found in Section 3 of the 1872 Act, Section 29 of the 1860 Code
and Section 3(18) of the General Clauses Act, and to ascertain
35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For
the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v.
Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris
[1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App.
Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video
recording of an incident becomes available after the witness has made a statement, the
witness may view the video and, if necessary, amend his statement so long as the
procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts
(Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.
36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As
to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA;
and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police
interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the
Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair
evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep
456, CA (tape recording admitted despite element of entrapment).
37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.
38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As
to the admissibility of video recordings as evidence identifying the defendant see also R. v.
Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v.
Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident
had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of
the defendant by still photographs taken by an automatic security camera see R. v.
Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification
generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an
incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.
46
whether the contents of the memory card can be regarded as
“document”, we deem it appropriate to refer to two Reports of the
Law Commission of India. In the 42nd Law Commission Report39
,
the Commission opined on the amendments to the 1860 Code.
Dealing with Section 29 of the 1860 Code, the Commission
opined as under:
“2.56. The main idea in all the three Acts is the same and
the emphasis is on the “matter” which is recorded, and not
on the substance on which the matter is recorded. We feel,
on the whole, that the Penal Code should contain a
definition of “document” for its own purpose, and that
section 29 should be retained.”
The said observation is restated in the 156th Report40, wherein
the Commission opined thus:
“11.08 Therefore, the term ‘document’ as defined in
Section 29, IPC may be enlarged so as to specifically
include therein any disc, tape, sound track or other device
on or in which any matter is recorded or stored by
mechanical, electronic or other means … … … The
aforesaid proposed amendment in section 29 would also
necessitate consequential amendment of the term
“document” under section 3 of the Indian Evidence Act,
1872 on the lines indicated above.”
Considering the aforementioned Reports, it can be concluded
that the contents of the memory card would be a “matter” and
39 FortySecond Report, Law Commission India, Indian Penal Code, June, 1971, 3235
40 One Hundred FiftySixth Report on the Indian Penal Code (Volume I), August, 1997,
Law Commission of India, ChapterXI
47
the memory card itself would be a “substance” and hence, the
contents of the memory card would be a “document”.
32. 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 the 1973 Code. The concomitant is that the
contents of the memory card/pendrive must be furnished to the
accused, which can be done in the form of cloned copy of the
memory card/pendrive. 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 the 1973
Code, but also the right of an accused to a fair trial enshrined in
Article 21 of the Constitution of India.
33. We do not wish to dilate further nor should we be
understood to have examined the question of relevancy of the
48
contents of the memory card/pendrive or for that matter the
proof and admissibility thereof. The only question that we have
examined in this appeal is: whether the contents of the memory
card/pendrive referred to in the chargesheet or the police report
submitted to Magistrate under Section 173 of the 1973 Code,
need to be furnished to the accused if the prosecution intends to
rely on the same by virtue of Section 207 of the 1973 Code?
34. Reverting to 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,
we find that the explanation offered by the appellant is plausible
inasmuch as 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
the 1973 Code, 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/pendrive does not take the matter any
49
further, once we recognize the right of the accused to get the
cloned copies of the contents of the memory card/pendrive as
being mandated by Section 207 of the 1973 Code and more so,
because of the right of the accused to a fair trial enshrined in
Article 21 of the Constitution of India.
35. The next crucial question is: whether parting of the cloned
copy of the contents of the memory card/pendrive and handing
it over to the accused may be safe or is likely to be misused by
the accused or any other person with or without the permission
of the accused concerned? 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/pendrive would be freely available to all the
accused.
36. Considering the principles laid down by this Court in
Tarun Tyagi (supra), we are of the opinion that certain
conditions need to be imposed in the fact situation of the present
50
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 wellnigh impossible to keep
track of the misuse of the cloned copy and its safe and secured
custody.
37. 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
51
analyzing the cloned copy of the subject memory card/pendrive,
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.
We are inclined to say so because the State FSL has already
submitted its forensic report in relation to the same memory card
at the instance of the investigating agency.
38. Needless to mention that the appellant before us or the
other accused cannot and are not claiming any expertise, much
less, capability of undertaking forensic analysis of the cloned
copy of the contents of the memory card/pendrive. They may
have to eventually depend on some expert agency. In our
opinion, 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 pendrive 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
52
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.
39. Considering that 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. This principle has been enunciated in the case of Asha
Ranjan v. State of Bihar41 wherein this Court held thus:
“57. The aforesaid decision is an authority for the
proposition that there can be a conflict between two
individuals qua their right under Article 21 of the
Constitution and in such a situation, to weigh the balance
the test that is required to be applied is the test of larger
public interest and further that would, in certain
circumstances, advance public morality of the day. To put
it differently, the “greater community interest” or
“interest of the collective or social order” would be the
principle to recognise and accept the right of one
which has to be protected.
xxx xxx xxx
61. Be it stated, circumstances may emerge that may
necessitate for balancing between intrafundamental
rights. It has been distinctly understood that the test that
has to be applied while balancing the two fundamental
rights or inter fundamental rights, the principles applied
may be different than the principle to be applied in intraconflict between the same fundamental right … … ... Thus,
there can be two individuals both having legitimacy to
41 (2017) 4 SCC 397
53
claim or assert the right. The factum of legitimacy is a
primary consideration. It has to be remembered that no
fundamental right is absolute and it can have limitations in
certain circumstances … … ... Therefore, if the collective
interest or the public interest that serves the public cause
and further has the legitimacy to claim or assert a
fundamental right, then only it can put forth that their
right should be protected. There can be no denial of the
fact that the rights of the victims for a fair trial is an
inseparable aspect of Article 21 of the Constitution and
when they assert that right by themselves as well as the
part of the collective, the conception of public interest gets
galvanised. The accentuated public interest in such
circumstances has to be given primacy, for it furthers and
promotes “Rule of Law”. It may be clarified at once that the
test of primacy which is based on legitimacy and the public
interest has to be adjudged on the facts of each case and
cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate
perception of the balancing that would subserve the larger
public interest and serve the majesty of rule of law. ... … …
xxx xxx xxx
86.1. The right to fair trial is not singularly absolute, as
is perceived, from the perspective of the accused. It
takes in its ambit and sweep the right of the victim(s)
and the society at large. These factors would
collectively allude and constitute the Rule of Law i.e.
free and fair trial.
86.2. The fair trial which is constitutionally protected as a
substantial right under Article 21 and also the statutory
protection, does invite for consideration a sense of conflict
with the interest of the victim(s) or the collective/interest of
the society. When there is an intraconflict in respect of
the same fundamental right from the true perceptions,
it is the obligation of the constitutional courts to weigh
the balance in certain circumstances, the interest of
the society as a whole, when it would promote and
instil Rule of Law. A fair trial is not what the accused
wants in the name of fair trial. Fair trial must soothe the
ultimate justice which is sought individually, but is
subservient and would not prevail when fair trial requires
transfer of the criminal proceedings.”
54
(emphasis supplied)
40. This Court in Mazdoor Kisan Shakti Sangathan v.
Union of India42 has restated the legal position in the following
terms:
“61. Undoubtedly, right of people to hold peaceful protests
and demonstrations, etc. is a fundamental right
guaranteed under Articles 19(1)(a) and 19(1)(b) of the
Constitution. The question is as to whether disturbances,
etc. caused by it to the residents, as mentioned in detail by
the NGT, is a larger public interest which outweighs the
rights of protestors to hold demonstrations at Jantar
Mantar Road and, therefore, amounts to reasonable
restriction in curbing such demonstrations. Here, we agree
with the detailed reasoning given by the NGT that holding
of demonstrations in the way it has been happening is
causing serious discomfort and harassment to the
residents. At the same time, it is also to be kept in mind
that for quite some time Jantar Mantar has been chosen as
a place for holding demonstrations and was earmarked by
the authorities as well. Going by the dicta in Asha
Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC
397 : (2017) 2 SCC (Cri) 376] , principle of primacy
cannot be given to one right whereby the right of the
other gets totally extinguished. Total extinction is not
balancing. Balancing would mean curtailing one right of
one class to some extent so that the right of the other
class is also protected.”
(emphasis supplied)
41. We are conscious of the fact that Section 207 of the 1973
Code 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
42 (2018) 17 SCC 324
55
Section 207, of being voluminous, ordinarily, cannot be invoked
and will be unavailable. We are also conscious of the dictum in
the case of Superintendent and Remembrancer of Legal
Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein
this Court has restated the cardinal principle that 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.
42. Nevertheless, the Court cannot be oblivious to the nature of
offence and the principle underlying the amendment to Section
327 of the 1973 Code, in particular subSection (2) thereof and
insertion of Section 228A of the 1860 Code, 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/pendrive from an independent
agency referred to above, so as to effectively defend himself
during the trial. Thus, balancing the rights of both parties is
imperative, as has been held in Asha Ranjan (supra) and
43 (1981) 2 SCC 109
56
Mazdoor Kisan Shakti Sangathan (supra). The Court is duty
bound to issue suitable directions. Even the High Court, in
exercise of inherent power under Section 482 of the 1973 Code,
is competent to issue suitable directions to meet the ends of
justice.
43. If the accused or his lawyer himself, additionally, intends to
inspect the contents of the memory card/pendrive 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, 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/pendrive in any manner. Such
57
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.
44. 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 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.
45. 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 hitherto, in particular
paragraphs 37, 38 and 43.
58
46. 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.
47. 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.
…………………………..J
(A.M. Khanwilkar)
…………………………..J
(Dinesh Maheshwari)
New Delhi;
November 29, 2019.
Section 2(1)(t) of the Information and 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 Code’)?
whether it is obligatory to furnish a cloned copy of the contents of such
memory card/pendrive 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’)?
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/pendrive 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)?
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 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1794 OF 2019
(Arising out of SLP(Crl.) No. 10189/2018)
P. Gopalkrishnan @ Dileep ..…Appellant(s)
Versus
State of Kerala and Anr. ….Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Leave granted.
2. The conundrum in this appeal is: 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 (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 Code’)? If so, whether it is
2
obligatory to furnish a cloned copy of the contents of such
memory card/pendrive 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/pendrive 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
3
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.
4
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 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
5
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 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
6
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 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
7
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 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.
8
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.
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.
9
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:
“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
10
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. 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. Definitely, in case of Justice
K.S. Puttaswamy (Retd.) and Another v. Union of India and
Ors. (2017) 10 SCC 1 (at page 1), 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, 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. In Sherin V. John’s case (supra), this
Court had held that, when there is a conflict between
Fundamental Rights of a person and statutory rights of
11
another person, Fundamental Rights will prevail. The
possibility of such contention may also arise. Since that
question does not arise in this case in the light of finding
under section 207 Cr.P.C. I do not venture to enter into that
issue.
44. Having considered the entire issue, I am inclined to
sustain the order of the court below in Crl.M.P. No.49 of
2018 in C.P. No.16 of 2017 dismissing the application,
though on different grounds. However, this will not preclude
the Court from permitting the accused to watch the memory
card only in Court, subject to restrictions, to prepare
defence.”
(emphasis supplied)
8. The appellant being dissatisfied, has assailed the reasons
which found favour with the trial Court, as well as the High
Court. The appellant broadly contends that the prosecution case
is founded on the forensic report which suggests that eight video
recordings were retrieved from the memory card and that the
video files were found to be recorded on 17.2.2017 between
22:30:55 hrs. and 22:48:40 hrs. The same were transferred to
the stated memory card on 18.2.2017 between 09:18 hrs. and
09:20 hrs. Be it noted that the original video recording was
allegedly done by accused No. 1 on his personal mobile phone,
which has not been produced by the investigating agency.
However, the memory card on which the offending video
recording was copied on 18.2.2017 was allegedly handed over by
12
an Advocate claiming that the accused No. 1 had given it to him.
He had presented the memory card before the Court on
20.2.2017, which was sent for forensic examination at State FSL,
Thiruvananthapuram. After forensic examination, the same was
returned alongwith FSL report DD No. 91/2017 dated 3.3.2017
and DD No. 115/2017 dated 7.4.2017. A pendrive containing
the data/visuals retrieved from the memory card, was also
enclosed with the report sent by the State FSL.
9. Be that as it may, the prosecution was obviously relying on
the contents of the memory card which have been copied on the
pendrive by the State FSL during the analysis thereof and has
been so adverted to in the police report. 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
13
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.
In the alternative, 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.
10. Per contra, the respondentState and the intervenor (the
victim) have vehementaly opposed the present appeal on the
argument that the appellant before this Court is none other than
the mastermind of the conspiracy. Although he was not
personally present on the spot, but the entire incident has
occurred at his behest. It is urged that the appeal deserves to be
14
dismissed as the appellant has disclosed the identity of the
victim in the memo of the special leave petition from which the
present appeal has arisen. Further, the appellant has falsely
asserted that he had himself perused the contents of the pendrive and even for this reason, the appeal should be dismissed at
the threshold. As a matter of fact, the contents of the pendrive
were allowed to be viewed by the appellant’s counsel and the
regular cadre Assistant Public Prosecutor of the Court. The
asservation of the appellant that after viewing the contents of the
pendrive, he gathered an impression that the contents of the
memory card must have been tampered with, is the figment of
imagination of the appellant and contrary to forensic report(s) by
the State FSL. 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 pendrive is both material object as well as “document”. It is also
15
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 alongwith the police report. The
contents of the memory card or the pendrive cannot be parted to
the accused and doing so itself would be an independent offence.
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 exposition in those decisions are general observations and
would be of no avail to the appellant. The appellant is facing
prosecution for an offence of rape, and the trial thereof would be
an incamera trial before the Special Court. To maintain the
sanctity and for upholding the privacy, dignity and identity of the
victim, it is urged that the accused/appellant in such cases can
seek limited relief before the trial Court to permit him and his
lawyer or an expert to view the contents of the pendrive in Court
16
or at best to permit him to take a second opinion of expert to
reassure himself in respect of the doubts entertained by him.
Such indulgence would obviate the possibility of misuse of the
cloned copy of the video/audio footage/clipping and the same
would be in the nature of a preventive measure while giving a fair
opportunity to the accused to defend himself. The respondent
and the intervenor would urge that the appeal be dismissed
being devoid of merits.
11. As aforesaid, both sides have relied on reported decisions of
this Court, as well as the High Courts and on the provisions of
the relevant enactments to buttress the submissions. We shall
refer thereto as may be required.
12. We have heard Mr. Mukul Rohatgi, learned senior counsel
for the appellant, Mr. Ranjit Kumar, learned senior counsel for
the respondentState and Mr. R. Basant, learned senior counsel
for the intervenor.
13. The central issue is about the obligation of the investigating
officer flowing from Section 173 of the 1973 Code and that of the
17
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. The investigating officer
after completing the investigation, 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.
Indeed, it is open to the police officer, if in his opinion, any part
18
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. As regards the documents, subSection (7) 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
subSection (5) to the accused. Section 173, as amended and
applicable to the case at hand, reads thus:
‘‘173. Report of police officer on completion of
investigation.—(1) Every investigation under this Chapter
shall be completed without unnecessary delay.
(1A) The investigation in relation to an offence under sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or
376E of the Indian Penal Code (45 of 1860) shall be
completed within two months from the date on which the
information was recorded by the officer in charge of the
police station.
(2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to
19
take cognizance of the offence on a police report, a report in
the form prescribed by the State Government, stating—
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed
and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
(g) whether he has been forwarded in custody under
section 170;
(h) whether the report of medical examination of the
woman has been attached where investigation relates to
an offence under sections 376, 376A, 376AB, 376B,
376C, 376D, 376DA, 376DB or section 376E of the
Indian Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as
may be prescribed by the State Government, the action
taken by him, to the person, if any, by whom the
information relating to the commission of the offence was
first given.
(3) Where a superior officer of police has been appointed
under section 158, the report, shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the
police station to make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to
the Magistrate along with the report—
20
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during
investigation;
(b) the statements recorded under section 161 of all
the persons whom the prosecution proposes to
examine as its witnesses.
(6) If the police officer is of opinion that any part of any
such statement is not relevant to the subjectmatter of
the proceedings or that its disclosure to the accused is
not essential in the interests of justice and is
inexpedient in the public interest, he shall 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.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused
copies of all or any of the documents referred to in subsection (5).
(8) Nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report
under subsection (2) has been forwarded to the Magistrate
and, where upon such investigation, the officer in charge of
the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further
report or reports regarding such evidence in the form
prescribed; and the provisions of subsections (2) to (6) shall,
as far as may be, apply in relation to such report or reports
as they apply in relation to a report forwarded under subsection (2).’’
(emphasis supplied)
14. Concededly, as regards 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
21
“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. SubSection (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 the 1973
Code 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.
15. 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. Section 207
reads thus:
22
‘‘ 207. Supply to the accused of copy of police report
and other documents.—In any case where the proceeding
has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of
each of the following:—
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under subsection (3) of section
161 of all persons whom the prosecution proposes to
examine as its witnesses, excluding therefrom any part in
regard to which a request for such exclusion has been made
by the police officer under subsection (6) of section 173;
(iv) the confessions and statements, if any, recorded under
section 164;
(v) any other document or relevant extract thereof forwarded
to the Magistrate with the police report under subsection (5)
of section 173:
Provided that the Magistrate may, after perusing any
such part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or of
such portion thereof as the Magistrate thinks proper, shall
be furnished to the accused:
Provided further that if the Magistrate is satisfied that
any document referred to in clause (v) is voluminous, he
shall, instead of furnishing the accused with a copy thereof,
direct that he will only be allowed to inspect it either
personally or through pleader in Court.’’
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 comes to
23
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 the
1973 Code 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 subSection (6) of Section 173 of the
1973 Code.
16. Be that as it may, 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. We may
24
usefully advert to the dictum in Hardeep Singh v. State of
Punjab1 wherein it was held that:
“47. Since after the filing of the chargesheet, the court
reaches the stage of inquiry and as soon as the court
frames the charges, the trial commences, and therefore, the
power under Section 319(1) CrPC can be exercised at any
time after the chargesheet is filed and before the
pronouncement of judgment, except during the stage of
Sections 207/208 CrPC, committal, etc. which is only a
pretrial stage, intended to put the process into motion.
This stage cannot be said to be a judicial step in the true
sense for it only requires an application of mind rather
than a judicial application of mind. At this pretrial stage,
the Magistrate is required to perform acts in the nature
of administrative work rather than judicial such as
ensuring compliance with Sections 207 and 208 CrPC, and
committing the matter if it is exclusively triable by the
Sessions Court ... … …”
(emphasis supplied)
In yet another case of Tarun Tyagi vs. CBI2
, this Court
considered the purport of Section 207 of the 1973 Code and
observed as follows:
“8. Section 207 puts an obligation on the prosecution to
furnish to the accused, free of cost, copies of the
documents mentioned therein, without any delay. It
includes, documents or the relevant extracts thereof which
are forwarded by the police to the Magistrate with its report
under Section 173(5) of the Code. Such a compliance has
to be made on the first date when the accused appears or
is brought before the Magistrate at the commencement of
the trial inasmuch as Section 238 of the Code warrants the
Magistrate to satisfy himself that provisions of Section 207
have been complied with. Proviso to Section 207 states
that if documents are voluminous, instead of furnishing
the accused with the copy thereof, the Magistrate can allow
1 (2014) 3 SCC 92
2 (2017) 4 SCC 490
25
the accused to inspect it either personally or through
pleader in the Court.”
17. It is well established position that when statute is
unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences as expounded in Nelson Motis
v. Union of India3
. On a bare reading of Section 207 of the
1973 Code, no other interpretation is possible.
18. Be that as it may, furnishing of documents to the accused
under Section 207 of the 1973 Code is a facet of right of the
accused to a fair trial enshrined in Article 21 of the Constitution.
In Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi)4
, this Court expounded thus:
“218. The liberty of an accused cannot be interfered with
except under due process of law. The expression “due
process of law” shall deem to include fairness in trial. The
court (sic Code) gives a right to the accused to receive all
documents and statements as well as to move an
application for production of any record or witness in
support of his case. This constitutional mandate and
statutory rights given to the accused place an implied
obligation upon the prosecution (prosecution and the
Prosecutor) to make fair disclosure. The concept of fair
disclosure would take in its ambit furnishing of a
document which the prosecution relies upon whether filed
in court or not. That document should essentially be
3 (1992) 4 SCC 711
4 (2010) 6 SCC 1
26
furnished to the accused and even in the cases where
during investigation a document is bona fide obtained by
the investigating agency and in the opinion of the
Prosecutor is relevant and would help in arriving at the
truth, that document should also be disclosed to the
accused.
219. The role and obligation of the Prosecutor particularly
in relation to disclosure cannot be equated under our law
to that prevalent under the English system as aforereferred
to. But at the same time, the demand for a fair trial cannot
be ignored. It may be of different consequences where a
document which has been obtained suspiciously,
fraudulently or by causing undue advantage to the accused
during investigation such document could be denied in the
discretion of the Prosecutor to the accused whether the
prosecution relies or not upon such documents, however in
other cases the obligation to disclose would be more
certain. As already noticed the provisions of Section
207 have a material bearing on this subject and make
an interesting reading. This provision not only require
or mandate that the court without delay and free of
cost should furnish to the accused copies of the police
report, first information report, statements,
confessional statements of the persons recorded under
Section 161 whom the prosecution wishes to examine
as witnesses, of course, excluding any part of a
statement or document as contemplated under Section
173(6) of the Code, any other document or relevant
extract thereof which has been submitted to the
Magistrate by the police under subsection (5) of
Section 173. In contradistinction to the provisions of
Section 173, where the legislature has used the
expression “documents on which the prosecution
relies” are not used under Section 207 of the Code.
Therefore, the provisions of Section 207 of the Code
will have to be given liberal and relevant meaning so as
to achieve its object. Not only this, the documents
submitted to the Magistrate along with the report
under Section 173(5) would deem to include the
documents which have to be sent to the Magistrate
during the course of investigation as per the
requirement of Section 170(2) of the Code.
27
220. The right of the accused with regard to disclosure of
documents is a limited right but is codified and is the very
foundation of a fair investigation and trial. On such
matters, the accused cannot claim an indefeasible legal
right to claim every document of the police file or even the
portions which are permitted to be excluded from the
documents annexed to the report under Section 173(2) as
per orders of the court. But certain rights of the accused
flow both from the codified law as well as from equitable
concepts of the constitutional jurisdiction, as substantial
variation to such procedure would frustrate the very basis
of a fair trial. To claim documents within the purview of
scope of Sections 207, 243 read with the provisions of
Section 173 in its entirety and power of the court under
Section 91 of the Code to summon documents signifies and
provides precepts which will govern the right of the accused
to claim copies of the statement and documents which the
prosecution has collected during investigation and upon
which they rely.
221. It will be difficult for the Court to say that the accused
has no right to claim copies of the documents or request
the Court for production of a document which is part of the
general diary subject to satisfying the basic ingredients of
law stated therein. A document which has been obtained
bona fide and has bearing on the case of the prosecution
and in the opinion of the Public Prosecutor, the same
should be disclosed to the accused in the interest of justice
and fair investigation and trial should be furnished to the
accused. Then that document should be disclosed to the
accused giving him chance of fair defence, particularly
when nonproduction or disclosure of such a document
would affect administration of criminal justice and the
defence of the accused prejudicially.”
(emphasis supplied)
19. Similarly, in V.K. Sasikala v. State5
, this Court held as
under:
“21. The issue that has emerged before us is, therefore,
somewhat larger than what has been projected by the State
and what has been dealt with by the High Court. The
5 (2012) 9 SCC 771
28
question arising would no longer be one of compliance
or noncompliance with the provisions of Section 207
CrPC and would travel beyond the confines of the strict
language of the provisions of Cr.PC and touch upon the
larger doctrine of a free and fair trial that has been
painstakingly built up by the courts on a purposive
interpretation of Article 21 of the Constitution. It is not
the stage of making of the request; the efflux of time that
has occurred or the prior conduct of the accused that is
material. What is of significance is if in a given situation
the accused comes to the court contending that some
papers forwarded to the court by the investigating agency
have not been exhibited by the prosecution as the same
favours the accused the court must concede a right to the
accused to have an access to the said documents, if so
claimed. This, according to us, is the core issue in the case
which must be answered affirmatively. In this regard, we
would like to be specific in saying that we find it difficult to
agree with the view taken by the High Court that the
accused must be made to await the conclusion of the trial
to test the plea of prejudice that he may have raised. Such
a plea must be answered at the earliest and certainly
before the conclusion of the trial, even though it may be
raised by the accused belatedly. This is how the scales of
justice in our criminal jurisprudence have to be balanced.”
(emphasis supplied)
20. The next seminal question is: whether the contents of the
memory card/pendrive submitted to the Court alongwith the
police report can be treated as “document” as such. Indubitably,
if the contents of the memory card/pendrive 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 the
1973 Code would not arise. We say so because it is nobody’s
29
case before us that the contents of the memory card/pendrive
be treated as a “statement” ascribable to Section 173(5)(b) of the
1973 Code. 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.
21. The High Court adverted to certain judgments before
concluding that the memory card would be a material object. For
arriving at the said conclusion, the High Court relied on the
decision of the King’s Bench of United Kingdom in The King v.
Daye6
, wherein Darling J., adding to the majority opinion, had
held thus:
“…But I should myself say that any written thing
capable of being evidence is properly described as a
document and that it is immaterial on what the writing
may be inscribed. It might be inscribed on paper, as is
the common case now; but the common case once was
that it was not on paper, but on parchment; and long
before that it was on stone, marble, or clay, and it
might be, and often was, on metal. So I should desire to
guard myself against being supposed to assent to the
argument that a thing is not a document unless it be a
paper writing. I should say it is a document no matter
upon what material it be, provided it is writing or printing
and capable of being evidence.”
(emphasis supplied)
6 [1908] 2 K.B. 333
30
The High Court also relied on the decision of the Chancery Court
in Grant and Another v. Southwester and County Properties
Ltd. and Another7
, wherein it was observed as follows:
“There are a number of cases in which the meaning of
the word "document" has been discussed in varying
circumstances. Before briefly referring to such cases, it
will, I think, be convenient to bear in mind that the
derivation of the word is from the Latin "documentum": it is
something which instructs or provides information. Indeed,
according to Bullokar's English Expositor (1621), it meant
a lesson. The Shorter Oxford English Dictionary has as the
fourth meaning for the word the following: "Something
written, inscribed, etc., which furnishes evidence or
information upon any subject, as a manuscript, titledeed,
coin, etc.," and it produces as the relevant quotation:
"These frescoes... have become invaluable as documents,"
the writer being Mrs. Anna Brownell Jameson who lived
from 1794 to 1860.
I think that all the authorities to which I am about to
refer have consistently stressed the furnishing of
information impliedly otherwise than as to the document
itself as being one of the main functions of a document.
Indeed, in In Re Alderton and Barry's Application (1941) 59
R.P.C. 56, Morton J. expressly doubted whether blank
workmen's time sheets could be classified as documents
within section 11(1)(b) of the Patent and Design Acts 1907
1939 expressly because in their original state they
conveyed no information of any kind to anybody...”
It can be safely deduced from the aforementioned expositions
that the basis of classifying article as a “document” depends
upon the information which is inscribed and not on where it is
inscribed. It may be useful to advert to the exposition of this
7 [1975] Ch. 185
31
Court holding that tape records of speeches8
and audio/video
cassettes9
including compact disc10 were “documents” under
Section 3 of the 1872 Act, 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 Act11
.
22. It is apposite to recall the exposition of this Court in State
of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court
observed that 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. In paragraph 14 of the said
decision, the Court observed thus:
“14. It must also be remembered that the Criminal
Procedure Code is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly
8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17
10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485
11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473
12 (2003) 4 SCC 601
32
set out by the leading jurist Francis Bennion in his
commentaries titled Statutory Interpretation, 2nd Edn., p.
617:
“It is presumed Parliament intends the court to apply to
an ongoing Act a construction that continuously
updates its wordings to allow for changes since the Act
was initially framed. While it remains law, it has to be
treated as always speaking. This means that in its
application on any day, the language of the Act though
necessarily embedded in its own time, is nevertheless to
be construed in accordance with the need to treat it as a
current law.
***
In construing an ongoing Act, the interpreter is to
presume that Parliament intended the Act to be applied
at any future time in such a way as to give effect to the
original intention. Accordingly, the interpreter is to
make allowances for any relevant changes that have
occurred since the Act's passing, in law, in social
conditions, technology, the meaning of words and other
matters…. That today's construction involves the
supposition that Parliament was catering long ago for a
state of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of
an enactment, is expected to anticipate temporal
developments. The drafter will foresee the future and
allow for it in the wording.
***
An enactment of former days is thus to be read today, in
the light of dynamic processing received over the years,
with such modification of the current meaning of its
language as will now give effect to the original legislative
intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and
year out. It also comprises processing by executive
officials.””
(emphasis supplied)
23. As aforesaid, the respondents and intervenor would contend
that the memory card is a material object and not a “document”
33
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. In this regard, we may refer to Phipson on
Evidence13, and particularly, the following paragraph(s):
“The purpose for which it is produced determines
whether a document is to be regarded as documentary
evidence. When adduced to prove its physical
condition, for example, an alteration, presence of a
signature, bloodstain or fingerprint, it is real evidence.
So too, if its relevance lies in the simple fact that it
exists or did once exist or its disposition or nature. In
all these cases the content of the document, if relevant
at all, is only indirectly relevant, for example to
establish that the document in question is a lease.
When the relevance of a document depends on the
meaning of its contents, it is considered documentary
evidence.”
... ... ...”
(emphasis supplied)
Again at page 5 of the same book, the definition of “real
evidence14” is given as under:
“Material objects other than documents, produced for
inspection of the court, are commonly called real evidence.
This, when available, is probably the most satisfactory kind
of all, since, save for identification or explanation, neither
testimony nor inference is relied upon. Unless its
13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450
14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5
34
genuineness is in dispute [See Belt v Lawes, The Times, 17
November 1882.], the thing speaks for itself.
Unfortunately, however, the term “real evidence” is
itself both indefinite and ambiguous, having been used in
three divergent senses:
(1) … … …
(2) Material objects produced for the inspection of the
court. This is the second and most widely accepted
meaning of “real evidence”. It must be borne in mind
that there is a distinction between a document used as
a record of a transaction, such as a conveyance, and a
document as a thing. It depends on the circumstances
in which classification it falls. On a charge of stealing a
document, for example, the document is a thing.
(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. Section 2(1)(t) of the
2000 Act reads thus:
‘‘2(1)(t) “electronic record” means data, record or data
generated, image or sound stored, received or sent in an
electronic form or micro film or computergenerated micro
fiche;’’
24. As the above definition refers to data or data generated,
image or sound stored, received or sent in an electronic form, it
35
would be apposite to advert to the definition of “data” as
predicated in Section 2(1)(o) of the same Act. It reads thus:
“2(1)(o) “data” means a representation of information,
knowledge, facts, concepts or instructions which are being
prepared or have been prepared in a formalised manner, and
is intended to be processed, is being processed or has been
processed in a computer system or computer network, and
may be in any form (including computer printouts magnetic
or optical storage media, punched cards, punched tapes) or
stored internally in the memory of the computer;’’
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.
25. Having noticed the above definitions, we may now turn to
definitions of expressions “document” and “evidence” in Section 3
of the 1872 Act being the interpretation clause. The same reads
thus:
36
“3. Interpretation clause.
Document. "Document" means any matter expressed or
described upon any substance by means of letters, figures or
marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording
that matter.
Illustrations
A writing is a document;
Words printed, lithographed or photographed are
documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
Evidence. "Evidence" means and includes—
(1) all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of
fact under inquiry, such statements are called oral
evidence;
(2) all documents including electronic records produced
for the inspection of the Court,
such documents are called documentary evidence.”
On a bare reading of the definition of “evidence”, it clearly takes
within its fold documentary evidence to mean and include all
documents including electronic records produced for the
inspection of the Court. Although, we need not dilate on the
question of admissibility of the contents of the memory
card/pendrive, the same will have to be answered on the basis
of Section 65B of the 1872 Act. The same reads thus:
37
“65B. Admissibility of electronic records.(1)
Notwithstanding anything contained in this Act, 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 (hereinafter
referred to as the computer output) shall be deemed to be
also a document, if the conditions mentioned in this
section are satisfied in relation to the information and
computer in question and shall be admissible in any
proceedings, without further proof or production of the
original, as evidence of any contents of the original or of
any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in subsection (1) in respect of
a computer output shall be the following, namely:
(a) the computer output containing the information
was produced by the computer during the period
over which the computer was used regularly to
store or process information for the purposes of
any activities regularly carried on over that period
by the person having lawful control over the use
of the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind
from which the information so contained is
derived was regularly fed into the computer in the
ordinary course of the said activities;
(c) throughout the material part of the said period,
the computer was operating properly or, if not,
then in respect of any period in which it was not
operating properly or was out of operation during
that part of the period, was not such as to affect
the electronic record or the accuracy of its
contents; and
(d) the information contained in the electronic record
reproduces or is derived from such information
fed into the computer in the ordinary course of
the said activities.”
(3) Where over any period, the function of storing or
processing information for the purposes of any activities
regularly carried on over that period as mentioned in
38
clause (a) of subsection (2) was regularly performed by
computers, whether—
(a) by a combination of computers operating over
that period; or
(b) by different computers operating in succession
over that period; or
(c) by different combinations of computers operating
in succession over that period; or
(d) in any other manner involving the successive
operation over that period, in whatever order, of
one or more computers and one or more
combinations of computers, all the computers
used for that purpose during that period shall be
treated for the purposes of this section as
constituting a single computer; and references in
this section to a computer shall be construed
accordingly.
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a certificate
doing any of the following things, that is to say,—
(a) identifying the electronic record containing the
statement and describing the manner in which it
was produced;
(b) giving such particulars of any device involved in
the production of that electronic record as may be
appropriate for the purpose of showing that the
electronic record was produced by a computer;
(c) dealing with any of the matters to which the
conditions mentioned in subsection (2) relate,
and purporting to be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device or
the management of the relevant activities
(whichever is appropriate) shall be evidence of any
matter stated in the certificate; and for the
purposes of this subsection it shall be sufficient
for a matter to be stated to the best of the
knowledge and belief of the person stating it.
(5) For the purposes of this section,—
39
(a) infomation shall be taken to be supplied to a
computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human intervention)
by means of any appropriate equipment;
(b) whether in the course of activities carried on by
any official information is supplied with a view to
its being stored or processed for the purposes of
those activities by a computer operated otherwise
than in the course of those activities, that
information, if duly supplied to that computer,
shall be taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have been
produced by a computer whether it was produced
by it directly or (with or without human
intervention) by means of any appropriate
equipment.
Explanation.—For the purposes of this section any
reference to information being derived from other
information shall be a reference to its being derived
therefrom by calculation, comparison or any other
process.”
This provision 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.
26. It may be useful to also advert to Section 95(2)(b) of the
1973 Code, which refers to “document” to include any painting,
40
drawing or photograph, or other visible representation. And
again, the expression “document” has been defined in Section 29
of the 1860 Code, which reads thus:
‘‘29. “Document”.—The word “document” denotes any
matter expressed or described upon any substance by
means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used, as
evidence of that matter.
Explanation 1.—It is immaterial by what means or upon
what substance the letters, figures or marks are formed, or
whether the evidence is intended for, or may be used in, a
Court of Justice, or not.
Illustrations
A writing expressing the terms of a contract, which may be
used as evidence of the contract, is a document.
A cheque upon a banker is a document.
A powerofattorney is a document.
A map or plan which is intended to be used or which may be
used as evidence, is a document.
A writing containing directions or instructions is a
document.
Explanation 2.—Whatever is expressed by means of letters,
figures or marks as explained by mercantile or other usage,
shall be deemed to be expressed by such letters, figures or
marks within the meaning of this section, although the same
may not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable
to his order. The meaning of the endorsement, as explained
by mercantile usage, is that the bill is to be paid to the
holder. The endorsement is a document, and must be
construed in the same manner as if the words “pay to the
holder” or words to that effect had been written over the
signature.’’
41
27. Additionally, it may be apposite to also advert to the
definition of “communication devices” given in Section 2(1)(ha) of
the 2000 Act. The said provision reads thus:
‘‘2(1)(ha) ‘‘communication device’’ means cell phones,
personal digital assistance or combination of both or any
other device used to communicate, send or transmit any
text, video, audio or image’’
28. We may also advert to the definition of “information” as
provided in Section 2(1)(v) of the 2000 Act. The same reads
thus:
‘‘2(1)(v) ‘‘information’’ includes data, message, text, images
sound, voice, codes, computer programmes, software and
data bases or micro film or computer generated micro fiche’’
29. Even the definition of “document” given in the General
Clauses Act would reinforce the position that electronic records
ought to be treated as “document”. The definition of “document”
in Section 3(18) of the General Clauses Act reads thus:
‘‘3(18) ‘‘document’’ shall include any matter written,
expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those
means which is intended to be used, or which may be used,
for the purpose of recording that matter”
42
30. It may be apposite to refer to the exposition in Halsbury’s
laws of England15 dealing with Chapter – “Documentary and Real
Evidence” containing the meaning of documentary evidence and
the relevancy and admissibility thereof including about the audio
and video recordings. The relevant exposition reads thus:
“(12) DOCUMENTARY AND REAL EVIDENCE
1462. Meaning of documentary evidence. The term
‘document’ bears different meanings in different contexts. At
common law, it has been held that any written thing capable
of being evidence is properly described as a document16, and
this clearly includes printed text, diagrams, maps and plans17
.
Photographs are also regarded as documents at common law18
.
Varying definitions have been adopted in legislation19
. A
document may be relied on as real evidence (where its
existence, identity or appearance, rather than its content, is
in issue20), or as documentary evidence. Documentary
15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure
16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.
17 A tombstone bearing an inscription is in this sense a document (see Mortimer v.
M’Callan (1840) 6 M & W 58), as is a coffinplate bearing an inscription (see R v. Edge
(1842) Wills, Circumstantial Evidence (6th Edn.) 309).
18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex
p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler
International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160,
ChD.
19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means
anything in which information of any description is recorded: s. 118 (amended by the Civil
Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act
2003 Pt. 11 (ss. 98141) (as amended) (evidence), the definition is the same (see s. 134(1)),
save that for the purposes of Pt. 11 Ch. 3 (ss 137141) (which includes the provision
relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of
sounds or moving images (see s. 140).
20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855)
11 Exch 360. Documents produced by purely mechanical means may constitute real
evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo
Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film
43
evidence denotes reliance on a document as proof of its terms
or contents21. The question of the authenticity of a document is
to be decided by the jury22
.
1463. The primary evidence rule. Under the ‘primary evidence
rule’ at common law23, it was once thought necessary for the
contents of any private document to be proved by production of the
original document24. A copy of an original document, or oral
evidence as to the contents of that document, was considered
admissible only in specified circumstances, namely: (1) where
another party to the proceedings failed to comply with a notice to
produce the original which was in his possession (or where the
need to produce it was so clear that no such notice was
required)25; (2) where production of the original was shown to be
impossible26; (3) where the original appeared to have been lost or
destroyed27; and (4) where a third party in possession of the
original lawfully declined to produce it28….
xxx xxx xxx
of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator);
Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breathtesting device). See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005]
EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence
generally see para 1466 post.
21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a
document is, following the general rule, a question for the judge: See para 1360
ante. A document which the law requires to be stamped, but which is unstamped,
is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the
Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).
23 As to the related ‘best evidence rule’ see para 1367 ante.
24 As to the admissibility of examined or certified copies of public documents at common
law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.
25 AG v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v.
Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival
(1834) 1 Cr.M. & R 277.
27 R. v. Haworth (1830) 4 C & P 254
28 R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a
document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M &
W 664
44
1466. Real evidence. Material objects or things (other than the
contents of documents) which are produced as exhibits for
inspection by a court or jury are classed as real evidence29. The
court or jury may need to hear oral testimony explaining the
background and alleged significance of any such exhibit, and may
be assisted by expert evidence in drawing inferences or
conclusions from the condition of that exhibit30
.
Where a jury wishes to take an exhibit, such as a weapon, into
the jury room, this is something which the judge has a discretion
to permit31. Jurors must not however conduct unsupervised
experiments32, or be allowed to inspect a thing which has not been
produced in evidence33
.
Failure to produce an object which might otherwise have been
admissible as real evidence does not preclude the admission of oral
evidence concerning the existence or condition of that object,
although such evidence may carry far less weight34
.
xxx xxx xxx
1471. Audio and video recordings. An audio recording is
admissible in evidence provided that the accuracy of the recording
29 This include animals, such as dogs, which may be inspected to see if they are ferocious
(Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been illtreated, etc.
Note however that statements (such as statements of origin) printed on objects may give
rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v.
Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.
30 Expert evidence may often be essential if the court or jury is to draw any kind of
informed conclusions from their examination of the exhibit. It would be dangerous, for
example, for a court or jury to draw its own unaided conclusions concerning the identity of
fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All
ER 768, PC.
31 R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.
32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees
[1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653,
CA.
33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.
34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944]
KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85
Cr.App. Rep. 367, DC. If the object in question is in the possession of the prosecutor or of
a third person, its production may generally be compelled by issue of a witness order under
the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and
amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended)
(see para 1409 ante). The defendant cannot, however, be served with such an order, lest he
be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.
45
can be proved, the recorded voices can be properly identified, and
the evidence is relevant and otherwise admissible35. However, that
evidence should always be regarded with caution and assessed in
the light of all the circumstances36
.
A video recording of an incident which is in issue is
admissible37
. There is no difference in terms of admissibility
between a direct view of an incident and a view of it on a
visual display unit of a camera or on a recording of what the
camera has filmed. A witness who sees an incident on a
display or a recording may give evidence of what he saw in the
same way as a witness who had a direct view38.”
(emphasis supplied)
31. In order to examine the purport of the term “matter” as
found in Section 3 of the 1872 Act, Section 29 of the 1860 Code
and Section 3(18) of the General Clauses Act, and to ascertain
35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For
the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v.
Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris
[1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App.
Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video
recording of an incident becomes available after the witness has made a statement, the
witness may view the video and, if necessary, amend his statement so long as the
procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts
(Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.
36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As
to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA;
and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police
interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the
Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair
evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep
456, CA (tape recording admitted despite element of entrapment).
37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.
38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As
to the admissibility of video recordings as evidence identifying the defendant see also R. v.
Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v.
Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident
had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of
the defendant by still photographs taken by an automatic security camera see R. v.
Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification
generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an
incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.
46
whether the contents of the memory card can be regarded as
“document”, we deem it appropriate to refer to two Reports of the
Law Commission of India. In the 42nd Law Commission Report39
,
the Commission opined on the amendments to the 1860 Code.
Dealing with Section 29 of the 1860 Code, the Commission
opined as under:
“2.56. The main idea in all the three Acts is the same and
the emphasis is on the “matter” which is recorded, and not
on the substance on which the matter is recorded. We feel,
on the whole, that the Penal Code should contain a
definition of “document” for its own purpose, and that
section 29 should be retained.”
The said observation is restated in the 156th Report40, wherein
the Commission opined thus:
“11.08 Therefore, the term ‘document’ as defined in
Section 29, IPC may be enlarged so as to specifically
include therein any disc, tape, sound track or other device
on or in which any matter is recorded or stored by
mechanical, electronic or other means … … … The
aforesaid proposed amendment in section 29 would also
necessitate consequential amendment of the term
“document” under section 3 of the Indian Evidence Act,
1872 on the lines indicated above.”
Considering the aforementioned Reports, it can be concluded
that the contents of the memory card would be a “matter” and
39 FortySecond Report, Law Commission India, Indian Penal Code, June, 1971, 3235
40 One Hundred FiftySixth Report on the Indian Penal Code (Volume I), August, 1997,
Law Commission of India, ChapterXI
47
the memory card itself would be a “substance” and hence, the
contents of the memory card would be a “document”.
32. 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 the 1973 Code. The concomitant is that the
contents of the memory card/pendrive must be furnished to the
accused, which can be done in the form of cloned copy of the
memory card/pendrive. 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 the 1973
Code, but also the right of an accused to a fair trial enshrined in
Article 21 of the Constitution of India.
33. We do not wish to dilate further nor should we be
understood to have examined the question of relevancy of the
48
contents of the memory card/pendrive or for that matter the
proof and admissibility thereof. The only question that we have
examined in this appeal is: whether the contents of the memory
card/pendrive referred to in the chargesheet or the police report
submitted to Magistrate under Section 173 of the 1973 Code,
need to be furnished to the accused if the prosecution intends to
rely on the same by virtue of Section 207 of the 1973 Code?
34. Reverting to 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,
we find that the explanation offered by the appellant is plausible
inasmuch as 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
the 1973 Code, 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/pendrive does not take the matter any
49
further, once we recognize the right of the accused to get the
cloned copies of the contents of the memory card/pendrive as
being mandated by Section 207 of the 1973 Code and more so,
because of the right of the accused to a fair trial enshrined in
Article 21 of the Constitution of India.
35. The next crucial question is: whether parting of the cloned
copy of the contents of the memory card/pendrive and handing
it over to the accused may be safe or is likely to be misused by
the accused or any other person with or without the permission
of the accused concerned? 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/pendrive would be freely available to all the
accused.
36. Considering the principles laid down by this Court in
Tarun Tyagi (supra), we are of the opinion that certain
conditions need to be imposed in the fact situation of the present
50
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 wellnigh impossible to keep
track of the misuse of the cloned copy and its safe and secured
custody.
37. 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
51
analyzing the cloned copy of the subject memory card/pendrive,
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.
We are inclined to say so because the State FSL has already
submitted its forensic report in relation to the same memory card
at the instance of the investigating agency.
38. Needless to mention that the appellant before us or the
other accused cannot and are not claiming any expertise, much
less, capability of undertaking forensic analysis of the cloned
copy of the contents of the memory card/pendrive. They may
have to eventually depend on some expert agency. In our
opinion, 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 pendrive 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
52
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.
39. Considering that 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. This principle has been enunciated in the case of Asha
Ranjan v. State of Bihar41 wherein this Court held thus:
“57. The aforesaid decision is an authority for the
proposition that there can be a conflict between two
individuals qua their right under Article 21 of the
Constitution and in such a situation, to weigh the balance
the test that is required to be applied is the test of larger
public interest and further that would, in certain
circumstances, advance public morality of the day. To put
it differently, the “greater community interest” or
“interest of the collective or social order” would be the
principle to recognise and accept the right of one
which has to be protected.
xxx xxx xxx
61. Be it stated, circumstances may emerge that may
necessitate for balancing between intrafundamental
rights. It has been distinctly understood that the test that
has to be applied while balancing the two fundamental
rights or inter fundamental rights, the principles applied
may be different than the principle to be applied in intraconflict between the same fundamental right … … ... Thus,
there can be two individuals both having legitimacy to
41 (2017) 4 SCC 397
53
claim or assert the right. The factum of legitimacy is a
primary consideration. It has to be remembered that no
fundamental right is absolute and it can have limitations in
certain circumstances … … ... Therefore, if the collective
interest or the public interest that serves the public cause
and further has the legitimacy to claim or assert a
fundamental right, then only it can put forth that their
right should be protected. There can be no denial of the
fact that the rights of the victims for a fair trial is an
inseparable aspect of Article 21 of the Constitution and
when they assert that right by themselves as well as the
part of the collective, the conception of public interest gets
galvanised. The accentuated public interest in such
circumstances has to be given primacy, for it furthers and
promotes “Rule of Law”. It may be clarified at once that the
test of primacy which is based on legitimacy and the public
interest has to be adjudged on the facts of each case and
cannot be stated in abstract terms. It will require studied
scanning of facts, the competing interests and the ultimate
perception of the balancing that would subserve the larger
public interest and serve the majesty of rule of law. ... … …
xxx xxx xxx
86.1. The right to fair trial is not singularly absolute, as
is perceived, from the perspective of the accused. It
takes in its ambit and sweep the right of the victim(s)
and the society at large. These factors would
collectively allude and constitute the Rule of Law i.e.
free and fair trial.
86.2. The fair trial which is constitutionally protected as a
substantial right under Article 21 and also the statutory
protection, does invite for consideration a sense of conflict
with the interest of the victim(s) or the collective/interest of
the society. When there is an intraconflict in respect of
the same fundamental right from the true perceptions,
it is the obligation of the constitutional courts to weigh
the balance in certain circumstances, the interest of
the society as a whole, when it would promote and
instil Rule of Law. A fair trial is not what the accused
wants in the name of fair trial. Fair trial must soothe the
ultimate justice which is sought individually, but is
subservient and would not prevail when fair trial requires
transfer of the criminal proceedings.”
54
(emphasis supplied)
40. This Court in Mazdoor Kisan Shakti Sangathan v.
Union of India42 has restated the legal position in the following
terms:
“61. Undoubtedly, right of people to hold peaceful protests
and demonstrations, etc. is a fundamental right
guaranteed under Articles 19(1)(a) and 19(1)(b) of the
Constitution. The question is as to whether disturbances,
etc. caused by it to the residents, as mentioned in detail by
the NGT, is a larger public interest which outweighs the
rights of protestors to hold demonstrations at Jantar
Mantar Road and, therefore, amounts to reasonable
restriction in curbing such demonstrations. Here, we agree
with the detailed reasoning given by the NGT that holding
of demonstrations in the way it has been happening is
causing serious discomfort and harassment to the
residents. At the same time, it is also to be kept in mind
that for quite some time Jantar Mantar has been chosen as
a place for holding demonstrations and was earmarked by
the authorities as well. Going by the dicta in Asha
Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC
397 : (2017) 2 SCC (Cri) 376] , principle of primacy
cannot be given to one right whereby the right of the
other gets totally extinguished. Total extinction is not
balancing. Balancing would mean curtailing one right of
one class to some extent so that the right of the other
class is also protected.”
(emphasis supplied)
41. We are conscious of the fact that Section 207 of the 1973
Code 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
42 (2018) 17 SCC 324
55
Section 207, of being voluminous, ordinarily, cannot be invoked
and will be unavailable. We are also conscious of the dictum in
the case of Superintendent and Remembrancer of Legal
Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein
this Court has restated the cardinal principle that 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.
42. Nevertheless, the Court cannot be oblivious to the nature of
offence and the principle underlying the amendment to Section
327 of the 1973 Code, in particular subSection (2) thereof and
insertion of Section 228A of the 1860 Code, 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/pendrive from an independent
agency referred to above, so as to effectively defend himself
during the trial. Thus, balancing the rights of both parties is
imperative, as has been held in Asha Ranjan (supra) and
43 (1981) 2 SCC 109
56
Mazdoor Kisan Shakti Sangathan (supra). The Court is duty
bound to issue suitable directions. Even the High Court, in
exercise of inherent power under Section 482 of the 1973 Code,
is competent to issue suitable directions to meet the ends of
justice.
43. If the accused or his lawyer himself, additionally, intends to
inspect the contents of the memory card/pendrive 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, 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/pendrive in any manner. Such
57
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.
44. 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 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.
45. 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 hitherto, in particular
paragraphs 37, 38 and 43.
58
46. 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.
47. 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.
…………………………..J
(A.M. Khanwilkar)
…………………………..J
(Dinesh Maheshwari)
New Delhi;
November 29, 2019.
