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SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, JJ.
P. Gopalkrishnan @ Dileep – Appellant
Versus
State of Kerala and Anr. – Respondents
Criminal Appeal No.1794 of 2019 (Arising out of SLP(Crl.) No. 10189 of 2018)
Decided on : 29-11-2019
(A) Information and Technology Act, 2000 – Section 2(1)(t) – Indian Penal Code, 1860 – Section 29 – Indian Evidence Act, 1872 – Sections 3 and 65B – Memory card/pen-drive – Nature of evidence – Video footage/clipping contained in such memory card/pen-drive being an electronic record as envisaged by Section 2(1)(t) of 2000 Act, is a “document” and cannot be regarded as a material object – Definition of evidence clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for inspection of Court – Contents of memory card/pen drive being electronic record must be regarded as a document – If prosecution is relying on the same, ordinarily, accused must be given a cloned copy thereof to enable him to present an effective defence during trial – However, in cases involving issues such as of privacy of complainant/witness or his/her identity, Court may be justified in providing only inspection thereof to accused and His lawyer or expert for presenting effective defence during trial – Court may issue suitable directions to balance interests of both sides. (Paras 23, 25 and 44)
(B) Criminal Procedure Code, 1973 – Section 207 – Supply of documents to accused – All documents including “electronic record” produced for inspection of Court alongwith police report and which prosecution proposes to use against accused must be furnished to accused as per mandate of Section 207 of 1973 Code – Furnishing of documents to accused under Section 207 of 1973 Code is a facet of right of accused to a fair trial enshrined in Article 21 of Constitution – Magistrate’s duty under Section 207 at this stage is in nature of administrative work, whereby he is required to ensure full compliance of the Section – Court is obliged to evolve a mechanism to enable accused to reassure himself about genuineness and credibility of contents of memory card/pen-drive from an independent agency referred to above, so as to effectively defend himself during trial – Balancing rights of both parties is imperative. (Paras 16, 18, 32 and 42)
(C) Interpretation of Statute – Rules of Construction – When statute is unambiguous, Court must adopt plain and natural meaning irrespective of consequences. (Para 17)
Facts of the case:
Point in issue is whether the contents of a memory card/pen-drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000 would, thereby qualify as a “document” within the meaning of Section 3 of Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860 ? If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card/pen-drive to the accused facing prosecution for an alleged offence of rape and related offences.
Findings of Court:
If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during 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 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/pen-drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of Constitution.
Result : Appeals Partly allowed.
The specified conditions for the accused regarding access to the contents of the memory card/pen-drive (treated as an electronic record and document under relevant laws) are as follows:
Inspection in Court: The accused, or their lawyer, may request the Magistrate for permission to inspect the contents in court, potentially multiple times if necessary, accompanied by their lawyer and/or an authorized I.T. expert, to prepare an effective defense during trial. The Magistrate must consider such requests judiciously and objectively, ensuring they are not used to protract the trial. [1000643100042] (!) [Findings of Court]
Restrictions During Inspection: While permitting inspection, strict safeguards must be enforced—no devices, especially electronic ones like mobile phones capable of copying, transferring, or altering the electronic record, may be carried by the accused, lawyer, or I.T. expert. [1000643100042] (!) [Findings of Court]
No Direct Cloned Copy in Privacy-Sensitive Cases: Ordinarily, a cloned copy should be provided if relied upon by prosecution, but in cases involving victim/witness privacy or identity (e.g., rape-related offenses), the court may limit access to inspection only, balancing fair trial rights under Article 21 with victim privacy. Courts must issue directions to protect both sides' interests. [1000643100043][1000643100041][1000643100031][judgement_subject (A)][judgement_subject (B)]
Independent Forensic Opinion: The accused may seek a second expert opinion (e.g., from Central Forensic Science Laboratory or similar independent agency) on the contents' genuineness and credibility. Queries can be formulated with their own expert; the process and report remain confidential until trial conclusion, inaccessible to others except the accused or authorized representative. This reassures the accused without direct possession. [1000643100036][1000643100037][1000643100044]
These measures ensure compliance with Section 207 CrPC (supply of documents) while preventing misuse, upholding fair trial rights. The trial court must facilitate expeditious resolution. [1000643100045][1000643100046][IMPORTANT POINTS (1)][IMPORTANT POINTS (2)]
JUDGMENT :
A.M. Khanwilkar, J.
1. Leave granted.
2. The conundrum in this appeal is: whether the contents of a memory card/pen-drive being electronic record as predicated in Section 2(1)(t) of the Information 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 obligatory to furnish a cloned copy of the contents of such memory card/pen-drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused, in terms of Section 207 of the Code of Criminal Procedure, 1973 (for short, ‘the 1973 Code’)? The next question is: whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card/pen-drive in the form of video footage/clipping concerning the alleged incident/occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?
3. The appellant has been arrayed as accused No. 8 in connection with offence registered as First Information Report (FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of the 2000 Act, concerning the alleged incident/occurrence at around 2030 hrs. to 2300 hrs. on 17.2.2017, as reported by the victim.
4. For considering the questions arising in this appeal, suffice it to observe that the investigating officer attached to the Nedumbassery Police Station, Ernakulam, Kerala, after recording statements of the concerned witnesses and collecting the relevant evidence, filed police reports under Section 173 of the 1973 Code before the Judicial First Class Magistrate, Angamaly. First police report, on 17.4.2017 and the second, on 22.11.2017. When the appellant was supplied a copy of the second police report on 15.12.2017, all documents noted in the said report, on which the prosecution proposed to rely, were not supplied to the appellant, namely, (i) electronic record (contents of memory card); (ii) Forensic Science Laboratory (for short, ‘the FSL’) reports and the findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. footages and (iv) Call data records of accused and various witnesses etc.
5. It is noted by the concerned Magistrate that the visuals copied and documented by the forensic experts during the forensic examination of the memory card were allowed to be perused by the appellant’s 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:
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