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KERALA HIGH COURT
Raja Vijayaraghavan V, J.
Jisal Rasak —Petitioner
versus
State of Kerala —Respondent
Crl.MC.No.4148 of 2019(G)
Decided on 30.9.2019
For the Petitioner:Sri. V. John Sebastian Ralph, Sri. V. John Thomas, Shri. Ralph Reti John, Shri. Vishnu Chandran Kum. Keerthana Sudev and Sri. E.A. Haris, Advocates
For the Respondent: Sri. Suman Chakravarthy, Senior Govt. Pleader
IMPORTANT POINT
CCTV footage of scene of crime is a documentary evidence and accused is entitled to get its copy as part of prosecution case under Section 207 Cr.P.C.
Headnote:
Evidence Act, 1872—Section 3—Information Technology Act, 2000—Section 2(t)—CCTV footage of scene of crime in murder case—Copy of same denied to accused on plea that footage was produced as a material object—One of the basic principles object—One of the basic principles of a fair hearing in a grave crime was that individual charged with criminal offence be informed of evidence that supports the allegations—Material objects, other than documents produced for inspection of court are commonly called real evidence—After the advent of technology, line between categorizing a thing as a ‘material thing’ or a document has become more or less obliterated—CCTV footage of scene of crime was ‘data’ and an electronic record and was to be regarded as documentary evidence—Cloned Digital Copies of footage were to be made available to accused, unless it was impracticable or unjustifiable.
(Paras 12, 15, 31, 32, 33, 35 and 38)
Result: Petition allowed.
ORDER
Raja Vijayaraghavan V, J.—The petitioner herein is the 2nd accused in C.P. No.9 of 2019 on the file of the Judicial Magistrate of the First Class-II, Ernakulam. He has been charged for having committed offences punishable under Sections 302, 307, 120B, 143, 148, 341, 506(ii), 323, 326, 201 and 212 of the IPC.
2. In the course of investigation, the investigating officer chanced upon information that the congregation of some of the accused in and around the scene of crime immediately prior to the murder and also of the injured witness being carried away from the location had been captured in three security cams installed at nearby places. The footage was retrieved by following the procedure and the same was forwarded to the Cyber Forensic Lab for analysis and a report was obtained. The footage was produced before Court along with the final report by categorizing the same as a material object.
3. The petitioner approached the learned Magistrate and filed an application seeking to obtain copies of
(a) the CCTV footage relied on by the prosecution,
(b) the FSL report obtained from the Forensic Science Laboratory relating to the CCTV footage and
(c) the report submitted by the investigating agency seeking further investigation.
4. The prosecution vehemently opposed the handing over of the CCTV footage and it was argued that the footage having been produced as a material object, the digital copies of the same cannot be furnished. The learned Magistrate ordered for the issuance of the records, which were requested for, but refused to issue digital copies of the camera footage.
5. The above order is under challenge.
6. Sri. John S. Ralf, the learned counsel appearing for the petitioner, submitted that the learned Magistrate has egregiously erred in concluding that the electronic evidence relied on by the prosecution is a material object and in refusing to furnish copies of the same to the petitioner. He would contend that Section 3 of the Indian Evidence Act, 1872 defines “evidence” as all documents, including electronic records produced for the inspection of the Court. Referring to the relevant provisions of the Information Technology Act, 2000, it was argued that a document under Section 3 of the Indian Evidence Act would definitely include electronic records as defined under Section 2(t) of the Information Technology Act.
7. The learned counsel contended that the video footage produced before Court would clearly show that the petitioner was not there at the scene of crime and that he was roped in later on the basis of cooked up versions given by planted witnesses. Realizing fully well that the footage would destroy the very edifice of the prosecution case insofar as the petitioner is concerned, digital copies of the same is denied to him. According to the learned counsel, one of the edifices on which the Criminal Justice System in this country is built upon is “fairness in trial”. The Code provides an unbridled 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 to make fair disclosure and to supply the documents demanded. He would contend that the concept of fair disclosure would take within its ambit furnishing of a document, which the prosecution relies upon, whether filed in Court or not. Relying on the decision of the Apex Court in Sidhartha Vashisht v. State (NCT of Delhi), [(2010) 6 SCC 1: (2010) 2 Crimes 154 : (2010) 3 Supreme 190 ], it is vehemently urged that even in cases where during investigation, a document is bona fide obtained by the investigating agency, and in the opinion of the Prosecutor concerned is relevant and would help in arriving at the truth, that document should be disclosed to the accused. The learned counsel has filed a detailed statement narrating the evolution of
