In criminal trials, documents relied upon by the prosecution should generally be supplied to the accused, but exceptions exist in cases involving privacy or identity issues, where the accused may be permitted to inspect the documents and have them inspected by an IT expert.

JUDGMENT :

JAY SENGUPTA, J.

1. This is an application challenging an order dated 11.04.2022 passed by the learned Additional Sessions Judge, Bench-II, Bichar Bhawan, Calcutta in Special Case No. 7 of 2020 arising out of G.R. POCSO Case No. 1465 of 2019 in connection with the Cyber Police Station Case No. 111 dated 05.11.2019 under Sections 66E, 67, 67A, 67B, 84B of the Information Technology Act and Sections 120B, 354D, 385 and 506 of the Indian Penal Code and Sections 4 and 8 of the POCSO Act, thereby denying supply of documents including electronic records in terms of Section 207 of the Code.

2. Learned senior counsel appearing on behalf of the petitioner submits as follows. The petitioner is an accused in this case. It was alleged in the F.I.R. that certain offences were committed as alleged in respect of several women including a victim who was minor at the time of offence. The petitioner filed two applications praying for supply of copies of some documents afresh because the same were not legible and also the contents of a hard disk that was seized in connection with the case. The hard disk contained screen shots taken from mobile phone, WhatsApp, chat history and the like. By an impugned order, the learned Trial Court refused to give a copy of hard disk drive seized in connection with the case on the ground that cloning it may be damage the drive. Although it was directed that other documents of legible copies which have not been supplied to the petitioner, would be supplied to them, subsequently, the learned Trial Court did not comply with the previous direction and went ahead to fix a date for framing of charge. An accused has an inalienable right of being supplied all the documents which could be relied against him in a criminal trial. Reliance is placed on the decision in P. Gopalkrishnan alias Dileep vs. State of Kerala and Another, (2020) 9 SCC 161 and it is submitted that not only the documents are to be supplied to the accused, additionally if the accused or his lawyer intends to inspect the contents of the memory card, he can request Court to provide him inspection even more than once. The accused has also a right to send such document for examination by an expert. A proper interpretation of the ratio laid down in P. Gopalkrishnan (supra) would imply that documents relied upon against an accused have to be supplied to the accused regardless of any issue of privacy of the complainant or witness that may be there. Furthermore, the learned Trial Court without any basis whatsoever held that if the document is cloned, the same would damage the hard drive.

3. Learned counsel appearing on behalf of the State relies on the case diary and submits as follows. Relying on P. Gopalkrishnan (supra), it is submitted that although ordinarily all documents relied upon by the prosecution ought to be supplied to an accused. However, when the issue of privacy of a complainant or witness or disclosure of identity of a minor becomes an issue, then the documents cannot be supplied to the accused. At best, an inspection can be given to the accused or his lawyer. The investigating agency would not have any issue if legible copies of documents which are pending supply are supplied. However, only inspection can be taken from the hard drive of the contents or the materials that can disclose the identity of a minor victim.

4. I have heard the submissions of the learned counsels appearing on behalf of the petitioner and the State and have perused the revision petitioner and the case diary.

5. At the outset, it should be clarified that the inference drawn by the learned Trial Court that copying the hard drive would damage is not based on opinion of an expert. Therefore, the learned Trial Court needs to look at the issue afresh. If the learned Trial Court has a doubt in this regard, it can fairly record reasons thereof and even have the material tested by an expert.

6. It is a trite law that documents relied upon by the prosecution against an accused