IMPORTANT POINTS
Any documentary evidence by way of an “electronic record” under the Indian Evidence Act can be proved only in accordance with the procedure prescribed under Section 65B of the Indian Evidence Act, 1872. This is what is provided under Sections 59 and 65A of the Indian Evidence Act. Section 59 provides that all facts except the contents of document or “electronic evidence”, may be proved by oral evidence. Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Act. Section 65B deals with the admissibility of “electronic records”. Section 65A and Section 65B were introduced into the Evidence Act in 2000 providing special processes for proving copies of extracts of electronic records.

ORDER :

1. 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] it is vehemently urged that even in cases where during investigation, a document is bonafideobtained 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 the Information Technology Act, 2000 and the consequential amendments made in the various