JUDGMENT :

A request to forward an electronic document to the forensic lab for analysis was declined by the impugned order. The document in issue is in the custody of the court, in the pending trial and was already subjected to analysis. The request of the investigating officer to forward the electronic document for examination was made after the court had permitted the conduct of a further investigation into the alleged crime. Terming the rejection as a restriction on the powers of investigation, the State has preferred this original petition.

2. An actress of repute is alleged to have been sexually assaulted on the night of 17th February 2017 in a moving car. The prosecution alleges that during the commission of the alleged brutality, accused had also taken a video of the assault on a mobile phone which was later transferred to a memory card. The memory card containing the videos was subjected to a forensic examination during the investigation. After the final report was filed, since the copy of the memory card was not furnished to the accused as it contained obscene videos, the eighth accused challenged the refusal. Finally, the Supreme Court by judgment in P.Gopalkrishnan Alias Dileep v. State of Kerala and Another [(2020) 9 SCC 161], held that the content of the memory card is an electronic record and ought to be regarded as a document. However, taking note of the privacy of the victim and her identity, the trial court was directed to provide an opportunity for inspection of the document for an effective defence during the trial and also directed a cloned copy to be made and kept with the Central Forensic Science Laboratory.

3. The document was again sent to the Forensic Laboratory, as directed by the Supreme Court for making the cloned copy and report was given to the Special Court. Thereafter, trial commenced before the Special Sessions Court. Numerous witnesses were examined and several documents were also marked. The memory card containing the obscene videos was marked as Ext.P262 and the report as Ext.P263. The Examiner of the said document was examined as PW192 too. On the day the case was posted for examining the Investigating Officer, the prosecution informed the court that they are commencing a further investigation due to certain revelations. Though the trial was being carried out under timelines issued by the Supreme Court, the Special Court granted permission for further investigation. On 03-06-2022, the High Court of Kerala extended the time for further investigation till 15-07-2022.

4. In the meantime, the Investigating Officer come across the report dtd 29-01-2020 issue from the Forensic Laboratory indicating a change in the hash value of the electronic record. On 04-04-2022, the Investigating Officer filed a forwarding note, requesting the Special Court to forward the electronic document once again to the Forensic Lab for further examination for two purposes. By the impugned order dated 09-05-2022, the learned Special Court dismissed the petition after observing that the details sought for by the Investigating Officer are already available in Ext.P263 and in the deposition of PW192 -the expert examiner. It was thus concluded that the purpose for seeking the details of access to the document again, is unintelligible, ill-conceived and ill-motivated and declined to allow the request.

5. Detailed arguments were put forth by all counsel. Sri.T.A.Shaji, learned Director General of Prosecutions, appearing on behalf of the petitioner questioned the impugned order and urged, along with Adv.V.Ajayakumar and Smt.T.B. Mini, both of whom appeared for the survivor, that the trial court ought not to have declined to send the document for forensic examination.

6. In contrast, Sri.B.Raman Pillai, the learned Senior Counsel and Adv.Philip T.Varghese appearing on behalf of the additional respondent vehemently contended that the entire attempt of the prosecution was to malign the Court as well as the accused and no purpose would b