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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN, J.
Jackson P.V., S/o. Varghese – Petitioner
Versus
State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala – Respondent
Crl.MC No. 814 Of 2024
Decided On : 01-07-2024
EVIDENCE - DISCLOSURE OF EVIDENCE - The court addressed the balance between the accused's right to access evidence for an effective defense and the victim's right to privacy. It emphasized that while the accused is entitled to copies of documents under Section 207 of the Code of Criminal Procedure, the court must also consider the privacy implications of the evidence presented, particularly in cases involving sensitive matters such as sexual offenses. The court directed a fresh consideration of the evidence in question to ensure both rights are respected.
Fact of the Case:
The petitioner, the sole accused in a sexual offense case under the POCSO Act, challenged a trial court order that allowed him to view a CD containing evidence only in the presence of the Special Public Prosecutor, arguing for his right to access the CD under Section 207 of the Code of Criminal Procedure.
Finding of the Court:
The court found that while the accused has a right to access evidence, the trial court's order did not clarify whether the CD contained material affecting the victim's privacy. The court emphasized the need for a balanced approach to protect both the accused's rights and the victim's privacy.
Issues: Whether the accused is entitled to a copy of the CD containing evidence, and how to balance the accused's right to a fair trial with the victim's right to privacy.
Ratio Decidendi: The court reiterated that electronic records must be treated as documents under Section 207, and the accused is generally entitled to copies. However, in cases where privacy is a concern, the court may limit access to inspection only, provided it justifies such limitations.
Final Decision: The court set aside the impugned order and directed the trial court to reassess the CD's contents regarding privacy concerns, ensuring that if no privacy issues exist, a copy must be provided to the accused, or alternatively, allow the accused to view the CD under appropriate conditions if privacy is at stake.
ORDER :
(A. Badharudeen, J.) :
This is a petition filed by the petitioner, who is the sole accused in Crime No.130 of 2023 of Narakkal Police Station, which is now pending as S.C. No.1357/2023 on the files of the Fast Track Special Court, North Paravur, under Section 482 of the Code of Criminal Procedure.
2. In this matter, the petitioner impugns order dated19.01.2024 in Crl.M.P. No.15/2024 in S.C.No.1357/2023 on the files of the Fast Track Special Court, North Paravur for trial of offences under the Protection of Children from Sexual Offences Act ('POCSO Act' for short hereinafter).
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail.
4. As submitted by the learned counsel for the petitioner, Annexure 1 petition was filed under Section 207 of the Code of Criminal Procedure with a prayer to provide copy of the CD produced by the prosecution as part of the final report. Annexure 2 objection raised, contending that the accused would be permitted to watch the CD and the copy of the CD that would contain privacy of the victim could not be given.
5. Addressing Annexures 1 and 2, the trial court passed Annexure 3 order, whereby the defence counsel was permitted to watch the CD in the presence of Special Public Prosecutor in the laptop of the Confidental Assistant of the Court at 2.00 p.m. on24.01.2024.
6. The learned counsel for the petitioner submitted that the accused is entitled to get copies of all documents form part of the final report in view of Section 207 of Code of Criminal Procedure and the decision of the Apex Court in Gopalakrishnan @ Dileep v. Station of Kerala [2019(4) KLT853 SC], is placed to buttress this contention.
7. The learned Public Prosecutor submitted that the specific allegation of the prosecution is that the accused pulled the hands of the defacto complainant with sexual intent and the copy of the CD now asked contains the visuals of the incident and if it is provided, the same would affect the privacy of the victim.
8. Having addressed the rival contentions, the law is well settled as stated in paragraph 44 of the decision in Gopalakrishnan @ Dileep (supra) that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy there of to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides.
9. When the impugned order is perused, the same doesn't say whether the CD contains anything affecting the privacy of the victim in any manner. Therefore, the impugned order stands set aside with a direction to the Special Court to consider the prayer afresh on analysing as to whether the CD contain anything which would affect privacy of the victim. If the CD does not contain anything affecting the privacy of the victim, copy of the same shall be given to the accused, since he is legally entitled for the same. If the same contains anything which would affect the privacy of the defacto complainant, recording the said fact, the trial court shall allow the accused and his counsel to watch the CD by providing a date convenient to them so as to proceed with the trial of the case without much delay. Final decision as directed herein above shall be taken within two weeks from the date of receipt of a copy of this order.
Holding so, this Crl.M.C. stands disposed of.
Registry is directed to forward a copy of this order to the trial court for information and compliance.
AI
The court established that the accused's right to access evidence must be balanced with the victim's right to privacy, allowing for inspection of sensitive materials while ensuring the accused can pr....
The court established that victim privacy must be protected even while ensuring the accused's right to a fair trial, allowing only inspection of sensitive evidence.
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 ....
Accused have the right to access a transcript of the victim's Audio/Video Recorded Statement to ensure a fair trial and effective defense.
The court established that the accused's right to fair trial includes access to unmasked prosecution records, balanced against the need to protect the victim's identity.
The right to access evidence is pivotal for a fair trial, ensuring defendants can prepare their defense adequately.
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