Hon'ble Saumitra Dayal Singh,J.

1. Heard Shri Sudarshan Singh, learned counsel for the applicant and learned A.G.A. for the State.

2. Challenge has been raised to the order dated 21.11.2022 passed by the learned court below on Paper No. 10-Kha in Session Trial No. 699 of 2022 (State Vs. Prashant Jaiswal), arising out of Case Crime No. 54 of 2021, under Sections - 376, 323, 504, 506 I.P.C.

By that order, the learned court below has rejected the application moved by the applicant/accused person. It has thus refused to make available to the applicant a clone copy of the data available on a pen drive submitted by the Investigating Officer as part of the case diary.

3. Submission of learned counsel for the applicant is, the clone copy of the pen drive is necessary to be provided to the applicant to allow him a fair opportunity to confront the prosecution witness with certain parts thereof. Inasmuch as the data on that pen drive is not material referable to Section 173 (6) of the Cr.P.C., rather, it appears to be data referable to section 173 (5) Cr.P.C., the accused has a perfect right to be supplied a copy of the same in the interests of a fair trial which is directly referable to his fundamental right.

4. As to the reasoning offered by the learned court below, it has been submitted, grave error has been committed by it in assuming a violation of privacy of the victim, if the data on the pen drive is Neutral Citation No. - 2023:AHC:38428 made available to the applicant. In the context, violation of fundamental right of the applicant to a fair trial, he would submit, the concerns of privacy may have been addressed by the learned court below by providing for restrains on the applicant from making public, any part of the data that may be thus made available to the applicant. In any case, a full transcript of the audio transaction ought to have been provided to the applicant. Last, it has been submitted, playback of the audio recording once, may not be enough to allow the applicant and his counsel a full and fair opportunity to formulate the exact questions to be put to the prosecution witness. The right of the defence cannot be curtailed on a vague and nebulous concern regarding privacy of the alleged victim. If allowed, it may seriously impair the impartiality and fairness of the trial proceedings, to the grave prejudice of the applicant.

5. On the other hand, the learned AGA would submit, at present it is not clear if the prosecution has relied and any part of the data/audio transaction claimed to be recorded on the pen-drive.

Unless that were done first, the applicant cannot claim a right to be made available such document/material.

6. Having heard learned counsel for the parties and having perused the record, section 173(5) and (6) and section 207 Cr.P.C. read as under:

" 173. Report of police officer on completion of investigation.-

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b)the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

207. Supply to the accused of copy of police report and other documents.-

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay f