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2024 Supreme(Online)(KER) 41955
HIGH COURT OF KERALA
A. BADHARUDEEN, J
...... – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 10957/2023
SRI.K.K.DHEERENDRAKRISHNAN SMT.N.P.ASHA
The right to a fair trial includes access to unmasked prosecution records, balancing victim privacy and the accused's defense rights in POCSO cases.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 207 and 208 - Protection of Children from Sexual Offences Act, 2012 - Section 33(7) - Right of accused to unmasked copies of prosecution records in POCSO cases - The court emphasized the necessity of balancing the victim's privacy with the accused's right to a fair trial. The Special Courts' refusal to provide unmasked copies was deemed unjustified. (Paras 6, 11, 12, 13)
(B) Fair Trial - The right of the accused to defend themselves must not be compromised by laws protecting victim identity. The court ruled that while victim privacy must be protected, the accused must have access to unmasked records to ensure a fair trial. (Paras 12, 13)
Facts of the case:
The petitioners challenged the dismissal of applications seeking unmasked copies of prosecution records in POCSO Act cases, arguing that such access is essential for a fair defense.
Findings of Court:
The court found that the Special Courts' refusal to provide unmasked copies violated the accused's right to a fair trial and ordered that such copies be provided while ensuring victim privacy.
Issues: Whether the accused is entitled to unmasked copies of prosecution records in POCSO cases without compromising the victim's identity.
Ratio Decidendi: The court held that the right to a fair trial includes access to necessary prosecution documents, and while protecting victim identity is crucial, it should not obstruct the accused’s right to defend themselves.
Result: Criminal M.C.s allowed.
COMMON ORDER
Dated this the 8th day of October, 2024
Crl.M.C. No.6391/2023 has been filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure-III order dated 10.02.2023 in Crl.M.P.No.71/2023 in SC No. 1152/2021 pending before the Special Court for the trial of Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act' hereafter) Offences, Parappanangadi whereby the learned Special Judge dismissed an application filed by the petitioner to give unmasked copies of charge sheet and other records to contest the trial.
2. In Crl.M.C.No.6911/2023 also the challenge is the same and therein dismissal of Crl.MP No.222/2023 in SC No.373/2023 on the files of Special Court-II for trial of POCSO Act offences, Manjeri, is under challenge.
3. In Crl.M.C.No.10957/2023 the order in Crl.M.P.No. 407/2023 in SC No.877/2023 on the files of Special Court-II for the trial of POCSO Act offences, Manjeri, is challenged on the ground of denial of issuance of unmasked copies of prosecution records.
4. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the orders impugned and the relevant provisions interlinked.
5. The question posed for consideration herein is, whether the accused is entitled to get unmasked copies of prosecution records pertaining to POCSO Act offences where there is a protection of the identity of the victim envisaged under law?.
6. Addressing the arguments tendered by the respective counsel, it is relevant to refer Section 207 and 208 of Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'), Section 19 (4) of the Kerala Criminal Rules of Practice and Section 33 (7) of the POCSO Act. The same read as under:
“Sec.207 of Cr.P.C.: 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 furnish to the accused, free of cost, a copy of each of the following:
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Sec.208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.—Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—
(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a c
