Author: Niharika Kalyan
The ‘Right to life and liberty’ contains within itself two crucial rights i.e. Right of the accused to a fair trial and Right to privacy of the victim. The accused has to be informed in advance of the accusations against him. Therefore all the evidences used by prosecution against him must be supplied to him. This right is further given effect by the Code of Criminal Procedure, 1973. Section 207 of CrPC gives effect to this provision. It mandates that the copies of police report. FIR, confessional statements are duly provided to the accused.
Section 3 of Indian Evidence Act states what a document means. It includes electronic records also. The issue which arises is could there be any instance where the accused is denied the copies of certain evidences? In some cases, where the record is so voluminous that it is not possible to share it with the accused, the power has been given to the magistrate to withhold such supply and allow only inspection by the accused under Section 207 of CrPC.
It is the sole codified ground on which documents may be denied to the accused. In every other case, it is compulsory to supply documents relied on by the prosecution to the accused to give him an opportunity of fair trial. In present legal world, many courts now direct investigating agencies to make an electronic file of such voluminous records and supply them to the accused. To prevent their unwanted circulation and misuse, some courts direct them to be in ‘read-only’ format and be watermarked.
Taking the status of audio/video records into consideration, the accused has a fully fledged right to each evidence which the prosecution uses against him. These are kept out of Section 207 as they cannot be termed as ‘voluminous’. Therefore magistrate has no discretion in their respect.
In the recent case of P. Gopalkrishnan@ Dileep v. State of Kerala, The Supreme Court examined the conflict between the right of the accused to a fair trial and right of the victim to privacy.
The Appellant was charged under Sections 342, 366, 37, 506(1), 120B and 34 of the IPC and Sections 66E and 67A of the Information Technology Act, 2000 (IT Act) in a case of sexual assault. The material evidence supplied to him did not include the electronic record (contents of the memory card / pen drive containing the video of the alleged rape incident) upon which the prosecution sought to rely.
He filed an application before the JMIC and sought directions to the prosecution to provide a cloned copy of the contents of the memory card along with call data records to him. The magistrate dismissed the application on the ground that it would have a bearing upon the esteem, decency, dignity and reputation of the victim and would also be against the public interest. However, the magistrate allowed the Petitioner to inspect the contents of the video footage. Aggrieved by the order, the Appellant filed an appeal before the High Court of Kerala. But the HC upheld the order of the magistrate. The ground was although different that the seized memory card was a medium used for recording the incident and hence it was a product of the crime and henceforth it cannot be said to be a part of the documentary evidence under Section 207 of the CrPC. The Appellant filed an appeal before the Supreme Court against the order of the High Court.
There were two issues before the Supreme Court:
- Whether the contents of a memory card / pen drive being an electronic record under Section 2(1) (t) of the IT Act would qualify as a ‘document’ within the meaning of Section 3 of the IEA and Section 29 of the IPC?
- Whether the Court had power to decline the request of the accused to furnish a cloned copy of the contents of the memory card or pen drive in the form of video footage on the ground that it would harm the fundamental right to privacy of the victim?
The Appellant contended that the prosecution case was broadly founded on the memory card / pen drive. Therefore it was necessary to furnish a cloned copy of the contents of the memory card to him, not only in terms of Section 207 read with Section 173(5) of the CrPC, but also to uphold the right of the Appellant to a fair trial guaranteed under Article 21 of the Constitution of India in terms of justice.
The Respondent-State and the Intervener (the victim) contended that if the contents of memory card were made available to the Appellant, there was every possibility that it would be misused by him to execute the conspiracy of undermining the privacy and dignity of the victim. They further argued that the contents of the memory card / pen drive were material objects and should be considered physical evidence of the crime.
On First Issue- The Court concluded that the contents of the memory card would qualify as a ‘document’ within the meaning of Section 3 of the IEA and Section 29 of the IPC. The Court clarified that the contents of the documents would come within the meaning of ‘electronic record’. Moreover, the Court added that furnishing of documents to the accused under Section 207 of the CrPC was a part of the right of the accused to a fair trial enshrined in Article 21.
On Second Issue- The Court observed that furnishing copies to the accused under such circumstances would raise the possibility of misuse. However, the Court permitted the Appellant to seek an expert opinion from an independent agency in order to reassure himself about the genuineness and credibility of the contents of the memory card.
Further, the Court observed that this was a “case of intra-conflict of fundamental rights flowing from Article 21, that is the right to a fair trial of the Accused and the right to privacy of the victim.” It is necessary that some guidelines or legislative amendments should be made in order to dictate situations in which such electronic record may or may not be supplied to the accused. Therefore it is imperative to adopt an approach which would balance both the rights.