P. Gopalkrishnan @ Dileep vs State of Kerala and Anr.

Art.21 – Right to fair trial of accused and right to privacy of victim – In offence of rape – Competing rights – Balancing of – Held: Though the accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against the accused – Nevertheless, the Court cannot be oblivious to the nature of offence and the principles underlying the amendment to s.327(2) of Cr.P.C. and 228A of IPC, for securing the privacy and identity of the victim – Balancing of rights of both the parties is imperative – In such cases, the Court may be justified in providing only inspection of the documents to the accused and his lawyer or expert for presenting effective defence during the trial – Code of Criminal Procedure, 1973 – s.327(2) – Penal Code, 1860 – s.228A.

Interpretation of Statutes:

Ongoing statute – Interpretation of - Held: Code of Criminal Procedure, being an ongoing statute, it is presumed that the legislature intended the Courts to apply a construction that continuously updates its wordings to allow for changes and compatibility with the contemporary situation.

Words and Phrases:

“data” and “electronic record” – Meaning of, in the context of Information Technology Act, 2000.

“document” - Meaning of in the context of Evidence Act, 1872.

Partly allowing the appeal, the Court

HELD: 1.1 The investigating officer after completing the investigation u/s.173 Cr.P.C., is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the Magistrate “all documents” or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report. Indeed, it is open to the police officer, if in his opinion, any part of the “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 public interest, to 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. That discretion, however, is not given to him in respect of the “documents” or the relevant extracts thereof on which the prosecution proposes to rely against the accused concerned. [Para 13] [443-B-E]

1.2 As regards the documents, sub-Section (7) of Section173 Cr.P.C. enables the investigating officer, if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred to in sub-Section (5) to the accused. The “documents” on which the prosecution proposes to rely, the investigating officer has no option but to forward “all documents” to the Magistrate alongwith the police report. There is no provision (unlike in the case of “statements”) enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof (“document”) from the copies to be granted to the accused. Sub-Section (7), however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the expression used in Section 173(5)(a) of Cr.P.C. makes it amply clear that the investigating officer is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned alongwith the police report to the Magistrate. [Paras 13, 14] [443-F; 445-G-H; 446-A-C]

1.3 On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of Cr.P.C., the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. The first proviso of s.207 enables the Magistrate to withhold any part thereof AND ANR.

referred to in clause (iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in sub-Section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer alongwith police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is “voluminous”. In that case, the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of Cr.P.C. does not empower the Magistrate to withhold any “document” submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of ‘statements’ referred to in sub-Section (6) of Section

173 of Cr.P.C. Thus, the Magistrate’s duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section. [Paras 15, 16] [446-C-D; 447-C-F]

Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1 ; Tarun Tyagi v. CBI (2017) 4 SCC

490 : [2017] 1 SCR 670 – relied on.

1.4 It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences. On a bare reading of Section

207 of Cr.P.C., no other interpretation is possible. [Para 17] [448F-G]

Nelson Motis v. Union of India (1992) 4 SCC 711 : [1992] 1 Suppl. SCR 325 – relied on.

1.5 Furnishing of documents to the accused under Section

207 of Cr.P.C. is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. [Para 18] [448-G] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103 ; V.K. Sasikala v. State (2012) 9 SCC 771 : [2012] 10 SCR

641 – relied on.

1.6 Though Section 207 of Cr.P.C. permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an “electronic record”, certainly the ground predicated in the second proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. [Para 41] [471-F]

2.1 If the contents of the memory card/pen-drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of Cr.P.C. would not arise. It is nobody’s case that the contents of the memory card/pen-drive be treated as a “statement” ascribable to Section 173(5)(b) of Cr.P.C.. Notably, the command under Section 207 is to furnish “statements” or “documents”, as the case may be, to the accused as submitted by the investigating officer alongwith the police report, where the prosecution proposes to rely upon the same against the accused. [Para 20] [452-A-C]

2.2 The basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed. Tape records of speeches and audio/video cassettes including compact disc have been held to be “documents” under Section 3 of the Evidence Act, 1872 which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act. [Para 21] [453-E-F]

Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 ; [2010] 2 SCR 396 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17 : [1975] Suppl. SCR 281 ; Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 : [2015] 12 SCR 234 ; Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 : [2014] 11 SCR 399 – relied on.

Grant and Another v. Southwester and County

Properties Ltd. and Another [1975] Ch. 185 – referred to.

The King v. Daye [1908] 2 K.B. 333 – referred to. AND ANR.

2.3 The Criminal Procedure Code is an ongoing statute. In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a construction that continuously updates its wordings to allow for changes and is compatible with the contemporary situation. [Para 22] [454-A-B]

State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 : [2003] 3 SCR 244 – relied on.

2.4 If the prosecution was to rely only on recovery of memory card and not upon its contents, there would be no difficulty in acceding to the argument of the respondent/intervenor that the memory card/pen-drive is a material object. The video footage/clipping contained in such memory card/pendrive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a “document” and cannot be regarded as a material object. [Para 23] [455-C; 456-D-E]

Hodge M. Malek, Phipson on Evidence, 19 th Edn, 2018, pg. 5 and 1450 – referred to.

2.5 On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to “data” alone, but it also means the record or data generated, received or sent in electronic form. The expression “data” includes a representation of information, knowledge and facts, which is either intended to be processed, is being processed or has been processed in a computer system or computer network or stored internally in the memory of the computer. [Para 24] [457-A-B]

2.6 On a bare reading of the definition of “evidence” as envisaged u/s. 3 of Evidence Act, 1872, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. [Para 25] [457-H]

2.7 Section 65B of Evidence Act, 1872 is reiteration of the legal position that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision. [Para 25] [460-E-F]

2.8 Section 95(2)(b) of Cr.P.C. refers to “document” to include any painting, drawing or photograph, or other visible representation. And again, the expression “document” has been defined in Section 29 of the Penal Code. [Para 26] [460-FG]

2.9 Additionally, it may be apposite to also advert to the definition of “communication devices” given in Section 2(1)(ha) of the Information Technology Act, 2000. The Court may also advert to the definition of “information” as provided in Section 2(1)(v) of the 2000 Act. Even the definition of “document” given in the General Clauses Act would reinforce the position that electronic records ought to be treated as “document”. [Paras 27-29] [461-F-G; 462-A]

2.10 Considering the 42 nd and 156 th Reports of Law Commission of India, it can be concluded that the contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”. [Para 31] [466-E; 467-A]

Forty-Second Report, Law Commission India, Indian Penal Code, June, 1971, 32-35 ; One Hundred FiftySixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter-XI – referred to.

2.11 It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of Cr.P.C. The concomitant is that the contents of the memory card/pen-drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in of Cr.P.C, but also the right of an accused to a fair trial enshrined in Article

21 of the Constitution of India. [Para 32] [467-B-C] AND ANR.

3.1 In the present case, there are eight named accused as of now. Once relief is granted to the appellant who is accused No. 8, the other accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pen-drive would be freely available to all the accused. Certain conditions need to be imposed in the fact situation of the present case. However, the safeguards/conditions suggested by the appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be sufficient measure to completely rule out the possibility of misuse thereof. In that, with the advancement of technology, it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well-nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody. Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised. In that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL. Similarly, the forensic report prepared by the CFSL, after analyzing the cloned copy of the subject memory card/pen-drive, shall be kept confidential and shall not be allowed to be accessed by any other agency or person except the concerned accused or his authorized representative until the conclusion of the trial. [Paras 35-37] [468-B-G]

3.2 The accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report. [Para 38] [469-A-B]

4.1 It is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights. [Para 39] [469-C]

Asha Ranjan v. State of Bihar (2017) 4 SCC 397; Mazdoor Kisan Shakti Sangathan v. Union of India (2018) 17 SCC 324 : [2018] 11 SCR 586– relied on.

4.2 The accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section

327 of Cr.P.C., in particular sub-Section (2) thereof and insertion of Section 228A of IPC, for securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to enable the accused to reassure himself about the genuineness and credibility of the contents of the memory card/pen-drive from an independent agency so as to effectively defend himself during the trial. Thus, balancing the rights of both parties is imperative. The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power under Section 482 of Cr.P.C., is competent to issue suitable directions to meet the ends of justice. [Paras 41, 42] [471-G; 472-A-C]

Superintendent and Remembrancer of Legal Affairs, West Bengal vs. SatyenBhowmick & Ors. (1981) 2 SCC 109 : [1981] 2 SCR 661 – referred to.

4.3 If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, AND ANR.

all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen-drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution. [Para 43] [472-D-F]

5. Thus, 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 thereof 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. [Para 44] [472-G-H]

6. So far as the preliminary objection taken by the respondent for dismissing the appeal at the threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the present appeal is concerned, it is found that the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of Cr.P.C, and in the chargesheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/pen-drive does not take the matter any further, once the right of the accused to get the cloned copies of the contents of the memory card/pen-drive as being mandated by Section 207 of the 1973 Code is recognized and more so, because of the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India. [Para 34] [467-F-H]