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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 OF 2019 (Arising out of SLP(Crl.) No. 10189/2018)

P. Gopalkrishnan @ Dileep    ..…Appellant(s)

Versus

State of Kerala and  Anr.       ….Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. Leave granted.

2. The conundrum in this appeal is: whether the contents of a

memory card/pen­drive being electronic record as predicated in

Section 2(1)(t) of the Information and Technology Act, 2000 (for

short, ‘the  2000 Act’)  would, thereby  qualify  as  a “document”

within the meaning of Section 3 of the Indian Evidence Act, 1872

(for  short, ‘the  1872 Act’)  and Section 29 of the Indian Penal

Code,  1860  (for  short, ‘the  1860 Code’)?   If so,  whether it is

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obligatory to furnish a cloned copy of the contents of such

memory card/pen­drive to the accused facing prosecution for an

alleged offence of rape and related offences since  the same  is

appended  to  the police report submitted to the Magistrate and

the prosecution proposes to rely upon it against the accused, in

terms of Section 207 of the Code of Criminal Procedure, 1973 (for

short, ‘the 1973 Code’)?  The next question is: whether it is open

to the Court to decline the request of the accused to furnish a

cloned  copy of the  contents  of the  subject  memory  card/pen­

drive in the form of video footage/clipping concerning the alleged

incident/occurrence of rape on the ground that it would impinge

upon the privacy, dignity and identity of the victim involved in

the stated  offence(s)  and  moreso  because  of the  possibility of

misuse of such cloned copy by the accused (which may attract

other independent offences under  the  2000 Act  and  the 1860

Code)?

3. The appellant has been arrayed as accused No. 8 in

connection with  offence  registered  as  First Information Report

(FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable

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under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860

Code and Sections 66E and 67A of the 2000 Act, concerning the

alleged incident/occurrence at around 2030 hrs. to 2300 hrs. on

17.2.2017, as reported by the victim.   

4. For considering the questions arising in this appeal, suffice

it to observe that the investigating officer attached to the

Nedumbassery Police Station, Ernakulam, Kerala, after recording

statements of the concerned witnesses and collecting the relevant

evidence, filed police reports under Section 173 of the 1973 Code

before the Judicial First Class Magistrate, Angamaly.  First police

report, on 17.4.2017 and the second, on 22.11.2017.  When the

appellant  was supplied  a  copy  of the  second police report  on

15.12.2017, all documents noted in the said report, on which the

prosecution proposed to rely, were not supplied to the appellant,

namely, (i) electronic record (contents of memory card); (ii)

Forensic Science Laboratory (for short, ‘the FSL’) reports and the

findings  attached thereto in  C.D./D.V.D.; (iii)  medical reports;

C.C.T.V. footages and (iv) Call data records of accused and

various witnesses etc.  

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5. It is  noted  by the concerned  Magistrate that the visuals

copied and documented by the forensic experts during the

forensic examination of the  memory card  were allowed to be

perused by the appellant’s counsel in the presence of the regular

cadre  Assistant Public Prosecutor of the  Court, in the Court

itself.  After watching the said visuals, some doubts cropped up,

which propelled the appellant to file a formal application before

the Judicial First Class Magistrate, Angamaly for a direction to

the prosecution to furnish a cloned copy of the contents of

memory card containing the video and audio footage/clipping, in

the same format as obtained in the memory card, alongwith the

transcript of the human voices, both male and female recorded in

it.   In the said application, the appellant inter alia asserted as

follows:­

“7. It may be noted that the electronic record in the form of copy of the alleged video footage of the offending act committed by accused No.1 on the body and person of the defacto complainant is a crucial and material record relied by the prosecution in this case. It is the definite contention of prosecution that the above electronic record is both the evidence of commission of crime as well as the object of commission of crime and hence indisputably the most material piece of evidence in this case. When the injustice, in not serving such a vital piece of evidence relied on by the prosecution  in the case, was  immediately brought to the notice of this Hon’ble Court, without prejudice to the right of petitioner to obtain copies of the same, the defence side

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was allowed to watch the alleged video footages by playing the contents of a pen drive in the lap top made available before this Hon’ble Court. Head phones were also provided to the counsel and also to the learned APP who also was throughout present during this proceedings.  

8. It is most respectfully submitted that by watching the video footage, although in a restricted environment and with limited facilities in the presence of the Ld. APP and the Presiding Officer, it is shockingly realised that the visuals and audio bytes contained in the video are of such a nature which would completely falsify the prosecution case in the form presently alleged by the prosecution. As a matter of fact the video footage is not at all an evidence of commission of crime as falsely contended by the prosecution but it is rather a clear case of fabricating false evidence with intent to foist a false case. It  is submitted that  it is  after deliberately concealing or withholding the alleged primary evidence viz. the mobile phone stated to have  been used by accused No.1,  by the  prosecution  in active connivance with accused No.1, that the prosecution has produced a memory card which evidently contains only selected audio and video recording.  

9. xxx xxx xxx

10. ……The further Verification and close scrutiny of the images and audio with scientific aid will in all probability provide more significant materials necessary to find out the truth  behind the recorded images and the extent of tampering and the same could only be unearthed if the mirror copy of the memory card is furnished to the petitioner which he is entitled to get without any further delay. As the prosecution is fully aware that the tampering could be detected and further female voice could be retrieved by the defense, the prosecution is trying to prevent the supply of the copy of the memory card in any form to the defense. It is illegal and the same will clearly amount to denial of a just and fair trial.  

11. xxx xxx xxx

12. A close scrutiny of the contents of mahazar dated 8.3.2017 would show that on 18.2.2017 accused No.1 had entrusted a 8 GB memory card to Adv. E.G. Poulose, who had in turn produced the same before the Court of JFCM Aluva. The investigating agency thereafter obtained custody of the above electronic record and later the 8 GB memory

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card was sent to FSL, where, upon examination, Dr. Sunil S.P., Assistant director (documents), FSL, Thiruvananthapuram has allegedly prepared a report in that regard. The copy of the report has not been furnished to the petitioner. The mahazar further shows that the contents of Memory card was transferred to a pen drive for the investigation purpose. The above mahazar further categorically states that the pen drive contained the data transferred from memory card and the same relates to the video footage of 17.2.2017 from 22:30:55 to 22:48:40 hrs and  it is in order  to check and verify  whether  the voice contained therein belongs to Suni that the voice sample was allegedly taken. The description in the mahazar proceeds as if there is only male voice in the video footage totally  screening the  fact that the video footage contains many vital and material utterances in female voice. Those utterances were revealed to the petitioner and his counsel only on 15.12.2017. Everybody present had the benefit of hearing the said clear female voice. As mentioned earlier the Ld. APP was also present. But the investigation agency which should have definitely seen and heard the same has for obvious reason screened the said material aspects from the records. The investigation, it appears did not venture to take steps to compare the female voice in the video footage with the voice of the female involved in this case, for obvious reasons. On viewing and hearing, it is revealed that clear attempt have been made by somebody to delete major portions from the video footage and from the audio recording.  

13. It is respectfully submitted that utterances made by the parties involved and seen in the video footage determines the nature of act recorded in the video footage and a transcript of the utterances and human voices in the video footage is highly just and necessary especially in view of the shocking revelation,  found when the video footage was played on 15.12.2017.  

14. Yet another aspect which is to be pointed out is the mysterious disappearance of the mobile phone allegedly used for recording the video footage. The strong feeling of the petitioner is that the investigating agency has not so far stated the truth regarding the mobile phone allegedly used to  shot the  video footage.  The  prosecution records itself would strongly indicate that the mobile phone used to record the occurrence (which now turns out to be a drama) was with the Police or with the persons who are behind the

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fabrication of the video footage as evidence to launch the criminal prosecution and false implication of the petitioner. It is revolting to common sense to assume that even after conducting investigation for nearly one year by a team headed by a very Senior Police officer like the Addl. DGP of the Stage, during which accused No.1 was in the custody of the investigating team for 14 days at a stretch and thereafter for different spells of time on different occasions the original mobile instrument used for recording the video footage could not be unearthed. It appears that the investigating team was a willing agent to suffer the wrath of such a disgrace in order to suppress the withholding of the mobile instrument.  

15. It  is  interesting to note that even in the second final report dated 22.11.2017 the Police has stated that the investigation to obtain the original  mobile  phone  is  even now continuing. It is  nothing  but  an attempt to  be fool everybody including the Court.  

16. It  is most respectfully submitted that in view of the startling revelation in the video footage, the petitioner intends to make request to conduct proper, just and meaningful investigation into the matter so as to ensure that the real truth is revealed and the real culprits in this case are brought to justice. For enabling the petitioner to take steps in that regard. It is highly just and essential that the cloned copy of the contents of memory card containing the video and audio content in the same format as obtained in the Memory card and the transcript of the human voices recorded in it are produced before Court and copy of the same furnished forthwith to the petitioner.  

17. As mentioned herein before, the prosecution has chosen to furnish only a small portion of the prosecution records on 15.12.2017. The petitioner is approaching this Hon’ble Court with a detailed petition stating the details of relevant documents which do not form part of the records already produced before this Hon’ble Court and the details of the other documents which are not furnished to petitioner.  

18. It is submitted that the petitioner as an accused is legally entitled to get the copies of all documents including the CDs, Video footage etc., and the prosecution is bound to furnish the same to the petitioner.

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19. In the above premises it is respectfully prayed that this Hon’ble Court may be pleased to direct the prosecution to furnish  a  cloned  copy  of the contents  of Memory Card containing the video and audio content in the same format as obtained in the memory card and the transcript of human voices, both male and female recorded in it, and furnish the said cloned copy of the memory card and the transcript to the petitioner.”

6. The Magistrate vide order dated 7.2.2018, rejected the said

application, essentially on the ground that acceding to the

request of the appellant would be impinging upon the esteem,

decency, chastity, dignity and reputation of the victim and also

against public interest.   The relevant portion of the order dated

7.2.2018 reads thus:­

“Heard both sides in detail.  

The petitioner has also filed reply statement to the objection and counter statement filed by Special Public Prosecutor in the case. The allegation against the petitioner is that he engaged the first accused to sexually assault the victim and videograph the same. On receipt of summons the petitioner entered appearance and was served with the copies of  prosecution records. The  learned Senior Counsel appearing for the petitioner requested for the copies of the contents of memory card. The same could not be allowed & the investigation official has already a petition filed objecting the same, with a prayer to permit them to view the same in the court. Hence they were permitted to view the video footage and subsequent to the same they had filed this petition seeking a direction to the prosecution to furnish the copies of alleged audio and video footage and its transcript. The prosecution strongly opposed the same stating that the same will add insult to the victim who had suffered a lot at the hands of not only the accused but also the media. Hence they submitted that the petitioner may be permitted to view the contents of the video during trial.

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Here the offence alleged tantamounts to a serious blow to the supreme honour of a woman. So as to uphold the esteem, decency, chastity, dignity and reputation of the victim, and also  in the public  interest, I  am declining the prayer. But so as to ensure fairness in the proceedings and for just determination of the truth, the petitioner is permitted to inspect the contents of the video footage at the convenience of court.”

7. Aggrieved by the above decision, the appellant carried the

matter to the High Court of Kerala at Ernakulam (for short, ‘the

High Court’)  by way of  Crl.M.C. No.  1663/2018.   The  learned

single Judge of the High Court dismissed the said petition and

confirmed the order of the Magistrate rejecting the stated

application filed by the appellant.  The High Court, however, after

analyzing the decisions and the relevant provisions cited before

it, eventually concluded that the seized memory card was only

the  medium on  which the  alleged incident  was recorded  and

hence that itself is the product of the crime.  Further, it being a

material object and not documentary evidence, is excluded from

the  purview of Section  207 of the  1973  Code.   The relevant

discussion can be discerned from paragraph 41 onwards, which

reads thus:­

“41. This leads to the crucial question that is to be answered in this case. Evidently, the crux of the prosecution allegation is that, offence was committed for the purpose of

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recording it on a medium. Memory card is the medium on which it  was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to  be established by  the  oral testimony of the  victim and witnesses. It is  also  not the information derived  from  the memory card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual  abuse was committed and  it  was recorded. Though, in the  course  of  evidence,  contents  of it  may be sought to be established to prove that, it was the memory card created by  the accused,  contemporaneously recorded on the mobile,  along with the commission of  offence,  that does not by itself displace the status of the memory card as a document. Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of section 207 Cr.P.C.

42. The evaluation of the above legal propositions clearly spells out that, the memory card produced in this case is not a document as contemplated under section 307 IPC [sic 207 Cr.P.C.]. In fact, it is in the nature of a material object. Hence, copy of it cannot be issued to the petitioner herein.  

43. Prosecution has a case that, though accused is entitled  for his rights, it is  not absolute and even outside section 207 Cr.P.C., there can be restrictions regarding the right under section 207 Cr.P.C. It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. Definitely, in case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1 (at page 1), the Constitutional Bench of the  Supreme Court  had held that the fundamental rights emanate from basic notions of  liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Art. 19 does not denude Art.21 of its expansive ambit. It was held that, validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom. In Sherin V. John’s case (supra), this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory rights of

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another person, Fundamental Rights will prevail. The possibility of such contention may also arise. Since that question does not arise in this case in the light of  finding under section 207 Cr.P.C. I do not venture to enter into that issue.  

44. Having considered the entire issue, I am inclined to sustain  the order  of the court  below  in Crl.M.P.  No.49 of 2018 in C.P. No.16 of 2017 dismissing the application, though on different grounds. However, this will not preclude the Court from permitting the accused to watch the memory card only in Court, subject to restrictions, to prepare defence.”

(emphasis supplied)

8. The appellant being dissatisfied, has assailed the reasons

which  found favour  with the trial  Court,  as  well  as the  High

Court.  The appellant broadly contends that the prosecution case

is founded on the forensic report which suggests that eight video

recordings  were  retrieved  from the  memory  card and  that the

video files were found to be recorded on 17.2.2017 between

22:30:55 hrs. and 22:48:40 hrs.   The same were transferred to

the stated memory card on 18.2.2017 between 09:18 hrs. and

09:20  hrs.  Be it  noted that the  original video recording  was

allegedly done by accused No. 1 on his personal mobile phone,

which has not been produced by the investigating agency.

However, the memory card on which the offending video

recording was copied on 18.2.2017 was allegedly handed over by

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an Advocate claiming that the accused No. 1 had given it to him.

He had presented the memory card before the Court on

20.2.2017, which was sent for forensic examination at State FSL,

Thiruvananthapuram.  After forensic examination, the same was

returned alongwith FSL report DD No. 91/2017 dated 3.3.2017

and DD No. 115/2017 dated 7.4.2017.   A pen­drive containing

the data/visuals retrieved from the memory card, was also

enclosed with the report sent by the State FSL.

9. Be that as it may, the prosecution was obviously relying on

the contents of the memory card which have been copied on the

pen­drive by the State FSL during the analysis thereof and has

been so adverted to  in the police report.  The contents of the

memory card, which are replicated in the pen­drive created by

the  State  FSL would be  nothing but  a  “document”  within  the

meaning of the 1973 Code and the provisions of the 1872 Act.

And since the prosecution was relying on the same and proposes

to  use it  against the  accused/appellant, it  was incumbent to

furnish a cloned copy of the contents thereof to the

accused/appellant, not only in terms of Section 207 read with

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Section 173(5) of the 1973 Code, but also to uphold the right of

the  accused to a  fair trial  guaranteed under Article  21 of the

Constitution of India.  The trial Court rejected the request of the

appellant  on the  ground that it  would  affect the  privacy  and

dignity of the victim, whereas, the High Court proceeded on the

basis that the memory card is a material object and not a

“document”.   It is well known that a cloned copy is not a

photocopy, but is a mirror image of the original, and the accused

has the right to have the same to present his defence effectively.

In the  alternative, it is submitted, that the  Court  could  have

imposed  appropriate conditions  while issuing direction to the

prosecution to furnish a cloned copy of the contents of memory

card to the accused/appellant.

10. Per contra, the respondent­State and the intervenor (the

victim) have vehementaly opposed the present appeal on the

argument that the appellant before this Court is none other than

the master­mind of the conspiracy.   Although he was not

personally present on the spot, but the entire incident has

occurred at his behest.  It is urged that the appeal deserves to be

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dismissed as the appellant has disclosed the identity of the

victim in the memo of the special leave petition from which the

present  appeal  has  arisen.  Further, the appellant  has falsely

asserted that he had himself perused the contents of the pen­

drive and even for this reason, the appeal should be dismissed at

the threshold.  As a matter of fact, the contents of the pen­drive

were allowed  to be viewed by  the  appellant’s  counsel  and the

regular cadre  Assistant Public Prosecutor of the  Court.   The

asservation of the appellant that after viewing the contents of the

pen­drive,  he gathered an  impression that  the contents of the

memory card must have been tampered with, is the figment of

imagination of the appellant and contrary to forensic report(s) by

the State FSL.   The definite case of the respondent is that the

memory card seized in this case containing the visuals of sexual

violence upon the victim is a material object and the pen­drive

into which the contents of memory card were documented

through the process of copying by the State FSL and sent to the

Court for the purpose of aiding the trial Court to know the

contents of the memory card and the contents of the said pen­

drive is both material object as well as “document”.   It  is also

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urged that the visual contents of the pen­drive would be physical

evidence of the commission of crime and not “document”  per se

to be furnished to the accused alongwith the police report.  The

contents of the memory card or the pen­drive cannot be parted to

the accused and doing so itself would be an independent offence.

Moreover, if a cloned copy of the contents of the memory card is

made available to the accused/appellant, there is reason to

believe that it  would  be  misused by the  accused/appellant to

execute the conspiracy of undermining the privacy and dignity of

the victim.   It is urged that the appellant has relied on certain

decisions to contend that the contents of the memory card must

be regarded as “electronic record” and, therefore, a “document”.

The exposition in those decisions are general observations and

would be of no avail to the appellant.   The appellant is facing

prosecution for an offence of rape, and the trial thereof would be

an  in­camera trial  before the Special  Court.  To maintain  the

sanctity and for upholding the privacy, dignity and identity of the

victim, it is urged that the accused/appellant in such cases can

seek limited relief before the trial Court to permit him and his

lawyer or an expert to view the contents of the pen­drive in Court

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or at best to permit him to take a second opinion of expert to

reassure himself in  respect  of the doubts entertained by him.

Such indulgence would obviate the possibility of misuse of the

cloned copy of the video/audio footage/clipping and the same

would be in the nature of a preventive measure while giving a fair

opportunity to the accused to defend himself.   The respondent

and the intervenor would urge that the appeal be dismissed

being devoid of merits.   

11. As aforesaid, both sides have relied on reported decisions of

this Court, as well as the High Courts and on the provisions of

the relevant enactments to buttress the submissions.   We shall

refer thereto as may be required.

12. We have heard Mr. Mukul Rohatgi, learned senior counsel

for the appellant, Mr. Ranjit Kumar, learned senior counsel for

the respondent­State and Mr. R. Basant, learned senior counsel

for the intervenor.

13. The central issue is about the obligation of the investigating

officer flowing from Section 173 of the 1973 Code and that of the

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Magistrate while dealing with the police report under Section 207

of the 1973 Code.  Section 173 of the 1973 Code ordains that the

investigation under Chapter XII of the said Code should be

completed without unnecessary delay and as regards the

investigation in relation to offences under Sections 376, 376A,

376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860

Code, the same is required to be completed within two months

from  the  date  on  which  the information was recorded  by the

officer in charge of the police station.   The investigating officer

after completing the investigation, 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

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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.   As regards the documents, sub­Section (7) 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

sub­Section (5) to the accused.   Section 173, as amended and

applicable to the case at hand, reads thus:­

‘‘173. Report of police officer on completion of investigation.—(1)  Every investigation  under this  Chapter shall be completed without unnecessary delay.  

(1A) The investigation in relation to an offence under sections 376,  376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station.  

(2) (i) As soon as it is completed, the officer in charge of the police  station shall forward  to  a  Magistrate  empowered  to

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take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—  

(a) the names of the parties;  

(b) the nature of the information;  

(c) the names of the persons who appear to be acquainted with the circumstances of the case;  

(d) whether any offence appears to have been committed and, if so, by whom;  

(e) whether the accused has been arrested;  

(f) whether he has been released on his bond and, if so, whether with or without sureties;  

(g) whether he has been forwarded in custody under section 170;   

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence  under   sections  376, 376A, 376AB,  376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).  

(ii) The officer shall also communicate, in such manner as may be  prescribed  by the  State  Government, the  action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.  

(3)  Where  a  superior officer  of  police  has  been  appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and  he  may,  pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.  

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.  

(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—

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(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 subject­matter 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.  

(7) Where the police officer investigating the case finds it convenient so to do, he  may furnish to the accused copies of all or any of the documents referred to in sub­ section (5).  

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub­section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub­sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub­ section (2).’’

(emphasis supplied)

14. Concededly, as regards 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

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“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 the 1973

Code 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.   

15. On receipt of the police report and the accompanying

statements and documents by virtue of Section 207 of the 1973

Code, the Magistrate is then obliged to furnish copies of each of

the statements and  documents to the accused.   Section  207

reads thus:­

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‘‘ 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 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 sub­section (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 sub­section (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 sub­section (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.’’

As regards the statements, the first proviso enables the

Magistrate to withhold any part thereof 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

sub­Section (6) of Section 173.   However, when it comes to

23

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 the

1973 Code  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 sub­Section (6) of Section 173 of the

1973 Code.   

16. Be that as it may, 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.  We may

24

usefully  advert to the  dictum  in  Hardeep Singh v.  State  of

Punjab1 wherein it was held that:­

“47.  Since  after the filing  of the  charge­sheet, the  court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge­sheet is filed and before the pronouncement  of judgment, except during the stage of Sections 207/208 CrPC, committal,  etc.  which  is  only  a pre­trial  stage, intended  to  put the  process into  motion. This stage cannot be said to be a judicial step in the true sense for it only requires  an  application of  mind  rather than a judicial application of mind. At this pre­trial stage, the Magistrate is required to perform acts in the nature of administrative work  rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the  matter if it is exclusively triable by the Sessions Court ... … …”

(emphasis supplied)

In yet another case of  Tarun Tyagi vs. CBI2, this Court

considered the  purport  of  Section  207 of the  1973  Code  and

observed as follows:­ “8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay.   It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code.  Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with.  Proviso  to Section 207 states that if  documents  are  voluminous, instead  of furnishing the accused with the copy thereof, the Magistrate can allow

1 (2014) 3 SCC 92 2 (2017) 4 SCC 490

25

the accused to inspect it either personally or through pleader in the Court.”

17. It is well established position that when statute is

unambiguous, the Court must adopt plain and natural meaning

irrespective of the consequences as expounded in Nelson Motis

v. Union of India3.  On a bare reading of Section 207 of  the

1973 Code, no other interpretation is possible.

18. Be that as it may, furnishing of documents to the accused

under Section 207 of  the 1973 Code is  a facet of  right of  the

accused to a fair trial enshrined in Article 21 of the Constitution.

In  Sidhartha  Vashisht  @  Manu  Sharma  v.  State (NCT  of

Delhi)4, this Court expounded thus:­

“218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be

3 (1992) 4 SCC 711 4 (2010) 6 SCC 1

26

furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is  relevant and would help  in arriving at the truth, that document should also be disclosed to the accused.

219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be  ignored. It  may be of  different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion  of the  Prosecutor to the  accused  whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain.  As  already  noticed the  provisions  of  Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6)  of the  Code,  any  other  document  or relevant extract thereof which has been submitted to the Magistrate by the police under sub­section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression “documents on which the prosecution relies”  are  not  used under  Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object.  Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents  which  have to be sent to the  Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.

27

220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim  an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of  the constitutional  jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections  207, 243 read with the  provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution  has  collected  during investigation  and upon which they rely.

221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when  non­production or disclosure  of such  a  document would affect administration of criminal justice and the defence of the accused prejudicially.”

(emphasis supplied)

19. Similarly,  in  V.K. Sasikala v. State5,  this Court held as

under:­

“21.  The  issue that  has emerged before us  is, therefore, somewhat larger than what has been projected by the State and  what  has  been  dealt  with  by the  High  Court.  The

5 (2012) 9 SCC 771

28

question arising would no longer be one of compliance or non­compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.PC and touch upon the larger  doctrine of  a free and fair trial that has been painstakingly built  up  by the courts  on a  purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to  have an access  to  the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.”

(emphasis supplied)

20. The next seminal question is: whether the contents of the

memory  card/pen­drive submitted to the  Court alongwith the

police report can be treated as “document” as such.  Indubitably,

if the contents of the memory card/pen­drive 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 the

1973 Code would not arise.   We say so because it is nobody’s

29

case before us that the contents of the memory card/pen­drive

be treated as a “statement” ascribable to Section 173(5)(b) of the

1973  Code.  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.

21. The High Court adverted to certain judgments before

concluding that the memory card would be a material object. For

arriving  at the said  conclusion, the  High  Court relied  on the

decision of the King’s Bench of United Kingdom in The King v.

Daye6, wherein Darling J., adding to the majority opinion, had

held thus:­ “…But I should myself say that any written thing capable  of  being  evidence is  properly  described  as  a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it  was  on stone,  marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless  it  be a paper  writing. I should say it is  a  document  no  matter upon what material it be, provided it is writing or printing and capable of being evidence.”

(emphasis supplied)

6 [1908] 2 K.B. 333

30

The High Court also relied on the decision of the Chancery Court

in Grant and Another v. Southwester and County Properties

Ltd. and Another7, wherein it was observed as follows:­ “There are a number of cases in which the meaning of

the word "document" has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin "documentum": it is something which instructs or provides information. Indeed, according to Bullokar's English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: "Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title­deed, coin, etc.,"  and it produces  as the relevant  quotation: ­ "These frescoes... have become invaluable as documents," the writer  being Mrs. Anna Brownell  Jameson who  lived from 1794 to 1860.

I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information ­ impliedly otherwise than as to the document itself ­ as being one of the main functions of a document. Indeed, in In Re Alderton and Barry's Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen's  time sheets could be classified as documents within section 11(1)(b) of the Patent and Design Acts 1907­ 1939 expressly because in their original state they conveyed no information of any kind to anybody...”

It can be  safely  deduced from  the  aforementioned  expositions

that the  basis of classifying  article as a “document”  depends

upon the information which is inscribed and not on where it is

inscribed.   It may be useful to advert to the exposition of this

7 [1975] Ch. 185

31

Court  holding that tape  records  of  speeches8  and audio/video

cassettes9  including compact disc10  were “documents” under

Section 3 of the 1872 Act, 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 Act11.

22. It is apposite to recall the exposition of this Court in State

of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court

observed that 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.   In paragraph 14 of the said

decision, the Court observed thus:­

“14.  It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly

8   Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 9  Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17 10  Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 11  Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 12 (2003) 4 SCC 601

32

set out by the leading jurist Francis Bennion in his commentaries  titled Statutory  Interpretation,  2nd Edn.,  p. 617:

“It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

*** In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make  allowances for any relevant changes that  have occurred since the Act's passing, in law, in social conditions, technology, the meaning of words and other matters…. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments.  The  drafter  will foresee the future  and allow for it in the wording.

*** An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with  such  modification  of the current  meaning  of its language as will now give effect to the original legislative intention.  The reality and effect of dynamic processing provides the gradual adjustment. It is constituted  by judicial interpretation,  year in  and year out. It also comprises processing by executive officials.””

(emphasis supplied)

23. As aforesaid, the respondents and intervenor would contend

that the memory card is a material object and not a “document”

33

as such.   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/pen­drive is a

material  object.   In this regard,  we may  refer to  Phipson on

Evidence13, and particularly, the following paragraph(s):­

“The purpose for which it is produced determines whether a document is to be regarded as documentary evidence. When adduced to prove its physical condition, for example, an alteration, presence of a signature, bloodstain or fingerprint, it is real evidence. So too, if its relevance lies in the simple fact that it exists or did once exist or its disposition or nature. In all these cases the content of the document, if relevant at all, is only  indirectly  relevant, for example to establish that the document in question is a lease. When the relevance of a document depends on the meaning of its contents, it is considered documentary evidence.” ... ... ...”  

(emphasis supplied)

Again at page 5 of the same book, the definition of “real

evidence14” is given as under:­

 “Material  objects  other than documents,  produced  for inspection of the court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon. Unless its

13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450 14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5

34

genuineness is in dispute [See Belt v Lawes, The Times, 17 November 1882.], the thing speaks for itself.

 Unfortunately, however, the term “real evidence” is itself both indefinite and ambiguous, having been used in three divergent senses:  

(1) … … …

(2)  Material  objects  produced  for the  inspection of the court.  This is the second and most widely accepted meaning of “real evidence”. It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing.

(3) … … …”

A priori, we must hold that 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.   Section 2(1)(t)  of the

2000 Act reads thus:­

‘‘2(1)(t) “electronic record” means data, record or data generated, image  or  sound stored, received  or  sent in  an electronic  form or micro  film or computer­generated micro fiche;’’

24. As  the  above  definition  refers to  data  or  data  generated,

image or sound stored, received or sent in an electronic form, it

35

would be apposite to advert to the definition of “data” as

predicated in Section 2(1)(o) of the same Act.  It reads thus:­

“2(1)(o) “data” means a representation of information, knowledge, facts,  concepts or  instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;’’

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.

25. Having noticed the above definitions, we may now turn to

definitions of expressions “document” and “evidence” in Section 3

of the 1872 Act being the interpretation clause.  The same reads

thus:­

36

“3.  Interpretation clause.­

Document.­ "Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.  

Illustrations

A writing is a document;  

Words printed, lithographed or photographed are documents;  

A map or plan is a document;  

An inscription on a metal plate or stone is a document;  

A caricature is a document.

Evidence.­ "Evidence" means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;  

(2) all documents including electronic records produced for the inspection of the Court,  

such documents are called documentary evidence.”

On a bare reading of the definition of “evidence”, it clearly takes

within  its fold  documentary  evidence  to  mean and  include all

documents including electronic records produced for the

inspection of the Court.  Although,  we need not dilate on the

question of admissibility of the contents of the memory

card/pen­drive, the same will have to be answered on the basis

of Section 65B of the 1872 Act.  The same reads thus:­

37

“65B. Admissibility of electronic records.­(1) Notwithstanding anything contained in this Act, 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub­section (1) in respect of a computer output shall be the following, namely:­

(a) the computer  output  containing the  information was produced by the computer during the period over  which  the  computer  was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the  said  period, information of the  kind contained in the electronic record or of the kind from which the information so contained   is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of  the said period, the  computer  was operating  properly  or, if  not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and  

(d) the information contained in the electronic record reproduces  or is  derived from such  information fed  into the computer  in  the ordinary course of the said activities.”

(3) Where over any period, the function of storing or processing  information  for the purposes of  any activities regularly carried on over that period as mentioned in

38

clause (a) of sub­section (2)  was regularly  performed by computers, whether—

(a)  by a combination of computers operating over that period; or

(b)  by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d)  in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a)  identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of  showing that the electronic record was produced by a computer;

(c)  dealing with any of the matters to which the conditions mentioned in sub­section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub­section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

39

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and  whether it is so supplied directly or  (with or without human intervention) by means of any appropriate equipment;

(b)  whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c)  a computer output shall  be  taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.  

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

This provision 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.

26. It  may be useful  to also advert  to Section 95(2)(b)  of the

1973 Code, which refers to “document” to include any painting,

40

drawing or photograph, or other visible representation.   And

again, the expression “document” has been defined in Section 29

of the 1860 Code, which reads thus:­

‘‘29. “Document”.—The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation  1.—It is immaterial by  what  means or  upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.  

Illustrations

A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.  

A cheque upon a banker is a document.  

A power­of­attorney is a document.  

A map or plan which is intended to be used or which may be used as evidence, is a document.  

A writing containing directions or instructions is a document.

Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.  

Illustration

A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by  mercantile  usage, is that the  bill is to  be  paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder”  or  words  to that  effect  had been written over the signature.’’

41

27. Additionally, it may be apposite to also advert to the

definition of “communication devices” given in Section 2(1)(ha) of

the 2000 Act. The said provision reads thus:­

‘‘2(1)(ha) ‘‘communication device’’ means cell phones, personal  digital  assistance  or  combination of  both  or  any other  device  used to communicate, send  or transmit any text, video, audio or image’’

28. We may  also  advert to the  definition  of “information”  as

provided in  Section  2(1)(v) of the  2000 Act.  The  same  reads

thus:­

‘‘2(1)(v)   ‘‘information’’ includes data, message, text, images sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche’’

29. Even the definition of “document” given in the General

Clauses Act would reinforce the position that electronic records

ought to be treated as “document”.  The definition of “document”

in Section 3(18) of the General Clauses Act reads thus:­

‘‘3(18) ‘‘document’’ shall include any matter written, expressed  or  described  upon  any substance  by  means  of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter”

42

30. It may be apposite to refer to the exposition in Halsbury’s

laws of England15 dealing with Chapter – “Documentary and Real

Evidence” containing the meaning of documentary evidence and

the relevancy and admissibility thereof including about the audio

and video recordings.  The relevant exposition reads thus:­ “(12) DOCUMENTARY AND REAL EVIDENCE

1462. Meaning of documentary evidence.   The term ‘document’ bears different meanings in different contexts.  At common law, it has been held that any written thing capable of being evidence is properly described as a document16, and this clearly includes printed text, diagrams, maps and plans17. Photographs are also regarded as documents at common law18.

Varying definitions have been adopted in legislation19.  A document may be relied on as real evidence (where its existence, identity or appearance, rather than its content, is in issue20), or as documentary evidence.   Documentary

15  Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure

16  R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.

17   A tombstone bearing  an  inscription  is in this  sense  a  document (see  Mortimer  v. M’Callan (1840) 6 M & W 58), as is a coffin­plate bearing an inscription (see R v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309).

18  See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD.  

19   For the purposes of the Police and Criminal Evidence Act 1984,  ‘document’ means anything in which information of any description is recorded: s. 118 (amended by the Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)).  For the purposes of the Criminal Justice Act 2003 Pt. 11 (ss. 98­141) (as amended) (evidence), the definition is the same (see s. 134(1)), save  that for the  purposes  of  Pt.  11 Ch.  3 (ss  137­141) (which  includes  the  provision relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of sounds or moving images (see s. 140).

20   See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855) 11  Exch  360.  Documents  produced  by  purely  mechanical  means  may  constitute real evidence even where reliance  is placed on the content:  The Statute of  Liberty,  Sapporo Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film

43

evidence denotes reliance on a document as proof of its terms or contents21.   The question of the authenticity of a document is to be decided by the jury22.

1463. The primary evidence rule.  Under the ‘primary evidence rule’ at common law23, it was once thought necessary for the contents of any private document to be proved by production of the original document24.   A copy of an original document, or oral evidence as to the contents of that document, was considered admissible only in specified circumstances, namely: (1) where another party to the proceedings failed to comply with a notice to produce the original  which was  in his possession  (or  where the need to produce it was so clear that   no such notice was required)25; (2) where production of the original was shown to be impossible26; (3) where the original appeared to have been lost or destroyed27; and (4) where a third party in possession of the original lawfully declined to produce it28….

xxx xxx xxx

of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breath­ testing device).   See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May).  As to real evidence generally see para 1466 post.

21  R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

22   R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA.   The admissibility of a document is, following the general rule, a question for the judge:   See para 1360 ante.  A document which the law requires to be stamped, but which is unstamped, is admissible in criminal proceedings:   Stamp Act 1891 s. 14(4) (amended by the Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).

23  As to the related ‘best evidence rule’ see para 1367 ante.

24  As to the admissibility of examined or certified copies of public documents at common law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.

25   A­G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

26   Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr.M. & R 277.

27  R. v. Haworth (1830) 4 C & P 254

28  R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA.  A further possibility was that contents of a document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664

44

1466.  Real evidence.  Material objects or things (other than the contents of documents)  which are produced as exhibits for inspection by a court or jury are classed as real evidence29.   The court or jury may need to hear oral testimony explaining the background and alleged significance of any such exhibit, and may be assisted by expert evidence in drawing inferences or conclusions from the condition of that exhibit30.

Where a jury wishes to take an exhibit, such as a weapon, into the jury room, this is something which the judge has a discretion to permit31.   Jurors must not however conduct unsupervised experiments32, or be allowed to inspect a thing which has not been produced in evidence33.

Failure to produce an object which might otherwise have been admissible as real evidence does not preclude the admission of oral evidence concerning the existence or condition of that object, although such evidence may carry far less weight34.

xxx xxx xxx

1471. Audio and video recordings.   An audio recording is admissible in evidence provided that the accuracy of the recording

29  This include animals, such as dogs, which may be inspected to see if they are ferocious (Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been ill­treated, etc. Note however that statements (such as statements of origin) printed on objects may give rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.

30   Expert evidence may often be essential  if  the court or  jury is to draw any kind of informed conclusions from their examination of the exhibit.   It would be dangerous, for example, for a court or jury to draw its own unaided conclusions concerning the identity of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All ER 768, PC.

31  R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.

32   R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653, CA.

33  R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.

34  R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB 120, [1943] 1 All ER 722, DC.  See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85 Cr.App. Rep. 367, DC.  If the object in question is in the possession of the prosecutor or of a third person, its production may generally be compelled by issue of a witness order under the  Criminal Procedure (Attendance of  Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended) (see para 1409 ante).  The defendant cannot, however, be served with such an order, lest he be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.

45

can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible35.  However, that evidence should always be regarded with caution and assessed in the light of all the circumstances36.

A video recording of an incident which is in issue is admissible37.   There is no difference in terms of admissibility between a direct view of an  incident and a view of it  on a visual display unit of a camera or on a recording of what the camera  has filmed.   A  witness  who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view38.”

(emphasis supplied)

31. In  order to  examine  the  purport  of the term “matter”  as

found in Section 3 of the 1872 Act, Section 29 of the 1860 Code

and Section 3(18) of the General Clauses Act, and to ascertain

35  R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA.  For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450.  See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA.   Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.

36  R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA.  As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment).

37  Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.

38  Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.  As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA.  A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682.  As to the identification of the defendant by still photographs taken  by an automatic security camera see  R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.

46

whether  the contents of the memory card can be regarded as

“document”, we deem it appropriate to refer to two Reports of the

Law Commission of India. In the 42nd Law Commission Report39,

the Commission opined on the amendments to the 1860 Code.

Dealing with Section 29 of the 1860 Code, the Commission

opined as under:­ “2.56.   The main idea in all the three Acts is the same and the emphasis is on the “matter” which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of “document” for its own purpose, and that section 29 should be retained.”

The said observation is restated in the 156th  Report40,  wherein

the Commission opined thus:­ “11.08   Therefore, the term ‘document’ as defined in Section 29, IPC may be enlarged so as to specifically include therein any disc, tape, sound track or other device on or in which any matter is recorded or stored by mechanical, electronic or other means … … … The aforesaid proposed amendment  in section 29 would also necessitate consequential amendment of the term “document”  under  section 3  of the Indian Evidence  Act, 1872 on the lines indicated above.”

Considering the aforementioned Reports, it can  be concluded

that the contents of the memory card would be a “matter” and

39  Forty­Second Report, Law Commission India, Indian Penal Code, June, 1971, 32­35

40 One Hundred Fifty­Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter­XI

47

the memory card itself would be a “substance” and hence, the

contents of the memory card would be a “document”.

32. 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 the  1973  Code.  The concomitant is that the

contents of the memory card/pen­drive must be furnished to the

accused, which can be done in the form of cloned copy of the

memory card/pen­drive.   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 the 1973

Code, but also the right of an accused to a fair trial enshrined in

Article 21 of the Constitution of India.

33. We do not wish to dilate further nor should we be

understood to have examined the question of relevancy of the

48

contents of the  memory card/pen­drive  or for that  matter the

proof and admissibility thereof.   The only question that we have

examined in this appeal is: whether the contents of the memory

card/pen­drive referred to in the chargesheet or the police report

submitted  to Magistrate  under Section 173 of the 1973 Code,

need to be furnished to the accused if the prosecution intends to

rely on the same by virtue of Section 207 of the 1973 Code?

34. Reverting to 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,

we find that the explanation offered by the appellant is plausible

inasmuch as 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

the 1973 Code, 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/pen­drive does not take the matter any

49

further,  once we recognize the right of the accused to get  the

cloned copies of the contents of the memory card/pen­drive as

being mandated by Section 207 of the 1973 Code and more so,

because of the right of the accused to a fair trial enshrined in

Article 21 of the Constitution of India.

35. The next crucial question is: whether parting of the cloned

copy of the contents of the memory card/pen­drive and handing

it over to the accused may be safe or is likely to be misused by

the accused or any other person with or without the permission

of the accused concerned?   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/pen­drive would be freely available to all the

accused.  

36. Considering the principles laid down by this Court in

Tarun Tyagi  (supra), we are of the opinion that certain

conditions need to be imposed in the fact situation of the present

50

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  well­nigh  impossible to  keep

track of the misuse of the cloned copy and its safe and secured

custody.   

37. 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

51

analyzing the cloned copy of the subject memory card/pen­drive,

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.

We are  inclined to  say so because  the  State  FSL has already

submitted its forensic report in relation to the same memory card

at the instance of the investigating agency.   

38. Needless to  mention that the  appellant  before  us  or the

other accused cannot and are not claiming any expertise, much

less, capability of  undertaking forensic  analysis of the cloned

copy of the contents of the memory card/pen­drive.   They may

have to eventually depend on some expert agency.   In our

opinion, 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 pen­drive 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

52

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.

39. Considering that this is a peculiar case of intra­conflict 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. This principle has been enunciated in the case of  Asha

Ranjan v. State of Bihar41 wherein this Court held thus:­

“57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the collective or social order” would be the principle to recognise and accept the right of one which has to be protected.

xxx xxx xxx

61. Be it stated, circumstances may emerge that may necessitate for balancing between intra­fundamental rights. It has been distinctly understood that the test that has to be applied  while balancing the two fundamental rights or  inter  fundamental rights, the principles applied may be different than the principle to be applied in intra­ conflict between the same fundamental right … … ... Thus, there can be two individuals both having legitimacy to

41 (2017) 4 SCC 397

53

claim or  assert the right.  The factum of legitimacy is  a primary consideration. It  has to  be  remembered  that  no fundamental right is absolute and it can have limitations in certain circumstances … … ...  Therefore,  if  the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it  can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable  aspect  of  Article  21  of the  Constitution  and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. ... … …

xxx xxx xxx

86.1. The right to fair trial is not singularly absolute, as is  perceived, from the perspective of  the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.  

86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra­conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance  in certain circumstances,  the  interest  of the society  as  a  whole,  when it  would  promote and instil  Rule of Law.  A  fair trial is  not  what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.”

54

(emphasis supplied)

40. This Court in  Mazdoor Kisan Shakti Sangathan v.

Union of India42 has restated the legal position in the following

terms:­

“61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public  interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the  way it  has  been  happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well.  Going by the dicta in Asha Ranjan  [Asha Ranjan v.  State of  Bihar, (2017) 4 SCC 397  : (2017)  2 SCC  (Cri)  376] ,  principle  of  primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

(emphasis supplied)

41. We are conscious of the fact that Section 207 of the 1973

Code 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

42 (2018) 17 SCC 324

55

Section 207, of being voluminous, ordinarily, cannot be invoked

and will be unavailable.  We are also conscious of the dictum in

the case of  Superintendent and Remembrancer of Legal

Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein

this  Court  has  restated  the  cardinal  principle that  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.   

42. Nevertheless, the Court cannot be oblivious to the nature of

offence and the principle underlying the amendment to Section

327 of the 1973 Code, in particular sub­Section (2) thereof and

insertion  of  Section  228A of the  1860 Code, 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/pen­drive from an independent

agency referred to above, so as to effectively defend himself

during the trial.   Thus, balancing the rights of both parties  is

imperative, as has been held in  Asha Ranjan  (supra) and

43 (1981) 2 SCC 109

56

Mazdoor Kisan Shakti Sangathan (supra).  The Court is duty

bound to issue  suitable  directions.  Even the  High  Court, in

exercise of inherent power under Section 482 of the 1973 Code,

is competent to issue  suitable  directions to  meet the ends  of

justice.

43. If the accused or his lawyer himself, additionally, intends to

inspect the contents of the memory card/pen­drive 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, 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/pen­drive in any manner.   Such

57

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.

44. In  conclusion,  we  hold 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 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.  

45. In view of the above, this appeal partly succeeds.   The

impugned judgment and order passed by the trial Court and the

High Court respectively stand modified by giving option to the

appellant/accused to the extent indicated hitherto, in particular

paragraphs 37, 38 and 43.

58

46. Resultantly, the application filed by the appellant before the

trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is

partly allowed in the aforementioned terms.

47. We direct the trial Court to ensure that the trial in C.P. No.

16/2017 is concluded expeditiously, preferably within six

months from the date of this judgment.

     …………………………..J       (A.M. Khanwilkar)

     …………………………..J       (Dinesh Maheshwari)

New Delhi; November 29, 2019.