SC: Contents of memory card/pen drive must be regarded as a document

The Hon’ble Supreme Court, on 29th November 2019, in the matter of P. Gopalkrishnan @ Dileep v. State of Kerala and Anr. pronounced that contents of memory card/pen drive must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy, 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.

Question(s) before the Hon’ble Court

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 would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860? If so, whether it is 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?

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 IT Act, 2000 Act and the IPC, 1860)?

The Hon’ble Supreme Court observed that:

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 “statements”) enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof (“document”) from the copies to be granted to the accused. Sub­ Section (7), however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the expression used in Section 173(5)(a) of Cr.P.C makes it amply clear that the investigating officer is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned alongwith the police report to the Magistrate. (Para 14)

On receipt of the police report and the accompanying statements and documents by virtue of Section 207, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. (Para 15)

As regards the statements, the first proviso to Section 207 of Cr.P.C, enables the Magistrate to withhold any part of the statements recorded under sub­section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in sub­-section (6) of Section 173. (This inference has been drawn on the basis of Para 15)

Section 207 of the Cr.P.C does not empower the Magistrate to withhold any “document” submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of ‘statements’ referred to in sub­-section (6) of Section 173 (Para 15)

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. (Para 16)

When statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences (Para 17)

Furnishing of documents to the accused under Section 207 of the Cr.P.C is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. (Para 18)

The basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed. (Para 21)

In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a construction that continuously updates its wordings to allow for changes and is compatible with the contemporary situation. (Para 22)

A priori, the video footage/clipping contained in such memory card/pen­drive being an electronic record as envisaged by Section 2(1)(t) of the Information and Technology Act, 2000 is a “document” and cannot be regarded as a material object. (Para 23)

Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision. (Para 25)

The contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”. (Para 31)

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. (Para 32)

 Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason, however, if it is an “electronic record”, certainly the ground predicated in the second proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. (Para 41)

The contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides. (Para 44)

Copy of judgement: Judgement_29-Nov-2019

-Adv. Tushar Kaushik

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