Sri. Prajwal Revanna Vs State by Karnataka

STATE BY KARNATAKA BY CYBER CRIME POLICE STATION BENGALURU – 560 001 NOW INVESTIGATION BY SPECIAL INVESTIGATION TEAM NO.1, CARLTON HOUSE PALACE ROAD, BENGALURU – 560 001. REPRESENTED BY SPECIAL PUBLIC PROSECUTOR OF SIT CID BENGALURU.

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SMT. XXX W/O XXX XXXXX

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…RESPONDENTS

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(BY SRI B.N.JAGADEESHA., ADDL.SPP FOR R-1)

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CRL.P FILED U/S 482 CR.P.C (U/S 528 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO a) SET ASIDE THE IMPUGNED ORDER PASSED DTD: 10.12.2024 ON THE APPLICATION U/S 207 OF CR.P.C., 1973, IN CC.NO.34283/2024, ARISING OUT OF CR.NO.2/2024 REGISTERED BY CYBER CRIME P.S., BANGALORE, FOR THE OFFENCES P/U/S 354(A), 354(B), 354(C), 376(2)(n), 376(2)(K), 506, 201 OF IPC, AND SEC.66(E) OF IT ACT, 2000; b) AND FURTHER BE PLEASED TO DIRECT THE RESPONDENT NO.1 TO SUPPLY THE CLONE OF DIGITAL DATA RELIED IN THE CHARGE SHEET MATERIAL TO PETITIONER BY ALLOWING THE PRESENT PETITION FILED U/S 482 OF CR.P.C., 1973.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA

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ORAL ORDER

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The petitioner is before this Court calling in question an order dated 10-12-2014 by which the application under Section 207 of the Cr.P.C comes to be rejected. Consequential direction is sought for supply of a clone copy of digital data, relied on in the charge sheet material, to the petitioner.

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Heard Sri Arun G, learned counsel appearing for petitioner and Sri Jagadeesha B N., learned Additional State Public Prosecutor, appearing for respondent No.1.

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The petitioner, an accused, in C.C.34283 of 2024 is being tried for offences punishable under Sections 354A, 354B, 354C, 376(2)(n), 376(2)(k), 506, 201 of the IPC and Section 66E of the Information Technology Act, 2000. The issue in the lis is not with regard to the defence of the petitioner or the allegations of the prosecution. The petitioner files an application under Section 207 of the Cr.P.C. seeking certain documents. The documents are the clone copies of all the contents in the mobile phone, be it concerning the crime or other than the crime. This comes to be rejected by the concerned Court, in terms of the order impugned. The nonacceptance of the application in the manner that the petitioner wanted, has driven him to this Court in the subject petition.

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Learned counsel Sri Arun G appearing for the petitioner would vehemently contend that the investigating officer investigating crime No.107 of 2024 has communicated to the

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Director, State FSL to conduct forensic examination on articles seized and therefore, the said articles which were given for examination should be made available to him in its entirety. He would seek to place reliance upon the judgment rendered by the Apex Court interpreting Section 207 of the Cr.P.C.

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Per-contra, the learned Additional State Public Prosecutor Sri B N Jagadeesh would vehemently refute the submissions to contend that the petitioner is not entitled to all the documents of others, he would definitely be entitled to those documents which concerns the complainant and those documents have all been furnished. He would further contend that he would become entitled to certain electronic documents strictly in consonance with what the Apex Court has held in the case of P. GOPALKRISHNAN v. STATE OF KERALA¹ . He would submit that the prosecution would show the documents that are needed. He can take a clone copy of the same, but other than that of the complainant, it would be breach of privacy if the petitioner is given all the contents of the mobile phone or the source from which the contents were drawn.

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1 (2020) 9 SCC 161

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I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record.

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The afore-narrated facts are not in dispute. The issue

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now lies in a narrow compass. The complaint and the summary charge sheet need not be gone into. The petitioner files an application under Section 207 of the Cr.P.C., the application reads as follows:

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“APPLICATION UNDER SEC.207 OF CODE OF CRIMINAL PROCEDURE, 1973

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The accused above begs to submit as follows:

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The complainant/ investigation agency have filed the final report in the above case by citing alleged offences under Sec. Sec.376(2)(n), 376(2)(k), 354A, 354B 354C, 506, 509, 201 IPC R/w.Sec.66(E) I.T Act. Thereafter this Hon'ble Court was pleased to take cognizance on the chargesheet and the accused is in judicial custody in another case, as such this Hon'ble Court was pleased to issue the body warrant against accused for the purposes of this case.

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The accused submits that the final report initially filed in the present runs up to 1652 pages in 4 volumes and thereafter additional chargesheet/Volume 5 was submitted by investigation agency. The accused is furnished with the copy of the charge sheet as contemplated under the law. However, upon going through the charge sheet it could be gathered that the prosecution has relied on certain FSL reports which are appended in the charge-sheet submitted to the Hon'ble Court. The

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FSL reports are given as reference such as FSL/FLMS/AVFS/394/2024 (at Page No.1405 of charge-sheet-Vol-4), FSL/FLMS/MFS/422/2024(at Page No.1423 of charge-sheet) in which certain pen drives are referred to be enclosed to the report. But no clone copies of the said DVDs and Pen-drives are furnished along with the charge-sheet furnished the accused.

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The accused submits that case against the accused is an outcome of political conspiracy and vengeance of certain vested interest and the accused prays that this Hon'ble Court be pleased to direct the Investigating agency to furnish the clone copies of materials produced in digital form in the chargesheet to the accused forthwith. Hence, the present application.

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The accused prays that this Hon'ble Court may permit the accused to urge additional grounds on his behalf at the time of hearing the application, in the interest of justice.

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WHEREFORE , it is prayed that this Hon'ble Court be pleased to direct the investigating agency to furnish the clone copies of charge-sheet materials which are in digital form, in the interest of justice.”

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The concerned Court answering the application passes the following order:

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“The accused is produced under body warrant through V.C.

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Advocate for the accused filed an application U/Sec. 207 of Cr.P.C., praying to direct the investigating agency to furnish the copies of DVDs & Pen drives refer to at page No. 1405 & 1423 of the volume No.4 of the Final report

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Lrd.Spl.PP submitted that, the copies of said DVDs & Pen drives were supplied to the court on 26/11/2024, which were furnished to accused on 05/12/2024.

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The order sheet also reveals that copies of said 2 DVDs & 2 Pen drives were received by the advocate for the accused on 05/12/2024 itself. Hence, the application is rejected.

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For committal order, Call at 3-00 p.m.

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Sd/(K.N.Shivakumar)

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42nd ACMM, (Special Court for trial of cases against sitting as well as former Mps/MLAs, triable by Magistrate in the State of Karnataka)

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(Order pronounced in open court vide separate order)

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ORDER

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In exercise of powers conferred under section 209 of Cr.P.C, this case is committed to the Hon'ble 82^nd City Civil & Sessions Court (Special Court for trial of criminal cases against the present & former M.Ps & MLAs in the state), Bangalore.

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Copies of the prosecution papers are furnished to the accused

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2 Office is directed to submit the entire case records of this case including the properties/documents kept in safe custody to the Hon'ble 82^nd City Civil & Sessions Court (Special Court for trial of criminal cases against the present & former M.Ps & MLAs in the state), Bangalore . forthwith and the case properties if any shall be submitted as and when called for. 3. Notify the Special Public Prosecutor about the committal of this case to the Court of Sessions.

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The accused has been in judicial custody in connection with an another case C.C, No.29064/2024 (Crime No. 107/2024) under UTP No.5664/24 and as such he shall be produced before the Hon'ble 82^nd

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City Civil & Sessions Court (Special Court for trial of criminal cases against the present & former M.Ps & MLAs in the state), Bangalore upon body warrant by said Court.

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Office to intimate the jail authority accordingly.

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Sd/- 10/12/24 (K.N.Shivakumar)

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42nd ACMM, (Special Court for trial of cases against sitting as well as former Mps/MLAs, triable by Magistrate in the State of Karnataka)”

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Interpretation of Section 207 of the Cr.P.C. need not detain this

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Court for long or delve deep into the matter. The Apex Court in the case of P. GOPALKRISHNAN supra has considered this

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very aspect of the matter, wherein the Apex Court has held as follows:

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17. 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—

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(i) the police report;

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(ii) the first information report recorded under Section 154;

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(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 sub-section (6) of Section 173;

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( iv ) the confessions and statements, if any, recorded under Section 164;

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( v ) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173:

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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:

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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.”

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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 sub-section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer along with 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 document concerned either personally or through his pleader in Court. In other words,

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Section 207 of the 1973 Code does not empower the Magistrate to withhold any “document” submitted by the investigating officer along with the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of “statements” referred to in sub-section (6) of Section 173 of the 1973 Code.

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28. As aforesaid, the respondents and intervenor would contend that the memory card is a material object and not a “document” 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/pen-drive is a material object. In this regard, we may refer to Phipson on Evidence [ Hodge M. Malek, Phipson on Evidence , 19th Edn., 2018, p. 1450.] , and particularly, the following paragraph(s):

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“ 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 .”

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(emphasis supplied)

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Again at p. 5 of the same book, the definition of “real evidence [ Id, p. 5.] ” is given as under:

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“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

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nor inference is relied upon. Unless its genuineness is in dispute [see Belt v. Lawes [ Belt v. LawesThe Times , 17-11-1882.] ], the thing speaks for itself.

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

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(1)***

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(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.

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(3)***”

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A priori, we must hold that the video footage/clipping contained in such memory card/pen-drive 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:

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“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 computer generated micro fiche;”

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29. As the above definition refers to data or data generated, image or sound stored, received or sent in an electronic form, it would be apposite to advert to the definition of “data” as predicated in Section 2(1)( o ) of the same Act. It reads thus:

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“ 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

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optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;”

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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.

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30. 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:

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“ 3. Interpretation clause .—

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* * *

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“ 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.

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Illustrations

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A writing is a document;

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Words printed, lithographed or photographed are documents;

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A map or plan is a document;

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

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A caricature is a document.

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“ Evidence ”.—“ Evidence ” means and

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includes—

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(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

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such statements are called oral evidence;

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

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such documents are called documentary evidence.”

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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/pen-drive, the same will have to be answered on the basis of Section 65-B of the 1872 Act. The same reads thus:

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“ 65-B. 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.

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(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely—

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( 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;

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( 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;

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( 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

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( 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.

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(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 clause ( a ) of sub-section (2) was regularly performed by computers, whether—

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( a ) by a combination of computers operating

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over that period; or

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( b ) by different computers operating in

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succession over that period; or

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

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( 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,

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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.

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(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—

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

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( 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;

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( c ) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

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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.

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(5) For the purposes of this section—

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( a ) information 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;

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( 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;

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( 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.

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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.”

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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.

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31. It may be useful to also advert to Section 95(2)( b ) of the 1973 Code, which refers to “document” to include any painting, drawing or photograph, or other visible representation. And again, the expression “document” has been defined in Section 29 of the 1860 Code, which reads thus:

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“ 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.

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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.

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Illustrations

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

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A cheque upon a banker is a document.

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A power of attorney is a document.

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

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A writing containing directions or instructions is a document.

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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.

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Illustration

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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.”

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32. 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:

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“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;”

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33. We may also advert to the definition of “information” as provided in Section 2(1)( v ) of the 2000 Act. The same reads thus:

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“2. (1)( v ) “information” includes data, message, text, images sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche;”

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34. Even the definition of “document” given in the General Clauses Act, 1897 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:

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“ 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;”

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35. It may be apposite to refer to the exposition in Halsbury's Laws of England [ Fourth Edn., 2006 reissue, Vol. 11(3), Criminal Law, Evidence and Procedure.] 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:

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“(12) DOCUMENTARY AND REAL EVIDENCE

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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 document [ R. v. Daye , (1908) 2 KB 333 at p. 340, DC, per Darling, J.] , and this clearly includes printed text, diagrams, maps and plans [ A tombstone bearing an inscription is in this sense a document [see Mortimer v. M'Callan , (1840) 6 M & W 58 : 151 ER 320], as is a coffin-plate bearing an inscription [see R. v. Edge (1842) ; Wills, Circumstantial Evidence (6th Edn., 1912) 309].] . Photographs are also regarded as documents at common law [ See also Lyell v. Kennedy , (1884) LR 27 Ch D 1 : 50 LT 730 (CA), Senior v. Holdsworth, ex p Independent Television News Ltd. , 1976 QB 23 : (1975) 2 WLR 987 : (1975) 2 All ER 1009 (CA), Victor Chandler International Ltd. v. Customs & Excise Commissioners , (1999) 1 WLR 2160 : (2000) 1 All ER 160 (Ch D).] .

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Varying definitions have been adopted in legislation [ For the purposes of the Police and Criminal Evidence Act, 1984, “document” means anything in which information of any description is recorded : Section 118 [amended by the Civil Evidence Act, 1995, Section 15(1), Sch. 1, para 9(3)]. For the purposes of the Criminal Justice Act, 2003, Pt. 11 (Sections 98-141) (as amended) (evidence), the definition is the same [see Section 134(1)], save that for the purposes of Pt. 11 Ch. 3 (Sections 137-141) [which includes the provision relating to refreshing memory (see Section 139; and para 1438 ante)] it excludes any recording of sounds or moving images (see Section 140).] . A document may be relied on as real evidence (where its existence, identity or appearance, rather than its content, is in issue [ See e.g. R. v. Elworthy , (1867)

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LR 1 CCR 103 : 32 JP 54 (CCR); Boyle v. Wiseman , (1855) 11 Ex 360 : 156 ER 870. Documents produced by purely mechanical means may constitute real evidence even where reliance is placed on the content : Sapporo Maru v. Statue of Liberty , (1968) 1 WLR 739 : (1968) 2 All ER 195 (film of radar echoes); R. v. Wood , (1982) 76 Cr App Rep 23 (CA) (computer used as calculator); Castle v. Cross , (1984) 1 WLR 1372 : (1985) 1 All ER 87 (printout of evidential breathtesting device). See also Garner v. Director of Public Prosecutions , 1989 Crim LR 583 : 90 Cr App R 178 (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.] ), or as documentary evidence. Documentary evidence denotes reliance on a document as proof of its terms or contents [ R. v. Elworthy , (1867) LR 1 CCR 103 : 32 JP 54 (CCR)] . The question of the authenticity of a document is to be decided by the jury [ R. v. Wayte , (1982) 76 Cr App R 110 at p. 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 Section 14(4) [amended by the Finance Act, 1999, Section 109(3), Sch. 12, paras 3(1), (5)].] .

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1463. The primary evidence rule .—Under the ‘primary evidence rule’ at common law [ As to the related “best evidence rule” see para 1367 ante.] , it was once thought necessary for the contents of any private document to be proved by production of the original document [ 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.] . 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) [ Attorney General v. Le Merchant , (1788) 2 Term Rep 201n; R. v. Hunter , (1829) 4 Car & P 128 : 172 ER 638; R. v. Elworthy , (1867) LR 1 CCR 103 : 32 JP 54 (CCR).] ; (2) where production of the original was shown to be impossible [ Owner v. Bee Hive

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Spg. Co. Ltd. , (1914) 1 KB 105 : 12 LGR 421; Alivon v. Furnival , (1834) 1 C M & R 277 : 149 ER 1084] ; (3) where the original appeared to have been lost or destroyed [ R. v. Haworth , (1830) 4 Car & P 253 : 172 ER 693] ; and (4) where a third party in possession of the original lawfully declined to produce it [ R. v. Nowaz , (1976) 1 WLR 830 : 63 Cr App R 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 : 151 ER 579.] …. *** 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 evidence [ This include animals, such as dogs, which may be inspected to see if they are ferocious ( Line v. Taylor , (1862) 3 F & F 731 : 176 ER 335) or whether they appear to have been ill-treated, 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 WLR 1229 : (1965) 3 All ER 599 (PC).] . 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 exhibit [ 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 WLR 718 : (1971) 3 All ER 768 (PC).] .

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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 permit [ R. v. Wright , 1993 Crim LR 607 (CA); R. v. Devichand , 1991 Crim LR 446 (CA).] . Jurors must not however conduct unsupervised experiments [ R. v. Maggs , (1990) 91 Cr App R 243 (CA), per Lord Lane, C.J. at 247; R. v. Crees , 1996 Crim LR 830 (CA); R. v. Stewart , (1989) 89 Cr App R 273 : 1989 Crim LR 653 (CA).] , or be allowed to inspect a thing which has not been produced in

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evidence [ R. v. Lawrence , (1968) 1 WLR 341 : (1968) 1 All ER 579 : 52 Cr App R 163 (CA).] .

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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 weight [ R. v. Francis , (1874) LR 2 CCR 128 : 43 LJMC 97 (CCR); Hocking v. Ahlquist Bros. Ltd. , 1944 KB 120 : (1943) 1 All ER 722. See also R. v. Uxbridge Justices, ex p Sofaer , (1986) 85 Cr App R 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, Section 2 (as substituted and amended) or under the Magistrates' Court Act, 1980, Section 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.] .

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***

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1471. Audio and video recordings .—An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [ R. v. Maqsud Ali , (1966) 1 QB 688 : 49 Cr App Rep 230 (CCA). For the considerations relevant to the determination of admissibility see R. v. Stevenson , (1971) 1 WLR 1 : (1971) 1 All ER 678 : 55 Cr App R 171; R. v. Robson , (1972) 1 WLR 651 : (1972) 2 All ER 699 : 56 Cr App R 450. See also R. v. Senat , (1968) 52 Cr App R 282 (CA); R. v. Bailey , (1993) 3 All ER 513 : 97 Cr App R 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 , 1998 Crim LR 682 : 162 JP 691 (CA).] . However, that evidence should always be regarded with caution and assessed in the light of all the circumstances [ R. v. Maqsud Ali , (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 Butera v. Director of Public Prosecutions ,

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(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, Section 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H , 1987 Crim LR 4 (CC), Cf R. v. Jelen , (1989) 90 Cr App R 456 (CA) (tape recording admitted despite element of entrapment).] .

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A video recording of an incident which is in issue is admissible [ Taylor v. Chief Constable of Cheshire , (1986) 1 WLR 1479 : (1987) 1 All ER 225 : 84 Cr App R 191 (DC)] . 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 view [ Taylor v. Chief Constable of Cheshire , (1986) 1 WLR 1479 : (1987) 1 All ER 225 : 84 Cr App R 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 R 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 , (1984) 1 WLR 971 : 79 Cr App R 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 , (1985) 75 Cr App R 149 (CA).] .”

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(emphasis supplied)

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36. 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 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 Report [ Law Commission of India, Forty-Second Report, Indian Penal Code, June 1971, 32-35.] , the Commission opined on the amendments to the 1860 Code. Dealing with

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Section 29 of the 1860 Code, the Commission opined as under:

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“2.56. Definition Code to be retained .—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.”

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The said observation is restated in the 156th Report [ Law Commission of India, One Hundred Fifty-Sixth Report on the Indian Penal Code (Vol. I), August 1997, Chapter XI.] , wherein the Commission opined thus:

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“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 Evidence Act, 1872 on the lines indicated above.”

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37. Considering the aforementioned Reports, it can be concluded that the contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

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38. It is crystal clear that all documents including “electronic record” produced for the inspection of the court along with 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/pen-drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the

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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.

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39. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the contents of the memory card/pen-drive 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/pen-drive referred to in the charge-sheet 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?

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47. 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 Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in Supt. & Remembrancer of Legal Affairs v. Satyen Bhowmick [ Supt. & Remembrancer of Legal Affairs v. Satyen Bhowmick , (1981) 2 SCC 109 : 1981 SCC (Cri) 342] , wherein this Court has restated the cardinal principle that the accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial.

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48. 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 sub-section (2) thereof and insertion of Section 228-A 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

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contents of the memory card/pen-drive 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 [ Asha Ranjan v. State of Bihar , (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] and Mazdoor Kisan Shakti Sangathan [ Mazdoor Kisan Shakti Sangathan v. Union of India , (2018) 17 SCC 324] . 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.

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49. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in court, if necessary, even for more than once along with his lawyer and IT 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 authorised IT 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/pen-drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

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50. 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

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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.”

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(Emphasis supplied)

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In the light of the judgment of the Apex Court quoted supra , as also the fact that the petitioner is now seeking electronic records, the law as laid down by the Apex Court in the case of P. GOPALKRISHNAN supra is to be strictly followed and those materials as directed by the Apex Court are to be furnished.

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The learned Additional State Public Prosecutor would

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accept that the application of the petitioner will merit consideration only in consonance with the law laid down by the Apex Court in the case of P. GOPALKRISHNAN . In that light, I deem it appropriate to direct the concerned Court to permit examination of documents, in the manner that the Apex Court directs in the case of P. GOPALKRISHNAN supra . Ordered accordingly.

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