Disposed

Sherin v.John v. State of Kerala

Kerala HC2 Apr 2018Crl.MC/5160/2017

Case brief

AI extract

What is this about?

An accused sought copies of electronic records. The court treated the seized tablet as a material object, refused its copy, and permitted supervised inspection by counsel. It directed conditional supply of copies of the remaining electronic records and disposed of the petition.

What did the court decide?

Conditional supply of copies of electronic records except the tablet; counsel permitted supervised inspection of the tablet and note-taking upon application to the trial court.

Sherin v.John Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940

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CRL.M.P.NO.177/17 IN S.C.NO.757/16 OF THE ADDITIONAL SESSIONS COURT-I, MAVELIKARA

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PETITIONER(S)/PETITIONER/ACCUSED

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SHERIN V.JOHN, AGED 37 YEARS, S/O.JOY V.JOHN, UZHATHIL HOUSE, VAZHAR MANGALAM MURI, CHENGANNUR P.O., CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.C.JAYAKIRAN

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RESPONDENT(S)/RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R BY PUBLIC PROSECUTOR ADV. SRI.SUMAN CHAKRAVARTHY,

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-04-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5160 of 2017 ()

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PETITIONER(S)' EXHIBITS

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ANNEXURE A TRUE COPY OF THE ORDER DATED 06.07.2017 IN CRL.M.P.NO.177 OF 2017 IN S.C.NO.757/2016 PASSED BY THE COURT OF THE ADDITIONAL JUDGE-I, MAVELIKKARA.

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RESPONDENT'S EXHIBITS: NIL ----------------------

TRUE COPY

PA TO JUDGE

Scl.

“CR”

K. ABRAHAM MATHEW, J.

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Dated this the 2^nd day of April, 2018

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ORDER

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(i) Is an accused entitled to get copy of an

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electronic record produced in the court by the prosecution as a material object?

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(ii) Is the right of an accused to get copies of

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the documents produced by the prosecution absolute?

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The court is called upon to answer these two questions.

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The petitioner is the accused in a sessions case. He is alleged to have committed the offences under Sections 201 and 302 IPC. The investigating officer produced a 'tablet' (computer), two hard discs of computer, a pen drive and a compact disc, all of which allegedly contain visuals. The petitioner applied for their

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copies. By the impugned order the learned Sessions Judge dismissed the application. This is challenged.

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Heard Sri Ravikrishnan, learned counsel for the petitioner and Sri Suman Chakravarthy, learned Senior Public Prosecutor.

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The articles of which copies were applied for were produced by the investigating officer as material objects. The Sessions Judge took the view that if the petition is allowed and copy of the 'hard disc' is taken, there is every chance of the hash value being changed and it becomes easy for the accused to allege their contents being tampered. Fair trial can well be ensured “by allowing the petitioner and his pleader to inspect and verify the said items at the time of taking evidence”, the trial court held.

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The contention of Sri Revikrishnan, learned

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counsel for the petitioner, is that the articles produced in

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the case are not material objects, but electronic records and the petitioner is entitled to their copies as provided in Section 207 of Cr.P.C. Sri Suman Chakravarthy, learned Senior Public Prosecutor, on the other hand, maintains that the things produced in the court are not electronic records, but material objects and there is no statutory provision to issue copies of material objects.

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Sub section 5 of section 173 of Cr.P.C. provides that the police officer shall forward to the Magistrate along with his report the following documents:

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(a) all documents or relevant extracts thereof on which the prosecution propose to rely other than those already sent to the Magistrate during investigation.

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(b) the statements recorded under section 161 of all the persons whom the prosecution propose to examine as its witnesses.

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Section 207 of the Code makes it mandatory for

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the court to furnish to the accused the following documents:

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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 subsection (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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The purpose behind Section 207 of the Code is

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to ensure fair trial. In Sidhartha Vashisht @ Manu

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Sharma v. State (NCT of Delhi) [2010 (6) SCC (1)] ,

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the Supreme Court has observed: “The liberty of an

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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 (read 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.”

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771] it has been held in paragraph 17:

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“Though it is only such reports which support the prosecution case that required to be forwarded to the court under Section 173(5) in every situation where some of the seized papers and documents do not support the prosecution case and, on the contrary, supports the accused, a duty is

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cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, it is not impossible to visualise a situation whether the investigating officer ignores the part of the seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the court would it not be the duty of the court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution”.

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Adv. Sri Revikrishnan submits that electronic records have been declared documents, by Section 3 of the Indian Evidence Act and the prosecution cannot label them material objects.

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For a better understanding, the definition of

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'evidence' in the Evidence Act may be looked into:

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“Evidence” means and 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, such statements are called oral evidence;

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(2) [all documents including electronic records produced for the inspection of the court], such documents are called documentary evidence.”

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It may appear that the law recognises only two categories of evidence, viz; oral evidence and documentary evidence. If it were correct, how could be material objects like weapons or properties in respect of which offences like theft are committed made part of the evidence. The law recognizes a category of evidence other than oral evidence and documentary evidence. This third category is known as real or physical evidence and it consists of material objects other than documents produced before the inspection of the court. This is the

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most widely accepted meaning of 'real evidence'. (Phipson on Evidence, 16^th Edition South Asian Edition of 2007, Page 5) . The meaning of real evidence has been given in the Black's Law Dictionary as follows:

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“Physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question.”

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The terms real evidence and demonstrative evidence are sometimes interchangeably used. The meaning of demonstrative evidence is given in Black's Law Dictionary as physical evidence that one can see and inspect. The Dictionary says that this term sometimes overlaps with and is used as a synonym of real evidence.

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Existence of the third category of evidence has

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been recognised by the courts in India also, for which the eleven Judge bench decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad [AIR 1961 SC

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1808] is the authority. The court has said: “Evidence

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has been classified by text writers into three categories, namely (1) oral testimony (2) evidence furnished by documents, and (3) material evidence.” Referring to materials like fingerprint, specimen signature and handwriting, the Apex Court has declared: “they are neither oral, nor documentary evidence, but belong to the third category of material evidence.” The court has called it material evidence instead of real evidence. No evidence is required to prove their genuineness since they are taken before the court or pursuant to the orders passed by it. Material things have been referred to in the second proviso to Section 60 of the Evidence Act.

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Material evidence is not covered by Section 207 Cr.P.C. There is no law providing for issuance of copy of material objects to accused. A copy of a material object can be only its replica. When a material object cannot be produced before the court, there is no provision to

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produce secondary evidence. But the second proviso to Section 60 of the Evidence Act enables the party concerned to adduce oral evidence in respect of the object.

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A document has been defined under Section 3

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of the Indian Evidence Act as follows:

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“'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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What is the distinction between a document and a material object. A document cannot exist without a substance like paper, clay, stone, rock, tree, animal. In

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the case of a document its contents always appear on a material object (substance). A document cannot be divorced from a material object.

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The submission of the learned counsel

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Sri Revikrishnan that since the Evidence Act declares electronic records also documents, they can be only documents and not material objects, cannot be accepted. There are certain things which have the characteristics of

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a document, but are considered material objects. The following illustrations will make it abundantly clear.

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(a) A sword upon which name of a person is

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inscribed.

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(b) A gold ring upon which name of a person

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is inscribed.

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(d) An obscene writing.

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(e) An obscene picture.

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(f) a photograph in which a male is seen in a

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compromising position with the wife of his neighbour.

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(g) a cheque.

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In respect of each of the above things, two situations

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may arise.

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In illustration (a)

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(i) The question is whether the accused forged the inscription on the sword. The prosecution has to adduce evidence to prove that he did so.

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(ii) The question is whether the accused assaulted the victim with the sword. The prosecution need not prove who made the inscription on it.

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In illustration (b)

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(i) The question is whether the plaintiff or the

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defendant is the owner of the gold ring, their names being the same. The parties may have to adduce evidence to prove the person who made the inscription, the circumstances in which he made it etc.

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(ii) The question is whether the accused, who does not claim the ownership of the gold ring, committed theft

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of it. The inscription on it is immaterial.

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In illustration (c)

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(i) The question is whether the accused made the counterfeit currency. The prosecution has to adduce evidence to prove that he made it.

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(ii) The question is whether the accused was found in possession of the counterfeit currency. The prosecution has only to prove that fact, the identity of the person who made it being irrelevant.

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In illustration (d)

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(i) The question is whether the accused wrote the obscene writing. The prosecution has to prove the fact that it is in his handwriting or that he has signed it.

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(ii) The question is whether the accused was in possession of the obscene writing. The prosecution need not establish that he wrote it, the identity of the author being irrelevant. It is required only to prove that the

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accused was in possession of it.

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In illustration (e)

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(i) The question is whether the accused drew the obscene picture. The prosecution has to adduce evidence to establish that he did so.

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(ii) The question is whether he was in possession of the obscene picture. The prosecution is required only to prove that he was in possession of it, the identity of the person who drew it being irrelevant.

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In illustration (f)

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(i) The question is whether the photo is genuine.

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The prosecution has to prove that it is genuine by examining the person who took it.

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(ii) The investigating officer seized the photo from the custody of the accused. It is required only to prove the seizure from his custody, the identity of the person who took the photo being irrelevant.

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In illustration (g)

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(i) The question is whether the accused executed

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the cheque. The prosecution has to adduce evidence to prove its execution by him.

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(ii) The question is whether the accused committed theft of the cheque. The prosecution is required only to prove that he stole it, its genuineness being irrelevant.

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In all of the above illustrations, the thing is a document in the first situation. But it cannot be so in the second situation, where it is a material object.

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In Emperor v. Krishtappa Khandappa [AIR

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1925 Bom 327] the accused were charged with “having conspired and abetted each other in the felling and removal of twenty sandalwood trees from a Government reserved forest, and further with intending to commit forgery in respect of the trees by impressing thereon certain marks”. Accused No.4 was charged with

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possession of a counterfeit stamp for the purpose of impressing those marks. The court considered the question whether the letter appeared on the trees constituted a document, for which it interpreted the phrase “any matter expressed or described upon any substance” appearing in Section 29 of the Indian Penal Code, which is identical to the definition of document in the Evidence Act. The court held that the letters imprinted on the trees would be a document within the meaning of Section 29 of the Indian Penal Code. Suppose, there were no letters imprinted on the trees, then the cut down trees would have been only material objects.

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What is the test to decide whether a thing is a document or a material object when a matter has been expressed or described upon it. In Phipson on Evidence (supra) it is observed that “it must be borne in mind that

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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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The facts to be proved in the case of a document and a material object are different. Section 67 of the Evidence Act says that the contents of a document can be proved by proving the handwriting or signature of the person who allegedly signed it or wrote it. The section applies only when it is necessary to prove the authenticity of the document, which is clear from the clause “if a document is alleged to be signed or to have been written wholly or in part by any person.” This is actually meant by the phrase 'used as a record of a transaction' (see Phipson on Evidence - supra). It follows that only if the thing produced is one the contents of

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which has to be proved in the manner laid down in Section 67, it is a document. (In the case of photograph the person who took it has to be examined). If that is not necessary, it is only a material object though some matter has been expressed or described upon it. If the identity of the author of the contents, which is necessary to establish its genuineness, is not relevant, it is not a document. In short, the test is the purpose for which the thing upon which a matter has been expressed or described, is produced. That is why in State of Bombay v. Kathi Kalu Oghad [AIR 1961 SC 1808 ] the Supreme Court held that a specimen handwriting or signature or finger impressions taken before a court or by an authority holding investigation are material evidence.

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In a case where the prosecution only wants to prove possession by the accused of the thing produced in the court like obscene articles, it need not prove the

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authorship or the truth of the matter expressed or described upon it. Then, it is only a material object. The prosecution only wants the court to draw the inference the court may take from the possession of the accused of the said thing, and nothing more. It becomes the duty of the accused to explain how he happened to be in its possession since it is a matter within his special knowledge as provided in Section 106 of the Evidence Act.

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To buttress his argument that an electronic record can be considered only a document and the prosecution has to establish its genuineness and it is not sufficient for it to prove its possession by the accused Sri Revikrishnan relies on the decision of a learned Single Judge of this Court in Santhosh Madhavan @ Swami Amritha Chaithanya v. State [2014 KHC 31] . Santhosh Madhavan was charged with having committed

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the offence of rape as well as some other offences under

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the Indian Penal Code. Two video cassettes and a multimedia card were seized from the bank locker which

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was in the exclusive possession of Santhosh Madhavan.

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The learned Single Judge held:

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(i) the video cassettes produced in the case were

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documents

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(ii) the prosecution failed to prove the authenticity

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of the cassettes

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(iii) the prosecution also failed to prove the identity

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of the persons who appeared in the visuals in the cassettes by examining witnesses, and

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(iv) the trial judge committed illegality in viewing

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the cassettes and taking a decision on the basis of what he saw.

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In Santhosh Madhavan's case the Chief Judicial Magistrate sent the video cassettes to an executive

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magistrate (Tahasilar), who was asked to view them and file a report. At the trial the executive magistrate was not examined. The learned Single Judge commented adversely upon the failure of the prosecution to examine the executive magistrate as a witness at the trial. Apparently, the Chief Judicial Magistrate sent the cassettes to the executive magistrate in the light of a circular issued by the Government, K.Dis.17699/9 LRE dated 9.8.1991. This circular is applicable only to cases registered under the Cinematograph Act. It is not applicable to the cases like Santhosh Madhavan's case, which went unnoticed.

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In Santhosh Madhavan's case the learned Judge examined the definition of document in the Indian Evidence Act and General Clauses Act, and the views expressed in the Halsbury's Laws of India, Law of Evidence by C.D. Field and in certain decisions of English

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Courts and of our Supreme Court and held that video cassettes are documents and “it should be established that they are authenticated copies and accurate copies.” The learned Judge rejected the argument of the learned Public Prosecutor that since the cassettes were recovered from the exclusive possession of the accused unless he explained how he happened to be in their possession, the court had to draw an inference against him in view of Section 106 of the Evidence Act.

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The trial judge in Santhosh Madhavan's case held that the persons seen in the visuals in the video cassettes were the accused and the victim after viewing them. The learned Single Judge of this court was of the opinion that though the trial judge had the power to view the cassettes, he should not have relied on them as if they were evidence since they were not made part of the evidence in the case by examining someone to prove their

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contents. His Lordship observed: “.........it becomes clear that the act of the learned Judge in substituting himself in the place of a witness and entering a conclusive finding on that basis has no sanction of law. If he acts as a witness he has necessarily to offer himself for cross-examination and that has not been done in the case on hand. In fact, the only substantive evidence is the impression formed by the learned Judge by viewing the cassettes.”

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Reliance was placed on the decision of the Supreme Court in Pritam Singh v. State of Punjab [AIR 1956 SC 415) , from which the following sentences were extracted:

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“A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. In the absence of such test having been applied and

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an explanation sought for from the accused in regard to the same under Section 342, it is not open to the judge to incorporate these observations of his in the judgment and base his conclusion on the same.”

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In Pritam Singh's case a pair of shoes were recovered from the house allegedly belonging to him. In the course of his examination under Section 313 Cr.P.C. the learned trial judge directed him to try them on his feet. The accused did so and the court found that they fitted his feet. “Realising however that the result of this demonstration would be adverse to his defence, he complained that the shoes were too tight for his feet.” It was in this context, the question whether the trial judge was right in doing so arose.

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From the judgment in Pritam Singh's case it is not clear whether the sentences extracted by the learned Judge who decided in Santhosh Madhavan's case were

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part of the argument of the learned counsel or the decision of the court. The former appears to be correct because later the court has observed: “This was ocular

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demonstration and the result of such ocular demonstration could certainly be taken into account by the learned Additional Sessions Judge and the assessors and they were entitled to come to their own conclusions taking into account the further fact that the accused did complain at the time that the shoes were too tight for his feet.”

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Where the prosecution case is that the book produced by it was seized from the accused and it is obscene, it is the duty of the court to read it and decide whether the contents is obscene on not. It cannot delegate it to to someone else. It is, in fact, illegal for it to ask someone else to read it and tell the court whether the contents is obscene or not. Same is the case with an

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obscene film. The prosecution needs only to prove its possession by the accused.

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When a material object is produced before the court, the prosecution need not examine anyone to prove its nature or effect unless its nature is such that the court cannot take a decision without expert opinion. It is for the court to take a decision after its examination. The opinion of a police officer or a person other than an expert cannot be admitted in evidence. The court cannot abdicate its power to examine the material object produced before it and delegate it to someone else.

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In Phipson on Evidence it is stated that material objects when available are “probably the most satisfactory kind of all, since, save for identification or explanation neither testimony nor inference is relied upon. Unless its genuineness is in dispute, the thing speaks for itself.”

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In Raj Kapoor & others v. State (Delhi Administration) & others [AIR 1980 SC 258] the Supreme Court observed: “The court will examine the film

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and judge whether its display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions.” (emphasis supplied)

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In Kathi Kalu's case (supra), the eleven judge Bench held that material evidence is “outside the limit of testimony”.

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What is the evidentiary value or probative value of the material objects which have been made part of the evidence in a case? In this context, the definition of 'proved' in the Indian Evidence Act, becomes relevant. It runs as follows:

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“Proved”. - A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence

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so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

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The section makes it clear that the court has to reach a conclusion not on the basis of evidence alone. But on the basis of matters before the court. Of course, these matters include evidence. There can be other matters also before the court. The facts like identity of the person who is present before the court or presence or absence of a party before the court are matters before the court. The court need not examine anyone with regard to his identity or presence or absence. It has the authority to ascertain whether the person who is present before it is the one seen in the visuals in the material objects like cassette, compact disc, pen drive.

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A material object made part of the evidence in the case is a matter before the court. The court has the authority to examine it. The identity of the accused and

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the victim who are present before the court is also a matter before it. The question whether those persons and the persons seen in the visuals in the cassette marked in evidence in the case are the same persons is one to be answered on the basis of the matters before the court.

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In Phipson on Evidence it is stated: “material objects when available are probably the most satisfactory kind of all, since, save for identification or explanation neither testimony nor inference is related upon. Unless its genuineness is in dispute, the thing speaks for itself.”

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In Kathi Kalu 's case ( supra ) the eleven Judge

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Bench held that material evidence is “outside the limit of testimony”.

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The distinction between a document and a material object was not taken into account, the probative value of a material was not taken into consideration and the observations of learned authors and the Supreme

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Court were not noticed in Santhosh Madhavan 's case.

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The view taken in Santhosh Madhavan 's case runs contrary to the one expressed by learned authors and by the Supreme Court.

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From the foregoing discussion the following conclusions may be reached:

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(i) Apart from oral and documentary evidence, there is a third category of evidence called material evidence, which consists of materials other than documents.

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(ii) Only copies of documents can be given, but not of material objects.

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(iii) When nothing is expressed or described upon a substance, it is only a material object.

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(iv) When a matter is expressed or described upon a substance, it may be a document or a material object depending upon the purpose for which it is produced.

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(v) If the identity of the author of the matter

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expressed or described upon a substance is relevant, it is a document; otherwise it is only a material object.

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(vi) Where the only purpose for which a material object upon which a matter has been expressed or described is produced is to prove its seizure from the possession of the accused, and it is made part of the evidence by proving its seizure from his possession, the court does not want the testimony of anyone to prove the matter since it has become a 'matter before the court'.

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The 'tablet' which has been produced before the court below was seized from the petitioner. The prosecution only wants the court to view it and draw the inference that may be taken from its possession by the petitioner.

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Learned counsel Sri Revikrishnan submits that

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the 'tablet' seized from the petitioner has been produced

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by the prosecution not as a material object, but as a document which is clear from the fact that it has cited some witnesses to prove its contents. Immediately after the seizure, the investigating officer apparently viewed its contents in the presence of witnesses and prepared a mahazar. In the Final Report some witnesses have been cited to prove it. That does not make the contents of the 'tablet' a document. The investigating officer prepared the mahazar in the presence of witnesses only to ensure that the seizure was fool-proof and the 'tablet' has been produced before the court as it was. That apart, what is relevant is only the purpose for which it is produced, and not the form. Even where the investigating officer mistakes a material object for a document, the court can hold it as a material object.

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In the light of the above discussion I hold that the 'tablet' produced before the court is a material object

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and the petitioner is not entitled to a copy of it. But his counsel shall be allowed to examine it in his presence and take notes in the presence of the prosecutor under the direct supervision of the Chief Ministerial Officer of the court, for which he shall file an application and obtain orders of the court below. The hard discs and the compact disc were not seized from him. So the prosecution has to prove their genuineness and authenticity. They can be only considered documents.

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Sri Suman Chakkravarthy, learned Senior Public Prosecutor, submits that if copies of the above documents are given, there is every chance of their being circulated or published and tampered with. He relies on the decision of the Delhi High Court in Jasvinder Kalra v. C.B.I [2011 Crl.LJ 1416]. In that case that the contention was that if a copy is issued to the accused of the documents produced in the case, it will affect the security

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of the state and would put some person's life in danger.

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The Delhi High Court accepted it and refused to give a copy of it.

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The Supreme Court had occasion to consider whether the court can refuse to issue copies of documents to the accused for the reason that its contents is likely to be published and it would affect the security of the nation.

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In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick and ors. [AIR 1981 SC 917] the argument before the Supreme Court was that if an accused is not supplied with copies, it is impossible for him to defend himself properly and instruct his lawyer to cross-examine the witnesses effectively. This was upheld by the court. But in that case the documents copies of which were applied for were statements of the witnesses recorded under Section 161 Cr.P.C. The documents copies of which have been applied

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for by the petitioner in this case are not such statements.

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Sri Suman Chakravarthy submits that there may be cases in which the court has to refuse to furnish copies of documents to the accused. According to him, the right under Section 207 of Cr.P.C is not absolute, which is clear from the 2^nd proviso to the section. He also has brought to my notice sub section 6 of Section 173 Cr.P.C. On the other hand, learned counsel Sri Revikrishnan submits that the court cannot add to the items that may be excluded. He relies on the decision of the Supreme Court in Tarun Tyagi v. Central Bureau of

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Investigation [2017 (4) SCC 490] .

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Sub Section 6 of Section 173 of Cr.P.C. Is extracted below:

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“(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the

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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.”

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This provision gives power to the investigating officer to request to the court to refuse to give copies of certain portions of the statements recorded under Section 161 Cr.P.C. though they are irrelevant. The two grounds for refusal are (1) interests of justice and (2) public interest. When such a request is made it is for the court to take a decision. Sri Ravikrishnan submits that this sub section is applicable to statements recorded under Section 161 Cr.P.C. and not to other documents, which is clear from the words 'any part of any such statement.' 'Such statement relates' to statements referred to in clause (b) in sub-section 5. This statement is recorded under Section 161 Cr.P.C. only.

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50. The two provisos to Section 207 Cr.P.C which

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are relevant for the present purpose are as follows:

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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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The statement referred to in clause (iii) in Section 207 is the one recorded under Section 161 of the Code. The first proviso to Section 207 goes with sub section 6 of Section 173. The restriction that may be imposed by the court under the second proviso relates to

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documents and not statements under Section 161, in which case, the court may allow the accused only to inspect the documents.

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If a literal interpretation is placed on the words 'such statement' in sub section 6 of section 173 of the Code, no doubt, the court has to hold that the sub section empowers it to refuse to give copies only of the statement recorded under Section 161 of the Code. It is well settled that if literal interpretation leads to absurdity, it should be avoided.

¶278

It may be examined what would happen if literal interpretation is placed on the words 'such documents'. Take a case where a doctor has issued a certificate for examination of a victim of rape and also has given a statement under Section 161 of the Code giving details of his examination. The court can refuse to give copies of the statement of the doctor recorded under Section 161,

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but cannot refuse to give copy of his certificate though both are identical statements.

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It has already been seen that a gold ring or a sword or a counterfeit currency or a tree may be treated as a document in certain circumstances. Is it possible to give copies of these documents. A copy of them can be only their replica. Can the court make replica of them and deliver to the accused. In such cases it is impossible to comply with Section 207 Cr.P.C. Can the court issue copy of a morphed photo of a girl which is obscene produced before it in a case.

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If publication of the contents of a document infringes the right to privacy of a person other than the accused in a case, request to issue a copy of it shall be refused, Sri Suman Chakravarthy submits. In my opinion he is right. When there is a conflict between the fundamental right of a person and the statutory right of

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another, the former shall prevail. In this context the prohibition of disclosure of the identity of the victim contained in Section 228 A of the Indian Penal Code also is relevant.

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The second proviso to Section 207 of the Code empowers the court to refuse to give copy of a document if it is voluminous. Interests of justice and public interest are better grounds to refuse to give copy of a document to accused.

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What can be understood from the provisions in the Cr.P.C discussed above is that no prejudice shall be caused to the accused and once that is done, the court can refuse to supply copies of documents and statements on the grounds of interests of justice and public interest.

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In Satyen Bhowmick's case (supra) the court ordered to supply copies to the accused though it was objected to on the ground of national security because

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there were safeguards in the statute against the misuse of the copies. In the absence of such safeguards in the statute, in my opinion, the court can refuse to supply to the accused copies of any document on the ground of 'interests of justice' or on 'public interest'.

¶293

The request of the petitioner to furnish to him copies of the contents of the hard discs, compact disc and pen drive cannot be refused on the ground of interests of justice or public interest.

¶294

In Tarun Tyagi v. Central Bureau of Investigation [2017 (4) SCC 490] the question how to give a copy of an electronic record came up for consideration. The Supreme Court ordered to supply copy of the electronic records to the accused subject to two conditions. The petitioner also will be issued copies of the electronic records (except the contents of the 'tablet') subject to the said conditions.

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It will be proper for the legislature to bring in an amendment to Section 207 of the Code of Criminal Procedure to insert a provision that the court can refuse to give the accused copy of any document on the grounds of interests of justice or public interest, which will be clarificatory in nature.

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In the result, this Crl.M.C is disposed of

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(1) directing the court below to supply copies of the electronic records the petitioner applied for except the contents of the 'tablet' subject to the following conditions:

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(a) before supplying the copies, the contents of the records shall be recorded in

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the court in the presence of the petitioner's counsel as well as the public prosecutor or their representatives and both of them shall attest the veracity thereof so that there is no dispute about the contents later thereby

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removing the possibility of tampering thereof

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by the petitioner.

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(b) the petitioner shall not make use

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of the source code contained in the said electronic records or misuse it in any manner

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and shall give an affidavit of undertaking to this effect in the trial court.

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(2) and allowing the counsel for the petitioner to view the contents of the 'tablet' in the presence of the public prosecutor and the petitioner and take notes under the direct supervision of the Chief Ministerial Officer of the court in a closed room in the court building, for which the petitioner shall file an application and obtain orders of the court below.

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Sd/-

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K. ABRAHAM MATHEW

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JUDGE

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scl/04.04.2018

Sherin v.John v. State of Kerala

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Sherin v.John v. State of Kerala

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