AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 1827
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....contents of such memory card/pen-drive to the Accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the Accused, in terms of Section 207 of the Code of Criminal Procedure, 1973 (for short, 'the 1973 Code')? The next question is: whether it is open to the Court to decline the request of the Accused to furnish a cloned copy of the contents of the subject memory card/pen-drive in the form of video footage/clipping concerning the alleged incident/occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned copy by the Accused (which may attract other independent offences under the 2000 Act and the 1860 Code)? 3. The Appellant has been arrayed as Accused No. 8 in connection with offence registered as First Information Report (FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable Under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of the 2000 ....
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....hen the injustice, in not serving such a vital piece of evidence relied on by the prosecution in the case, was immediately brought to the notice of this Hon'ble Court, without prejudice to the right of Petitioner to obtain copies of the same, the defence side was allowed to watch the alleged video footages by playing the contents of a pen drive in the lap top made available before this Hon'ble Court. Head phones were also provided to the counsel and also to the learned APP who also was throughout present during this proceedings. 8. It is most respectfully submitted that by watching the video footage, although in a restricted environment and with limited facilities in the presence of the Ld. APP and the Presiding Officer, it is shockingly realised that the visuals and audio bytes contained in the video are of such a nature which would completely falsify the prosecution case in the form presently alleged by the prosecution. As a matter of fact the video footage is not at all an evidence of commission of crime as falsely contended by the prosecution but it is rather a clear case of fabricating false evidence with intent to foist a false case. It is submitted that it i....
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....nly on 15.12.2017. Everybody present had the benefit of hearing the said clear female voice. As mentioned earlier the Ld. APP was also present. But the investigation agency which should have definitely seen and heard the same has for obvious reason screened the said material aspects from the records. The investigation, it appears did not venture to take steps to compare the female voice in the video footage with the voice of the female involved in this case, for obvious reasons. On viewing and hearing, it is revealed that clear attempt have been made by somebody to delete major portions from the video footage and from the audio recording. 13. It is respectfully submitted that utterances made by the parties involved and seen in the video footage determines the nature of act recorded in the video footage and a transcript of the utterances and human voices in the video footage is highly just and necessary especially in view of the shocking revelation, found when the video footage was played on 15.12.2017. 14. Yet another aspect which is to be pointed out is the mysterious disappearance of the mobile phone allegedly used for recording the video footage. The strong fee....
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....e details of the other documents which are not furnished to Petitioner. 18. It is submitted that the Petitioner as an Accused is legally entitled to get the copies of all documents including the CDs, Video footage etc., and the prosecution is bound to furnish the same to the Petitioner. 19. In the above premises it is respectfully prayed that this Hon'ble Court may be pleased to direct the prosecution to furnish a cloned copy of the contents of Memory Card containing the video and audio content in the same format as obtained in the memory card and the transcript of human voices, both male and female recorded in it, and furnish the said cloned copy of the memory card and the transcript to the Petitioner. 6. The Magistrate vide order dated 7.2.2018, rejected the said application, essentially on the ground that acceding to the request of the Appellant would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against public interest. The relevant portion of the order dated 7.2.2018 reads thus: Heard both sides in detail. The Petitioner has also filed reply statement to the objection and counter statem....
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....s to be answered in this case. Evidently, the crux of the prosecution allegation is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to be established by the oral testimony of the victim and witnesses. It is also not the information derived from the memory card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual abuse was committed and it was recorded. Though, in the course of evidence, contents of it may be sought to be established to prove that, it was the memory card created by the Accused, contemporaneously recorded on the mobile, along with the commission of offence, that does not by itself displace the status of the memory card as a document. Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of Section 207 Code of Criminal Procedur....
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....t eight video recordings were retrieved from the memory card and that the video files were found to be recorded on 17.2.2017 between 22:30:55 hrs. and 22:48:40 hrs. The same were transferred to the stated memory card on 18.2.2017 between 09:18 hrs. and 09:20 hrs. Be it noted that the original video recording was allegedly done by Accused No. 1 on his personal mobile phone, which has not been produced by the investigating agency. However, the memory card on which the offending video recording was copied on 18.2.2017 was allegedly handed over by an Advocate claiming that the Accused No. 1 had given it to him. He had presented the memory card before the Court on 20.2.2017, which was sent for forensic examination at State FSL, Thiruvananthapuram. After forensic examination, the same was returned alongwith FSL report DD No. 91/2017 dated 3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pen-drive containing the data/visuals retrieved from the memory card, was also enclosed with the report sent by the State FSL. 9. Be that as it may, the prosecution was obviously relying on the contents of the memory card which have been copied on the pen-drive by the State FSL during the analysis thereo....
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....port(s) by the State FSL. The definite case of the Respondent is that the memory card seized in this case containing the visuals of sexual violence upon the victim is a material object and the pen-drive into which the contents of memory card were documented through the process of copying by the State FSL and sent to the Court for the purpose of aiding the trial Court to know the contents of the memory card and the contents of the said pen-drive is both material object as well as "document". It is also urged that the visual contents of the pen-drive would be physical evidence of the commission of crime and not "document" per se to be furnished to the Accused alongwith the police report. The contents of the memory card or the pen-drive cannot be parted to the Accused and doing so itself would be an independent offence. Moreover, if a cloned copy of the contents of the memory card is made available to the Accused/Appellant, there is reason to believe that it would be misused by the Accused/Appellant to execute the conspiracy of undermining the privacy and dignity of the victim. It is urged that the Appellant has relied on certain decisions to contend that the contents of the memory ca....
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....cer is also duty bound to forward to the Magistrate "all documents" or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report. Indeed, it is open to the police officer, if in his opinion, any part of the "statement" is not relevant to the subject matter of the proceedings or that its disclosure to the Accused is not essential in the interests of justice and is inexpedient in public interest, to indicate that part of the "statement" and append a note requesting the Magistrate to exclude that part from the copies to be granted to the Accused and stating his reasons for making such request. That discretion, however, is not given to him in respect of the "documents" or the relevant extracts thereof on which the prosecution proposes to rely against the Accused concerned. As regards the documents, Sub-section (7) enables the investigating officer, if in his opinion it is convenient so to do, to furnish copies of al....
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....ise as he thinks fit. (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the Accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the Accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the Accused copies of all or any of the documents referred to in Sub-section (5). (8) Nothing in this Section shall be deemed to ....
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....ecution 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; (iv) the confessions and statements, if any, recorded Under Section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the Accused: Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the Accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in Clause (iii), from the Accused on be....
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.... 8. Section 207 puts an obligation on the prosecution to furnish to the Accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report Under Section 173(5) of the Code. Such a compliance has to be made on the first date when the Accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the Accused with the copy thereof, the Magistrate can allow the Accused to inspect it either personally or through pleader in the Court. 17. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India (1992) 4 SCC 711. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible. 18. Be that as it may, furnishing of documents to the Accused Un....
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.... the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Sub-section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are not used Under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report Under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code. 220. The right of the Accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the Accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report Under Section 173(2) as per orders of the court. But certain rights of the ....
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....ed by the prosecution as the same favours the Accused the court must concede a right to the Accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the Accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the Accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced. 20. The next seminal question is: whether the contents of the memory card/pen-drive submitted to the Court alongwith the police report can be treated as "document" as such. Indubitably, if the contents of the memory card/pen-drive are not to be treated as "document", the question of furnishing the same to the Accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. We say so because it is nobody's case before us that the cont....
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....1794 to 1860. I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information-impliedly otherwise than as to the document itself-as being one of the main functions of a document. Indeed, in In Re Alderton and Barry's Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen's time sheets could be classified as documents within Section 11(1)(b) of the Patent and Design Acts 1907-1939 expressly because in their original state they conveyed no information of any kind to anybody... It can be safely deduced from the aforementioned expositions that the basis of classifying Article as a "document" depends upon the information which is inscribed and not on where it is inscribed. It may be useful to advert to the exposition of this Court holding that tape records of speeches Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 and audio/video cassettes Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra and Ors., (1976) 2 SCC 17 including compact disc Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485 were "documents" Under Section 3 of the 1872 Act, which stand on no ....
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.... over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials. 23. 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, pg. 1450, and particularly, the following paragraph(s): The purpose for which it is produced determines whether a document is to be regarded as documentary evidence. When adduced to prove its physical condition, for example, an alteration, presence of a signature, bloodstain or fingerprint, it is real evidence. So too, if its relevance lies in the simple fact that it exists ....
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....in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer; On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to "data" alone, but it also means the record or data generated, received or sent in electronic form. The expression "data" includes a representation of information, knowledge and facts, which is either intended to be processed, is being processed or has been processed in a computer system or computer network or stored internally in the memory of the computer. 25. Having noticed the above definitions, we may now turn to definitions of expressions "document" and "evidence" in Section 3 of the 1872 Act being the interpretation clause. The same reads thus: 3. Interpretation clause.- Document.- "Document" means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended ....
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....on so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularly performed by computers, whether-- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period,....
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.... comparison or any other process. This provision is reiteration of the legal position that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a "document" and shall be admissible in evidence subject to satisfying other requirements of the said provision. 26. It may be useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to "document" to include any painting, drawing or photograph, or other visible representation. And again, the expression "document" has been defined in Section 29 of the 1860 Code, which reads thus: 29. "Document".--The word "document" denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation 1.--It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not. Illustrations A writing expressing the terms of a ....
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....y and Real Evidence" containing the meaning of documentary evidence and the relevancy and admissibility thereof including about the audio and video recordings. The relevant exposition reads thus: (12) DOCUMENTARY AND REAL EVIDENCE 1462. Meaning of documentary evidence. The term 'document' bears different meanings in different contexts. At common law, it has been held that any written thing capable of being evidence is properly described as a document R v. Daye [1908] 2 KB 333 at 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), as is a coffin-plate bearing an inscription (see R. v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309). Photographs are also regarded as documents at common law See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD. Varying definitions have been adopted ....
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....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) A-G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.; (2) where production of the original was shown to be impossible Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr. M. & Rule 277.; (3) where the original appeared to have been lost or destroyed R. v. Haworth (1830) 4 C & P 254; and (4) where a third party in possession of the original lawfully declined to produce it R. v. Nowaz (1976) 63 Cr. App. Rep 178, CA. A further possibility was that contents of a document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664.... xxx xxx xxx ....
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....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.. xxx xxx xxx 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, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr. App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr. App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr. App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may vi....
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....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 Forty-Second Report, Law Commission India, Indian Penal Code, June, 1971, 32-35, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of the 1860 Code, the Commission opined as under: 2.56. The main idea in all the three Acts is the same and the emphasis is on the "matter" which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of "document" for its own purpose, and that Section 29 should be retained. The said observation is restated in the 156th ReportOne Hundred Fifty-Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter-XI, wherein the Commission opined thus: 11.08 Therefore, the term 'document' as defined in Section 29, Indian Penal Code 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 o....
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.... Code, and in the chargesheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the Appellant having himself viewed the contents of the memory card/pen-drive does not take the matter any further, once we recognize the right of the Accused to get the cloned copies of the contents of the memory card/pen-drive as being mandated by Section 207 of the 1973 Code and more so, because of the right of the Accused to a fair trial enshrined in Article 21 of the Constitution of India. 35. The next crucial question is: whether parting of the cloned copy of the contents of the memory card/pen-drive and handing it over to the Accused may be safe or is likely to be misused by the Accused or any other person with or without the permission of the Accused concerned? In the present case, there are eight named Accused as of now. Once relief is granted to the Appellant who is Accused No. 8, the other Accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pen-drive would be freely available to all the Accused. 36. Considering the principles laid down by this Court in Tarun Tyagi (supra), we are ....
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....ont the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report. 39. Considering that this is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the Accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights. This principle has been enunciated in the case of Asha Ranjan v. State of Bihar (2017) 4 SCC 397 wherein this Court held thus: 57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right Under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the "greater community interest" or "interest of the collective or social order" would be the principle to recognise and accept the right of one which has to be protected. xxx xxx xxx 61. Be it stated, circumstances may emerge that ....
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....al courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the Accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings. 40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India (2018) 17 SCC 324 has restated the legal position in the following terms: 61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment ....