Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. Similarly, in V.K. Sasikala v. State5, this Court held as under:- “21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.PC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.” (emphasis supplied) 5 (2012) 9 SCC 771 P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]
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 contents of the memory card/pen-drive be treated as a “statement” ascribable to Section 173(5)(b) of the 1973 Code. Notably, the command under Section 207 is to furnish “statements” or “documents”, as the case may be, to the accused as submitted by the investigating officer alongwith the police report, where the prosecution proposes to rely upon the same against the accused.
21. The High Court adverted to certain judgments before concluding that the memory card would be a material object. For arriving at the said conclusion, the High Court relied on the decision of the King’s Bench of United Kingdom in The King v. Daye6, wherein Darling J., adding to the majority opinion, had held thus:- “…But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.” (emphasis supplied) The High Court also relied on the decision of the Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another7, wherein it was observed as follows:- 6 (1908) 2 K.B. 333 7 (1975) Ch. 185 “There are a number of cases in which the meaning of the word “document” has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin “documentum”: it is something which instructs or provides information. Indeed, according to Bullokar’s English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: “Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title-deed, coin, etc.,” and it produces as the relevant quotation: – “These frescoes… have become invaluable as documents,” the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860. I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information – impliedly otherwise than as to the document itself – as being one of the main functions of a document. Indeed, in In Re Alderton and Barry’s Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen’s time sheets could be classified as documents within section 11(1)(b) of the Patent and Design Acts 1907-1939 expressly because in their original state they conveyed no information of any kind to anybody…” It can be safely deduced from the aforementioned expositions that the basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed.
It may be useful to advert to the exposition of this Court holding that tape records of speeches8 and audio/video cassettes9 including compact disc10 were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act11. 8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329 9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485 11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]
22. It is apposite to recall the exposition of this Court in State of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court observed that the Criminal Procedure Code is an ongoing statute. In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a construction that continuously updates its wordings to allow for changes and is compatible with the contemporary situation. In paragraph 14 of the said decision, the Court observed thus:- “14. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly set out by the leading jurist Francis Bennion in his commentaries titled Statutory Interpretation, 2nd Edn., p. 617: “It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act’s passing, in law, in social conditions, technology, the meaning of words and other matters…. That today’s construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such 12 (2003) 4 SCC 601 modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials.”” (emphasis supplied)
23. As aforesaid, the respondents and intervenor would contend that the memory card is a material object and not a “document” 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 Evidence13, and particularly, the following paragraph(s):- “The purpose for which it is produced determines whether a document is to be regarded as documentary evidence. When adduced to prove its physical condition, for example, an alteration, presence of a signature, bloodstain or fingerprint, it is real evidence. So too, if its relevance lies in the simple fact that it exists or did once exist or its disposition or nature. In all these cases the content of the document, if relevant at all, is only indirectly relevant, for example to establish that the document in question is a lease. When the relevance of a document depends on the meaning of its contents, it is considered documentary evidence.” … … …” (emphasis supplied) Again at page 5 of the same book, the definition of “real evidence14” is given as under:- “Material objects other than documents, produced for inspection of the court, are commonly called real evidence.
This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference 13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450 14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5 P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] is relied upon. Unless its genuineness is in dispute [See Belt v Lawes, The Times, 17 November 1882.], the thing speaks for itself. Unfortunately, however, the term “real evidence” is itself both indefinite and ambiguous, having been used in three divergent senses: (1) … … … (2) Material objects produced for the inspection of the court. This is the second and most widely accepted meaning of “real evidence”. It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing.
It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing. (3) … … …” A priori, we must hold that the video footage/clipping contained in such memory card/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:- ‘‘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;’’
24. 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:- “2(1)(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;’’ On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to “data” alone, but it also means the record or data generated, received or sent in electronic form. The expression “data” includes a representation of information, knowledge and facts, which is either intended to be processed, is being processed or has been processed in a computer system or computer network or stored internally in the memory of the computer.
25. Having noticed the above definitions, we may now turn to definitions of expressions “document” and “evidence” in Section 3 of the 1872 Act being the interpretation clause. The same reads thus:- “3. Interpretation clause.- Document.- “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. Illustrations A writing is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document. Evidence.- “Evidence” means and includes— (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.” On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court.
Although, we need not dilate on the question of admissibility of the contents of the memory card/pen-drive, the same will have to be P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] answered on the basis of Section 65B of the 1872 Act. The same reads thus:- “65B. Admissibility of electronic records.-(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.” (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in 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, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] (5) For the purposes of this section,— (a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.” This provision is reiteration of the legal position that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision.
26. It may be useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to “document” to include any painting, drawing or photograph, or other visible representation. And again, the expression “document” has been defined in Section 29 of the 1860 Code, which reads thus:- ‘‘29. “Document”.—The word “document” denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation 1.—It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not. Illustrations A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. A cheque upon a banker is a document. A power-of-attorney is a document. A map or plan which is intended to be used or which may be used as evidence, is a document. A writing containing directions or instructions is a document. Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed. Illustration A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature.’’
27. Additionally, it may be apposite to also advert to the definition of “communication devices” given in Section 2(1)(ha) of the 2000 Act. The said provision reads thus:- ‘‘2(1)(ha) ‘‘communication device’’ means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image’’
28. We may also advert to the definition of “information” as provided in Section 2(1)(v) of the 2000 Act. The same reads thus:- ‘‘2(1)(v) ‘‘information’’ includes data, message, text, images sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche’’ P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]
29. Even the definition of “document” given in the General Clauses Act would reinforce the position that electronic records ought to be treated as “document”. The definition of “document” in Section 3(18) of the General Clauses Act reads thus:- ‘‘3(18) ‘‘document’’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter”
30. It may be apposite to refer to the exposition in Halsbury’s laws of England15 dealing with Chapter – “Documentary and Real Evidence” containing the meaning of documentary evidence and the relevancy and admissibility thereof including about the audio and video recordings. The relevant exposition reads thus:- “(12) DOCUMENTARY AND REAL EVIDENCE 1462. Meaning of documentary evidence. The term ‘document’ bears different meanings in different contexts. At common law, it has been held that any written thing capable of being evidence is properly described as a document16, and this clearly includes printed text, diagrams, maps and plans17. Photographs are also regarded as documents at common law18. Varying definitions have been adopted in legislation19. A document may be relied on as real evidence (where its 15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure 16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J. 17 A tombstone bearing an inscription is in this sense a document (see Mortimer v. M’Callan (1840) 6 M & W 58), as is a coffin-plate bearing an inscription (see R v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309). 18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD. 19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means anything in which information of any description is recorded: s. 118 (amended by the Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act 2003 Pt. 11 (ss. 98-141) (as amended) (evidence), the definition is the same (see s. 134(1)), save that for the purposes of Pt. 11 Ch. 3 (ss 137-141) (which includes the provision relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of sounds or moving images (see s. 140). existence, identity or appearance, rather than its content, is in issue20), or as documentary evidence. Documentary evidence denotes reliance on a document as proof of its terms or contents21. The question of the authenticity of a document is to be decided by the jury22. 1463. The primary evidence rule. Under the ‘primary evidence rule’ at common law23, it was once thought necessary for the contents of any private document to be proved by production of the original document24. A copy of an original document, or oral evidence as to the contents of that document, was considered admissible only in specified circumstances, namely: (1) where another party to the proceedings failed to comply with a notice to produce the original which was in his possession (or where the need to produce it was so clear that no such notice was required)25; (2) where production of the original was shown to be impossible26; (3) where the original appeared to have been lost or destroyed27; and (4) where a third 20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855) 11 Exch 360. Documents produced by purely mechanical means may constitute real evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breath-testing device).
See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence generally see para 1466 post. 21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR. 22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a document is, following the general rule, a question for the judge: See para 1360 ante. A document which the law requires to be stamped, but which is unstamped, is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)). 23 As to the related ‘best evidence rule’ see para 1367 ante. 24 As to the admissibility of examined or certified copies of public documents at common law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq. 25 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. 26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr.M. & R 277. 27 R. v. Haworth (1830) 4 C & P 254 P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] party in possession of the original lawfully declined to produce it28…. xxx xxx xxx 1466.
Real evidence. Material objects or things (other than the contents of documents) which are produced as exhibits for inspection by a court or jury are classed as real evidence29. The court or jury may need to hear oral testimony explaining the background and alleged significance of any such exhibit, and may be assisted by expert evidence in drawing inferences or conclusions from the condition of that exhibit30. Where a jury wishes to take an exhibit, such as a weapon, into the jury room, this is something which the judge has a discretion to permit31. Jurors must not however conduct unsupervised experiments32, or be allowed to inspect a thing which has not been produced in evidence33. Failure to produce an object which might otherwise have been admissible as real evidence does not preclude the admission of oral evidence concerning the existence or condition of that object, although such evidence may carry far less weight34. 28 R. v. Nowaz (1976) 63 Cr.App.
Rep 178, CA. A further possibility was that contents of a document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664 29 This include animals, such as dogs, which may be inspected to see if they are ferocious (Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been 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 All ER 599, PC. 30 Expert evidence may often be essential if the court or jury is to draw any kind of informed conclusions from their examination of the exhibit. It would be dangerous, for example, for a court or jury to draw its own unaided conclusions concerning the identity of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All ER 768, PC. 31 R. v. Wright [1993] Crim.
LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA. 32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653, CA. 33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA. 34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85 Cr.App. Rep. 367, DC. If the object in question is in the 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 admissible35. However, that evidence should always be regarded with caution and assessed in the light of all the circumstances36.
A video recording of an incident which is in issue is admissible37. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view38.” (emphasis supplied)
31. In order to examine the purport of the term “matter” as found in Section 3 of the 1872 Act, Section 29 of the 1860 Code and Section possession of the prosecutor or of a third person, its production may generally be compelled by issue of a witness order under the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended) (see para 1409 ante). The defendant cannot, however, be served with such an order, lest he be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12. 35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App.
Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA. 36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim.
LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment). P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] 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 Report39, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of the 1860 Code, the Commission opined as under:- “2.56. The main idea in all the three Acts is the same and the emphasis is on the “matter” which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of “document” for its own purpose, and that section 29 should be retained.” The said observation is restated in the 156th Report40, wherein the Commission opined thus:- “11.08 Therefore, the term ‘document’ as defined in Section 29, IPC may be enlarged so as to specifically include therein any disc, tape, sound track or other device on or in which any matter is recorded or stored by mechanical, electronic or other means … … … The aforesaid proposed amendment in section 29 would also necessitate consequential amendment of the term “document” under section 3 of the Indian Evidence Act, 1872 on the lines indicated above.” Considering the aforementioned Reports, it can be concluded that the contents of the memory card would be a “matter” and the memory 37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App.
Rep 191, DC. 38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA. 39 Forty-Second Report, Law Commission India, Indian Penal Code, June, 1971, 32- 40 One Hundred Fifty-Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter-XI card itself would be a “substance” and hence, the contents of the memory card would be a “document”.
32. It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/ 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 trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.
33. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the 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 chargesheet or the police report submitted to Magistrate under Section 173 of the 1973 Code, need to be furnished to the accused if the prosecution intends to rely on the same by virtue of Section 207 of the 1973 Code?
34. Reverting to the preliminary objection taken by the respondent for dismissing the appeal at the threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the present appeal, we find that the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/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. P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]
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 of the opinion that certain conditions need to be imposed in the fact situation of the present case. However, the safeguards/conditions suggested by the appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be sufficient measure to completely rule out the possibility of misuse thereof. In that, with the advancement of technology, it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well-nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.
37. Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised. In that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL. Similarly, the forensic report prepared by the CFSL, after analyzing the cloned copy of the subject memory card/pen-drive, shall be kept confidential and shall not be allowed to be accessed by any other agency or person except the concerned accused or his authorized representative until the conclusion of the trial. We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.
38. Needless to mention that the appellant before us or the other accused cannot and are not claiming any expertise, much less, capability of undertaking forensic analysis of the cloned copy of the contents of the memory card/pen-drive. They may have to eventually depend on some expert agency. In our opinion, the accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.
39. Considering that this is a peculiar case of 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 Bihar41 wherein this Court held thus:- “57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the collective or social order” would be the principle to recognise and accept the right of one which has to be protected. xxx xxx xxx 61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra-conflict between the same fundamental right … … … Thus, there can be two individuals both having legitimacy to claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances 41 (2017) 4 SCC 397 P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.] … … … Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. … … xxx xxx xxx 86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial. 86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law.
A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.” (emphasis supplied) 42 (2018) 17 SCC 324 43 (1981) 2 SCC 109
40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India42 has restated the legal position in the following terms:- “61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] , principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.” (emphasis supplied)
41. We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an “electronic record”, certainly the ground predicated in the second proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein this Court has restated the cardinal principle that accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial. P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]
42. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section 327 of the 1973 Code, in particular sub-Section (2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to enable the accused to reassure himself about the genuineness and credibility of the contents of the memory card/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 (supra) and Mazdoor Kisan Shakti Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.
43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/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.
44. In conclusion, we hold that the contents of the memory card/ pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/ her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides.
45. In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the appellant/ accused to the extent indicated hitherto, in particular paragraphs 37, 38 and 43.
46. Resultantly, the application filed by the appellant before the trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms.
47. We direct the trial Court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six months from the date of this judgment. Kalpana K. Tripathy Appeal partly allowed. P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA AND ANR. [A. M. KHANWILKAR, J.]