CONTENTS OF MEMORY CARD/ PEN-DRIVE QUALIFY AS “DOCUMENT” WITHIN THE MEANING OF SECTION 3 OF THE IEA

Questions of law to be answered:

1.     Whether the contents of a memory card/ pen-drive being electronic record as predicated in Section 2 (1) (t) of the Information & Technology Act, 2000 (hereinafter referred to as the ITA) would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the IEA) and Section 29 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC)?

2.     If so, whether it is obligatory to furnish a cloned copy of the 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 Criminal Procedure Code, 1973 (hereinafter referred to as the Cr.P.C.)?

3.     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 an 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 and more so because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the ITA and the IPC)? 

Prefatory Scheme:

That:

1.     Section 173 of the Cr.P.C. ordains that the investigation under Chapter XII of the Cr.P.C. should be completed without unnecessary delay and as regards the investigation in relation to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E of the IPC, the same is required to be completed within 2 months from the date on which the information (FIR) was recorded by the officer in charge of the police station.

2.     The investigation officer (I.O.) after completing the investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report.

3.     Along with the police report, the I.O. 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. 

4.     Similarly, the statements recorded under Section 161 of the Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate along with the police report.

5.     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.

6.     As regards the documents, Section 173 (7) of the Cr.P.C. enables the I.O., if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred to in Section 173 (5) of the Cr.P.C. to the accused.

7.     Thus, as regards the “documents” on which the prosecution proposes to rely, the I.O. has no option but to forward “all documents” to the Magistrate along with the police report.

8.     There is no provision (unlike in the case of “statements”) enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof (“document”) from the copies to be granted to the accused.

9.     Section 173 (7) of the Cr.P.C. gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. But that does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate along with the police report.

10.  The expression used in Section 173 (5) (a) of the Cr.P.C. makes it amply clear that the I.O. is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned along with the police report to the Magistrate.

11.  On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the Cr.P.C., the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused.

12.  Section 207 of the Cr.P.C. does not empower the Magistrate to withhold any “document” submitted by the I.O. along with the police report except when it is voluminous, and in that case, the accused can be permitted to take inspection of the documents either personally or through his pleader in court.

13.  Thus, even if the I.O. appends a note in respect of any particular document, to be not to be disclosed to the accused, that will be of no avail as his power is limited to do so only in respect of “statements” referred to in Section 173 (6) of the Cr.P.C.

14.  Furnishing of documents to the accused under Section 207 of the Cr.P.C. is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution of India, 1950.

Question No. 1: Whether the contents of a memory card/ pen-drive being electronic record as predicated in Section 2 (1) (t) of the ITA would, thereby qualify as a “document” within the meaning of Section 3 of the IEA and Section 29 of the IPC?

Answer:

That:

1.     The basis of classifying an article as a “document” depends upon the information which is inscribed and not on where it is inscribed.

2.     Tape records of speeches and audio/video cassettes including compact disc are “documents” under Section 3 of the IEA, which stand on no different footing than photographs and are admissible in evidence.

3.     The electronic record produced for the inspection of the court is documentary evidence under Section 3 of the IEA.

4.     The video footage/ clipping contained in a memory card/ pen-drive being an electronic record as envisaged by Section 2 (1) (t) of the ITA, is a “document” within the meaning of Section 3 of the IEA and Section 29 of the IPC.

5.     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 requirements of Section 65-B of the IEA.

6.     Definition of “document” contained in Section 3 (18) of the General Clauses Act, 1897 reinforces the position that electronic records ought to be treated as “document”.

7.     The contents of the memory card/ pen-drive are “matter” and the memory card itself is a “substance”, hence, the contents of the memory card are “document”.

8.     Whether the contents of a memory card/ pen-drive being electronic record as predicated in Section 2 (1) (t) of the ITA would, thereby qualify as a “document” within the meaning of Section 3 of the IEA and Section 29 of the IPC? Yes. 

Question No. 2: Whether it is obligatory to furnish a cloned copy of the 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 Cr.P.C.?

Answer:

That:

1.     All documents including “electronic record” produced for the inspection of the court along with the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the Cr.P.C.

2.     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.

3.     It is cardinal that a person tried for 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.

4.     Whether it is obligatory to furnish a cloned copy of the 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 Cr.P.C.? Yes.

Question No. 3: 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 an 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 and more so because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the ITA and the IPC)?

Answer:

That:

1.     The court would be justified in providing only inspection of the electronic record to the accused and his/ her lawyer or expert for presenting effective defence during trial, if the contents of the electronic record have a tendency to impinge the right to privacy, dignity and identity of the victim.  

2.     It is open to the court to decline the request of the accused to furnish a cloned copy of the contents of a memory card/ pen-drive in the form of video footage/ clipping concerning an 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 and more so because of the possibility of misuse of such cloned copy by the accused.

3.     In the matter of: P. Gopalkrishnan V/s State of Kerala & Anr, Criminal Appeal No. 1794/ 2019, Supreme Court of India (Date of Decision: 29.11.2019), it was observed that:

“… 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 along with 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 sub-serve 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.” (emphasis supplied)

4.     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 an 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 and more so because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the ITA and the IPC)? Yes.

Result:

1.     The contents of a memory card/ pen-drive being electronic record as predicated in Section 2 (1) (t) of the ITA qualify as a “document” within the meaning of Section 3 of the IEA and Section 29 of the IPC.

2.     The contents of the memory card/ pen-drive referred to in the charge-sheet or the police report submitted to Magistrate under Section 173 of the Cr.P.C., need to be furnished to the accused if the prosecution intends to rely on the same by virtue of Section 207 of the Cr.P.C.

3.     It is open to the court to decline the request of the accused to furnish a cloned copy of the contents of the memory card/ pen-drive in the form of video footage/ clipping concerning an 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 and more so because of the possibility of misuse of such cloned copy by the accused.

*An Imprint of Lex Unified (Shivam Goel)