Electronic record can be treated as document: Supreme Court

New Delhi: The Supreme Court on Friday held that the electronic record — the contents of the memory card/pen drive — was a document and if prosecution was relying on it in the course of criminal trial the same should be shared with the accused so that he could present an effective defence.

However, the court in a caveat said that in the cases involving the privacy of the complainant or victim or witness or his/her identity, the court could restrict the availability of such document to inspection by the accused, his lawyer or IT expert.  

For the inspection of the electronic evidence, the top court said, “The (trial) court may issue suitable directions to balance the interests of both sides.”

“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, said a bench of Justice A.M. Khanwilkar and Justice Dinesh Maheshwari in their judgment pronounced on Friday.

The court said this while partly allowing criminal appeal by Malayalam actor P. Gopalkrishnan who had challenged the Kerala high court’s order refusing him access to electronic record relating to a recording of the alleged assault on a noted actress.

The top court today directed the trial court to ensure that the trial in the case is   “concluded expeditiously, preferably within six months fromthe date of this judgment.”

The Kerala High Court had on August 14 turned down accused Malayalam actor Dileep’s demand for a copy of the video of the abduction of an actress and her harassment at the hands of the perpetrators who took her around in a vehicle in Kochi for two hours in February 2017.

The Kerala High Court had held that the video of alleged assault on the actress was too sensitive to be let out.

A lower court had in February turned down the same request. The assailants had dumped her near a director’s house after committing the crime.

While allowing the inspection of electronic record, Justice Khanwilkar speaking for the bench said, “ ... the Magistrate must ...  exercise judicious discretion with objectivity ...  ensuring that it is not an attempt by the accused to protract the trial.”

The Court further said, “While allowing the accused and his lawyer or authorized I.T. expert (to inspect the electronic record), 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.”  

The Court said this while addressing the question whether the contents of a memory card/pen drive being electronic record under Section 2(1)(t) of the Information and Technology Act, 2000 would, qualify as a “document” within under Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860.   

Another question examined by the court was that if the electronic record was a document, whether it was obligatory to furnish a cloned copy the same to the accused facing prosecution for an alleged offence of rape and related crimes since the same is cited in the police report to the Magistrate and the prosecution intends to rely on it against the accused.

The third question addressed by the top court was whether it was open to the Court to decline the request of the accused on the ground that it would impinge upon the privacy, dignity and identity of the victim involved and there was a the possibility of misuse of such electronic material.