Ansh Singh Luthra

A definitive aspect of the Right to Fair Trial is to give an accused an opportunity to defend himself. An important feature of this opportunity is to inform the accused of the accusations against him in advance. This is done by supplying him copies of all the evidence against him that are being relied on by the prosecution. 

Being part of the Right to Life, the Right to Fair Trial has been codified under Article 21 of the Constitution of India, 1950, and further detailed in the Code of Criminal Procedure, 1973 (CrPC). Section 207 of the CrPC talks about the supply of “documents” to the accused to enable him to prepare his defense. It mandates that the accused be provided copies of the police report, the FIR recorded under Section 154 CrPC, confessional statements etc.

Section 3 of the Indian Evidence Act, 1872 elaborates that a “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.

Are electronic records also “documents”? The Evidence Act defines “evidence” as…all documents including electronic records produced for the inspection of the court. Taking this further, the Information Technology Act, 2000 describes “electronic record” as any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. Therefore, a conjoint reading of the Evidence Act and the IT Act leads to the conclusion that electronic records such as video recordings on a pen drive or a mobile phone are also “documents” and are therefore relevant in evidence.

Now, the question is, could there be a case where the accused may not be supplied a copy of the evidence against him? There may be a situation, when the record itself is so voluminous that it is not physically possible to share the same with the accused. To deal with such a case, the second proviso to Section 207 CrPC empowers the magistrate to withhold the supply of voluminous documents to the accused and only allow inspection thereof. 

However, this is the only codified ground on which documents may not be supplied to the accused. In all other cases, it is mandatory to supply documents relied on by the prosecution to the accused to give him an opportunity of fair trial. In practice, many courts now direct investigating agencies to make an electronic file of voluminous records and supply the same to the accused. Some courts even direct that such files be watermarked and be in ‘read-only’ form to prevent their unwanted circulation and misuse. 

What about audio/video records that the prosecution may rely on? In ordinary cases, the accused has a right to a copy of the audio/video records being relied on by the prosecution. Such records cannot even be subject to the discretion of the magistrate because they are simply not ‘voluminous’. 

But what if such records contain the identity of the woman victim in cases of sexual crimes? Recently, in P Gopalkrishnan @ Dileep v State of Kerala & Anr., the Supreme Court of India was posed a question – what should be the balance between the right of an accused to fair trial and the right of the victim to privacy and dignity? And how it should be achieved? 

In this case, an allegation of sexually assaulting and video-graphing a woman was levelled against the accused. The supply of the memory card/pen drive to the accused under Section 207 of the CrPC was in issue. The accused was seeking a copy of the video recording on the ground that there was more than one voice in the said video. Hence, he wanted to get the same examined individually. 

The application filed for a copy of the said video was rejected by the magisterial court on the ground that it “would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against the public interest.” However, the magisterial court allowed the accused to examine the said video in the court premises. The learned Single Judge of the High Court of Kerala also disallowed the same, in appeal.

It is interesting to note that in the aforementioned case, the prosecution itself failed to uphold the privacy and dignity of the victim by naming her in the FIR, in her statements under Section 161 & 164 CrPC, as well as in the chargesheet/police report filed before the magistrate. The Supreme Court directed that supplying a copy of the video to the appellant may be prone to misuse and that safeguards such as watermarks shall not suffice, as “with advancement of technology”, watermarks may be removed and copies circulated. Partly allowing the appeal, the Apex Court permitted the accused to examine the video in the court premises and to take the expert opinion of an independent agency in this regard. 

Though the norm is to supply a copy of all evidence relied on by the prosecution to the accused, the Apex Court carved out an exception and did not allow the accused to receive a copy of the video in the above-mentioned case, owing to the sensitivity of the offence. Such exceptions can only be dictated on basis of the distinct facts and circumstances of each individual case. 

It is imperative that guidelines or legislative amendments be made in order to dictate situations in which such electronic record may or may not be supplied to the accused. For example, as in the above-mentioned case, an accused may be allowed to examine the evidence in court with the help of a forensic expert. In such cases, it is important to balance the right of an accused to a fair trial with the right to dignity and privacy of a victim, and there is a need for guidelines on how to go about doing the same.

The author is a practicing lawyer at the High Court of Delhi and can be contacted at anshsinghluthra@gmail.com