Content of memory card, pen-drive is documentary evidence: Supreme Court

The contents of a memory card or a pen-drive are documents and the same shall be furnished to an accused under the mandate of Section 207 of the Code of Criminal Procedure Code (CrPC), the Supreme Court held on Friday..This Bench of Justices AM Khanwilkar and Dinesh Maheshwari laid down that all documents, including electronic records, that the prosecution intends to use against an accused must also be supplied to the accused. This judgment came in the case concerning Malayalam film actor Dileep, who is one of the accused in a sexual assault case..Dileep had sought a copy of a memory card that contains video footage of the assault allegedly committed by his co-accused at his behest. The pertinent question of whether the memory card would be considered as a “material object” or “document” was posed before the Court in this case..The Court pointed out that under Section 176 of the CrPC, the Investigating Officer(IO) is required to forward “all documents” to the Magistrate. While some liberty is given to the IO as regards copies of documents or statements, the Court highlights that the IO has no power to withhold any documents from the Magistrate..Further, under Section 207 of the Code, the Magistrate furnishes copies of these statements and documents to the accused. The Magistrate has the discretion to withhold documents should he find them to be voluminous. This, the Court says, is the right of the accused..“furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution.”.In this backdrop, the Court further examined the question regarding the nature of the contents of the memory card and whether or not they would be treated as documents. In the instant case, the Kerala High Court had concluded that a memory card must be treated as a material object and not a document..The Court, on examining the scope of the definitions laid down in the Code, and referring to precedents regarding objects that store data, said that electronic records are documentary evidence under Section 3 of the Code. The judgment explains:.“It may be useful to advert to the exposition of this Court holding that tape records of speeches and audio/video cassettes including compact disc 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 Act”.The Court further said that if the prosecution was to rely on the fact of recovery of a memory card, then it could be treated as a material object. However, if the contents of the memory card are sought to be relied upon by the prosecution, then the same would be documentary evidence..This conclusion was arrived at after taking into consideration provisions of the CrPC and the definitions of “electronic record”, “data”, “communication device”, and “information” as given in the Information Technology Act. The Court thus said,.“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. “.Having held this, the Court further stated that should the prosecution rely on the contents of the memory card, a cloned copy of the same ought to be furnished to the accused in this case in the interest of upholding the right to fair trial under Article 21 of the Constitution of India. It is said,.“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.”.However, in the instant case, the Court allowed Dileep to be given access to the contents of the memory card instead of allowing his prayer in toto. This was done keeping in mind the issues concerning the identity and privacy of the victim in the case. The judgment notes,.“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 Bench also directed the trial court to conclude the trial in the Dileep case within six months..The actor was represented by Senior Counsel Mukul Rohatgi. The State of Kerala was represented by Senior Counsel Ranjit Kumar and Senior Counsel R Basant appeared for the intervenors..[Read Judgment]