The High Court of Kerala in a bench comprising the Hon’ble Justice K. Babu held that Law Enforcement agencies may recover electronic records containing sexually explicit materials during investigations and since there are no rules for handling such records, the need is for issuance of guidelines until a law is enacted.
Brief Facts of the Case:
South Indian film star files case against gang rape suspects, alleging the production of obscene videos. The victim's anguish is palpable, and the matter is currently before the Principal Sessions Court. Dileep, an actor, has been detained. The Supreme Court sought images of a memory card, which resulted in a clone and a report, raising worries about unauthorised access, copying, and dissemination of sexually explicit content.
Contentions of the Petitioner:
Counsel for the Petitioner contended that the reliefs sought would only enable the registration of a crime and the investigation of the unauthorised access to a memory card holding eight video files of sexual assault. The Counsel contended that the hash value of the memory card had changed, and therefore access to the document after it was produced in Court could not be investigated. The Court also stated that the Petitioner's fundamental rights and right to privacy were violated, which were major issues. The Petitioner's attorney contended that the bar under Section 195(1) Cr.PC applies solely to offences enumerated in Section 340 Cr.PC, not to the current instance.
Contentions of the Respondent:
The findings from the State Forensic Science Laboratory were insufficient to prove the claims. The Court also decided that the investigation lacked the authority to investigate subjects it was not authorised to investigate. The case was heard in Court several times. The learned Senior Counsel for Respondent No.7 argued that the bar under Section 195(1) Cr.PC applies in this case, but the Director General of Prosecution argued that the provision only applies when taking cognizance of the offences and that a police investigation is not barred by the provisions.
Observations of the Court:
The State Forensic Science Laboratory uncovered a memory card with numerous hash values on a Vivo mobile phone, indicating unlawful access. The Court found that access on 09.01.2018 and 13.12.2018 was illegal. Section 195(1) of the Criminal Procedure Code prohibits frivolous prosecutions and protects innocent people from malice or ill will by requiring judicial complaints.
According to the Petitioner's attorney and the Director General of Prosecution, the Court should develop standards for dealing with sexually explicit materials, particularly electronic records containing sensitive evidence. They claim that there are no existing laws for dealing with such items and that these suggestions should be followed until legislation is developed.
Law enforcement agencies must exercise extreme caution while seizing or recovering electronic records related to crimes, maintaining the highest level of secrecy and privacy. Separate documentation of the process should be kept in a mahazer. Individually packed and sealed in damage-proof containers, the records should be labelled with 'Sexually Explicit Materials' in luminous red writing. A record of these records should be kept, with information such as the date, time, location of recovery, source, officer responsible, and officers participating. The sealed packets should be securely stored in lockers, with the time, date, and details of the officer responsible for the locker's custody recorded. If a person accessed the sealed record, the responsible individuals should be held accountable.
Measures to be taken by the Courts in handling electronic records containing Sexually Explicit Materials: Courts must maintain a register of electronic records containing sexually explicit materials, including receipt date, crime details, packet description, and information about the sender. The packets must be sealed, examined, and reported to the Chief Ministerial Officer. If tampering is suspected, the Judicial Officer must investigate. Courts must minimize playing with electronic records and only allow one of the accused's lawyers to view them. Court officers cannot remove electronic records without a special order, and must ensure staff do not misuse them while the packet is unsealed.
The Examining Authority must maintain a register of electronic records containing sexually explicit materials, recording their receipt, return, or destruction. The register should include details of the expert who conducted the investigation, the time, date, and examination period. Additional electronic records should be returned in separate sealed packets, and copies may be taken for future examination. If the record is destroyed, the procedure and proceedings must be reported to the Court.
Decision of the Court:
High Court held that law enforcement agencies have the authority to retrieve electronic records with sexually explicit content during investigations. Due to the absence of specific regulations for managing such records, the Court emphasised the necessity for the issuance of guidelines until a comprehensive law is established.
Case Title: XXXX vs. State of Kerala & Ors.
Coram: Hon’ble Mr. Justice K. Babu
Case No.: WP(CRL.) NO. 445 OF 2022
Advocate for Petitioner: Adv. T.B. Mini, Adv. Gaurav Agrawal, Adv. C. George Thomas
Advocate for Respondent: Adv. T.A Shaji, Adv. P. Narayanan, Adv. Sajju S, Adv. B. Raman, Adv. Philip T. Varghese, Adv. Thomas T. Varghese, Adv. Achu Subha Abraham, Adv. V.T. Litha, Adv. K.R. Monisha, Adv. Nitya R.
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