Moin @ Monu Aminbhai ... vs State Of Gujarat
2021 Latest Caselaw 10341 Guj

    R/SCR.A/9907/2019                              JUDGMENT DATED: 03/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 9907 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                 MOIN @ MONU AMINBHAI GAJIPURA(MEMON)
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant
MR PARTH S TOLIA(5617) for the Applicant
MRS KRINA CALLA APP for the Respondent
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    CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 03/08/2021

                             ORAL JUDGMENT

1. The present application under Article 226 of Constitution of India read with Section 482 of the Code of Criminal Procedure, against the impugned order dated 23.10.2019, in Sessions Case No. 19 of 2018, by which the learned Additional Sessions Judge, Veraval, Dist.: Gir Somnath, rejected the application Exh. 159, filed by the

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present applicant - accused seeking of documents, in form of electronic record, seized during the investigation and part of chargesheet record.

2. The present applicant along with others have been arraigned as accused in connection with FIR being CR. No. I. 44 of 2018 registered with Veraval City Police Station, Dist.: Gir Somnath for the offences punishable under Sections 37692)(n), 376(d), 357, 354(a)(b)(d), 342, 328, 323, 504, 506(2), 114, 120(B) of IPC and Section 66(E) of Information Technology Act. It is the allegation of the prosecution that the accused have committed rape upon the victim, made sexual harassment, exploited by taking her obscene photographs and video and threatened to upload the same on social media, thereby, committed the alleged offences as referred to above. During the course of investigation, mobile phones and sim cards were seized and same had been sent to FSL at Gandhinagar for examination, as parcel Exh. I, J, K, L, M, N, A36S. On 24.10.2018, the FSL Gandhinagar, submitted its report observing that Exh. I, J, L, M, and A36S, having no obscene contents of the female person - Mark-1, whereas, Exh. K and N having obscene contents i.e. image(s), video file(s) of the female person - Mark-1.

3. The applicant herein moved an application Exh. 159 seeking annexure A, B, D, F, D1, E, E1, F, G and H, as referred by the IO for forensic analysis which are in the form of DVDs and CDs. The learned trial Court after hearing the parties, rejected the application observing that granting the prayer would affect the privacy and dignity of the victim and further observed that so far right of the accused is concerned, he would be allowed to watch DVD-R, CDs

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along with his advocate when the trial will commence.

4. Being aggrieved by the rejection of the application, the applicant is before this Court by way of present petition.

5. Heard learned advocate Mr. Harshit Tolia and Mrs. Krina Calla, the learned APP for the respondent State.

6. Replying on the decision P. Gopalkrishna @ Dileep Vs. State of Kerala and others, (2020) 9 SCC 161, it has been submitted by the learned counsel for the applicant that accused is entitled to all the documents relied by the prosecution under Section 207 Cr.P.C.. including electronic records produced for the inspection of the Court along with police report. It is the submission of the learned counsel for the applicant that those articles wherein no any obscene contents being detected, shall have to be supplied to the accused for his proper defence and for rest of articles, before the trial, the accused or his counsel may be permitted to watch CDs and DVDs.

7. On the other hand learned APP in support the impugned order contended that the learned trial Court has rightly protected the privacy of the victim and refused to supply the copy of electronic record, as sought by the applicant and therefore, no any interference is required by this Court.

8. Having heard the learned counsels for the respective parties and on careful consideration of the case records, it appears that the applicant accused is facing the trial of rape, abduction, sexual harassment. It is not disputed that the IO of the case has seized

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mobile phones and sim cards of the accused and victim involved in the alleged crime and same had been sent to FSL at Gandhinagar for analysis and vide letter dated 24.10.2018, the FSL Authority submitted its report, observing that the Exh. I, J. L, M and A36S having no any obscene contents whereas, Exh. K and N having found obscene contents of female M1.The data of all the articles were retrieved from cell phones and are copied on DVD-R as mentioned in the report submitted by the FSL, Gandhinagar.

9. The applicant accused is seeking the data of electronic records for his proper defence. Section 207 of the Code provides for furnishing to the accused relevant documents. The object to supply copies of documents is to ensure to prepare his defence before the trial. Section 238 of the Code provides that at the commencement of the trial, the Court must satisfy himself that the copies of the documents referred in Section 207 of the Code have been supplied to the accused.

10. In the aforesaid background, the applicant accused is seeking the documents in the form of electronic records, which are the part of the chargesheet case papers and relied by the prosecution.

11. Reliance can be placed on the case of P. Gopalrishna @ Dileep (supra), wherein, the Apex Court succinctly explained the word 'document' ,in terms of electronic record defined in Section 2(1)(t) of the Information Technology Act, 2000, and under what circumstances and upto what extent the accused is entitled for the electronic records, in term of provision of Section 207 of the Code. The Apex Court, in paras-15, 17, 18, 19, 21, 32, 33, 35, 36, 39 40,

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43 and 44, held as under :

"15. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. Section 207 reads thus:

'' 207. Supply to the accused of copy of police report and other documents.--In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:--

(i) the police report;

(ii) the first information report recorded under Section 154;

(iii) the statements recorded under subsection (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under subssection (6) of Section 173;

(iv) the confessions and statements, if any, recorded under Section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of Section 173 :

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

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Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.''

As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in clause (iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in subsection (6) of of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer alongwith police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is "voluminous". In that case, the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any "document" submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of 'statements' referred to in subsection (6) of Section 173 of the 1973 Code.

17. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.

18. Be that as it may, 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 Sidhartha Vashisht

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@ Manu Sharma v. State (NCT of Delhi), this Court expounded thus:-

"218. The liberty of an accused cannot be interfered with except under due process of law. The expression "due process of law" shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be 3 (1992) 4 SCC 711 4 (2010) 6 SCC 1 furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as afore referred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should

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furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub- section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression "documents on which the prosecution relies" are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 the Code to summon documents signifies and provides precepts which will govern the right of the accused to

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claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially."

(emphasis supplied).

19. Similarly, in V.K. Sasikala v. State, this Court held as under::-

"21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The 5 (2012) 9 SCC 771 question arising would no longer be one of compliance or noncompliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some

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papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."

(emphasis supplied)

21. The High Court adverted to certain judgments before concluding that the memory card would be a material object. For arriving at the said conclusion, the High Court relied on the decision of the King's Bench of United Kingdom in The King v.

Daye, wherein Darling J., adding to the majority opinion, had held thus:-

"...But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence."

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(emphasis supplied)

The High Court also relied on the decision of the Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another7, wherein it was observed as follows:-

"There are a number of cases in which the meaning of the word "document" has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin "documentum": it is something which instructs or provides information. Indeed, according to Bullokar's English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: "Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, titleddeed, coin, etc.," and it produces as the relevant quotation: "These frescoes... have become invaluable as documents," the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860.

I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information - impliedly otherwise than as to the document itself - as being one of the main functions of a document. Indeed, in In Re Alderton and Barry's Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen's time sheets could be classified as documents within section 11(1)(b) of the Patent and Design Acts 1907 - 1939 expressly because in their original state they conveyed no information of any kind to anybody..."

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It can be safely deduced from the aforementioned expositions that the basis of classifying article as a "document" depends upon the information which is inscribed and not on where it is inscribed. It may be useful to advert to the exposition of this 7 [1975] Ch. 185 Court holding that tape records of speeches 8 and audio/video cassettes9 including compact disc10 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"

32. It is crystal clear that all documents including "electronic record" produced for the inspection of the Court alongwith 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 1973 Code. The concomitant is that the contents of the memory card/pendrive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pendrive. 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.

33. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the contents of the memory card/pen-drive or for that matter the proof and admissibility thereof. The only question that we have examined in this appeal is: whether the contents of the memory card/pen-

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drive referred to in the chargesheet or the police report submitted to Magistrate under Section 173 of the 1973 Code, need to be furnished to the accused if the prosecution intends to rely on the same by virtue of Section 207 of the 1973 Code?

35. The next crucial question is: whether parting of the cloned copy of the contents of the memory card/pendrive and handing it over to the accused may be safe or is likely to be misused by the accused or any other person with or without the permission of the accused concerned? In the present case, there are eight named accused as of now. Once relief is granted to the appellant who is accused No. 8, the other accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pendrive would be freely available to all the accused.

36. Considering the principles laid down by this Court in Tarun Tyagi (supra), we are of the opinion that certain conditions need to be imposed in the fact situation of the present case. However, the safeguards/conditions suggested by the appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be sufficient measure to completely rule out the possibility of misuse thereof. In that, with the advancement of technology, it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well-nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.

39. Considering that this is a peculiar case of intraconflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights. This principle has been enunciated in the case of Asha

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Ranjan Vs. State of Bihar wherein this Court held thus:-

"57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the "greater community interest" or "interest of the collective or social order" would be the principle to recognise and accept the right of one which has to be protected.

xxx xxx xxx

61. Be it stated, circumstances may emerge that may necessitate for balancing between intra-fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra conflict between the same fundamental right ... ... ... Thus, there can be two individuals both having legitimacy to 41 (2017) 4 SCC 397 claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances ... ... ...

Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair

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trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes "Rule of Law". It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. ... ... ... xxx xxx xxx

86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intraconflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the accused wants in the name of

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fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings."

(emphasis supplied)

40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India42 has restated the legal position in the following terms:-

"61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution.

The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] , principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing

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would mean curtailing one right of one class to some extent so that the right of the other class is also protected."

(emphasis supplied)

43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pendrive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith 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/pendrive in any manner. Such multipronged approach may subserve 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."

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12. Applying the aforesaid principles of law to the facts of present case, the learned trial Court, has straightway rejected the application for copy of the electronic records without assigning proper reasons thereof. The documents in the form of electronic records produced for the inspection of the Court along with police report, for which the prosecution proposes to use against the accused, shall require to be supplied to the accused as per mandate of Section 207 of the Code, for which the trial Court has to follow the procedure laid down in the cases of P. Gopalkrishna (Supra) and Tarun Tyagi (supra). On the facts of the present case, if the learned trial Court would have read the FSL report in its proper prospective, then the Court could not reject the application so far Exhs. I, J. L, M & A36S is concerned. There is no allegation against the prosecution that the data collected from the cell phones having been manipulated either by the police or by the victim. Therefore, the trial Court is not right in rejecting the prayer to supply copy of the DVD-R and CDs with respect to Exh. I, J, L, M & A36S. The learned trial Court has properly protected the privacy of the victim by allowing the accused and his advocate to permit them to watch the DVD-R and CDs, at the stage of commencement of trial.

13. In view of the foregoing reasons, the trial Court is directed to supply copies of Exh. I, J, L, M & A36S, which are in the form of DVD-R and CDs to the accused. So far Exh. K & N is concerned, the accused / his advocate along with Public Prosecutor, is permitted to watch the contents of said Exhs in the Form of DVD- R and CDs, at the convenience of the trial Court at least before recording of the depositions of the victim.

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14. It is made it clear that while supplying the copies of the electronic records, the trial Court is at liberty to impose conditions whatever deem it fit necessary for the safety and security of the copy of the electronic records.

15. It is further clarified that, in view of the aforesaid direction, the learned trial Court need not comply the observation passed in its final order, more particularly para-1 of the final order dated 23.10.2019.

16. The application filed by the applicant at Exh. 159 before the trial Court in Sessions Case No. 19 of 2018 is partly allowed in the aforesaid terms and accordingly, present petition is disposed of.

(ILESH J. VORA,J) P.S. JOSHI