Karnataka High Court
Sri. Prajwal Revanna vs State By Karnataka on 16 January, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 206 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 206 OF 2025
BETWEEN:
SRI PRAJWAL REVANNA
S/O H.D.REVANNA
AGED ABOUT 33 YEARS
CHENNAMBIKA NILAYA
CHENNAMBIKA CIRCLE
HOLENARASIPURA
HASSAN - 573 211.
...PETITIONER
(BY SRI ARUN G., ADVOCATE)
AND:
1. STATE BY KARNATAKA
BY CYBER CRIME POLICE STATION
Digitally signed by
VISHAL NINGAPPA BENGALURU - 560 001
PATTIHAL
Location: High NOW INVESTIGATION BY
court of Karnataka,
Dharwad Bench, SPECIAL INVESTIGATION TEAM
Dharwad
NO.1, CARLTON HOUSE
PALACE ROAD, BENGALURU - 560 001.
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
OF SIT CID
BENGALURU.
2. SMT. XXX
W/O XXX
XXXXX
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CRL.P No. 206 of 2025
XXXX
...RESPONDENTS
(BY SRI B.N.JAGADEESHA., ADDL.SPP FOR R-1)
CRL.P FILED U/S 482 CR.P.C (U/S 528 BNSS) BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO a) SET ASIDE THE
IMPUGNED ORDER PASSED DTD: 10.12.2024 ON THE
APPLICATION U/S 207 OF CR.P.C., 1973, IN
CC.NO.34283/2024, ARISING OUT OF CR.NO.2/2024
REGISTERED BY CYBER CRIME P.S., BANGALORE, FOR THE
OFFENCES P/U/S 354(A), 354(B), 354(C), 376(2)(n),
376(2)(K), 506, 201 OF IPC, AND SEC.66(E) OF IT ACT, 2000;
b) AND FURTHER BE PLEASED TO DIRECT THE RESPONDENT
NO.1 TO SUPPLY THE CLONE OF DIGITAL DATA RELIED IN THE
CHARGE SHEET MATERIAL TO PETITIONER BY ALLOWING THE
PRESENT PETITION FILED U/S 482 OF CR.P.C., 1973.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question an
order dated 10-12-2014 by which the application under Section
207 of the Cr.P.C comes to be rejected. Consequential
direction is sought for supply of a clone copy of digital data,
relied on in the charge sheet material, to the petitioner.
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2. Heard Sri Arun G, learned counsel appearing for
petitioner and Sri Jagadeesha B N., learned Additional State
Public Prosecutor, appearing for respondent No.1.
3. The petitioner, an accused, in C.C.34283 of 2024 is
being tried for offences punishable under Sections 354A, 354B,
354C, 376(2)(n), 376(2)(k), 506, 201 of the IPC and Section
66E of the Information Technology Act, 2000. The issue in the
lis is not with regard to the defence of the petitioner or the
allegations of the prosecution. The petitioner files an
application under Section 207 of the Cr.P.C. seeking certain
documents. The documents are the clone copies of all the
contents in the mobile phone, be it concerning the crime or
other than the crime. This comes to be rejected by the
concerned Court, in terms of the order impugned. The non-
acceptance of the application in the manner that the petitioner
wanted, has driven him to this Court in the subject petition.
4. Learned counsel Sri Arun G appearing for the petitioner
would vehemently contend that the investigating officer
investigating crime No.107 of 2024 has communicated to the
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Director, State FSL to conduct forensic examination on articles
seized and therefore, the said articles which were given for
examination should be made available to him in its entirety.
He would seek to place reliance upon the judgment rendered by
the Apex Court interpreting Section 207 of the Cr.P.C.
5. Per-contra, the learned Additional State Public
Prosecutor Sri B N Jagadeesh would vehemently refute the
submissions to contend that the petitioner is not entitled to all
the documents of others, he would definitely be entitled to
those documents which concerns the complainant and those
documents have all been furnished. He would further contend
that he would become entitled to certain electronic documents
strictly in consonance with what the Apex Court has held in
the case of P. GOPALKRISHNAN v. STATE OF KERALA1. He
would submit that the prosecution would show the documents
that are needed. He can take a clone copy of the same, but
other than that of the complainant, it would be breach of
privacy if the petitioner is given all the contents of the mobile
phone or the source from which the contents were drawn.
(2020) 9 SCC 161
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6. I have given my anxious consideration to the
submissions made by the learned counsel for the respective
parties and have perused the material on record.
7. The afore-narrated facts are not in dispute. The issue
now lies in a narrow compass. The complaint and the summary
charge sheet need not be gone into. The petitioner files an
application under Section 207 of the Cr.P.C., the application
reads as follows:
"APPLICATION UNDER SEC.207 OF CODE OF
CRIMINAL PROCEDURE, 1973
The accused above begs to submit as follows:
1. The complainant/ investigation agency have filed
the final report in the above case by citing alleged
offences under Sec. Sec.376(2)(n), 376(2)(k),
354A, 354B 354C, 506, 509, 201 IPC
R/w.Sec.66(E) I.T Act. Thereafter this Hon'ble Court
was pleased to take cognizance on the charge-
sheet and the accused is in judicial custody in
another case, as such this Hon'ble Court was
pleased to issue the body warrant against accused
for the purposes of this case.
2. The accused submits that the final report initially
filed in the present runs up to 1652 pages in 4
volumes and thereafter additional charge-
sheet/Volume 5 was submitted by investigation
agency. The accused is furnished with the copy of
the charge sheet as contemplated under the law.
However, upon going through the charge sheet it
could be gathered that the prosecution has relied
on certain FSL reports which are appended in the
charge-sheet submitted to the Hon'ble Court. The
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FSL reports are given as reference such as
FSL/FLMS/AVFS/394/2024 (at Page No.1405 of
charge-sheet-Vol-4), FSL/FLMS/MFS/422/2024(at
Page No.1423 of charge-sheet) in which certain pen
drives are referred to be enclosed to the report. But
no clone copies of the said DVDs and Pen-drives are
furnished along with the charge-sheet furnished the
accused.
3. The accused submits that case against the accused
is an outcome of political conspiracy and vengeance
of certain vested interest and the accused prays
that this Hon'ble Court be pleased to direct the
Investigating agency to furnish the clone copies of
materials produced in digital form in the charge-
sheet to the accused forthwith. Hence, the present
application.
4. The accused prays that this Hon'ble Court may
permit the accused to urge additional grounds on
his behalf at the time of hearing the application, in
the interest of justice.
WHEREFORE, it is prayed that this Hon'ble Court
be pleased to direct the investigating agency to furnish
the clone copies of charge-sheet materials which are in
digital form, in the interest of justice."
The concerned Court answering the application passes the
following order:
"The accused is produced under body warrant
through V.C.
Advocate for the accused filed an application U/Sec.
207 of Cr.P.C., praying to direct the investigating agency
to furnish the copies of DVDs & Pen drives refer to at
page No. 1405 & 1423 of the volume No.4 of the Final
report
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Lrd.Spl.PP submitted that, the copies of said DVDs
& Pen drives were supplied to the court on 26/11/2024,
which were furnished to accused on 05/12/2024.
The order sheet also reveals that copies of said 2
DVDs & 2 Pen drives were received by the advocate for
the accused on 05/12/2024 itself. Hence, the application
is rejected.
For committal order, Call at 3-00 p.m.
Sd/-
(K.N.Shivakumar)
42nd ACMM, (Special Court for trial of cases
against sitting as well as former Mps/MLAs, triable
by Magistrate in the State of Karnataka)
(Order pronounced in open court vide separate order)
ORDER
In exercise of powers conferred under section 209
of Cr.P.C, this case is committed to the Hon'ble 82nd
City Civil & Sessions Court (Special Court for trial of
criminal cases against the present & former M.Ps &
MLAs in the state), Bangalore.
1. Copies of the prosecution papers are furnished to
the accused
2 Office is directed to submit the entire case
records of this case including the properties/documents
kept in safe custody to the Hon'ble 82nd City Civil &
Sessions Court (Special Court for trial of criminal
cases against the present & former M.Ps & MLAs in
the state), Bangalore. forthwith and the case properties
if any shall be submitted as and when called for.
3. Notify the Special Public Prosecutor about the
committal of this case to the Court of Sessions.
4. The accused has been in judicial custody in
connection with an another case C.C, No.29064/2024
(Crime No. 107/2024) under UTP No.5664/24 and
as such he shall be produced before the Hon'ble 82nd
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City Civil & Sessions Court (Special Court for trial of
criminal cases against the present & former M.Ps &
MLAs in the state), Bangalore upon body warrant by
said Court.
5. Office to intimate the jail authority accordingly.
Sd/- 10/12/24
(K.N.Shivakumar)
42nd ACMM, (Special Court for trial of cases
against sitting as well as former Mps/MLAs, triable
by Magistrate in the State of Karnataka)"
Interpretation of Section 207 of the Cr.P.C. need not detain this
Court for long or delve deep into the matter. The Apex Court in
the case of P. GOPALKRISHNAN supra has considered this
very aspect of the matter, wherein the Apex Court has held as
follows:
".... .... ....
17. On receipt of the police report and the
accompanying statements and documents by virtue of
Section 207 of 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;
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(ii) the first information report recorded
under Section 154;
(iii) the statements recorded under sub-
section (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 sub-section (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 sub-section (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:
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 sub-section (6) of
Section 173. However, when it comes to
furnishing of documents submitted by the
investigating officer along with 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 document concerned either personally or
through his pleader in Court. In other words,
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Section 207 of the 1973 Code does not
empower the Magistrate to withhold any
"document" submitted by the investigating
officer along with 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 sub-section (6) of
Section 173 of the 1973 Code.
... ... ...
28. As aforesaid, the respondents and intervenor
would contend that the memory card is a material object
and not a "document" as such. If the prosecution was to
rely only on recovery of memory card and not upon its
contents, there would be no difficulty in acceding to the
argument of the respondent/intervenor that the memory
card/pen-drive is a material object. In this regard, we
may refer to Phipson on Evidence [ Hodge M.
Malek, Phipson on Evidence, 19th Edn., 2018, p. 1450.] ,
and particularly, the following paragraph(s):
"The purpose for which it is produced
determines whether a document is to be regarded as
documentary evidence. When adduced to prove its
physical condition, for example, an alteration,
presence of a signature, bloodstain or fingerprint, it
is real evidence. So too, if its relevance lies in the
simple fact that it exists or did once exist or its
disposition or nature. In all these cases the content
of the document, if relevant at all, is only indirectly
relevant, for example to establish that the document
in question is a lease. When the relevance of a
document depends on the meaning of its contents, it
is considered documentary evidence."
(emphasis supplied)
Again at p. 5 of the same book, the definition
of "real evidence [ Id, p. 5.] " is given as under:
"Material objects other than documents,
produced for inspection of the court, are commonly
called real evidence. This, when available, is
probably the most satisfactory kind of all, since, save
for identification or explanation, neither testimony
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nor inference is relied upon. Unless its genuineness
is in dispute [see Belt v. Lawes [Belt v. LawesThe
Times, 17-11-1882.] ], the thing speaks for itself.
Unfortunately, however, the term "real
evidence" is itself both indefinite and ambiguous,
having been used in three divergent senses:
(1)***
(2) Material objects produced for the
inspection of the court. This is the second and most
widely accepted meaning of "real evidence". It must
be borne in mind that there is a distinction between
a document used as a record of a transaction, such
as a conveyance, and a document as a thing. It
depends on the circumstances in which classification
it falls. On a charge of stealing a document, for
example, the document is a thing.
(3)***"
A priori, we must hold that the video
footage/clipping contained in such memory
card/pen-drive being an electronic record as
envisaged by Section 2(1)(t) of the 2000 Act, is
a "document" and cannot be regarded as a
material object. Section 2(1)(t) of the 2000 Act
reads thus:
"2. (1)(t) "electronic record" means data,
record or data generated, image or sound
stored, received or sent in an electronic form or
micro film or computer generated micro fiche;"
29. As the above definition refers to data or data
generated, image or sound stored, received or sent in an
electronic form, it would be apposite to advert to the
definition of "data" as predicated in Section 2(1)(o) of the
same Act. It reads thus:
"2. (1)(o) "data" means a
representation of information, knowledge, facts,
concepts or instructions which are being prepared
or have been prepared in a formalised manner,
and is intended to be processed, is being
processed or has been processed in a computer
system or computer network, and may be in any
form (including computer printouts magnetic or
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optical storage media, punched cards, punched
tapes) or stored internally in the memory of the
computer;"
On conjoint reading of the relevant
provisions, it would be amply clear that an
electronic record is not confined to "data"
alone, but it also means the record or data
generated, received or sent in electronic
form. The expression "data" includes a
representation of information, knowledge
and facts, which is either intended to be
processed, is being processed or has been
processed in a computer system or computer
network or stored internally in the memory
of the computer.
30. Having noticed the above definitions, we may
now turn to definitions of expressions "document" and
"evidence" in Section 3 of the 1872 Act being the
interpretation clause. The same reads thus:
"3. Interpretation clause.--
* * *
"Document".--"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.
Illustrations
A writing is a document;
Words printed, lithographed or photographed
are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a
document;
A caricature is a document.
"Evidence".--"Evidence" means and
includes--
(1) all statements which the court permits or
requires to be made before it by witnesses, in
relation to matters of fact under inquiry;
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such statements are called oral evidence;
(2) all documents including electronic records
produced for the inspection of the court,
such documents are called documentary
evidence."
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. Although, we need not
dilate on the question of admissibility of the contents
of the memory card/pen-drive, the same will have to
be answered on the basis of Section 65-B of the
1872 Act. The same reads thus:
"65-B. Admissibility of electronic
records.--(1) Notwithstanding anything contained in
this Act, any information contained in an electronic
record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if
the conditions mentioned in this section are satisfied
in relation to the information and computer in
question and shall be admissible in any proceedings,
without further proof or production of the original, as
evidence of any contents of the original or of any
fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in sub-section
(1) in respect of a computer output shall be the
following, namely--
(a) the computer output containing the
information was produced by the computer during
the period over which the computer was used
regularly to store or process information for the
purposes of any activities regularly carried on over
that period by the person having lawful control over
the use of the computer;
(b) during the said period, information of the
kind contained in the electronic record or of the kind
from which the information so contained is derived
was regularly fed into the computer in the ordinary
course of the said activities;
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(c) throughout the material part of the said
period, the computer was operating properly or, if
not, then in respect of any period in which it was not
operating properly or was out of operation during
that part of the period, was not such as to affect the
electronic record or the accuracy of its contents; and
(d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the ordinary
course of the said activities.
(3) Where over any period, the function of
storing or processing information for the purposes of
any activities regularly carried on over that period as
mentioned in clause (a) of sub-section (2) was
regularly performed by computers, whether--
(a) by a combination of computers operating
over that period; or
(b) by different computers operating in
succession over that period; or
(c) by different combinations of computers
operating in succession over that period; or
(d) in any other manner involving the
successive operation over that period, in whatever
order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose
during that period shall be treated for the purposes
of this section as constituting a single computer; and
references in this section to a computer shall be
construed accordingly.
(4) In any proceedings where it is desired to
give a statement in evidence by virtue of this
section, a certificate doing any of the following
things, that is to say--
(a) identifying the electronic record containing
the statement and describing the manner in which it
was produced;
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(b) giving such particulars of any device
involved in the production of that electronic record
as may be appropriate for the purpose of showing
that the electronic record was produced by a
computer;
(c) dealing with any of the matters to which
the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person
occupying a responsible official position in relation to
the operation of the relevant device or the
management of the relevant activities (whichever is
appropriate) shall be evidence of any matter stated
in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated
to the best of the knowledge and belief of the person
stating it.
(5) For the purposes of this section--
(a) information shall be taken to be supplied
to a computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human intervention) by
means of any appropriate equipment;
(b) whether in the course of activities carried
on by any official, information is supplied with a view
to its being stored or processed for the purposes of
those activities by a computer operated otherwise
than in the course of those activities, that
information, if duly supplied to that computer, shall
be taken to be supplied to it in the course of those
activities;
(c) a computer output shall be taken to have
been produced by a computer whether it was
produced by it directly or (with or without human
intervention) by means of any appropriate
equipment.
Explanation.--For the purposes of this section
any reference to information being derived from
other information shall be a reference to its being
derived therefrom by calculation, comparison or any
other process."
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This provision is reiteration of the legal
position that any information contained in an
electronic record which is printed on a paper, stored,
recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a
"document" and shall be admissible in evidence
subject to satisfying other requirements of the said
provision.
31. It may be useful to also advert to Section
95(2)(b) of the 1973 Code, which refers to "document" to
include any painting, drawing or photograph, or other
visible representation. And again, the expression
"document" has been defined in Section 29 of the 1860
Code, which reads thus:
"29. "Document".--The word "document"
denotes 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, as evidence of that
matter.
Explanation 1.--It is immaterial by what
means or upon what substance the letters, figures or
marks are formed, or whether the evidence is
intended for, or may be used in, a court of justice, or
not.
Illustrations
A writing expressing the terms of a contract,
which may be used as evidence of the contract, is a
document.
A cheque upon a banker is a document.
A power of attorney is a document.
A map or plan which is intended to be used
or which may be used as evidence, is a document.
A writing containing directions or instructions
is a document.
Explanation 2.--Whatever is expressed by
means of letters, figures or marks as explained by
mercantile or other usage, shall be deemed to be
expressed by such letters, figures or marks within
the meaning of this section, although the same may
not be actually expressed.
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Illustration
A writes his name on the back of a bill of
exchange payable to his order. The meaning of the
endorsement, as explained by mercantile usage, is
that the bill is to be paid to the holder. The
endorsement is a document, and must be construed
in the same manner as if the words "pay to the
holder" or words to that effect had been written over
the signature."
32. Additionally, it may be apposite to
also advert to the definition of "communication
devices" given in Section 2(1)(ha) of the 2000
Act. The said provision reads thus:
"2. (1)(ha) "communication device"
means cell phones, personal digital assistance
or combination of both or any other device
used to communicate, send or transmit any
text, video, audio or image;"
33. We may also advert to the definition of
"information" as provided in Section 2(1)(v) of the
2000 Act. The same reads thus:
"2. (1)(v) "information" includes data,
message, text, images sound, voice, codes,
computer programmes, software and
databases or micro film or computer
generated micro fiche;"
34. Even the definition of "document" given in the
General Clauses Act, 1897 would reinforce the position
that electronic records ought to be treated as "document".
The definition of "document" in Section 3(18) of the
General Clauses Act reads thus:
"3. (18) "document" shall include any
matter written, expressed or described upon any
substance by means of letters, figures or marks, or
by more than one of those means which is intended
to be used, or which may be used, for the purpose of
recording that matter;"
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35. It may be apposite to refer to the exposition
in Halsbury's Laws of England [ Fourth Edn., 2006
reissue, Vol. 11(3), Criminal Law, Evidence and
Procedure.] dealing with Chapter -- "Documentary and
Real Evidence" containing the meaning of documentary
evidence and the relevancy and admissibility thereof
including about the audio and video recordings. The
relevant exposition reads thus:
"(12) DOCUMENTARY AND REAL EVIDENCE
1462. Meaning of documentary evidence.
The term "document" bears different meanings in
different contexts. At common law, it has been held
that any written thing capable of being evidence is
properly described as a document [R. v. Daye,
(1908) 2 KB 333 at p. 340, DC, per Darling, J.]
, and this clearly includes printed text, diagrams,
maps and plans [ A tombstone bearing an
inscription is in this sense a document
[see Mortimer v. M'Callan, (1840) 6 M & W 58 : 151
ER 320], as is a coffin-plate bearing an inscription
[see R. v. Edge (1842); Wills, Circumstantial
Evidence (6th Edn., 1912) 309].] . Photographs are
also regarded as documents at common law [ See
also Lyell v. Kennedy, (1884) LR 27 Ch D 1 : 50 LT
730 (CA), Senior v. Holdsworth, ex p Independent
Television News Ltd., 1976 QB 23 : (1975) 2 WLR
987 : (1975) 2 All ER 1009 (CA), Victor Chandler
International Ltd. v. Customs & Excise
Commissioners, (1999) 1 WLR 2160 : (2000) 1 All
ER 160 (Ch D).] .
Varying definitions have been adopted in
legislation [ For the purposes of the Police and
Criminal Evidence Act, 1984, "document" means
anything in which information of any description is
recorded : Section 118 [amended by the Civil
Evidence Act, 1995, Section 15(1), Sch. 1, para
9(3)]. For the purposes of the Criminal Justice Act,
2003, Pt. 11 (Sections 98-141) (as amended)
(evidence), the definition is the same [see Section
134(1)], save that for the purposes of Pt. 11 Ch. 3
(Sections 137-141) [which includes the provision
relating to refreshing memory (see Section 139;
and para 1438 ante)] it excludes any recording of
sounds or moving images (see Section 140).] . A
document may be relied on as real evidence (where
its existence, identity or appearance, rather than its
content, is in issue [ See e.g. R. v. Elworthy, (1867)
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LR 1 CCR 103 : 32 JP 54 (CCR); Boyle v. Wiseman,
(1855) 11 Ex 360 : 156 ER 870. Documents
produced by purely mechanical means may
constitute real evidence even where reliance is
placed on the content : Sapporo Maru v. Statue of
Liberty, (1968) 1 WLR 739 : (1968) 2 All ER 195
(film of radar echoes); R. v. Wood, (1982) 76 Cr
App Rep 23 (CA) (computer used as
calculator); Castle v. Cross, (1984) 1 WLR 1372 :
(1985) 1 All ER 87 (printout of evidential breath-
testing device). See also Garner v. Director of Public
Prosecutions, 1989 Crim LR 583 : 90 Cr App R 178
(DC); R. v. Skinner, 2005 EWCA Crim 1439 : 2006
Crim LR 56 : 2005 All ER (D) 324 (May). As to real
evidence generally see para 1466 post.] ), or as
documentary evidence. Documentary evidence
denotes reliance on a document as proof of its
terms or contents [R. v. Elworthy, (1867) LR 1 CCR
103 : 32 JP 54 (CCR)] . The question of the
authenticity of a document is to be decided by the
jury [R. v. Wayte, (1982) 76 Cr App R 110 at p. 118
(CA). The admissibility of a document is, following
the general rule, a question for the Judge : see para
1360 ante. A document which the law requires to be
stamped, but which is unstamped, is admissible in
criminal proceedings : Stamp Act, 1891 Section
14(4) [amended by the Finance Act, 1999, Section
109(3), Sch. 12, paras 3(1), (5)].] .
1463. The primary evidence rule.--Under the
'primary evidence rule' at common law [ As to the
related "best evidence rule" see para 1367 ante.] ,
it was once thought necessary for the contents of
any private document to be proved by production of
the original document [ As to the admissibility of
examined or certified copies of public documents at
common law, see EVIDENCE Vol. 17(1) (Reissue),
para 821 et. seq.] . A copy of an original document,
or oral evidence as to the contents of that
document, was considered admissible only in
specified circumstances, namely : (1) where
another party to the proceedings failed to comply
with a notice to produce the original which was in
his possession (or where the need to produce it was
so clear that no such notice was required) [Attorney
General v. Le Merchant, (1788) 2 Term Rep
201n; R. v. Hunter, (1829) 4 Car & P 128 : 172 ER
638; R. v. Elworthy, (1867) LR 1 CCR 103 : 32 JP
54 (CCR).] ; (2) where production of the original
was shown to be impossible [Owner v. Bee Hive
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Spg. Co. Ltd., (1914) 1 KB 105 : 12 LGR
421; Alivon v. Furnival, (1834) 1 C M & R 277 : 149
ER 1084] ; (3) where the original appeared to have
been lost or destroyed [R. v. Haworth, (1830) 4 Car
& P 253 : 172 ER 693] ; and (4) where a third party
in possession of the original lawfully declined to
produce it [R. v. Nowaz, (1976) 1 WLR 830 : 63 Cr
App R 178 (CA). A further possibility was that
contents of a document might be proved by an
admission or confession : Slatterie v. Pooley,
(1840) 6 M & W 664 : 151 ER 579.] ....
***
1466. Real evidence.--Material objects or
things (other than the contents of documents)
which are produced as exhibits for inspection by a
court or jury are classed as real evidence [ This
include animals, such as dogs, which may be
inspected to see if they are ferocious
(Line v. Taylor, (1862) 3 F & F 731 : 176 ER 335) or
whether they appear to have been ill-treated, etc.
Note however that statements (such as statements
of origin) printed on objects may give rise to issues
of hearsay if it is sought to rely on them as true
: Comptroller of Customs v. Western Lectric Co.
Ltd., 1966 AC 367 : (1965) 3 WLR 1229 : (1965) 3
All ER 599 (PC).] . The court or jury may need to
hear oral testimony explaining the background and
alleged significance of any such exhibit, and may be
assisted by expert evidence in drawing inferences or
conclusions from the condition of that exhibit [
Expert evidence may often be essential if the court
or jury is to draw any kind of informed conclusions
from their examination of the exhibit. It would be
dangerous, for example, for a court or jury to draw
its own unaided conclusions concerning the identity
of fingerprints or the age and origin of bloodstains
: Anderson v. R., 1972 AC 100 : (1971) 3 WLR 718
: (1971) 3 All ER 768 (PC).] .
Where a jury wishes to take an exhibit, such
as a weapon, into the jury room, this is something
which the judge has a discretion to permit
[R. v. Wright, 1993 Crim LR 607
(CA); R. v. Devichand, 1991 Crim LR 446 (CA).] .
Jurors must not however conduct unsupervised
experiments [R. v. Maggs, (1990) 91 Cr App R 243
(CA), per Lord Lane, C.J. at 247; R. v. Crees, 1996
Crim LR 830 (CA); R. v. Stewart, (1989) 89 Cr App
R 273 : 1989 Crim LR 653 (CA).] , or be allowed to
inspect a thing which has not been produced in
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evidence [R. v. Lawrence, (1968) 1 WLR 341 :
(1968) 1 All ER 579 : 52 Cr App R 163 (CA).] .
Failure to produce an object which might
otherwise have been admissible as real evidence
does not preclude the admission of oral evidence
concerning the existence or condition of that object,
although such evidence may carry far less weight
[R. v. Francis, (1874) LR 2 CCR 128 : 43 LJMC 97
(CCR); Hocking v. Ahlquist Bros. Ltd., 1944 KB 120
: (1943) 1 All ER 722. See also R. v. Uxbridge
Justices, ex p Sofaer, (1986) 85 Cr App R 367 (DC).
If the object in question is in the possession of the
prosecutor or of a third person, its production may
generally be compelled by issue of a witness order
under the Criminal Procedure (Attendance of
Witnesses) Act, 1965, Section 2 (as substituted and
amended) or under the Magistrates' Court Act,
1980, Section 97 (as substituted and amended)
(see para 1409 ante). The defendant cannot,
however, be served with such an order, lest he be
forced to incriminate himself : Trust Houses
Ltd. v. Postlethwaite, (1944) 109 JP 12.] .
***
1471. Audio and video recordings.--An audio
recording is admissible in evidence provided that
the accuracy of the recording can be proved, the
recorded voices can be properly identified, and the
evidence is relevant and otherwise admissible
[R. v. Maqsud Ali, (1966) 1 QB 688 : 49 Cr App Rep
230 (CCA). For the considerations relevant to the
determination of admissibility see R. v. Stevenson,
(1971) 1 WLR 1 : (1971) 1 All ER 678 : 55 Cr App R
171; R. v. Robson, (1972) 1 WLR 651 : (1972) 2 All
ER 699 : 56 Cr App R 450. See also R. v. Senat,
(1968) 52 Cr App R 282 (CA); R. v. Bailey, (1993) 3
All ER 513 : 97 Cr App R 365 (CA). Where a video
recording of an incident becomes available after the
witness has made a statement, the witness may
view the video and, if necessary, amend his
statement so long as the procedure adopted is fair
and the witness does not rehearse his evidence
: R. v. Roberts, 1998 Crim LR 682 : 162 JP 691
(CA).] . However, that evidence should always be
regarded with caution and assessed in the light of
all the circumstances [R. v. Maqsud Ali, (1966) 1
QB 688 : 49 Cr App Rep 230 (CCA). As to the use of
tape recordings and transcripts see R. v. Rampling,
1987 Crim LR 823 (CA); and see
also Butera v. Director of Public Prosecutions,
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(1986) 76 ALR 45 (Aust HC). As to the tape
recording of police interviews see para 971 et seq
ante; and as to the exclusion of a tape recording
under the Police and Criminal Evidence Act, 1984,
Section 78 (as amended) (see para 1365 ante) as
unfair evidence see R. v. H, 1987 Crim LR 4 (CC),
Cf R. v. Jelen, (1989) 90 Cr App R 456 (CA) (tape
recording admitted despite element of
entrapment).] .
A video recording of an incident which is in
issue is admissible [Taylor v. Chief Constable of
Cheshire, (1986) 1 WLR 1479 : (1987) 1 All ER 225
: 84 Cr App R 191 (DC)] . There is no difference in
terms of admissibility between a direct view of an
incident and a view of it on a visual display unit of a
camera or on a recording of what the camera has
filmed. A witness who sees an incident on a display
or a recording may give evidence of what he saw in
the same way as a witness who had a direct
view [Taylor v. Chief Constable of Cheshire, (1986)
1 WLR 1479 : (1987) 1 All ER 225 : 84 Cr App R
191 (DC). As to the admissibility of video recordings
as evidence identifying the defendant see
also R. v. Fowden and White, 1982 Crim LR 588
(CA); R. v. Grimer, 1982 Crim LR 674
(CA); R. v. Blenkinsop, (1995) 1 Cr App R 7 (CA). A
recording showing a road on which an incident had
occurred was admitted in R. v. Thomas, 1986 Crim
LR 682. As to the identification of the defendant by
still photographs taken by an automatic security
camera see R. v. Dodson, (1984) 1 WLR 971 : 79
Cr App R 220 (CA); as to identification generally see
para 1455 ante; and as to the admissibility of a
copy of a video recording of an incident
see Kajala v. Noble, (1985) 75 Cr App R 149 (CA).]
."
(emphasis supplied)
36. In order to examine the purport of the term
"matter" as found in Section 3 of the 1872 Act, Section 29
of the 1860 Code and Section 3(18) of the General
Clauses Act, and to ascertain whether the contents of the
memory card can be regarded as "document", we deem it
appropriate to refer to two Reports of the Law
Commission of India. In the 42nd Law Commission Report
[ Law Commission of India, Forty-Second Report, Indian
Penal Code, June 1971, 32-35.] , the Commission opined
on the amendments to the 1860 Code. Dealing with
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Section 29 of the 1860 Code, the Commission opined as
under:
"2.56. Definition Code to be retained.--The
main idea in all the three Acts is the same, and the
emphasis is on the "matter" which is recorded, and
not on the substance on which the matter is
recorded. We feel, on the whole, that the Penal
Code should contain a definition of "document" for
its own purpose, and that Section 29 should be
retained."
The said observation is restated in the 156th
Report [ Law Commission of India, One Hundred
Fifty-Sixth Report on the Indian Penal Code (Vol. I),
August 1997, Chapter XI.] , wherein the
Commission opined thus:
"11.08. Therefore, the term "document" as
defined in Section 29 IPC may be enlarged so as to
specifically include therein any disc, tape, sound
track or other device on or in which any matter is
recorded or stored by mechanical, electronic or
other means. ... The aforesaid proposed amendment
in Section 29 would also necessitate consequential
amendment of the term "document" under Section
3 of the Evidence Act, 1872 on the lines indicated
above."
37. Considering the aforementioned Reports, it can
be concluded that the contents of the memory card would
be a "matter" and the memory card itself would be a
"substance" and hence, the contents of the memory card
would be a "document".
38. It is crystal clear that all documents including
"electronic record" produced for the inspection of the
court along with 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/pen-drive must be furnished to the accused,
which can be done in the form of cloned copy of the
memory card/pen-drive. 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
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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.
39. 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-drive
referred to in the charge-sheet 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?
... ... ...
47. We are conscious of the fact that Section
207 of the 1973 Code permits withholding of
document(s) by the Magistrate only if it is
voluminous and for no other reason. If it is an
"electronic record", certainly the ground predicated
in the second proviso in Section 207, of being
voluminous, ordinarily, cannot be invoked and will
be unavailable. We are also conscious of the dictum
in Supt. & Remembrancer of Legal Affairs v. Satyen
Bhowmick [Supt. & Remembrancer of Legal
Affairs v. Satyen Bhowmick, (1981) 2 SCC 109 :
1981 SCC (Cri) 342] , wherein this Court has
restated the cardinal principle that the accused is
entitled to have copies of the statements and
documents accompanying the police report, which
the prosecution may use against him during the
trial.
48. Nevertheless, the Court cannot be
oblivious to the nature of offence and the principle
underlying the amendment to Section 327 of the
1973 Code, in particular sub-section (2) thereof and
insertion of Section 228-A of the 1860 Code, for
securing the privacy of the victim and her identity.
Thus understood, the Court is obliged to evolve a
mechanism to enable the accused to reassure
himself about the genuineness and credibility of the
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contents of the memory card/pen-drive from an
independent agency referred to above, so as to
effectively defend himself during the trial. Thus,
balancing the rights of both parties is imperative, as
has been held in Asha Ranjan [Asha Ranjan v. State
of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri)
376] and Mazdoor Kisan Shakti
Sangathan [Mazdoor Kisan Shakti
Sangathan v. Union of India, (2018) 17 SCC 324] .
The Court is duty-bound to issue suitable directions.
Even the High Court, in exercise of inherent power
under Section 482 of the 1973 Code, is competent
to issue suitable directions to meet the ends of
justice.
49. If the accused or his lawyer himself,
additionally, intends to inspect the contents of the
memory card/pen-drive in question, he can request
the Magistrate to provide him inspection in court, if
necessary, even for more than once along with his
lawyer and IT 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
authorised IT 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/pen-drive 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.
50. 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.
However, in cases involving issues such as of
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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 court may issue suitable directions to balance the
interests of both sides."
(Emphasis supplied)
In the light of the judgment of the Apex Court quoted supra, as
also the fact that the petitioner is now seeking electronic
records, the law as laid down by the Apex Court in the case of
P. GOPALKRISHNAN supra is to be strictly followed and those
materials as directed by the Apex Court are to be furnished.
8. The learned Additional State Public Prosecutor would
accept that the application of the petitioner will merit
consideration only in consonance with the law laid down by the
Apex Court in the case of P. GOPALKRISHNAN. In that light,
I deem it appropriate to direct the concerned Court to permit
examination of documents, in the manner that the Apex Court
directs in the case of P. GOPALKRISHNAN supra. Ordered
accordingly.
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With the aforesaid observations, petition stands disposed.
____ SD/-___________
JUSTICE M. NAGAPRASANNA
BKP
