2019 (11) TMI 1827 - SC - Indian Laws

Obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report Under Section 207 of the 1973 Code - Document within the meaning of Section 3 of the Indian Evidence Act 1872 - contents of a memory card/pen-drive being electronic record - obligation to furnish a cloned copy of the contents of such memory card/pen-drive to the Accused facing prosecution for an alleged offence of rape and related offences - possibility of misuse of such cloned copy by the Accused (which may attract other independent offences under the 2000 Act and the 1860 Code). Obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report Under Section 207 of the 1973 Code - HELD THAT - The investigating officer after completing the investigation is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report the investigating officer is also duty bound to forward to the Magistrate all documents or relevant extracts thereof on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses are required to be forwarded to the Magistrate alongwith the police report - 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 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 Sub-section (6) of Section 173 of the 1973 Code. Whether the contents of the memory card/pen-drive submitted to the Court alongwith the police report can be treated as document as such? - HELD THAT - Indubitably if the contents of the memory card/pen-drive are not to be treated as document the question of furnishing the same to the Accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise - 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 . 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/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 trial. Whether parting of the cloned copy of the contents of the memory card/pen-drive 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? - HELD THAT - 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/pen-drive would be freely available to all the Accused - the Accused who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen-drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial are free to take opinion of an independent expert agency such as the CFSL on such matters as they may be advised which information can be used by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report. 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 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. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified - Appeal allowed in part.

Summary

Issues Involved:
1. Whether the contents of a memory card/pen-drive being electronic record qualify as a "document" under Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860.
2. Whether it is obligatory to furnish a cloned copy of such contents to the Accused under Section 207 of the Code of Criminal Procedure, 1973.
3. Whether the Court can decline the request to furnish a cloned copy on grounds of privacy, dignity, and potential misuse.

Issue-wise Comprehensive Details:

1. Qualification of Electronic Record as a "Document":
The Supreme Court examined whether the contents of a memory card/pen-drive qualify as a "document" under Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860. The Court concluded that electronic records, including data, images, and sounds stored in electronic form, are indeed "documents" as defined under these sections. The Court referenced various legal definitions and precedents, including the Information Technology Act, 2000, which defines "electronic record" and "data" broadly to include any information stored electronically.

2. Obligation to Furnish Cloned Copy to the Accused:
The Court held that under Section 207 of the Code of Criminal Procedure, 1973, the Accused is entitled to receive copies of all documents on which the prosecution relies. This includes electronic records like the contents of a memory card/pen-drive. The Court emphasized that furnishing these documents is a facet of the right to a fair trial under Article 21 of the Constitution. The Court noted that the Magistrate's duty under Section 207 is administrative, requiring full compliance with the section to ensure the Accused's right to a fair trial.

3. Declining Request on Grounds of Privacy and Potential Misuse:
The Court acknowledged the concerns regarding the privacy, dignity, and potential misuse of the cloned copy of the contents of the memory card/pen-drive. However, it emphasized the need to balance these concerns with the Accused's right to a fair trial. The Court proposed a solution where the Accused could seek a second expert opinion from an independent agency like the Central Forensic Science Laboratory (CFSL). The Court mandated that the forensic report prepared by CFSL be kept confidential and accessible only to the concerned Accused or his authorized representative until the trial's conclusion.

Conclusion:
The Supreme Court concluded that the contents of the memory card/pen-drive are "documents" under the relevant legal provisions. It directed that the Accused must be given access to these documents to ensure a fair trial. However, to address privacy concerns, the Court allowed the Accused to seek a second expert opinion from CFSL, ensuring confidentiality and preventing misuse. The Court modified the orders of the trial Court and the High Court accordingly and directed the trial to be concluded expeditiously.