Kerala High Court
Syam.P.Sambu vs State Of Kerala on 18 October, 2024
2024:KER:79808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 18TH DAY OF OCTOBER 2024 / 26TH ASWINA, 1946
CRL.MC NO. 8151 OF 2024
CRIME NO.1751/2017 OF KALLAMBALAM POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE ORDER DATED 19.03.2024 IN CA NO.169 OF 2024 OF
FAST TRACK SPECIAL COURT, VARKALA
IN SC NO.435 OF 2018 OF FAST TRACK SPECIAL COURT, VARKALA
PETITIONERS/ACCUSED NOS.1 TO 3:
1 SYAM.P.SAMBU
AGED 26 YEARS
S/O.PARAMESWARAN, SOUPARNIKA,
METTU STREET, SHEKHARIPURAM,
PALAKKADU VILLAGE, PALAKKAD DISTRICT
PIN - 678010
2 ARUN @ VIPIN
AGED 36 YEARS
S/O.BABU, RIHAM VEEDU, PNP ROAD,
NEAR EAST POST OFFICE,
CHIRAKKADAVU VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM -,
PIN - 686506
3 VISHNU K.S
AGED 31 YEARS
S/O.SHAJI, KUZHIMATTATHILE VEEDU,
NEAR PRIVATE BUS STAND,
MOOVATTUPUZHA TALUK,
MOOVATTUPUZHA VILLAGE,
ERNAKULAM -, PIN - 686661
BY ADVS.
K.SIJU
ANJANA KANNATH
MARIYA JOSE
2024:KER:79808
CRL.MC NO. 8151 OF 2024
2
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER
KALLAMBALAM POLICE STATION,
THIRUVANANTHAPURAM, PIN - 695605
SRI M P PRASANTH, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 04.10.2024, THE COURT ON 18.10.2024 PASSED THE
FOLLOWING:
2024:KER:79808
CRL.MC NO. 8151 OF 2024
3
ORDER
Dated this the 18th day of October, 2024 This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging Annexure A5 order dated 19.03.2024 in C.A.No.169/2024 in S.C.No.435/2018 on the files of the Fast Track Special Court, Varkala, whereby copy application filed by the petitioners to get a copy of DVD was denied, on the ground that the Public Prosecutor, who appeared before the trial court, opposed the same, contending that private chats in the DVD would contain materials that would affect the privacy of the deceased victim and therefore, the same could not be issued.
2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the available records.
2024:KER:79808 CRL.MC NO. 8151 OF 2024 4
3. In this case, the prosecution alleges commission of offences punishable under Sections 376 and 305 of the Indian Penal Code and Sections 4 r/w 3(a), 6 r/w 5(e) and 8 r/w 7 of the the Protection of Children from Sexual Offences Act (hereinafter referred to as 'PoCSO' for short).
4. While assailing the order, the learned counsel for the petitioners submitted that going by the order, the learned Special Judge in no way found that the DVD would contain private chats, as contended by the learned Public Prosecutor, and without making a definite finding, a vague order was passed, disallowing issuance of copy of DVD, while allowing issuance of copy of Forensic Science Laboratory report only. According to the learned counsel for the petitioners, if the DVD contains private chats and materials that would affect the privacy of the victim, definitely the same could not be given. According to the learned counsel for the petitioners, in the present DVD, nothing available that would 2024:KER:79808 CRL.MC NO. 8151 OF 2024 5 affect the privacy of the victim and they are entitled to get a copy of the same.
5. The learned Public Prosecutor would submit that since the submission made by the learned Public Prosecutor before the trial court is based on the information gathered from the prosecution records that the DVD contains materials affecting the privacy of the victim, this petition cannot be allowed.
6. Here, the prosecution allegation is that the first accused, after maintaining a relationship between the victim, had WhatsApp chats and thereafter the deceased victim was subjected to molestation. The crucial question is; whether the copy of DVD sought for is the one containing materials affecting the privacy of the victim. In the decision in Muhammed Ramees v. State of Kerala, reported in 2024 KHC OnLine 783, this Court considered issuance of copy of pen drive to the accused and held in paragraph Nos.3 (4 2024:KER:79808 CRL.MC NO. 8151 OF 2024 6 omitted), 5 to 10 as under:
"3. The trial court relied on the decisions, placed by both sides, of the Apex Court reported in [2019(4) KLT 853], Gopalakrishnan @ Dileep v. State of Kerala; [AIR 1996 SC 1393], State of Punjab v. Gurmit Singh & Ors.; [2004 (1) SCC 475], State of Karnataka v. Puttaraja; and [2019 (2) SCC 703], Nipun Saxena & anr. v. Union of India & Ors. and of this Court reported in [2019 (4) KLT 159], Rasaq v. State of Kerala, and held in paragraph 10 as under:
"10. Therefore, to balance the interests of the victim for securing her privacy and identity and the accused to have effectively defend himself during trial, instead of furnishing copy of the pen drive to the petitioner and other accused, permitting inspection of the contents of pen drive and other offensive pictures, if any, to the accused and their counsel will meet the ends of justice. Other documents in which the prosecution did not have objection, copies shall be furnished to the petitioner and also to the other accused, if not furnished already. Accordingly, the petition was allowed in part and the reliefs granted are as under:
"a) directing the prosecution to furnish to the petitioner the copy of the documents except the contents of the pen drive and other pictures of the victim involving her privacy and identity;
b) the petitioner or his counsel can inspect the contents of the pen 2024:KER:79808 CRL.MC NO. 8151 OF 2024 7 drive and other such pictures, if necessary, with permission of the Court;
c) it is made clear that in the event of such permission to inspect the above said records, nobody shall be permitted to carry any devices including electronic device, camera and mobile phone which may have the capability of copying or transferring such record or the contents thereof or mutating its contents in any manner."
4. xxxx
5. Coming to the legal issue involved, furnishing of copies of prosecution records to the accused in compliance with Sections 207 and 208 of the Code of Criminal Procedure, is mandatory, subject to limited exceptions. In this context, the decision in Gopalakrishnan @ Dileep's case (supra) is relevant. In the said case, the Apex Court held that the contents of 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. In the decision reported in Gopalakrishnan @ Dileep's case (supra), the Apex Court held as under in paragraphs 42 to 44 as under:
"42. 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 2024:KER:79808 CRL.MC NO. 8151 OF 2024 8 (2) thereof and insertion of Section 228A 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 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 [(2017) 4 SCC 397 : 2017 (1) KLT OnLine 2162 (SC) : (2017) 2 SCC (Cri) 376], Asha Ranjan v. State of Bihar and [2018 (3) KLT OnLine 2070 (SC) : (2018) 17 SCC 324], Mazdoor Kisan Shakti Sangathan v. Union of India. 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.
43. 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 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 2024:KER:79808 CRL.MC NO. 8151 OF 2024 9 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.
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. 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."
Further, the Court may issue suitable directions to balance the interests of both sides. In Nipun Saxena & anr. v. Union of India & Ors.'s case (supra), referred by the trial court, the Apex Court issued directions in paragraph 50 to ensure privacy of the victims of POCSO offences as under:
"50. In view of the aforesaid discussion, we issue the following directions:
50.1. No person can print or publish in print, electronic, social media, etc. the 2024:KER:79808 CRL.MC NO. 8151 OF 2024 10 name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorisation of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
50.3. FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E IPC and the offences under POCSO shall not be put in the public domain.
50.4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
50.5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty-
bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed 2024:KER:79808 CRL.MC NO. 8151 OF 2024 11 cover to the investigating agency or the court.
50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down criteria as per our directions for identifying such social welfare institutions or organisations.
50.8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
50.9. All the States/Union Territories are requested to set up at least one "One-Stop Centre" in every district within one year from today."
6. Reading the ratio of the above decision, it is emphatically clear that the identity of the victims of sexual offences including POCSO Act cases is protected by the conditions laid down in Nipun Saxena & anr. v. Union of India & Ors.'s case (supra).
7. Similarly in cases involving privacy of the victims or their identity, in order to avoid its disclosure, the court may be justified in providing only inspection thereof to the accused or his/her counsel or an expert for presenting effective defence during trial. In this regard, the courts have to issue suitable directions to balance the interest of both sides.
2024:KER:79808 CRL.MC NO. 8151 OF 2024 12
8. Here the learned counsel for the petitioner attempted to distinguish the ratio in Gopalakrishnan @ Dileep v. State of Kerala's case (supra) as well as Nipun Saxena & anr. v. Union of India & Ors.'s case (supra) raising a contention that if at all the copy of the documents sought for in the present case contain privacy of the victim, the same has no bearing in the instant case, since materials disclosing the privacy of the victim were already published in the website and the same are within the public domain.
9. In this context, the question raises for consideration is, whether disclosure of privacy of a victim of sexual offence, as against the prohibitions, by any agency, either in the internet or in social media platform or other medias, is a justifiable ground to provide copy of the documents which would affect the privacy of the victim and the alleged derogatory overture itself to the accused to defend himself ?
10. Going by the law settled, as discussed herein above, publication of anything which would affect the privacy of a victim is not permitted. If anybody violates the said prohibition by publishing the same in any mode, he is answerable for the same as per law and the same would require deletion from the domain of the public at the earliest opportunity on noticing the same. Further disclosing the identity of rape victims itself is an offence under Section 228-A of IPC. If 2024:KER:79808 CRL.MC NO. 8151 OF 2024 13 so, it is difficult to lay down a proposition that since privacy has been disclosed by any other means of publication to have access to the public is a reason to provide the same to the accused to add pepper on the wound of the victim and intimate upon the privacy of the victim.
11. In view of the discussion, it is found that Annexure-A2 order passed by the learned Special Judge following the decisions of the Apex Court is perfectly justified and for which no interference is called for."
7. It is true that the accused in a sessions trial is entitled to get copies of documents under Section 208 of the Code of Criminal Procedure as well as Section 19(4) of the Criminal Rules of Practice. But when pen drive, DVD and other digital documents are applied for, the accused would not get copies of the same, if the same contained materials which would affect the privacy or something which intruded upon the privacy of the victim. In the instant case, the learned Public Prosecutor appeared before the trial court argued that copy of DVD asked for could not be given because the same contains materials 2024:KER:79808 CRL.MC NO. 8151 OF 2024 14 affecting the privacy of the victim. But the trial court not specifically found so. It is submitted by the learned Public Prosecutor before this Court that going by the prosecution records, DVD contains materials affecting the privacy of the victim and the same could not be given. Since the law is settled that DVD containing materials affecting the privacy of the victim could not be given, the order is only to be justified.
However, the learned counsel for the accused as well as the accused has the right to see the visuals of the DVD in the Court before or during of trial to contest the case.
8. Therefore, while confirming the order, there shall be a direction to the trial court to permit the accused as well as the learned counsel for the accused to see the visuals of DVD by fixing a convenient date and time so as to facilitate the petitioner to cross-examine the witnesses and to answer the charge.
Holding so, this petition stands disposed of.
2024:KER:79808 CRL.MC NO. 8151 OF 2024 15 Registry is directed to forward a copy of this order to the jurisdictional court for information and further action.
Sd/-
A. BADHARUDEEN JUDGE nkr 2024:KER:79808 CRL.MC NO. 8151 OF 2024 16 APPENDIX OF CRL.MC 8151/2024 PETITIONER ANNEXURES ANNEXURE A1 THE COPY OF RELEVANT PAGES OF TEH FINAL REPORT IN CRIME NO.1751/2017 OF KALLAMBALAM POLICE STATION DATED 16.02.2018 ANNEXURE A2 THE COPY OF CASE DETAILS IN SC NO.435/2018 ON THE FILE OF FAST TRACK SPECIAL COURT, VARKALA DOWNLOADED FROM THE E-COURT SERVICES ANNEXURE A3 THE COPY OF COVERING LETTER FORWARDING DVD CONTAINING THE CHATS/FILES ISSUED BY THE SCIENTIFIC OFFICER IN CRIME NO.1751/2017 DATED 31.12.2020 ANNEXURE A4 THE COPY OF CERTIFIED COPY APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE FAST TRACK SPECIAL COURT, VARKALA IN SC NO.435/2018 DATED 28.5.2024 ANNEXURE A5 THE CERTIFIED COPY OF ORDER DATED 19.3.2024 IN CA NO.169/2024 IN SC NO.435/2018 ON THE FILE OF FAST TRACK SPECIAL COURT, VARKALA RESPONDENTS ANNEXURES : NIL