Karnataka High Court
J M Richard @ Joy Macdonald Richard vs State Of Karnataka on 13 June, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 1173 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 1173 OF 2022
BETWEEN:
1. J.M.RICHARD @ JOY MACDONALD RICHARD
AGED ABOUT 68 YEARS
S/O LATE R.P.JOSEPH
R/AT NO.139, CHBS LAYOUT
19TH CROSS, 8TH MAIN
VIJAYANAGAR
BENGALURU - 560 040.
2. REV.SANJAY SAMUEL
@ SANJAY SAMUEL AYER
AGED ABOUT 63 YEARS
Digitally signed by
PADMAVATHI B K S/O JOHN S. AYER
Location: HIGH
COURT OF R/O ST. ANDREWS CHURCH
KARNATAKA NO.27, CUBBON ROAD
BENGALURU - 560 001.
3. EBENEZER SOUNDAR
AGED ABOUT 59 YEARS
S/O LATE D. DAVID
R/AT QUARTERS, BISHOP COTTON BOYS SCHOOL
ST. MARKS ROAD
BENGALURU - 560 001.
...PETITIONERS
(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)
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CRL.P No. 1173 of 2022
AND:
1. STATE OF KARNATAKA
BY CUBBON PARK POLICE
REP. BY ITS INSPECTOR
NOW REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
2. MARY SUSHEELA
AGED ABOUT 63 YEARS
NO.108, 2ND 'D' CROSS
OMBR LAYOUT
BENGALURU - 560 043.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER
DATED 01.01.2022, AT ANNEXURE-A PASSED BY THE 50TH
ADDL.CITY CIVIL AND SESSIONS JUDGE, (SPL.COURT FOR
POCSO) AT BENGALURU IN SPL.C.C.NO.188/2017, WHEREBY
THE HONBLE COURT WAS PLEASED TO DISMISS THE
APPLICATION FILED BY THE PETITIONER, UNDER SEC.207
CR.PC AND DIRECT THE FIRST RESPONDENT TO SERVE A COPY
OF THE PEN DRIVE AND 2 DVDs SEIZED BY THEM DURING
INVESTIGATION.
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.P No. 1173 of 2022
ORDER
The petitioners in the subject petition call in question order dated 01-01-2022, passed by the L Additional City Civil and Sessions Judge, Bengaluru in Special C.C.No.188 of 2017, rejecting the application filed by the petitioners under Section 207 of the Cr.P.C., in which the petitioners had sought copies of Pendrive and 2 Digital Videos seized by the Police during investigation.
2. Heard Sri Vijayakumar Prakash, learned counsel for the petitioners and Sri K.S.Abhijith, learned High Court Government Pleader for respondent No.1.
3. Sans details, the facts, in brief, are as follows:-
It is the case of the prosecution that on 08-01-2015 at the Bishop Cotton Girls School, a ceremony of the new Principal taking charge was organized. At around 9.00 a.m., when the members of the Administration or the Governing Body arrived at the School premises, the gate of the School was locked and the students belonging to 8th, 9th and 11th standard were -4- CRL.P No. 1173 of 2022 standing at the gate shouting slogans against the appointment of the new Principal. It is alleged that the petitioners requested the students to return to their classes but they refused to heed to their request and then, the petitioners allegedly abused them in filthy language and touched them inappropriately. This becomes a complaint against the petitioners on 10-01-2015 and a crime in Crime No.20 of 2015 came to be registered for the offences punishable under Sections 354, 355, 504, 506 r/w.
34 of the IPC and Sections 8, 9(f) and 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act').
4. In the said proceedings i.e., Special C.C.No.188 of 2017, the petitioners file an application under Section 207 of the Cr.P.C. seeking a copy of Pendrive and 2 DVDs' that were seized at the time of investigation. This is turned down by the learned Sessions Judge by his order dated 01.01.2022. It is this order of the learned Sessions Judge that drives the petitioners to this Court in the subject petition.
-5- CRL.P No. 1173 of 20225. The learned counsel for the petitioners submits that the petitioners are entitled to all the materials that are part of the charge sheet under Section 207 of the Cr.P.C. and they cannot be denied access to those documents and proceedings held, without furnishing of those documents, which would not amount to a fair trial. The documents that they sought for their defence, is to establish that they have not committed any such acts, were the Pen drive in which recordings were made from CCTV and DVDs.
6. On the other hand, the learned High Court Government Pleader would refute the submission to contend that the petitioners are not entitled to the said copy in the light of the judgment of the Apex Court rendered in the case of the P. GOPALKRISHNAN V. STATE OF KERALA reported in (2020) 9 SCC 161 and would seek to defend the impugned order.
7. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.
-6- CRL.P No. 1173 of 20228. The afore-narrated facts are not in dispute. The order of the learned Sessions Judge declining to grant permission to furnish a copy of P.F.Nos.115/2015 and 166/2015, which while seized, contained Pen drive and two DVDs', reads as follows:
"7. ....................... As per POCSO Act the identity of the victim cannot be disclosed and therefore the incident in question and all the proceedings relating to POCSO Act would be confidential and cannot be disclosed. Therefore, considering the allegations made in the charge sheet and contents of pen-drive and DVDs as stated in the concerned panchanamas, it can be safely opined that copy of the same cannot be furnished to the accused, in view of legal bar.
8. Further even according to Sec.207 Cr.P.C. the accused would be entitled for copy of documents furnished along with charge sheet. No doubt as argued by learned counsel for accused electronic record including a pendrive and DVD is also a document within the meaning of Sec.29 of IPC. But considering the contents of the document and to above legal bar, it is to be held that the accused -7- CRL.P No. 1173 of 2022 cannot be held entitled for copy of said pen-drive and DVSs. Moreover the said panchanamas and pendrive or DVD are not produced along with charge sheet. Therefore the accused has failed to make out that he is entitled for copy of pendrive or 2 DVDs seized under PF No.115/2015 and 166/2015 either in law or on facts. Hence I answer the above point in the Negative and proceed to pass the following order.
ORDER"
Application filed under section 207 Cr.P.C. seeking to furnish copy of pen-drive and 2 DVDs seized under PF No.115/2015 and 166/2015 is hereby dismissed."
The reasons rendered by the learned Sessions Judge would fall foul of what the Apex Court has held in the judgments while interpreting the right of the accused to have the documents during a trial.
9. The judgments of the Apex Court have been followed by this Court in plethora of cases. One of which, is in the case of MUZAMMIL PASHA Vs. NATIONAL -8- CRL.P No. 1173 of 2022 INVESTIGATING AGENCY in W.P.19012/2021 disposed on 06.06.2022, wherein, this Court has held has follows:
"7. Since the application is filed before the Sessions Judge under Section 207 of the Cr.P.C., it is germane to notice Section 207 of the Cr.P.C. Section 207 of the Cr.P.C., which reads as follows:
"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 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;-9- CRL.P No. 1173 of 2022
(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."
(Emphasis supplied) Section 207 of Cr.P.C. deals with supply of copies of police report and other documents to the
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accused. The Section contains 5 postulates of what should be furnished. The Apex Court in CRIMINAL TRIALS GUIDELINES REGARDING INADEQUACIES AND DEFICIENCIES, IN RE v. STATE OF ANDHRA PRADESH - (2021) 10 SCC 598, interpreting the aforesaid provision of law has in a suo motu proceedings under Article 32 of the Constitution of India noticed common deficiencies which occur in the course of criminal trial and certain practices adopted by trial Courts in criminal proceedings. Therein, what was the cause for such anomaly was considered and a direction was issued to adopt uniform practice. Paragraph 11 of the said judgment reads as follows:
"11. The Amici Curiae pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced
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for a proper and just trial, she or he may seek appropriate orders, under CrPC ["91. Summons to produce document or other thing.--(1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.(3) Nothing in this section shall be deemed--(a) to affect Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."] for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)].
(Emphasis supplied)
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CRL.P No. 1173 of 202213. xxxxxxxxxxxxx Reference being made to a recently rendered three judge bench judgment of the Apex Court in the case of MANJOJ AND OTHERS V. STATE OF MADHYA PRADESH1, wherein it is held as follows:
"184. In Manu Sharma, in the context of policy diaries, this court noted that "the purpose and the object seems to be quite clear that there should be fairness in investigation, transparency and a record should be maintained to ensure a proper investigation". This object is rendered entirely meaningless if the police fail to maintain the police diary accurately. Failure to meticulously note down the steps taken during investigation, and the resulting lack of transparency, undermines the accused's right to fair investigation; it is up to the trial court that must take an active role in scrutinizing the record extensively, rather than accept the prosecution side willingly, so as to bare such hidden or concealed actions taken during the course of investigation.
185. In the present case, the trial court ought to have inquired more deeply into the role of DW-1, given that by her own deposition she had admitted to analyzing call detail records and involvement in Neha's arrest - all of which had been suppressed by the prosecution side, for reasons best known to them. In this context, a reading of Section 91 and 243 CrPC as done in Manu Sharma, is important to refer to:1
2022 SCC OnLine SC 677
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"217. ..Section 91 empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross-
examination or the production of any document or other thing for which the court has to pass a reasoned order."
186. The court went on to elaborate on the due process protection afforded to the accused, and its effect on fair disclosure responsibilities of the public prosecutor, as follows:
"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
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relies upon whether filed in court or not. That document should essentially be 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 aforereferred 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 furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the
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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
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CRL.P No. 1173 of 2022
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 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to 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
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administration of criminal justice and the defence of the accused prejudicially.
222. The concept of disclosure and duties of the Prosecutor under the English system cannot, in our opinion, be made applicable to the Indian criminal jurisprudence stricto sensu at this stage. However, we are of the considered view that the doctrine of disclosure would have to be given somewhat expanded application. As far as the present case is concerned, we have already noticed that no prejudice had been caused to the right of the accused to fair trial and non- furnishing of the copy of one of the ballistic reports had not hampered the ends of justice. Some shadow of doubt upon veracity of the document had also been created by the prosecution and the prosecution opted not to rely upon this document. In these circumstances, the right of the accused to disclosure has not received any setback in the facts and circumstances of the case. The accused even did not raise this issue seriously before the trial court.
(emphasis supplied)
187. In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the state's police machinery.
188. This view was endorsed in a recent three judge decision of this court in Criminal trials guidelines regarding Inadequacies and
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CRL.P No. 1173 of 2022Deficiencies, in re v. State of Andhra Pradesh. This court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of rules by all states and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, during investigation-to the accused. The relevant draft guideline, approved by this court, for adoption by all states is as follows:
"4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC Every Accused shall be supplied with statements of witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, Cr. PC.
Explanation : The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the Investigating Officer."
189. In view of the above discussion, this court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding
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CRL.P No. 1173 of 2022officers of courts in criminal trials shall ensure compliance with such rules."
(Emphasis supplied) If the case at hand is considered on the bedrock of the aforesaid enunciation of law in the aforesaid judgments of the Apex Court, it cannot but be held to be an unfair act on the part of the respondent which would lead to an unfair trial."
This Court has interpreted the right of the accused for seeking the documents in the realm of fair trial. The issue in the case at hand is sensitive as the offences are the ones punishable under the provisions of POCSO Act, which prohibits revealing the identity of the victim.
10. It is in these circumstances, it is germane to extract the judgment of the Apex Court in the case of P. GOPALKRISHNAN v. State of Kerala reported in (2020) 9 SCC 161, wherein, interpreting the fair trial has held as follows:
"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
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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 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?
40. Reverting to the preliminary objection taken by the respondent for dismissing the appeal at the
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CRL.P No. 1173 of 2022threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject-matter of the present appeal, we find that the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the first information report/crime case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the charge-sheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/pen- drive does not take the matter any further, once we recognise the right of the accused to get the cloned copies of the contents of the memory card/pen-drive as being mandated by Section 207 of the 1973 Code and more so, because of the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India.
41. The next crucial question is : 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? In the present case, there are eight named accused as of now. Once relief is granted to the appellant who is Accused 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.
42. Considering the principles laid down by this Court in Tarun Tyagi [Tarun Tyagi v. CBI, (2017) 4
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CRL.P No. 1173 of 2022SCC 490 : (2017) 2 SCC (Cri) 428] , 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 cloned copy concerned. Besides, it will be well-nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.
43. Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory ("CFSL"), on all matters which the appellant may be advised. In that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with CFSL. Similarly, the forensic report prepared by CFSL, after analysing the cloned copy of the subject memory card/pen-drive, shall be kept confidential and shall not be allowed to be accessed by any other agency or person except the accused or his authorised representative concerned until the conclusion of the trial. We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.
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CRL.P No. 1173 of 202244. Needless to mention that the appellant before us or the other accused cannot and are not claiming any expertise, much less, capability of undertaking forensic analysis of the cloned copy of the contents of the memory card/pen-drive. They may have to eventually depend on some expert agency. In our opinion, 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.
45. Considering that this is a peculiar case of intra-conflict 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 Asha Ranjan v. State of Bihar [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] wherein this Court held thus : (SCC pp. 432-34 & 447, paras 57, 61 & 86) "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
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CRL.P No. 1173 of 2022of 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.
***
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 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 trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right
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CRL.P No. 1173 of 2022by 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. ...
*** 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 intra-conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in
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CRL.P No. 1173 of 2022certain 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 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)
46. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India [Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324] has restated the legal position in the following terms :
(SCC p. 371, para 61) "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 [Varun Seth v. State, 2017 SCC OnLine NGT 65] that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same
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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 inAsha 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 would mean curtailing one right of one class to some extent so that the right of the other class is also protected."
(emphasis supplied)
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
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CRL.P No. 1173 of 2022particular 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 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
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CRL.P No. 1173 of 2022the 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 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."
Therefore, the application filed by the petitioners shall be considered and the documents sought be furnished strictly in consonance to what the Apex Court has held in the afore-
extracted judgment in the case of P.GOPALKRISHNAN (supra).
11. For the aforesaid reasons and observations, the following:
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ORDER i. The Criminal Petition is allowed.
ii. The impugned order dated 01.01.2022, passed by the L Additional City Civil and Sessions Judge (Special Court for POCSO), Bengaluru, in SPL.C.C.No.188/2017, stands quashed.
iii. The application filed under Section 207 of the Cr.P.C., is allowed.
iv. The prosecution shall furnish the petitioners, the documents under Section 207 of the Cr.P.C. bearing in mind the observations made in the course of this order and to be used strictly in consonance with the judgment rendered by the Apex Court in the case of P.GOPALKRISHNAN (supra).
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 24