SC Order In Dileep Case: Some Pertinent Questions

Seminal question which arose for consideration by the apex court in the appeal preferred with special leave against the Order of a single judge of the High Court of Kerala in P.Gopalakrishnan @Dileep Vs. State of Kerala and another was whether the contents of a memory card/ pen- drive would qualify as a document covered by Sec.3 of the Evidence Act and defined under Sec. 29 of the Penal Code; and, if so, whether furnishing a cloned copy of such memory card/ pen-drive produced with police report, to an accused facing accusation of rape is obligatory in terms of Sec.207 of the Cr. P.C. where infringement of privacy, dignity and identity of the victim involved by misuse of copy is canvassed to deny supply. After an exhaustive and meticulous analysis of the issues involved with reference to judicial pronouncements and law applicable the court concluded that cloned copy of a memory card/pen-drive is a document and a fair trial postulate supply of its copy to the accused in tune with the mandate under Sec.207 Cr. P.C. However, dilating how far handing over copy to accused is safe, and also likelihood of its misuse where copies of the contents would be readily available to all the eight accused in the case, instead of ordering supply of copy the court issued some directions,as spelt out in paragraphs 37&38 of the judgment, enabling the accused to obtain a second report on the cloned copy of memory card/pen-drive produced by sending it to an independent agency like C.F.S.L. for scientific examination, to record findings/opinion on his queries formulated with the aid of an expert of his choice. The court also directed the magistrate to provide opportunity to the accused to inspect the cloned copy of memory card/pen-drive produced before the court in the company of his counsel and an IT expert, but, taking safeguards that no transferring, copying or mutilation of contents is made (paragraph43). Observing that `this is a particular case of intra conflict of fundamental rights' flowing from Article 21 of the Constitution- right of accused to have fair trial and right of privacy of victim- the court issued some directions, as under paragraphs 37 &38 of its judgment, enabling the accused to seek `a second expert opinion from an independent agency' on all matters advised to him, to challenge the genuineness of the cloned copy of memory card/pen-drive produced by the prosecution. Partly allowing the appeal the trial court has been directed to expedite the proceedings for speedy disposal, preferably, within six months from the date of judgment.

Paragraphs 37&38 of the judgment containing the directions, which require a closer look and evaluation, read thus:

"37. 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 the CFSL. Similarly, the forensic report prepared by the CFSL, after analyzing 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 concerned accused or his authorized representative 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.

38. 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"

(underlining supplied)

Since some of the offences allegedly committed by the accused are exclusively triable by a court of sessions, the case, after committal, is now awaiting completion of pre-trial steps. At this stage directions as noted above have been issued by the apex court. Trial of a Sessions case is regulated by the procedures laid down under Chapter 18 of the Code of Criminal Procedure. A different procedure even for completing the pre-trial steps may arise now, and the time limit fixed for completion of trial is unlikely to be followed. The question whether there is `sufficient ground to proceed against the accused' has to await the report from the independent agency like CFSL which is likely to be called upon to inspect the cloned copy of memory card/pen-drive produced, and, to enter opinion/findings on the queries of accused challenging its genuineness. Report collected from CFSL, and even the queries raised for inspection, is open and available to the accused alone and not to the court or prosecution since the supreme court has directed that the queries formulated by the accused with the help of his IT Expert for inspection and forwarded to CFSL ``……shall be confidential and shall not be accessed by any other agency or person not associated with CFSL." The court has further imposed a more rigorous restriction insulating the confidentiality of the report of the CFSL stating thus:

`` …..the forensic report prepared by the 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 agency or person except the concerned accused or his authorised representative until the conclusion of the trial."

Preliminary hearing by the court as under Ss.227&228 of the Code to consider whether there is sufficient ground to proceed against the accused, has to be based on materials produced by prosecution alone. When that be so, the trial court has to rely on the report of the FSL already produced with other materials by prosecution, and it has to be so even if the latter report received from CFSL, which is ordered to be kept confidential and not available to any agency or person other than the concerned accused, contradict the previous report. Even if the report of CFSL strengthens prosecution case then also it cannot be looked into to consider sufficient ground for proceeding against the accused by the court.

Where a second report is called for and that too from a recognised Central Govt. Laboratory, and it is conflicting with a previous report on tests conducted over the same material by a State Govt. Laboratory, the normal and desirable rule to be followed is that the latter report alone should prevail effacing the previous report. When recognised and authorised Stat Govt. Laboratory and Central Govt. Laboratory carry scientific inspection over the same material, one after the other, and file reports, it is prudent and advisable to accept the latter report, treating the former as nothing but a fossil having no evidentiary value. That is the position statutorily recognised in the analysis over food samples collected to test adulteration.

The impact of Ss.293&294 of the Code has also to be noticed in evaluating the report of an expert of recognised Govt. Laboratory to whom the material was duly submitted for examination and analysis. Second test over a different sample collected from the same material through another recognised Govt. Laboratory to challenge the previous report, which often forms the basis for prosecution of the offence committed, is statutorily provided in Cosmetics Act, 1940, Food Adulteration Act, and Rule56 of the Central Excise Rules,1944, but, fixing time period for exercising the option for retesting, with mandatory prescription that the latter report alone will prevail effacing the former. Neither Code of Criminal Procedure nor Criminal Rules of Practice recognise challenge to the report collected from a Govt. scientific expert, that too at a preliminary stage of the case, by having a retesting of the same material through another Govt. Laboratory. At any rate exercise of such a right by an accused facing a Sessions trial will arise only if he is called upon to enter on his defence. The larger right conferred to the accused in this particular case, it is seen, over and above shielding his queries challenging the genuineness of the cloned copy of memory card/pen-drive, from any agency or person, and absolute confidentiality of the report collected from CFSL as accessible only by him or his authorised representative, has empowered him ``..to confront the prosecution witnesses including the forensic expert of the FSL..''. So what we notice is that even after the stage of preliminary hearing, during trial, the trial court and prosecution shall be in the dark over the merit and contents of the second report collected from CFSL, but, the accused will be free to use such information to confront the prosecution witnesses including the scientific expert and, thus, discredit the prosecution. With respect it has to be stated that in such a situation the prosecution will be seriously prejudiced. The restrictions imposed directing confidentiality of the queries raised by accused to challenge genuineness of previous report and denial of access to second report, which is accessible only by concerned accused or his authorised agent, with freedom given to accused to use the information to confront prosecution witnesses, will certainly constrain and force prosecution to conduct the trial blindfolded with its arms twisted and tied behind.

Challenge of the accused questioning the genuineness of the cloned copy of memory card /pen-drive produced, at best, is only a defence, and, normally, it has to be considered at the appropriate stage of trial, and, in a sessions case if only an order under S.232 of the Code is passed declining acquittal on the ground of no evidence and directing the accused to enter on his defence. In `State of Orissa vs Debendra Nath Pathi' (A.I.R2005 S.C.359) a three judge bench of the apex court answered the reference made whether the trial court at the time of framing charge can consider the material filed by accused. Reference was made by the two judge bench which heard the case doubting the views expressed in `Satish Mehra vs Delhi Administration and another' (1996(9) SCC796) that the trial court has power to consider even material which the accused may produce at the stage contemplated in Section 227 of the Code. Repelling the pleas of the accused on grounds of justice, equity and fairness and also on the touchstone of Articles 14 and 21 of Constitution, to produce materials at the stage of preliminary hearing on framing of charges the court held such a procedure ``... would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth.'' Challenge against the genuineness of the memory card/pen-drive produced is nothing but a defence, and a copy of that material was not supplied but only permitted to be inspected, would not confer the accused with a right to have a different procedure not covered by Code.

Though the accused has projected his challenge as if the memory card/pen-drive is the foundation of prosecution case that appears to be not so where the entire edifice of the case rest on the evidence of the victim, allegedly, subjected to rape and also of its video graphing in mobile, by the perpetrator. Non-recovery of the mobile phone which was used to record, and even questions over the validity of memory card/pen-drive may pale into insignificance in the case if the brutality allegedly committed on the victim is established by positive convincing evidence, especially, in the backdrop that the cloned copy of memory card/pen-drive remained with a counsel, allegedly handed over by one of the accused, and it was tendered only after coercive steps proceeded against him were challenged before High Court, and its production was ordered.

Infringement of the fundamental right of accused for fair trial enshrined under Article 21 of the Constitution in non-supplying of copy of memory card/pen-drive produced with police report, and, thus, violation of the mandate under S.207 of the Code evidently prevailed upon the court to issue directions as aforesaid. Rules of Procedure and Regulations governing criminal trial in United Kingdom (The Criminal Procedure Rules & The Criminal Practice Directions) among others provide statutory prescriptions for disclosure and collection of expert evidence through court in the preliminary stages. However such prescriptions have to be appreciated in the backdrop of the overriding objectives stated under such procedure rules and directions and also the duty cast thereunder on the participants in a criminal case to prepare and conduct the case in accordance with the overriding objectives statutorily fixed. When we follow adversarial system of criminal jurisprudence casting the onus on prosecution to prove its case, at the same time, zealously protecting the right of accused even to remain silent on the prosecution evidence until and unless he is called upon to enter on his defence, enabling the accused to impeach the FSL report produced with directions over confidentiality of his queries, second report, its use in evidence etc. is not in tune with the procedure prescribed.

The case in hand cannot be viewed in isolation and in all similar cases involving sexual offences, which are steadily increasing, materials tendered by way of memory card/pen-drive/video by the prosecution to establish its case are likely to give rise to intra conflict of the fundamental right of accused to have copy of such materials for fair trial and that of victims to protect their privacy, dignity and identity. Detection of pinhole cameras surreptitiously installed in dressing rooms, hotel rooms etc. and registration of crimes thereof, no doubt, are on the rise, leave apart heinous crimes committed by paedophiles, some of whom take videos and pictures of the abuse for circulation or to terrorise the victims of tender ages. In such cases, especially in the former type, not only the privacy and identity of the victim alone but others too who are closely related to them or those who have unknowingly used the dressing room/hotel room fitted with hidden cameras would also be seriously affected, and supply of copies of recorded videos to the accused may not be advisable. Production and supply of a portion of the offending material relating to the victim alone may not be possible as it would invite challenge of truncating or mutilation. It is high time serious deliberations are made to incorporate provisions/amendments in Information Technology Act and also in S.207 of the Code, to safeguard privacy and identity of innocent victims of sexual assault and exploitation, but, with dueregard for protecting the right of accused to have fair trial.

2^nd proviso to S.207 of the Code excludes supply of `voluminous' document alone, providing opportunity of inspection of such document by accused or his counsel, and a digital record produced is not excluded, but, taking note that intra conflict of fundamental rights of accused and victim, both under Article 21, are involved in the case, instead of ordering supply, court issued directions as aforesaid to protect right of fair trial to accused. A rigid and strict literal interpretation of the 2^nd proviso of S.207of Code, no doubt, spell out that the exclusion from serving copy is available only where it is voluminous. However, why such exclusion is carved out for voluminous document is examined it is reasonable to hold that it is to obviate the practical difficulties in producing and serving copies of such document. If that be so, where serving copy of digital record is likely to infringe right of privacy of victim does not the alternative measure of inspection would suffice to protect the right of fair trial of the accused. When S.207 was engrafted in the amended Code of 1973 none could have visualised the onslaught of cybercrimes, white collar crimes and abuse and misuse of digital records in crimes of sexual offences in which right of privacy of victims involved demanded insulation. Similar is the situation when an accused is proceeded for offences under the Unlawful Activities (Prevention) Act for possessing, making, using or circulating a digital record for terrorist activity, and it is seized and produced with the police report before court. If such digital record-memory card, pen-drive, video- contain materials affecting the security of nation, and misuse and abuse of which on supply of copy cannot be ruled out, still, a claim for a copy taking umbrage under S.207 of the Code can be projected by accused under his right to have fair trial.

Over the period of time realising the magnitude, gravity and depravity of brutal assaults perpetrated on innocent victims all over the country, and, certainly, by the intervention of the Supreme Court, various provisions under the Penal Code, Criminal Procedure Code and Evidence Act have been amended for delivery of justice to rape victims. Still, much more radical changes have to be made to provide justice to them.

Author is a Former Judge of Kerala High Court