1. The 8th accused, aggrieved by the rejection of his application Crl.M.P.No.49/2018 in C.P.No.16/2017 of the Judicial First Class Magistrate, Angamaly, for a direction to furnish a cloned copy of the contents and the transcript of a memory card produced by the prosecution, has approached this Court.
2. The crux of the prosecution case, as is available from the records, is as follows: The 8th accused is well known and popular cine artist. The defacto complainant (victim) is also a well known actress in Malayalam film industry. It is alleged that the petitioner herein maintained enmity towards the defacto complainant, believing her to be responsible for the breakdown of his matrimonial relationship. To retaliate, he allegedly conspired with the first accused to abduct the victim,to sexually abuse her, to record the acts of sexual abuse and to black mail her using the video graphed materials. In prosecution of the above conspiracy, the first accused allegedly solicited the assistance of accused Nos. 2 to 6 and on 17/2/2017, while the victim was proceeding in a car along the National Highway, she was intercepted by accused Nos. 1 to 6. They abducted her to Ernakulam and on the way she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone. The victim was abandoned thereafter. The data in the mobile phone was allegedly transferred by the first accused to a memory card. In the meanwhile, the incident was reported by the victim to the Nedumbassery police, who registered Crime No.297/2017 and investigation commenced. On getting information about the registration of the crime, the first accused entrusted the memory card to CW44, who later produced it before the Judicial Magistrate.
3. After investigation, final report was laid against accused Nos. 1 to 7 on 17/4/2017 for offences punishable under sections 120(b), 201, 212, 342, 366, 375(D), 506(1) r/w 34 IPC and sections 66 B and 67A of the IT Act.
4. It is stated that, the investigation into the larger conspiracy was continued by the police. The petitioner herein was arrested in the course of investigation, on a specific allegation that he had masterminded the entire crime and had hatched the criminal conspiracy with accused No.1, who accomplished it with the aid of accused Nos. 2 to 6. Investigation claimed to have unearthed materials to link 8th accused with the first accused. Final report was laid by the prosecution against accused 8 to 12 also on 22/11/2017 for offences under sections 120A, 120B, 342, 354, 354B, 366, 376D, 506(i), 201, 212 and 34 IPC and sections 66E and Section 67A of the IT Act. However, the mobile phone, which was used for recording the sexual abuse, could not be recovered in the course of investigation.
5. Pursuant to the filing of the final report, cognizance was taken and committal proceedings commenced as CP No.16/2017 of the Judicial First Class Magistrate. Pursuant to the summons, accused appeared and they were furnished with the records relied on by the prosecution. The petitioner herein raised an objection that, the memory card relied on by the prosecution was a crucial document, but a copy of it was not furnished to him. He accordingly filed CMP No. 49/2018 for a direction to the prosecution to hand over to him a cloned copy of the video footage of the memory card and the transcript of human voice. In the meanwhile, the petitioner was permitted to watch the video footage in the presence of his counsel and Magistrate on 15/12/2017. The above application was filed thereafter. It was stated in the CMP that he needed a thorough examination of the contents of the memory card. He sought a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio contents in the same format, as obtained in the memory card and the transcript of human voices, both male and female recorded in it.
6. Annexure D detailed objection was filed by the prosecution, vehemently opposing the delivery of the cloned copy. It was alleged that, after watching the video footage in detail, the accused has raised various doubts regarding the contents and alleged that it contained many vital and material utterances in female voice. It was stated that, in the petition itself the petitioner had specifically described the minutest details of the doubtful part of conversation in the video footage and with reference to the decibels on which it was recorded. It was hence contended that, the petitioner had more knowledge about the contents than what was seen by him, when the videograph was shown to him on 15/12/2017. It was alleged that, without the contents of the original mobile with which the commission of offence was recorded was known and viewed in minute aspects with the help of most modern technology and instruments, the petitioner cannot present the same before the court in such a technical manner. It was apprehended that, once a copy was handed over, there was every possibility of it being misused and going out of the hands of the petitioner and may reach the hands of media or other persons, which will affect the victim and the society at large. It was also alleged that the details of the video footage were extracted and referred to in his allegation and the contents of it were leaked out to the press, which had widely reported about it.
7. The court below, by Annexure-G order rejected the application on the ground that prosecution has raised serious objection regarding the handing over of a cloned copy. It was held that, handing over of the copy of the video footage, would add insult to the victim. However, the court permitted the petitioner herein to watch video footage.
8. Assailing the above order, learned senior counsel Sri.Raman Pillai contended that memory card was a vital document, even according to the prosecution and non supply of that document to the accused would cause substantial prejudice to him in developing his defence and also in contesting the proceedings. It was further contended that, it amounted to serious infraction of Section 207 Cr.P.C., which, according to the learned senior counsel, was intended to safeguard the interest of the accused and to ensure fair trial. It was contended that, section 207 Cr.P.C was absolute and inviolable and has to be scrupulously adhered to, failing which, it will result in substantial prejudice to the accused. It was also contended that, except for the two exceptions provided in section 207 Cr.P.C itself, the statutory rigour on the prosecution was absolute. It was contended that, section 207 Cr.P.C. read with section 173 Cr.P.C., unambiguously cast a statutory duty on the prosecution to supply copies of the documents which they rely on, except in the two situations mentioned in the proviso. Though section 173(6) Cr.P.C, permitted exclusion of certain documents from the above statutory obligation, still, even the request of the police officer to exclude certain documents was subject to the satisfaction of the Magistrate, in the light of first proviso to section 207Cr.P.C. It was further contended that, prosecution was entitled to withhold the document under section 173(6) Cr.P.C, only on the specified circumstances prescribed in the section. It was also contended that, the prosecution has to request the court by appending a note disclosing the reason for non disclosure and still the above reasons were justiciable, in view of first proviso to section 207 Cr.P.C. It was contended that, in the absence of any such request from the prosecution, the prosecution was not entitled to bank on the first proviso. According to the learned senior counsel, 2nd proviso was not clearly attracted in this case, since nobody had a case that the document was voluminous. It was further contended that, breach of section 207Cr.P.C. will tantamount to violation of the Fundamental Right of the accused to a fair trial. It was submitted by the learned senior counsel that, anxiety of the prosecution that the document may reach the hands of the outsiders was baseless and even it can be allayed by providing necessary safeguards and by imposing any condition, including a direction that a cloned copy alone shall be given to the accused.
9. Per contra, Sri.Suman Chakravarthy, learned senior Public Prosecutor, argued that, the memory card was not a document under the Code of Criminal Procedure and as defined under the Evidence Act. It was contended that, it was a material object and not a document as referred to in section 207Cr.P.C. It was further contended that, objection of the prosecution against the supply of the copy of the memory card could itself be treated as an objection under section 173(6)Cr.P.C. and the court below was justified in rejecting the request for supply of cloned copy, though for different reasons. It was vehemently contended that, furnishing the copy of the disputed memory card to the accused would amount to serious transgression into the right of privacy of the victim, who has been the subject of a cruel sexual abuse, which was recorded in the disputed memory card. It was contended that, if the copy of the document, be it a cloned copy, is given to the accused, there is a likelihood of its contents being leaked out. It was argued that, any condition incorporated by the court will be ineffective, as against a secret and clandestine leakage of its contents. It was essential to safeguard the interest of the victim. It was argued that, any disclosure of the contents of the memory card, either in full or in part, through media or through any other source, will have disastrous consequence, can put tremendous psychological pressure on the victim at the time of trial and prejudice a free and fair trial. It was argued that, words found in section 207 Cr.P.C. 'furnish to the accused,' should receive a liberal interpretation. Even a permission to the accused to watch the contents of the video graph itself can be treated as furnishing the contents and thereby a substantial compliance of statutory obligation, especially in the absence of definite evidence regarding any prejudice to the accused, it was argued.
10. Both the learned counsel relied on a catena of decisions to substantiate their contentions about the ambit, scope and rigour of section 207Cr.P.C.
Whether the right under Section 207Cr.P.C is absolute:
11. In Superintendent and Remembrancer of Legal Affairs, West Bengal v . Satyen Bhowmick and others (AIR 1981 Supreme Court 917), the question of supply of certain documents and the right of the accused to get the copies of the statement of the witnesses and documents was in issue. In that, the accused faced trial for offence under section 120B IPC read with sections 3, 9 and 10 of the Official Secrets Act, on an allegation that, they had passed on military secrets to the enemy resulting in serious detriment to the safety and security of the country. The State filed application under section 14 of the Official Secrets Act, inter alia, requesting that the accused should not be allowed to have access to or be given copies of the statements of the witnesses recorded by the Magistrate or those recorded earlier during police investigation. The above prayer was partly allowed by the learned Magistrate, but permitted the accused only to take copious notes of the statements of witnesses. The High Court held the view that section 14 of the Official Secrets Act extends to depriving the accused from having even the copies of documents. This was the subject matter in dispute before the Hon'ble Supreme Court. The Apex Court, after referring to the scope of section 14 of the Official Secrets Act and the right of the accused to get the copies of the documents as provided under Cr.P.C., held that, section 14 contained a twin bar against the publication of any evidence and that, public should be excluded from attending the hearing of the proceedings. It, according to the Supreme Court, did not affect or override the provisions of the Criminal Procedure Code relating to enquires or trials held therein. Consequently, it was held that section 14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police or the documents obtained by the police during the investigation.
12. In S.J.Chowdhary v. The State (1984 Crl.L.J.854), the petitioner therein was not supplied with copies of certain documents, photographs of scene of occurrence taken by the investigating agency and the cassettes containing tape recorded conversation between the accused and other persons. It was challenged by the accused. The matter came up before the Delhi High Court. Regarding the non supply of the documents, the prosecution took up the contention that certain documents were recorded in duplicate and in the case of certain statements recorded by the investigating agency, it formed part of the case diary maintained by the investigating officer. Rejecting this contention, the Delhi High Court held that, exception under section 173 of the Code of Criminal Procedure has not been resorted to, nor availed by the investigating officer. It was held that the curious and rather perverted ingenuity of the police officers in following the practice of incorporating the oral statements made to them by the witness in the case diaries under section 172 of the Code, in the belief that by doing so, those statements could be kept back from the knowledge of the accused cannot be accepted. The court concluded that, very valuable right is given to the accused under the proviso to section 162(1) and the accused can exercise this right only if the copies of all the statements made by the witnesses during the investigation, whether recorded under section 161 (3) or in the police diary maintained under section 172 Cr.P.C.are liable to be supplied to him. It was held that, the accused was entitled to the copies of the statements made by the witnesses during investigation, whether recorded under section 161(3) or in the police diary maintained under section 172 Cr.P.C.
13. Regarding the photographs, it was found that 40 photographs of scene of occurrence were taken by the investigating agency and all those photographs were sent by the agency to the expert for his opinion. Out of it, 9 copies were withheld by the prosecution on the ground that they were not relevant. Holding that there was a composite report by the expert in relation to all the photographs and furnishing less number of photographs than originally sent to the expert would prejudice the accused,the court directed supply of the remaining 9 photographs also. Regarding the tape recorded conversion, it was held that supply of cassette in duplicate to the accused was necessary in order to enable him to play the tape himself so as to prepare himself as to the interpolations and the erosions made in the tape recorded conversion and thus to defend himself against the same during the trial. Rejecting the contention of the learned counsel for the CBI that the accused may be permitted the facility of getting the tape recorded conversation heard in court during trial, the court held that it was a poor substitute, as the same would be an antithesis of the preparation of defence which has to start sufficiently in advance.
14. In CDR(Retd) Jarnail Singh Kalra Jasvinder Kalra v. C.B.I. ( (2011) Cri.L.J.1416), the Delhi High Court had occasion to consider the case of an accused who had faced the trial for offences under the Official Secrets Act. He was not supplied with certain documents on the ground that documents contained sensitive information, disclosure of which could adversely affect the security of nation. The Magistrate accepted the above objection. This was challenged before the Delhi High Court.
15. The appellate court held that sections 173 and 207 Cr.P.C. are intended to ensure that accused gets a fair trial. It is not that fair trial cannot take place without giving the secret documents recovered from the accused back in the hands of accused during trial. It was held that, there is a every likelihood that once the documents are given in the custody of accused for the purpose of conducting trial, they would not remain secret, nor there is a guarantee that the documents placed in court would not fall in the hands of scrupulous elements and misused. The contention that non supply of copies to the accused would substantially prejudice him was negatived. It was held that, if the State chooses not to give copies of those documents for the reason of the security of nation, no fault can be found with the State. It was held that, ultimately, the guilt of the accused has to be decided at the end of the trial and not before trial and if the court comes to a conclusion that non supply of those documents caused prejudice to the accused and that the accused was not able to prepare his defence adequately, the court can always acquit the accused. It was further held that, the prosecution has a right of choice, to insist that it would not hand over those documents even at the cost of ultimate acquittal of the accused, and the court cannot force the prosecution to hand over the secret documents to accused at the cost of security of Nation.
16. The above decision stems from an extreme stand of the prosecution taking the chance of declining the supply of documents on the ground of national security even at the risk of possible loosing of the case. It seems that, section 207 Cr.P.C. as such is not applicable to facts of that case, since those documents were not produced under section 173 (iii) of Cr.P.C.
17. In Sadhvi Ritumbhara v .State of M.P. (1997 KHC 2835), the prosecution related to the certain public speeches made by the accused. The speeches were duly recorded in audio/video cassettes. Non supply of the above documents was challenged before the Madhya Pradesh High Court. In that decision, though the Hon'ble High Court of Madhya Pradesh did not go into the scope of section 173 and 207 Cr.P.C., it held that supply of the documents to the accused was mandatory.
18. In Prakash Chattrani v. State of Madhya Pradesh (Laws (MPH) 2009 758), dispute arose regarding the non supply of the cassette in a prosecution under section 67 of the Information Technology Act. The allegation against the accused was that, he had taken certain obscene photographs of one girl, prepared a cassette and it was transformed using blue tooth through the mobile and was transmitted to others. The non supply of the CDs was challenged before the High Court of Madhya Pradesh. The issue whether the accused was entitled for the copy of the CD were not directly answered by the Madhya Pradesh High Court . The court held that issue of non supply of CD arose only at a later stage. The accused at the time of supply of documents did not raise the contention that the copies of the CD was not given to him. On the other hand, counsel perused the CD in court and was satisfied with it at the initial stage. Hence, the High Court, without going into the other questions held that, compliance of section 207 Cr.P.C.was completed. The above decision cannot be considered as an authority on the issue involved in the present case.
19. Learned senior counsel referred to the decision of the Supreme Court in V.K.Sasikala v. State (2012) 9 SCC 771), wherein the scope of handing over of the documents produced by the prosecution and access to the documents in the custody of the court at the stage of section 313 Cr.P.C. questioning was considered. In that case, the petitioner, who faced the trial, applied for certified copies and also for inspection of certain unmarked and unexhibited documents forwarded along with the charge sheet and kept in the custody of the court, at the time when the trial had reached midway and pending questioning of the accused under section 313 Cr.P.C. It was rejected by the court on the ground, inter alia, that the accused did not raise any grievance that she was not supplied with copies of the various documents under section 313 Cr.P.C., in order for it to be a fair trial. It was held by the Supreme Court that, though the primary duty of a public prosecutor was to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the court for a just determination of the truth, so that due justice prevails. The court must ensure fairness of the investigative process, so as to maintain the citizens' right under Articles 19 and 21 of the Constitution and play an active role in the trial. Court held that, though first proviso to section 207Cr.P.C empowers the Court to exclude from the copies to be furnished to the accused such portions as may be covered by section 173 (6), the second proviso to section 207Cr.P.C empowers the court to provide to the accused an inspection of the documents, instead of copies thereof, if in the opinion of the Court, it is not practicable to furnish to the accused the copies of the documents because of the voluminous content thereof. The Supreme Court held that, the question which arises herein is no longer one of compliance or non-compliance with the provisions of section 207 Cr.P.C. and travels beyond the confines of the strict language of the provisions of Cr.P.C and touches upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. What is of significance is, if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused, the court must concede a right in the accused to have an access to the said documents, if so claimed. It was further added that, examination of an accused under section 313 Cr.P.C. not only provides the accused an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence but, such examination also permits him to put forward his own version, if he so chooses, with regard to his involvement or otherwise in the crime alleged against him.
20. Evidently, the Apex Court in the above judgment has travelled beyond the contours of section 207 Cr.P.C. and emphasized on the right of the accused for fair trial under Article 21 of the Constitution. However, it is pertinent to note that, it related to access to the documents not for the purpose of cross examination of the witnesses. It was meant only for answering Section 313Cr.P.C questioning and not at any stage prior to that. The Hon'ble Supreme Court tested the right of the accused against the touch stone of test of reasonableness and fairness in procedure.
21. The learned senior counsel further relied on the decision of the Supreme Court in Tarun Tyagi v. Central Bureau of Investigation (2017 (1) KLD 361 (SC). In that case, the accused stood charged on an allegation that while he was employed under the complainant company, he had access to the source code of the software of the company, which he unauthorizedly misappropriated from the programming room and thereafter developed and launched himself a data recovery software. It was alleged that, he created a recovery software by modifying the stolen code. Pursuant to the registration of the Crime, CBI seized certain documents and materials from the office/residential premises of the accused. After charge sheet was filed, an application seeking release of the seized property was filed, contending that, the seizure of the property had affected his business. The court below rejected the application. When the matter came up before the Supreme Court, the Court directed to furnish a cloned copy of the hard disk to ensure that it was not interpolated by the accused in the course of time. In that decision, referring to section 207Cr.P.C. it was held that, it is the hallmark of a fair trial that every document relied upon by the prosecution has to be supplied to the defence/accused at the time of supply of the charge-sheet to enable such an accused to demonstrate that no case was made out against him and also to enable him to prepare his cross examination and defence strategy. To allay the apprehension of the prosecution that, if the hard disc was supplied at that stage, the accused may misuse the same, on the opinion of the expert, the Supreme Court directed that a cloned copy of the hard disc may be furnished.
22. The Division Bench of this Court in Archana v. Asst. Commissioner of Police and Another (2011 KHC 2850) had directed that a copy of the compact disc produced before the Family Court by the husband to prove the conduct of wife, to be given to the wife.
23. It seems that, all the above decisions dealing with section 207Cr.P.C., except CDR(Retd) Jarnail Singh's case (supra) were consistent that within section 207 Cr.P.C, the right conferred therein was absolute. Emerging legal proposition even declared the right of the accused to have access to the documents which strictly did not fell within the ambit of section 207 Cr.P.C. Within that section, there does not appear to be any scope for further relaxation or any other exception, except the two specific statutory exceptions which are provided therein. In that scenario, the contention of the learned Public Prosecutor to give a liberal interpretation to the terms of section 207 Cr.P.C. is not sustainable, in the light of the clear mandate of the statute. Any interpretation beyond the scope of literal interpretation of Statute will be doing violence to the above statutory provision.
24. Whether the memory card is a document as contemplated under Section 207Cr.P.C.
The next crucial question on which also detailed arguments were advanced was whether the memory card produced by the prosecution falls within the ambit of a document as contemplated under section 207 Cr.P.C. Evidently, if it is a document, the consequence is inescapable in the light of rigour under section 207Cr.P.C. and the copy of it is liable to be furnished to the accused and if not, otherwise.
25. In Emperor v. Krishtappa Khandappa(AIR 1925 Bom.327), few persons were charged under the Indian Penal Code for having conspired and abetted each other in the felling and removal of twenty sandalwood trees from a Government reserved forest, and further, with intend to commit forgery, in respect of the trees by impressing thereon certain marks. Accused No.4 was charged with possession of a counterfeit stamp for the purpose of impressing those marks. In appeal against the acquittal of the above accused, the question that came up before the Bombay High Court was whether counterfeit seal, plate or other instrument for making an impression could be held to be one used for the purpose of committing any forgery, punishable under the provisions of the IPC. It was contended that, forgery implies the making of a false document and hence, a person counterfeiting marks on a tree would not be making a false document within the meaning of section 464 IPC. The Apex Court posed itself the question of interpretation of the term document. It was held that, the document must necessarily be something which is signed, sealed or executed. It was held that, section 29 of IPC denotes, the document as any matter 'expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used as evidence of that matter.' It noted Explanation 2, which provided that, 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. It was held that, letters when imprinted on the trees were intended to evidence that the trees had been passed by the Ranger, and so it could be removed from the place where they were lying in the forest. The letters, therefore, imprinted on the trees would be a document within the meaning of section 29 of the Indian Penal Code. Clearly, the above conclusion of the Bombay High Court was essentially based on the fact that the dispute involved related to the imprint on a tree and not the tree as such. Hence, merely because the seal was imprinted on a tree, the question of the medium on which it was imprinted, looses its significance. Hence, it was rightly held to be a document within the meaning of section 29 of IPC 1860.
26. In King v. Daye (1908)2 K.B.333) the court was called upon to decide the question whether a sealed packet containing a formula deposited at a bank can be treated as a document. The Divisional Court, on an evaluation of the nature of the materials held that the sealed packet may be a 'document' and hence, liable for production on summons. In Hayes v. Brown (1920(1 K.B.250), the question that came up before the Divisional Court was whether the plan prepared for the purpose of illustration falls within the ambit of a 'document'. The Court acknowledged the fact that a plan of the scene of an accident prepared for the purpose of trial is a 'document' within the concerned County Court Rules. It was held that, it was common practice among legal text writers to classify plans under the head of documents. The Court relied on the illustration of Taylor on Evidence dealing with admissibility of ancient documents, wherein, it was indicated that the term document includes maps and plans.
27. In Grand and Another v. Southwestern and County Properties Ltd. and Another (1975)Ch.185, (1974)2 All.E.R. 465), the Court was called upon to consider the question whether tape recording on a tape amounted to a document. The action was basically on a claim that the plaintiff and the first defendant became partners in a venture to acquire and develop certain properties. It was alleged by the plaintiff that the second defendant conspired with the first defendant to defraud the plaintiffs and that conversation of the defendants were recorded. On the basis of the above pleading in the statement of claims that the conversation was recorded, plaintiffs were called upon to produce the tape recordings of the conversations between the plaintiffs and the second defendant. The question that came up before the Court was whether the tape fell within Order 24 of the Code of the Supreme Court, so as to give a direction to him to produce the document for inspection of the party giving notice. It was acknowledged by the Court that, if it is not a document, none of the provisions of Order 24 would apply.
28. The Court referred to the derivation of the word document and acknowledged that, it derives from the Latin term 'documentum,' which indicates something which 'instructs' or 'provides information', referred to in Oxford English Dictionary as 'something written, inscribed etc., which furnishes evidence or information upon any subject, as a manuscript, title deed, coin etc'. On the basis of the authorities, the Court held that, document referred to one which furnished information impliedly, otherwise than as to the document itself, as being one of the main functions of a document. The Court confined itself to the provisional question as to whether the kind of material alleged to be a document was confined to material, which makes an appeal to the eye, as distinct from material which makes an appeal to the ear, an appeal to the nose or indeed, any other sense. The Court relied on the decision in Lyell v. Kennedy (No.3) (1884) 50 L.T. 730) wherein, it was held that photographs of tombstones and houses were 'documents' for the purpose of discovery. It was also held that a moving cinematograph film was also a document. The Court derived its support from Rex v. Daye ((1908)2 K.B. 333, 340) wherein, that Court had held that, any written thing capable of being evidence is properly described as a document and that, it is immaterial on what the writing may be inscribed. The Court concluded that the document may be something which affords information. It concluded by holding that, to constitute the document, the form which it takes seems to be immaterial; it may be anything on which information is written or inscribed - paper, parchment, stone or metal. The Court concluded that, the tape recording provided the information and hence is a document.
29. In Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23), the question came up was whether the film which was sought to be summoned fell within the ambit of a document. Relying on the above decisions, the Queens Bench held that the cinematograph, which was sought to be summoned in that case, was indeed a document.
30. The question as to whether floppy, CDs, cassettes or audio/visual tapes would fall within the definition of document has attracted the attention of Courts in India also. The Bombay High Court in North West Airlines v. Union of India (2007 (214) ELT 178(Bom.) considered the question whether the floppies, CDs, Hard disc, Pen drives, etc. in which information which are useful for the investigation is stored, are electronic documents or not, or whether it were goods for the purpose of section 110 of Customs Act. Relying on section 65B(1) of the Evidence Act, it was held that, it amounted electronic documents and print out of such information can be taken on papers, hence the material on which is stored in such as hard disc, etc. can be termed as electronic files and electronic documents. Hence it was held that, section 65B of the Evidence Act made it clear 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 also be deemed to be also a document, if the conditions mentioned in that 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.
31. In Santhosh Madhavan v. State of Kerala (Crl.R.P.No.781 of 2009), the dispute related to supply of certain objects including video cassettes, pen drive, etc to the accused. The Court held that video cassettes and pen drives are electronic records and therefore, documents within the meaning of section 67B of the Evidence Act. It was directed that the copies of the documents shall be issued to the accused. This decision proceeded almost in the same line as that of the decision of the Bombay High Court in North West Airlines's case (supra).
32. Evidently, in both the cases, question whether they fell within the definition of document or not was not discussed in detail. The Court only held that, they were electronic documents. It was hence held to be a document. However, in both the decisions referred above, respective High Courts also did not delve into the crucial question as considered by the English decisions.
33. In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 KHC 31), the reliance placed by the trial on the videos which were recovered from the ashramam of the accused involved in an offence under section 376 IPC, of having committed rape of girls, who himself recorded his acts and kept in his ashram, came up for consideration. The question, the Court considered in appeal was whether, A4, A5 and A13, multimedia cards were admissible in evidence and if so, the criterion to be applied. Court referred to the definition of evidence as provided under the Evidence Act as well as the term document. It was noted that the definition of document take in photographs as could be seen from the illustration to the Section and that, document included all materials or substance upon which the thoughts of a man are represented by writing or any other specious or conventional mark or symbol. The essence of a document is that, they record information of some sort. The Court proceeded to hold that, though the definition of document in Indian Evidence Act and General Clause Act were in parimateria, the definition in IPC differed slightly. Referring to the definition of documentary evidence in Halsbury's Laws of India, 2007 Reissue, Vol.15 at page 343, the Court concluded that documentary evidence means and includes all documents including electronic records produced for the inspection of the Court. It was held that, the 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. A writing is a document, as are words printed, lithographed or photographed; a map or a plan; an inscription on a metal plate or stone; and also a caricature. Relying on the above aspect, it was held that photographs, audio and video cassette, all can be treated as falling within the ambit of term document.
34. The Court, to support its conclusion relied on the decision in Grant v. Southwestern Properties (1997 KHC 521) wherein, it was held that a tape recording was a document, if what was recorded was information or evidence and a tape recording of a conversation could properly be described as documentary evidence of the conversation. The Court also relied on Taylor v. Chief Constable Cheshire (1987(1) All.ER 225) which held that, there was no difference in principle between a video film and a photograph or tape recording.
35. In Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra and Ors. ((1976) 2 SCC 17) in an election trial, admissibility of tape recording of election speeches came up for consideration. Supreme Court held that, tape records of speeches are 'documents' under section 3 of the Evidence Act and stand on no different footing than photographs. In Tukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329), which was also an election dispute, the question was regarding the admissibility of video/audio cassette. Following Ziyauddin's case (supra) the Hon'ble Supreme Court reiterated that audio/video casesttes are 'documents' as defined under section 3 of the Evidence Act.
36. All the decisions referred to above have consistently held that photographs, audio and video cassettes were documents. They proceeded on the basis that a document meant something which was intended to convey some information, notwithstanding the matter on which, it was inscribed. Conceptually, this gives a clear indication as to the crux of the whole question involved. Any item, may be fall within the definition of document, irrespective of the medium on which it is printed, exhibited, written or inscribed, if it conveys an information. On the other hand, if the medium itself is the subject matter, it will be a material object.
37. The above difference was amplified by a learned Single Judge of this Court recently in Sherin V. John v. State of Kerala (2018(3) KHC 725), wherein an identical issue came up. The question that was posed by the Court was whether the accused was entitled to get copies of a 'tablet', two hard discs of computer, a pen drive and a compact disc, all of which allegedly contained visuals produced in Court by the prosecution. This Court also considered the question whether the accused has got an absolute right to get the copies of all the documents produced by the prosecution. The accused had applied for copies of those materials. It was dismissed by the Sessions Judge which was under challenge before this Court. The Court, after referring to the definition of evidence in the Indian Evidence Act, observed that the definition convey an impression that it recognized only two category of evidence, oral evidence and documentary evidence. The Court posed the question as to how could material objects like weapons or properties produced in court, made part of the evidence. The Court proceeded to hold that, law recognized a third category of evidence other than oral evidence and documentary evidence, known as real or physical evidence. It consists of material objects other than documents produced for the inspection of the court.
38. To support the above, the learned Single Judge relied on the decision of the 11 Judge's Bench of the Supreme Court in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808). That was a case, wherein, the Constitution Bench considered the question of real and physical evidence. The Court held that the evidence has been classified into three categories;(1) oral testimony, (2) evidence furnished by documents and (3) material evidence. Referring to the materials like fingerprint, specimen signature and handwriting, the Supreme Court held that they are neither oral, nor documentary evidence, but belong to the third category of material evidence. The Court denoted it by name material evidence, instead of real evidence. It was held that, no evidence was required to prove their genuineness, since they are taken before the Court or pursuant to the orders passed by it. Learned Single Judge proceeded to hold that, since material evidence is not covered by Section 207 Cr.P.C, there is no law providing for issuance of copy of material objects to the accused. The Court proceeded to conclude that the distinction between document and a material object is that the document cannot exist without a substance like paper, clay, stone, rock, tree or animal. In the case of document, its contents always appear on a material object. The decision of State of Bombay v. Kathi Kalu Oghad (supra) holds the field even now. Ultimately, the learned Single Judge held that the tablet produced before the Court was a material object and petitioner was not entitled to get copy of it. The legal distinction between document evidence and material evidence was correctly laid down by the learned Single Judge.
39. The larger conceptual distinction between the document and material object emerges from the discussion of the points discussed above. All the above referred decisions indicate the clear distinction between real evidence or physical evidence, that is, tangible evidence as opposed to oral evidence and documentary evidence which records information that is offered as evidence. Real evidence was often used interchangeably with physical evidence, to describe objects that are used to prove or disprove the issue involved. It seems that, documentary evidence also involves physical objects like written documents, cassette or CD recordings, videotapes or DVD recordings. However, when evidence is documentary, physical objects are only the carriers of the information and they are not the evidence by itself. Actual evidence is the information recorded on the paper, tape or disc. This leads to the crucial distinction between the documentary evidence and other material objects. If the evidence conveys an information, engrossed, inscribed, engraved, printed or recorded on the physical object on which it carries, that evidence is documentary in nature. On the other hand, material objects are those objects which are the evidence by itself and it is not an information that is drawn from that object that is sought to be established in legal proceeding.
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In all the above decisions referred above, the CD, cassettes, tablet, multimedia and such other things were produced to introduce in evidence the information recorded on such physical things. Hence, they were held to be documentary evidence. 40. The above distinction was clearly spelt out in Grant and another's case (supra) where it was held that to constitute a document, the form which it takes seems to be immaterial; it may be anything on which the information is written or inscribed. A reference to the definition of 'document' in section 3 of the Evidence Act shows that it contemplates two components; 'any matter expressed or described' and the 'substance' upon which it is expressed or described. Hence, any evidence intended to establish the information expressed on any substance dehors the substance, evidence is documentary. Conversely, if it relates to the 'substance' it is a material object. Accordingly, in a case relating to stealing of a CD from a shop, which is proposed to be established through the CCTV footage recorded on a CD, former CD is the material object and the latter is documentary evidence. Hence, documentary evidence also involves physical objects, like written documents, photograph, cassette, DVD or memory card. However, when evidence is documentary, the physical objects are only the carriers of evidence. They are not the evidence by itself. This seems to be the single litmus test to distinguish between a documentary evidence and material object or physical evidence. 41. This leads to the crucial question that is to be answered in this case. Evidently, the crux of the prosecution allegation is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to be established by the oral testimony of the victim and witnesses. It is also not the information derived from the memory card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual abuse was committed and it was recorded. Though, in the course of evidence, contents of it may be sought to be established to prove that, it was the memory card created by the accused, contemporaneously recorded on the mobile,along with the commission of offence, that does not by itself displace the status of the memory card as a document. Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of section 207 Cr.P.C. 42. The evaluation of the above legal propositions clearly spells out that, the memory card produced in this case is not a document as contemplated under section 307 IPC. In fact, it is in the nature of a material object. Hence, copy of it cannot be issued to the petitioner herein. 43. Prosecution has a case that, though accused is entitled for his rights, it is not absolute and even outside section 207 Cr.P.C, there can be restrictions regarding the right under section 207 Cr.P.C. It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. Definitely, in case of Justice K.S.Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1) at page 1), the Constitutional Bench of the Supreme Court had held that the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Art. 19 does not denude Art.21 of its expansive ambit. It was held that, validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom. In Sherin V. John's case (supra), this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory rights of another person, Fundamental Rights will prevail. The possibility of such contention may also arise. Since that question does not arise in this case in the light of finding under section 207 Cr.P.C, I do not venture to enter into that issue. 44. Having considered the entire issue, I am inclined to sustain the order of the court below in Crl.M.P.No.49 of 2018 in C.P.No.16 of 2017 dismissing the application, though on different grounds. However, this will not preclude the Court from permitting the accused to watch the memory card only in Court, subject to restrictions, to prepare defence. Crl.M.C is accordingly dismissed, confirming the impugned order.