Holding

Electronic records, including the contents of a memory card or pen‑drive, are "documents" under the Evidence Act and must be furnished to the accused under Section 207 CrPC, subject to safeguards for the victim's privacy.

Summary

The appellant, accused in a rape case, sought a cloned copy of the contents of a memory card/pen‑drive that the prosecution intended to rely upon, arguing that the electronic record should be treated as a "document" under the Evidence Act and thus be furnished under Section 207 of the CrPC. The trial court and High Court refused, deeming the memory card a material object and citing privacy concerns of the victim. The Supreme Court held that the definition of a document depends on the information inscribed, not the medium, and that electronic records fall within the meaning of "document" under the Evidence Act, the Information Technology Act, and related statutes. Consequently, the prosecution must provide the cloned copy, though the Court allowed inspection and expert analysis to safeguard the victim's privacy. The appeal was partly allowed, directing the trial court to provide the cloned copy under appropriate conditions and to conclude the trial within six months.

Issues considered

Whether the contents of a memory card/pen‑drive constitute a "document" within the meaning of Section 3 of the Evidence Act, 1872 and Section 29 of the IPC.
Whether Section 207 of the Criminal Procedure Code, 1973 obliges the Magistrate to furnish a cloned copy of such electronic record to the accused.
Whether the victim's right to privacy under Article 21 can override the accused's right to a fair trial in the context of electronic evidence.
Whether the ground of "voluminous" documents under Section 207(5) can be invoked to withhold an electronic record.

Legislation cited

Code of Criminal Procedure, 1973s. 170(2), s. 173, s. 207, s. 327(2), s. 91, s. 95(2)(b)
General Clauses Acts. 3(18)
Indian Evidence Act, 1872s. 3, s. 65B
Indian Penal Code, 1860s. 228A, s. 29
Information Technology Act, 2000s. 2(1)(ha), s. 2(1)(o), s. 2(1)(t), s. 2(1)(v)

Subjects

electronic recorddocumentSection 207 CrPCright to fair trialprivacy of victimcloned copyevidence actinformation technology actbalancing fundamental rightsforensic analysiscriminal procedure code

Judgment

422 [2019]
SUPREME COURT 17 S.C.R. 422
REPORTS [2019] 17 S.C.R.

A P. GOPALKRISHNAN @ DILEEP
v.
STATE OF KERALA AND ANR.
(Criminal Appeal No. 1794 of 2019)
B NOVEMBER 29, 2019
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Evidence Act, 1872:
ss.3 and 65B – Document – Whether the contents of a
memory card/pen drive being electronic record as predicated in
C s.2(1)(t) of Information Technology Act would qualify as a
document within the meaning of s.3 of Evidence Act and s.29 of
IPC – Held:The basis for classifying an article as a ‘document’
depends upon information which is inscribed and not on where it
is inscribed – Definition of ‘evidence’ as envisaged u/s.3, clearly
D takes within its fold documentary evidence to mean and include
all documentary evidence to mean and include all documents
including electronic records produced for the inspection of the
Court – The provisions in s.65B of Evidence Act, s.95(2)(b) of
Cr.P.C., s.29 of IPC, and definition of document in General Clauses
E Act, reinforce that electronic records ought to be treated as
‘document’.
Code of Criminal Procedure, 1973:
s.207 – Furnishing of documents to the accused – Held:
Furnishing of documents to the accused is a facet of right to the
F accused to a fair trial enshrined in Art.21 of the Constitution –
Section 207 does not empower the Magistrate to withhold any
‘document’ submitted by the Investigating Officer except when it
is voluminous – If the document/record is electronic, the ground
for non-furnishing the document it being voluminous can not be
G invoked – Therefore, all documents including ‘electronic record’
produced for the inspection of the Court alongwith the police
report and which prosecution proposes to use against the accused,
must be furnished to the accused as per the mandate of s.207 –
The contents of the memory card/pen-drive must be furnished to
the accused in the form of cloned copy.
H
422
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 423
AND ANR.

Constitution of India: A
Art.21 – Right to fair trial of accused and right to privacy
of victim – In offence of rape – Competing rights – Balancing of
– Held: Though the accused is entitled to have copies of the
statements and documents accompanying the police report, which
the prosecution may use against the accused – Nevertheless, the B
Court cannot be oblivious to the nature of offence and the
principles underlying the amendment to s.327(2) of Cr.P.C. and
228A of IPC, for securing the privacy and identity of the victim –
Balancing of rights of both the parties is imperative – In such
cases, the Court may be justified in providing only inspection of
the documents to the accused and his lawyer or expert for C
presenting effective defence during the trial – Code of Criminal
Procedure, 1973 – s.327(2) – Penal Code, 1860 – s.228A.
Interpretation of Statutes:
Ongoing statute – Interpretation of - Held: Code of Criminal
Procedure, being an ongoing statute, it is presumed that the D
legislature intended the Courts to apply a construction that
continuously updates its wordings to allow for changes and
compatibility with the contemporary situation.
Words and Phrases:
“data” and “electronic record” – Meaning of, in the context E
of Information Technology Act, 2000.
“document” - Meaning of in the context of Evidence Act,
1872.
Partly allowing the appeal, the Court F
HELD: 1.1 The investigating officer after completing the
investigation u/s.173 Cr.P.C., is obliged to forward a copy of the
police report to a Magistrate empowered to take cognizance of
the offence on such police report. Alongwith the police report,
the investigating officer is also duty bound to forward to the
G
Magistrate “all documents” or relevant extracts thereof, on
which prosecution proposes to rely other than those sent to the
Magistrate during investigation. Similarly, the statements
recorded under Section 161 of all the persons whom the
prosecution proposes to examine as its witnesses, are required
to be forwarded to the Magistrate alongwith the police report. H
424 SUPREME COURT REPORTS [2019] 17 S.C.R.

A Indeed, it is open to the police officer, if in his opinion, any part
of the “statement” is not relevant to the subject matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in public interest,
to indicate that part of the “statement” and append a note
requesting the Magistrate to exclude that part from the copies
B
to be granted to the accused and stating his reasons for making
such request. That discretion, however, is not given to him in
respect of the “documents” or the relevant extracts thereof on
which the prosecution proposes to rely against the accused
concerned. [Para 13] [443-B-E]
C 1.2 As regards the documents, sub-Section (7) of
Section173 Cr.P.C. enables the investigating officer, if in his
opinion it is convenient so to do, to furnish copies of all or any
of the documents referred to in sub-Section (5) to the accused.
The “documents” on which the prosecution proposes to rely,
D the investigating officer has no option but to forward “all
documents” to the Magistrate alongwith the police report.
There is no provision (unlike in the case of “statements”)
enabling the investigating officer to append a note requesting
the Magistrate, to exclude any part thereof (“document”) from
the copies to be granted to the accused. Sub-Section (7),
E however, gives limited discretion to the investigating officer to
forward copies of all or some of the documents, which he finds
it convenient to be given to the accused. That does not permit
him to withhold the remaining documents, on which the
prosecution proposes to rely against the accused, from being
F submitted to the Magistrate alongwith the police report. On the
other hand, the expression used in Section 173(5)(a) of Cr.P.C.
makes it amply clear that the investigating officer is obliged to
forward “all” documents or relevant extracts on which the
prosecution proposes to rely against the accused concerned
alongwith the police report to the Magistrate. [Paras 13, 14]
G [443-F; 445-G-H; 446-A-C]
1.3 On receipt of the police report and the accompanying
statements and documents by virtue of Section 207 of Cr.P.C.,
the Magistrate is then obliged to furnish copies of each of the
statements and documents to the accused. The first proviso of
H s.207 enables the Magistrate to withhold any part thereof
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 425
AND ANR.

referred to in clause (iii), from the accused on being satisfied A
with the note and the reasons specified by the investigating
officer as predicated in sub-Section (6) of Section 173. However,
when it comes to furnishing of documents submitted by the
investigating officer alongwith police report, the Magistrate can
withhold only such document referred to in clause (v), which in
B
his opinion, is “voluminous”. In that case, the accused can be
permitted to take inspection of the concerned document either
personally or through his pleader in Court. In other words,
Section 207 of Cr.P.C. does not empower the Magistrate to
withhold any “document” submitted by the investigating officer
alongwith the police report except when it is voluminous. C
A fortiori, it necessarily follows that even if the investigating
officer appends his note in respect of any particular document,
that will be of no avail as his power is limited to do so only in
respect of ‘statements’ referred to in sub-Section (6) of Section
173 of Cr.P.C. Thus, the Magistrate’s duty under Section 207
D
at this stage is in the nature of administrative work, whereby
he is required to ensure full compliance of the Section. [Paras
15, 16] [446-C-D; 447-C-F]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1 ; Tarun Tyagi v. CBI (2017) 4 SCC
E
490 : [2017] 1 SCR 670 – relied on.
1.4 It is well established position that when statute is
unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences. On a bare reading of Section
207 of Cr.P.C., no other interpretation is possible. [Para 17] [448-
F
F-G]
Nelson Motis v. Union of India (1992) 4 SCC 711 :
[1992] 1 Suppl. SCR 325 – relied on.
1.5 Furnishing of documents to the accused under Section
207 of Cr.P.C. is a facet of right of the accused to a fair trial G
enshrined in Article 21 of the Constitution. [Para 18] [448-G]
Sidhartha Vashisht @ Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1 : [2010] 4 SCR 103 ; V.K.
Sasikala v. State (2012) 9 SCC 771 : [2012] 10 SCR
641 – relied on. H
426 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 1.6 Though Section 207 of Cr.P.C. 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.
[Para 41] [471-F]
B
2.1 If the contents of the memory card/pen-drive are not
to be treated as “document”, the question of furnishing the same
to the accused by virtue of Section 207 read with Section 173 of
Cr.P.C. would not arise. It is nobody’s case that the contents
of the memory card/pen-drive be treated as a “statement”
C ascribable to Section 173(5)(b) of Cr.P.C.. Notably, the command
under Section 207 is to furnish “statements” or “documents”,
as the case may be, to the accused as submitted by the
investigating officer alongwith the police report, where the
prosecution proposes to rely upon the same against the accused.
[Para 20] [452-A-C]
D
2.2 The basis of classifying article as a “document”
depends upon the information which is inscribed and not on
where it is inscribed. Tape records of speeches and audio/video
cassettes including compact disc have been held to be
“documents” under Section 3 of the Evidence Act, 1872 which
E stand on no different footing than photographs and are held
admissible in evidence. It is by now well established that the
electronic record produced for the inspection of the Court is
documentary evidence under Section 3 of the 1872 Act. [Para
21] [453-E-F]
F Tukaram S. Dighole v. Manikrao Shivaji Kokate,
(2010) 4 SCC 329 ; [2010] 2 SCR 396 Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdas Mehra &
Ors., (1976) 2 SCC 17 : [1975] Suppl. SCR 281 ;
Shamsher Singh Verma vs. State of Haryana, (2016) 15
SCC 485 : [2015] 12 SCR 234 ; Anwar P.V. vs. P.K.
G Basheer, (2014) 10 SCC 473 : [2014] 11 SCR 399 –
relied on.
Grant and Another v. Southwester and County
Properties Ltd. and Another [1975] Ch. 185 – referred
to.
H The King v. Daye [1908] 2 K.B. 333 – referred to.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 427
AND ANR.

2.3 The Criminal Procedure Code is an ongoing statute. A
In case of an ongoing statute, it is presumed that the Parliament
intended the Court to apply a construction that continuously
updates its wordings to allow for changes and is compatible with
the contemporary situation. [Para 22] [454-A-B]
State of Maharashtra v. Dr. Praful B. Desai (2003) 4 B
SCC 601 : [2003] 3 SCR 244 – relied on.
2.4 If the prosecution was to rely only on recovery of
memory card and not upon its contents, there would be no
difficulty in acceding to the argument of the respondent/
intervenor that the memory card/pen-drive is a material object.
C
The video footage/clipping contained in such memory card/pen-
drive being an electronic record as envisaged by Section 2(1)(t)
of the 2000 Act, is a “document” and cannot be regarded as a
material object. [Para 23] [455-C; 456-D-E]
Hodge M. Malek, Phipson on Evidence, 19 th Edn,
2018, pg. 5 and 1450 – referred to. D
2.5 On conjoint reading of the relevant provisions, it
would be amply clear that an electronic record is not confined
to “data” alone, but it also means the record or data generated,
received or sent in electronic form. The expression “data”
includes a representation of information, knowledge and facts, E
which is either intended to be processed, is being processed or
has been processed in a computer system or computer network
or stored internally in the memory of the computer. [Para 24]
[457-A-B]
2.6 On a bare reading of the definition of “evidence” as F
envisaged u/s. 3 of Evidence Act, 1872, it clearly takes within
its fold documentary evidence to mean and include all documents
including electronic records produced for the inspection of the
Court. [Para 25] [457-H]
2.7 Section 65B of Evidence Act, 1872 is reiteration of the
G
legal position 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 be
deemed to be a “document” and shall be admissible in evidence
subject to satisfying other requirements of the said provision.
[Para 25] [460-E-F] H
428 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 2.8 Section 95(2)(b) of Cr.P.C. refers to “document” to
include any painting, drawing or photograph, or other visible
representation. And again, the expression “document” has
been defined in Section 29 of the Penal Code. [Para 26] [460-F-
G]
B 2.9 Additionally, it may be apposite to also advert to the
definition of “communication devices” given in Section 2(1)(ha)
of the Information Technology Act, 2000. The Court may also
advert to the definition of “information” as provided in Section
2(1)(v) of the 2000 Act. Even the definition of “document” given
C in the General Clauses Act would reinforce the position that
electronic records ought to be treated as “document”. [Paras
27-29] [461-F-G; 462-A]
2.10 Considering the 42 nd and 156 th Reports of Law
Commission of India, it can be concluded that the contents of
D the memory card would be a “matter” and the memory card itself
would be a “substance” and hence, the contents of the memory
card would be a “document”. [Para 31] [466-E; 467-A]
Forty-Second Report, Law Commission India, Indian
Penal Code, June, 1971, 32-35 ; One Hundred Fifty-
E Sixth Report on the Indian Penal Code (Volume I),
August, 1997, Law Commission of India, Chapter-XI
– referred to.
2.11 It is crystal clear that all documents including
“electronic record” produced for the inspection of the Court
F alongwith the police report and which prosecution proposes to
use against the accused must be furnished to the accused as per
the mandate of Section 207 of Cr.P.C. 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
G 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 of Cr.P.C, but
also the right of an accused to a fair trial enshrined in Article
H 21 of the Constitution of India. [Para 32] [467-B-C]
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 429
AND ANR.

3.1 In the present case, there are eight named accused A
as of now. Once relief is granted to the appellant who is accused
No. 8, the other accused would follow the same suit. In that
event, the cloned copies of the contents of the memory card/
pen-drive would be freely available to all the accused. Certain
conditions need to be imposed in the fact situation of the present
B
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 concerned C
cloned copy. Besides, it will be well-nigh impossible to keep
track of the misuse of the cloned copy and its safe and secured
custody. 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
D
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. E
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.
F
[Paras 35-37] [468-B-G]
3.2 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 G
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. [Para 38] [469-A-B] H
430 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 4.1 It 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. [Para
39] [469-C]
B Asha Ranjan v. State of Bihar (2017) 4 SCC 397;
Mazdoor Kisan Shakti Sangathan v. Union of India
(2018) 17 SCC 324 : [2018] 11 SCR 586– relied on.
4.2 The accused is entitled to have copies of the
statements and documents accompanying the police report,
C which the prosecution may use against him during the trial.
Nevertheless, the Court cannot be oblivious to the nature of
offence and the principle underlying the amendment to Section
327 of Cr.P.C., in particular sub-Section (2) thereof and insertion
of Section 228A of IPC, for securing the privacy of the victim
and her identity. Thus understood, the Court is obliged to evolve
D 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 so as to effectively
defend himself during the trial. Thus, balancing the rights of both
parties is imperative. The Court is duty bound to issue suitable
E directions. Even the High Court, in exercise of inherent power
under Section 482 of Cr.P.C., is competent to issue suitable
directions to meet the ends of justice. [Paras 41, 42] [471-G;
472-A-C]
Superintendent and Remembrancer of Legal Affairs,
F West Bengal vs. SatyenBhowmick & Ors. (1981) 2
SCC 109 : [1981] 2 SCR 661 – referred to.
4.3 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
G inspection in Court, if necessary, even for more than once
alongwith his lawyer and I.T. expert to enable him to effectively
defend himself during the trial. If such an application is filed,
the Magistrate must consider the same appropriately and
exercise judicious discretion with objectivity while ensuring that
it is not an attempt by the accused to protract the trial. While
H allowing the accused and his lawyer or authorized I.T. expert,
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 431
AND ANR.

all care must be taken that they do not carry any devices much A
less electronic devices, including mobile phone which may have
the capability of copying or transferring the electronic record
thereof or mutating the contents of the memory card/pen-drive
in any manner. Such multipronged approach may subserve the
ends of justice and also effectuate the right of accused to a fair
B
trial guaranteed under Article 21 of the Constitution. [Para 43]
[472-D-F]
5. Thus, 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 C
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. D
[Para 44] [472-G-H]
6. So far as the preliminary objection taken by the
respondent for dismissing the appeal at the threshold because
of the disclosure of identity of the victim in the memo of the
special leave petition forming the subject matter of the present E
appeal is concerned, it is found that 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 Cr.P.C, and in the chargesheet/
police report filed before the Magistrate. Even the objection
regarding incorrect factual narration about the appellant having F
himself viewed the contents of the memory card/pen-drive does
not take the matter any further, once 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
is recognized and more so, because of the right of the accused
to a fair trial enshrined in Article 21 of the Constitution of India. G
[Para 34] [467-F-H]
Case Law Reference
[2014] 2 SCR 1 relied on Para 16
[2017] 1 SCR 670 relied on Para 16 H
432 SUPREME COURT REPORTS [2019] 17 S.C.R.

A [1992] 1 Suppl. SCR 325 relied on Para 17
[2010] 4 SCR 103 relied on Para 17
[2012] 10 SCR 641 relied on Para 19
[1908] 2 K.B. 333 referred to Para 21
B [1975] Ch. 185 referred to Para 21
[2010] 2 SCR 396 relied on Para 21
[1975] Suppl. SCR 281 relied on Para 21
[2015] 12 SCR 234 relied on Para 21
C [2014] 11 SCR 399 relied on Para 21
[2003] 3 SCR 244 relied on Para 22
(2017) 4 SCC 397 relied on Para 39
[2018] 11 SCR 586 relied on Para 40
D [1981] 2 SCR 661 referred to Para 41
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1794 of 2019.
From the Judgment and Order dated 14.08.2018 of the High
Court of Kerala at Ernakulum in Crl. MC No. 1663 of 2018.
E
Mukul Rohatgi, Ranjit Kumar, Basant R., Sr. Advs., Philip T.
Varghese, Sujesh Memon, P. Vamshi Rao, Ms. Pragya Baghel,
Ms. Ranjeeta Rohatgi, Abhishek Thakral, Suresan A., G. Prakash,
Jishnu M. L, Ms. Priyanka Prakash, Ms. Beena Prakash, Mohan
Kumar, K. Rajeev, Shinoj K. Darayanan, Advs. for the appearing
F parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
G
2. The conundrum in this appeal is: whether the contents of a
memory card/pen-drive being electronic record as predicated in Section
2(1)(t) of the Information Technology Act, 2000 (for short, ‘the 2000
Act’) would, thereby qualify as a “document” within the meaning of
Section 3 of the Indian Evidence Act, 1872 (for short, ‘the 1872 Act’)
H and Section 29 of the Indian Penal Code, 1860 (for short, ‘the 1860
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 433
AND ANR. [A. M. KHANWILKAR, J.]

Code’)? If so, whether it is obligatory to furnish a cloned copy of the A
contents of such memory card/pen-drive to the accused facing
prosecution for an alleged offence of rape and related offences since
the same is appended to the police report submitted to the Magistrate
and the prosecution proposes to rely upon it against the accused, in terms
of Section 207 of the Code of Criminal Procedure, 1973 (for short, ‘the
B
1973 Code’)? The next question is: whether it is open to the Court to
decline the request of the accused to furnish a cloned copy of the
contents of the subject memory card/pen-drive in the form of video
footage/clipping concerning the alleged incident/occurrence of rape on
the ground that it would impinge upon the privacy, dignity and identity
of the victim involved in the stated offence(s) and moreso because of C
the possibility of misuse of such cloned copy by the accused (which
may attract other independent offences under the 2000 Act and the
1860 Code)?
3. The appellant has been arrayed as accused No. 8 in connection
with offence registered as First Information Report (FIR)/Crime Case D
No. 297/2017 dated 18.2.2017 punishable under Sections 342, 366, 376,
506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of
the 2000 Act, concerning the alleged incident/occurrence at around 2030
hrs. to 2300 hrs. on 17.2.2017, as reported by the victim.
4. For considering the questions arising in this appeal, suffice it E
to observe that the investigating officer attached to the Nedumbassery
Police Station, Ernakulam, Kerala, after recording statements of the
concerned witnesses and collecting the relevant evidence, filed police
reports under Section 173 of the 1973 Code before the Judicial First
Class Magistrate, Angamaly. First police report, on 17.4.2017 and the
F
second, on 22.11.2017. When the appellant was supplied a copy of
the second police report on 15.12.2017, all documents noted in the said
report, on which the prosecution proposed to rely, were not supplied to
the appellant, namely, (i) electronic record (contents of memory card);
(ii) Forensic Science Laboratory (for short, ‘the FSL’) reports and the
findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. G
footages and (iv) Call data records of accused and various witnesses
etc.
5. It is noted by the concerned Magistrate that the visuals copied
and documented by the forensic experts during the forensic examination
of the memory card were allowed to be perused by the appellant’s H
434 SUPREME COURT REPORTS [2019] 17 S.C.R.

A counsel in the presence of the regular cadre Assistant Public Prosecutor
of the Court, in the Court itself. After watching the said visuals, some
doubts cropped up, which propelled the appellant to file a formal
application before the Judicial First Class Magistrate, Angamaly for a
direction to the prosecution to furnish a cloned copy of the contents of
memory card containing the video and audio footage/clipping, in the
B
same format as obtained in the memory card, alongwith the transcript
of the human voices, both male and female recorded in it. In the said
application, the appellant inter alia asserted as follows:-
“7. It may be noted that the electronic record in the form of copy
of the alleged video footage of the offending act committed by
C accused No.1 on the body and person of the defacto complainant
is a crucial and material record relied by the prosecution in this
case. It is the definite contention of prosecution that the above
electronic record is both the evidence of commission of crime
as well as the object of commission of crime and hence
D indisputably the most material piece of evidence in this case.
When the injustice, in not serving such a vital piece of evidence
relied on by the prosecution in the case, was immediately brought
to the notice of this Hon’ble Court, without prejudice to the right
of petitioner to obtain copies of the same, the defence side was
allowed to watch the alleged video footages by playing the
E contents of a pen drive in the lap top made available before this
Hon’ble Court. Head phones were also provided to the counsel
and also to the learned APP who also was throughout present
during this proceedings.
8. It is most respectfully submitted that by watching the video
F footage, although in a restricted environment and with limited
facilities in the presence of the Ld. APP and the Presiding Officer,
it is shockingly realised that the visuals and audio bytes contained
in the video are of such a nature which would completely falsify
the prosecution case in the form presently alleged by the
prosecution. As a matter of fact the video footage is not at all
G
an evidence of commission of crime as falsely contended by the
prosecution but it is rather a clear case of fabricating false
evidence with intent to foist a false case. It is submitted that it
is after deliberately concealing or withholding the alleged primary
evidence viz. the mobile phone stated to have been used by
H accused No.1, by the prosecution in active connivance with
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 435
AND ANR. [A. M. KHANWILKAR, J.]

accused No.1, that the prosecution has produced a memory card A
which evidently contains only selected audio and video recording.
9. xxx xxx xxx
10. ……The further Verification and close scrutiny of the
images and audio with scientific aid will in all probability provide
more significant materials necessary to find out the truth behind B
the recorded images and the extent of tampering and the same
could only be unearthed if the mirror copy of the memory card
is furnished to the petitioner which he is entitled to get without
any further delay. As the prosecution is fully aware that the
tampering could be detected and further female voice could be C
retrieved by the defense, the prosecution is trying to prevent the
supply of the copy of the memory card in any form to the
defense. It is illegal and the same will clearly amount to denial
of a just and fair trial.
11. xxx xxx xxx D
12. A close scrutiny of the contents of mahazar dated 8.3.2017
would show that on 18.2.2017 accused No.1 had entrusted a 8
GB memory card to Adv. E.G. Poulose, who had in turn
produced the same before the Court of JFCM Aluva. The
investigating agency thereafter obtained custody of the above E
electronic record and later the 8 GB memory card was sent to
FSL, where, upon examination, Dr. Sunil S.P., Assistant director
(documents), FSL, Thiruvananthapuram has allegedly prepared
a report in that regard. The copy of the report has not been
furnished to the petitioner. The mahazar further shows that the
contents of Memory card was transferred to a pen drive for the F
investigation purpose. The above mahazar further categorically
states that the pen drive contained the data transferred from
memory card and the same relates to the video footage of
17.2.2017 from 22:30:55 to 22:48:40 hrs and it is in order to check
and verify whether the voice contained therein belongs to Suni G
that the voice sample was allegedly taken. The description in the
mahazar proceeds as if there is only male voice in the video
footage totally screening the fact that the video footage contains
many vital and material utterances in female voice. Those
utterances were revealed to the petitioner and his counsel only
on 15.12.2017. Everybody present had the benefit of hearing the H
436 SUPREME COURT REPORTS [2019] 17 S.C.R.

A said clear female voice. As mentioned earlier the Ld. APP was
also present. But the investigation agency which should have
definitely seen and heard the same has for obvious reason
screened the said material aspects from the records. The
investigation, it appears did not venture to take steps to compare
the female voice in the video footage with the voice of the female
B
involved in this case, for obvious reasons. On viewing and hearing,
it is revealed that clear attempt have been made by somebody
to delete major portions from the video footage and from the
audio recording.
13. It is respectfully submitted that utterances made by the parties
C
involved and seen in the video footage determines the nature of
act recorded in the video footage and a transcript of the
utterances and human voices in the video footage is highly just
and necessary especially in view of the shocking revelation, found
when the video footage was played on 15.12.2017.
D
14. Yet another aspect which is to be pointed out is the
mysterious disappearance of the mobile phone allegedly used for
recording the video footage. The strong feeling of the petitioner
is that the investigating agency has not so far stated the truth
regarding the mobile phone allegedly used to shot the video
E footage. The prosecution records itself would strongly indicate
that the mobile phone used to record the occurrence (which now
turns out to be a drama) was with the Police or with the persons
who are behind the fabrication of the video footage as evidence
to launch the criminal prosecution and false implication of the
petitioner. It is revolting to common sense to assume that even
F
after conducting investigation for nearly one year by a team
headed by a very Senior Police officer like the Addl. DGP of
the Stage, during which accused No.1 was in the custody of the
investigating team for 14 days at a stretch and thereafter for
different spells of time on different occasions the original mobile
G instrument used for recording the video footage could not be
unearthed. It appears that the investigating team was a willing
agent to suffer the wrath of such a disgrace in order to suppress
the withholding of the mobile instrument.
15. It is interesting to note that even in the second final report
H dated 22.11.2017 the Police has stated that the investigation to
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 437
AND ANR. [A. M. KHANWILKAR, J.]

obtain the original mobile phone is even now continuing. It is A
nothing but an attempt to be fool everybody including the Court.
16. It is most respectfully submitted that in view of the startling
revelation in the video footage, the petitioner intends to make
request to conduct proper, just and meaningful investigation into
the matter so as to ensure that the real truth is revealed and the B
real culprits in this case are brought to justice. For enabling the
petitioner to take steps in that regard. It is highly just and essential
that the cloned copy of the contents of memory card containing
the video and audio content in the same format as obtained in
the Memory card and the transcript of the human voices recorded
in it are produced before Court and copy of the same furnished C
forthwith to the petitioner.
17. As mentioned herein before, the prosecution has chosen to
furnish only a small portion of the prosecution records on
15.12.2017. The petitioner is approaching this Hon’ble Court with
a detailed petition stating the details of relevant documents which D
do not form part of the records already produced before this
Hon’ble Court and the details of the other documents which are
not furnished to petitioner.
18. It is submitted that the petitioner as an accused is legally
entitled to get the copies of all documents including the CDs, E
Video footage etc., and the prosecution is bound to furnish the
same to the petitioner.
19. In the above premises it is respectfully prayed that this
Hon’ble Court may be pleased to direct the prosecution to furnish
a cloned copy of the contents of Memory Card containing the F
video and audio content in the same format as obtained in the
memory card and the transcript of human voices, both male and
female recorded in it, and furnish the said cloned copy of the
memory card and the transcript to the petitioner.”
6. The Magistrate vide order dated 7.2.2018, rejected the said G
application, essentially on the ground that acceding to the request of
the appellant would be impinging upon the esteem, decency, chastity,
dignity and reputation of the victim and also against public interest. The
relevant portion of the order dated 7.2.2018 reads thus:-
“Heard both sides in detail. H
438 SUPREME COURT REPORTS [2019] 17 S.C.R.

A The petitioner has also filed reply statement to the objection and
counter statement filed by Special Public Prosecutor in the case.
The allegation against the petitioner is that he engaged the first
accused to sexually assault the victim and videograph the same.
On receipt of summons the petitioner entered appearance and
was served with the copies of prosecution records. The learned
B
Senior Counsel appearing for the petitioner requested for the
copies of the contents of memory card. The same could not be
allowed & the investigation official has already a petition filed
objecting the same, with a prayer to permit them to view the same
in the court. Hence they were permitted to view the video
C footage and subsequent to the same they had filed this petition
seeking a direction to the prosecution to furnish the copies of
alleged audio and video footage and its transcript. The prosecution
strongly opposed the same stating that the same will add insult
to the victim who had suffered a lot at the hands of not only the
accused but also the media. Hence they submitted that the
D
petitioner may be permitted to view the contents of the video
during trial.
Here the offence alleged tantamounts to a serious blow to the
supreme honour of a woman. So as to uphold the esteem,
decency, chastity, dignity and reputation of the victim, and also
E
in the public interest, I am declining the prayer. But so as to ensure
fairness in the proceedings and for just determination of the truth,
the petitioner is permitted to inspect the contents of the video
footage at the convenience of court.”

F 7. Aggrieved by the above decision, the appellant carried the
matter to the High Court of Kerala at Ernakulam (for short, ‘the High
Court’) by way of Crl.M.C. No. 1663/2018. The learned single Judge
of the High Court dismissed the said petition and confirmed the order
of the Magistrate rejecting the stated application filed by the appellant.
The High Court, however, after analyzing the decisions and the relevant
G provisions cited before it, eventually concluded that the seized memory
card was only the medium on which the alleged incident was recorded
and hence that itself is the product of the crime. Further, it being a
material object and not documentary evidence, is excluded from the
purview of Section 207 of the 1973 Code. The relevant discussion can
H be discerned from paragraph 41 onwards, which reads thus:-
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 439
AND ANR. [A. M. KHANWILKAR, J.]

“41. This leads to the crucial question that is to be answered in A
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. B
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 C
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 D
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 E
[sic 207 Cr.P.C.]. 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., F
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 G
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 H
440 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 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
B
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
C 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.”
(emphasis supplied)
D 8. The appellant being dissatisfied, has assailed the reasons which
found favour with the trial Court, as well as the High Court. The
appellant broadly contends that the prosecution case is founded on the
forensic report which suggests that eight video recordings were retrieved
from the memory card and that the video files were found to be
recorded on 17.2.2017 between 22:30:55 hrs. and 22:48:40 hrs. The same
E were transferred to the stated memory card on 18.2.2017 between 09:18
hrs. and 09:20 hrs. Be it noted that the original video recording was
allegedly done by accused No. 1 on his personal mobile phone, which
has not been produced by the investigating agency. However, the
memory card on which the offending video recording was copied on
F 18.2.2017 was allegedly handed over by an Advocate claiming that the
accused No. 1 had given it to him. He had presented the memory card
before the Court on 20.2.2017, which was sent for forensic examination
at State FSL, Thiruvananthapuram. After forensic examination, the
same was returned alongwith FSL report DD No. 91/2017 dated
3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pen-drive containing
G the data/visuals retrieved from the memory card, was also enclosed
with the report sent by the State FSL.
9. Be that as it may, the prosecution was obviously relying on
the contents of the memory card which have been copied on the pen-
drive by the State FSL during the analysis thereof and has been so
H adverted to in the police report. The contents of the memory card,
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 441
AND ANR. [A. M. KHANWILKAR, J.]

which are replicated in the pen-drive created by the State FSL would A
be nothing but a “document” within the meaning of the 1973 Code and
the provisions of the 1872 Act. And since the prosecution was relying
on the same and proposes to use it against the accused/appellant, it
was incumbent to furnish a cloned copy of the contents thereof to the
accused/appellant, not only in terms of Section 207 read with Section
B
173(5) of the 1973 Code, but also to uphold the right of the accused to
a fair trial guaranteed under Article 21 of the Constitution of India. The
trial Court rejected the request of the appellant on the ground that it
would affect the privacy and dignity of the victim, whereas, the High
Court proceeded on the basis that the memory card is a material object
and not a “document”. It is well known that a cloned copy is not a C
photocopy, but is a mirror image of the original, and the accused has
the right to have the same to present his defence effectively. In the
alternative, it is submitted, that the Court could have imposed appropriate
conditions while issuing direction to the prosecution to furnish a cloned
copy of the contents of memory card to the accused/appellant.
D
10. Per contra, the respondent-State and the intervenor (the
victim) have vehementaly opposed the present appeal on the argument
that the appellant before this Court is none other than the master-mind
of the conspiracy. Although he was not personally present on the spot,
but the entire incident has occurred at his behest. It is urged that the
E
appeal deserves to be dismissed as the appellant has disclosed the
identity of the victim in the memo of the special leave petition from
which the present appeal has arisen. Further, the appellant has falsely
asserted that he had himself perused the contents of the pen-drive and
even for this reason, the appeal should be dismissed at the threshold.
As a matter of fact, the contents of the pen-drive were allowed to be F
viewed by the appellant’s counsel and the regular cadre Assistant Public
Prosecutor of the Court. The asservation of the appellant that after
viewing the contents of the pen-drive, he gathered an impression that
the contents of the memory card must have been tampered with, is
the figment of imagination of the appellant and contrary to forensic
G
report(s) by the State FSL. The definite case of the respondent is
that the memory card seized in this case containing the visuals of sexual
violence upon the victim is a material object and the pen-drive into which
the contents of memory card were documented through the process
of copying by the State FSL and sent to the Court for the purpose of
aiding the trial Court to know the contents of the memory card and the H
442 SUPREME COURT REPORTS [2019] 17 S.C.R.

A contents of the said pen-drive is both material object as well as
“document”. It is also urged that the visual contents of the pen-drive
would be physical evidence of the commission of crime and not
“document” per se to be furnished to the accused alongwith the police
report. The contents of the memory card or the pen-drive cannot be
parted to the accused and doing so itself would be an independent
B
offence. Moreover, if a cloned copy of the contents of the memory
card is made available to the accused/appellant, there is reason to
believe that it would be misused by the accused/appellant to execute
the conspiracy of undermining the privacy and dignity of the victim. It
is urged that the appellant has relied on certain decisions to contend
C that the contents of the memory card must be regarded as “electronic
record” and, therefore, a “document”. The exposition in those decisions
are general observations and would be of no avail to the appellant. The
appellant is facing prosecution for an offence of rape, and the trial
thereof would be an in-camera trial before the Special Court. To
maintain the sanctity and for upholding the privacy, dignity and identity
D
of the victim, it is urged that the accused/appellant in such cases can
seek limited relief before the trial Court to permit him and his lawyer
or an expert to view the contents of the pen-drive in Court or at best
to permit him to take a second opinion of expert to reassure himself in
respect of the doubts entertained by him. Such indulgence would
E obviate the possibility of misuse of the cloned copy of the video/audio
footage/clipping and the same would be in the nature of a preventive
measure while giving a fair opportunity to the accused to defend
himself. The respondent and the intervenor would urge that the appeal
be dismissed being devoid of merits.
F 11. As aforesaid, both sides have relied on reported decisions of
this Court, as well as the High Courts and on the provisions of the
relevant enactments to buttress the submissions. We shall refer thereto
as may be required.
12. We have heard Mr. Mukul Rohatgi, learned senior counsel
G for the appellant, Mr. Ranjit Kumar, learned senior counsel for the
respondent-State and Mr. R. Basant, learned senior counsel for the
intervenor.
13. The central issue is about the obligation of the investigating
officer flowing from Section 173 of the 1973 Code and that of the
H Magistrate while dealing with the police report under Section 207 of
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 443
AND ANR. [A. M. KHANWILKAR, J.]

the 1973 Code. Section 173 of the 1973 Code ordains that the A
investigation under Chapter XII of the said Code should be completed
without unnecessary delay and as regards the investigation in relation
to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB or 376E of the 1860 Code, the same is required to be
completed within two months from the date on which the information
B
was recorded by the officer in charge of the police station. The
investigating officer after completing the investigation, is obliged to
forward a copy of the police report to a Magistrate empowered to take
cognizance of the offence on such police report. Alongwith the police
report, the investigating officer is also duty bound to forward to the
Magistrate “all documents” or relevant extracts thereof, on which C
prosecution proposes to rely other than those sent to the Magistrate
during investigation. Similarly, the statements recorded under Section
161 of all the persons whom the prosecution proposes to examine as
its witnesses, are required to be forwarded to the Magistrate alongwith
the police report. Indeed, it is open to the police officer, if in his opinion,
D
any part of the “statement” is not relevant to the subject matter of the
proceedings or that its disclosure to the accused is not essential in the
interests of justice and is inexpedient in public interest, to indicate that
part of the “statement” and append a note requesting the Magistrate
to exclude that part from the copies to be granted to the accused and
stating his reasons for making such request. That discretion, however, E
is not given to him in respect of the “documents” or the relevant
extracts thereof on which the prosecution proposes to rely against the
accused concerned. As regards the documents, sub-Section (7) enables
the investigating officer, if in his opinion it is convenient so to do, to
furnish copies of all or any of the documents referred to in sub-Section
F
(5) to the accused. Section 173, as amended and applicable to the case
at hand, reads thus:-
‘‘173. Report of police officer on completion of
investigation.—(1) Every investigation under this Chapter shall
be completed without unnecessary delay. G
(1A) The investigation in relation to an offence under sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E
of the Indian Penal Code (45 of 1860) shall be completed within
two months from the date on which the information was recorded
by the officer in charge of the police station. H
444 SUPREME COURT REPORTS [2019] 17 S.C.R.

A (2) (i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating—
(a) the names of the parties;
B
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted
with the circumstances of the case;
(d) whether any offence appears to have been committed
C and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
whether with or without sureties;
D (g) whether he has been forwarded in custody under section
170;
(h) whether the report of medical examination of the woman
has been attached where investigation relates to an
offence under sections 376, 376A, 376AB, 376B, 376C,
E 376D, 376DA, 376DB or section 376E of the Indian
Penal Code (45 of 1860).
(ii) The officer shall also communicate, in such manner as may
be prescribed by the State Government, the action taken by him,
to the person, if any, by whom the information relating to the
F commission of the offence was first given.
(3) Where a superior officer of police has been appointed under
section 158, the report, shall, in any case in which the State
Government by general or special order so directs, be submitted
through that officer, and he may, pending the orders of the
G Magistrate, direct the officer in charge of the police station to
make further investigation.
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order for the discharge of such bond
H or otherwise as he thinks fit.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 445
AND ANR. [A. M. KHANWILKAR, J.]

(5) When such report is in respect of a case to which A
section 170 applies, the police officer shall forward to the
Magistrate along with the report—
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other than
those already sent to the Magistrate during B
investigation;
(b) the statements recorded under section 161 of all
the persons whom the prosecution proposes to
examine as its witnesses.
(6) If the police officer is of opinion that any part of any C
such statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not
essential in the interests of justice and is inexpedient in
the public interest, he shall indicate that part of the
statement and append a note requesting the Magistrate
to exclude that part from the copies to be granted to the D
accused and stating his reasons for making such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies
of all or any of the documents referred to in sub-section
(5). E
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub-
section (2) has been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the police station
obtains further evidence, oral or documentary, he shall forward
F
to the Magistrate a further report or reports regarding such
evidence in the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in relation to
such report or reports as they apply in relation to a report
forwarded under sub-section (2).’’
(emphasis supplied) G
14. Concededly, as regards the “documents” on which the
prosecution proposes to rely, the investigating officer has no option but
to forward “all documents” to the Magistrate alongwith the police report.
There is no provision (unlike in the case of “statements”) enabling the
investigating officer to append a note requesting the Magistrate, to H
446 SUPREME COURT REPORTS [2019] 17 S.C.R.

A exclude any part thereof (“document”) from the copies to be granted
to the accused. Sub-Section (7), however, gives limited discretion to
the investigating officer to forward copies of all or some of the
documents, which he finds it convenient to be given to the accused.
That does not permit him to withhold the remaining documents, on which
the prosecution proposes to rely against the accused, from being
B
submitted to the Magistrate alongwith the police report. On the other
hand, the expression used in Section 173(5)(a) of the 1973 Code makes
it amply clear that the investigating officer is obliged to forward “all”
documents or relevant extracts on which the prosecution proposes to
rely against the accused concerned alongwith the police report to the
C Magistrate.
15. On receipt of the police report and the accompanying
statements and documents by virtue of Section 207 of the 1973 Code,
the Magistrate is then obliged to furnish copies of each of the statements
and documents to the accused. Section 207 reads thus:-
D ‘‘ 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:—
E (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
F 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;
(iv) the confessions and statements, if any, recorded under
G 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
H of a statement as is referred to in clause (iii) and considering
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 447
AND ANR. [A. M. KHANWILKAR, J.]

the reasons given by the police officer for the request, direct that A
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 B
only be allowed to inspect it either personally or through pleader
in Court.’’
As regards the statements, the first proviso enables the
Magistrate to withhold any part thereof referred to in clause (iii), from
the accused on being satisfied with the note and the reasons specified C
by the investigating officer as predicated in sub-Section (6) of Section
173. However, when it comes to furnishing of documents submitted
by the investigating officer alongwith police report, the Magistrate can
withhold only such document referred to in clause (v), which in his
opinion, is “voluminous”. In that case, the accused can be permitted
to take inspection of the concerned document either personally or D
through his pleader in Court. In other words, Section 207 of the 1973
Code does not empower the Magistrate to withhold any “document”
submitted by the investigating officer alongwith the police report except
when it is voluminous. A fortiori, it necessarily follows that even if the
investigating officer appends his note in respect of any particular E
document, that will be of no avail as his power is limited to do so only
in respect of ‘statements’ referred to in sub-Section (6) of Section 173
of the 1973 Code.
16. Be that as it may, the Magistrate’s duty under Section 207
at this stage is in the nature of administrative work, whereby he is F
required to ensure full compliance of the Section. We may usefully
advert to the dictum in Hardeep Singh v. State of Punjab1 wherein it
was held that:-
“47. Since after the filing of the charge-sheet, the court reaches
the stage of inquiry and as soon as the court frames the charges, G
the trial commences, and therefore, the power under Section
319(1) CrPC can be exercised at any time after the charge-sheet
is filed and before the pronouncement of judgment, except during
the stage of Sections 207/208 CrPC, committal, etc. which is only
1
(2014) 3 SCC 92 H
448 SUPREME COURT REPORTS [2019] 17 S.C.R.

A a pre-trial stage, intended to put the process into motion. This
stage cannot be said to be a judicial step in the true sense for it
only requires an application of mind rather than a judicial
application of mind. At this pre-trial stage, the Magistrate
is required to perform acts in the nature of administrative
work rather than judicial such as ensuring compliance with
B
Sections 207 and 208 CrPC, and committing the matter if it is
exclusively triable by the Sessions Court ... … …”
(emphasis supplied)
In yet another case of Tarun Tyagi vs. CBI 2, this Court
C considered the purport of Section 207 of the 1973 Code and observed
as follows:-
“8. Section 207 puts an obligation on the prosecution to furnish
to the accused, free of cost, copies of the documents mentioned
therein, without any delay. It includes, documents or the relevant
D extracts thereof which are forwarded by the police to the
Magistrate with its report under Section 173(5) of the Code.
Such a compliance has to be made on the first date when the
accused appears or is brought before the Magistrate at the
commencement of the trial inasmuch as Section 238 of the Code
warrants the Magistrate to satisfy himself that provisions of
E
Section 207 have been complied with. Proviso to Section 207
states that if documents are voluminous, instead of furnishing the
accused with the copy thereof, the Magistrate can allow the
accused to inspect it either personally or through pleader in the
Court.”
F
17. It is well established position that when statute is
unambiguous, the Court must adopt plain and natural meaning
irrespective of the consequences as expounded in Nelson Motis v.
Union of India3. On a bare reading of Section 207 of the 1973 Code,
no other interpretation is possible.
G
18. Be that as it may, furnishing of documents to the accused
under Section 207 of the 1973 Code is a facet of right of the accused
to a fair trial enshrined in Article 21 of the Constitution. In Sidhartha
2
(2017) 4 SCC 490
3
(1992) 4 SCC 711
H
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 449
AND ANR. [A. M. KHANWILKAR, J.]

Vashisht @ Manu Sharma v. State (NCT of Delhi) 4, this Court A
expounded thus:-
“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 B
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 relies upon C
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 D
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 E
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 F
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, G
first information report, statements, confessional
statements of the persons recorded under Section 161
whom the prosecution wishes to examine as witnesses, of
course, excluding any part of a statement or document as
4
(2010) 6 SCC 1
H
450 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 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
B
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
C 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
D 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
E certain rights of the accused flow both from the 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
F 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
G
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
H Prosecutor, the same should be disclosed to the accused in the
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 451
AND ANR. [A. M. KHANWILKAR, J.]

interest of justice and fair investigation and trial should be A
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 administration of criminal justice and the defence of the
accused prejudicially.”
B
(emphasis supplied)
19. Similarly, in V.K. Sasikala v. State5, this Court held as under:-
“21. The issue that has emerged before us is, therefore, somewhat
larger than what has been projected by the State and what has
been dealt with by the High Court. The question arising would C
no longer be one of compliance or non-compliance with the
provisions of Section 207 CrPC and would travel beyond
the confines of the strict language of the provisions of
Cr.PC and touch upon the larger doctrine of a free and fair
trial that has been painstakingly built up by the courts on D
a purposive interpretation of Article 21 of the Constitution.
It is not the stage of making of the request; the efflux of time
that has occurred or the prior conduct of the accused that is
material. What is of significance is if in a given situation the
accused comes to the court contending that some papers
E
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 to the accused to have an access
to the said documents, if so claimed. This, according to us, is
the core issue in the case which must be answered affirmatively.
In this regard, we would like to be specific in saying that we F
find it difficult to agree with the view taken by the High Court
that the accused must be made to await the conclusion of the
trial to test the plea of prejudice that he may have raised. Such
a plea must be answered at the earliest and certainly before the
conclusion of the trial, even though it may be raised by the G
accused belatedly. This is how the scales of justice in our criminal
jurisprudence have to be balanced.”
(emphasis supplied)

5
(2012) 9 SCC 771
H
452 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 20. The next seminal question is: whether the contents of the
memory card/pen-drive submitted to the Court alongwith the police
report can be treated as “document” as such. Indubitably, if the contents
of the memory card/pen-drive are not to be treated as “document”, the
question of furnishing the same to the accused by virtue of Section 207
B read with Section 173 of the 1973 Code would not arise. We say so
because it is nobody’s case before us that the contents of the memory
card/pen-drive be treated as a “statement” ascribable to Section
173(5)(b) of the 1973 Code. Notably, the command under Section 207
is to furnish “statements” or “documents”, as the case may be, to the
accused as submitted by the investigating officer alongwith the police
C report, where the prosecution proposes to rely upon the same against
the accused.
21. The High Court adverted to certain judgments before
concluding that the memory card would be a material object. For
arriving at the said conclusion, the High Court relied on the decision of
D the King’s Bench of United Kingdom in The King v. Daye6, wherein
Darling J., adding to the majority opinion, had held thus:-
“…But I should myself say 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.
E
It might be inscribed on paper, as is the common case now;
but the common case once was that it was not on paper,
but on parchment; and long before that it was on stone,
marble, or clay, and it might be, and often was, on metal.
So I should desire to guard myself against being supposed to
F assent to the argument that a thing is not a document unless it
be a paper writing. I should say it is a document no matter upon
what material it be, provided it is writing or printing and capable
of being evidence.”
(emphasis supplied)
G
The High Court also relied on the decision of the Chancery Court
in Grant and Another v. Southwester and County Properties Ltd.
and Another7, wherein it was observed as follows:-
6
(1908) 2 K.B. 333
7
(1975) Ch. 185
H
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 453
AND ANR. [A. M. KHANWILKAR, J.]

“There are a number of cases in which the meaning of the word A
“document” has been discussed in varying circumstances. Before
briefly referring to such cases, it will, I think, be convenient to
bear in mind that the derivation of the word is from the Latin
“documentum”: it is something which instructs or provides
information. Indeed, according to Bullokar’s English Expositor B
(1621), it meant a lesson. The Shorter Oxford English Dictionary
has as the fourth meaning for the word the following: “Something
written, inscribed, etc., which furnishes evidence or information
upon any subject, as a manuscript, title-deed, coin, etc.,” and it
produces as the relevant quotation: - “These frescoes... have
C
become invaluable as documents,” the writer being Mrs. Anna
Brownell Jameson who lived from 1794 to 1860.
I think that all the authorities to which I am about to refer have
consistently stressed the furnishing of information - impliedly
otherwise than as to the document itself - as being one of the D
main functions of a document. Indeed, in In Re Alderton and
Barry’s Application (1941) 59 R.P.C. 56, Morton J. expressly
doubted whether blank workmen’s time sheets could be classified
as documents within section 11(1)(b) of the Patent and Design
Acts 1907-1939 expressly because in their original state they
E
conveyed no information of any kind to anybody...”
It can be safely deduced from the aforementioned expositions
that the basis of classifying article as a “document” depends upon the
information which is inscribed and not on where it is inscribed. It may
be useful to advert to the exposition of this Court holding that tape F
records of speeches8 and audio/video cassettes9 including compact
disc10 were “documents” under Section 3 of the 1872 Act, which stand
on no different footing than photographs and are held admissible in
evidence. It is by now well established that the electronic record
produced for the inspection of the Court is documentary evidence under
G
Section 3 of the 1872 Act11.
8
Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
9
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC
17
10
Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485
11
Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473 H
454 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 22. It is apposite to recall the exposition of this Court in State of
Maharashtra vs. Dr. Praful B. Desai12, wherein this Court observed
that the Criminal Procedure Code is an ongoing statute. In case of an
ongoing statute, it is presumed that the Parliament intended the Court
to apply a construction that continuously updates its wordings to allow
for changes and is compatible with the contemporary situation. In
B paragraph 14 of the said decision, the Court observed thus:-
“14. It must also be remembered that the Criminal
Procedure Code is an ongoing statute. The principles of
interpreting an ongoing statute have been very succinctly set out
by the leading jurist Francis Bennion in his commentaries
C titled Statutory Interpretation, 2nd Edn., p. 617:
“It is presumed Parliament intends the court to apply to an ongoing
Act a construction that continuously updates its wordings to allow
for changes since the Act was initially framed. While it remains
law, it has to be treated as always speaking. This means that in
D its application on any day, the language of the Act though
necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current
law.
***
E In construing an ongoing Act, the interpreter is to presume that
Parliament intended the Act to be applied at any future time in
such a way as to give effect to the original intention. Accordingly,
the interpreter is to make allowances for any relevant changes
that have occurred since the Act’s passing, in law, in social
conditions, technology, the meaning of words and other matters….
F
That today’s construction involves the supposition that Parliament
was catering long ago for a state of affairs that did not then exist
is no argument against that construction. Parliament, in the
wording of an enactment, is expected to anticipate temporal
developments. The drafter will foresee the future and allow for
G it in the wording.
***
An enactment of former days is thus to be read today, in the
light of dynamic processing received over the years, with such
12
H (2003) 4 SCC 601
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 455
AND ANR. [A. M. KHANWILKAR, J.]

modification of the current meaning of its language as will now A
give effect to the original legislative intention. The reality and
effect of dynamic processing provides the gradual
adjustment. It is constituted by judicial interpretation, year
in and year out. It also comprises processing by executive
officials.””
B
(emphasis supplied)
23. As aforesaid, the respondents and intervenor would contend
that the memory card is a material object and not a “document” as
such. If the prosecution was to rely only on recovery of memory card
and not upon its contents, there would be no difficulty in acceding to C
the argument of the respondent/intervenor that the memory card/pen-
drive is a material object. In this regard, we may refer to Phipson on
Evidence13, and particularly, the following paragraph(s):-
“The purpose for which it is produced determines whether
a document is to be regarded as documentary evidence. D
When adduced to prove its physical condition, for example,
an alteration, presence of a signature, bloodstain or
fingerprint, it is real evidence. So too, if its relevance lies
in the simple fact that it exists or did once exist or its
disposition or nature. In all these cases the content of the
document, if relevant at all, is only indirectly relevant, for E
example to establish that the document in question is a
lease. When the relevance of a document depends on the
meaning of its contents, it is considered documentary
evidence.”
... ... ...” F
(emphasis supplied)
Again at page 5 of the same book, the definition of “real
evidence14” is given as under:-
“Material objects other than documents, produced for inspection G
of the court, are commonly called real evidence. This, when
available, is probably the most satisfactory kind of all, since, save
for identification or explanation, neither testimony nor inference
13
Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450
14
Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5 H
456 SUPREME COURT REPORTS [2019] 17 S.C.R.

A is relied upon. Unless its genuineness is in dispute [See Belt v
Lawes, The Times, 17 November 1882.], the thing speaks for
itself.
Unfortunately, however, the term “real evidence” is itself both
indefinite and ambiguous, having been used in three divergent
B senses:
(1) … … …
(2) Material objects produced for the inspection of the court.
This is the second and most widely accepted meaning of “real
C evidence”. It must be borne in mind that there is a distinction
between a document used as a record of a transaction, such as
a conveyance, and a document as a thing. It depends on the
circumstances in which classification it falls. On a charge of
stealing a document, for example, the document is a thing.

D (3) … … …”
A priori, we must hold that the video footage/clipping contained
in such memory card/pen-drive being an electronic record as envisaged
by Section 2(1)(t) of the 2000 Act, is a “document” and cannot be
regarded as a material object. Section 2(1)(t) of the 2000 Act reads
E thus:-
‘‘2(1)(t) “electronic record” means data, record or data
generated, image or sound stored, received or sent in an electronic
form or micro film or computer-generated micro fiche;’’
24. As the above definition refers to data or data generated, image
F or sound stored, received or sent in an electronic form, it would be
apposite to advert to the definition of “data” as predicated in Section
2(1)(o) of the same Act. It reads thus:-
“2(1)(o) “data” means a representation of information, knowledge,
facts, concepts or instructions which are being prepared or have
G
been prepared in a formalised manner, and is intended to be
processed, is being processed or has been processed in a
computer system or computer network, and may be in any form
(including computer printouts magnetic or optical storage media,
punched cards, punched tapes) or stored internally in the memory
H of the computer;’’
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 457
AND ANR. [A. M. KHANWILKAR, J.]

On conjoint reading of the relevant provisions, it would be amply A
clear that an electronic record is not confined to “data” alone, but it
also means the record or data generated, received or sent in electronic
form. The expression “data” includes a representation of information,
knowledge and facts, which is either intended to be processed, is being
processed or has been processed in a computer system or computer
network or stored internally in the memory of the computer. B

25. Having noticed the above definitions, we may now turn to
definitions of expressions “document” and “evidence” in Section 3 of
the 1872 Act being the interpretation clause. The same reads thus:-
“3. Interpretation clause.- C
Document.- “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.
Illustrations D
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document; E
A caricature is a document.
Evidence.- “Evidence” means and includes—
(1) all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters F
of fact under inquiry, such statements are called oral
evidence;
(2) all documents including electronic records produced for
the inspection of the Court,
such documents are called documentary evidence.” G
On a bare reading of the definition of “evidence”, it clearly takes
within its fold documentary evidence to mean and include all documents
including electronic records produced for the inspection of the Court.
Although, we need not dilate on the question of admissibility of the
contents of the memory card/pen-drive, the same will have to be H
458 SUPREME COURT REPORTS [2019] 17 S.C.R.

A answered on the basis of Section 65B of the 1872 Act. The same reads
thus:-
“65B. Admissibility of electronic records.-(1)
Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper,
B stored, recorded or copied in optical or magnetic media produced
by a computer (hereinafter referred to as the computer output)
shall be deemed to be also a document, if the conditions mentioned
in this section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings,
C 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.
(2) The conditions referred to in sub-section (1) in respect of a
computer output shall be the following, namely:-
D (a) the computer output containing the information was
produced by the computer during the period over which
the computer was used regularly to store or process
information for the purposes of any activities regularly
carried on over that period by the person having lawful
E control over the use of the computer;
(b) during the said period, information of the kind contained
in the electronic record or of the kind from which the
information so contained is derived was regularly fed
into the computer in the ordinary course of the said
F activities;
(c) throughout the material part of the said period, the
computer was operating properly or, if not, then in
respect of any period in which it was not operating
properly or was out of operation during that part of the
G period, was not such as to affect the electronic record
or the accuracy of its contents; and
(d) the information contained in the electronic record
reproduces or is derived from such information fed into
the computer in the ordinary course of the said
H activities.”
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 459
AND ANR. [A. M. KHANWILKAR, J.]

(3) Where over any period, the function of storing or processing A
information for the purposes of any activities regularly carried
on over that period as mentioned in clause (a) of sub-section (2)
was regularly performed by computers, whether—
(a) by a combination of computers operating over that
period; or B
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in
succession over that period; or C
(d) in any other manner involving the successive operation
over that period, in whatever order, of one or more
computers and one or more combinations of computers,
all the computers used for that purpose during that
period shall be treated for the purposes of this section D
as constituting a single computer; and references in this
section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things, that is to say,— E
(a) identifying the electronic record containing the statement
and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that electronic record as may be
appropriate for the purpose of showing that the F
electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions
mentioned in sub-section (2) relate, and purporting to be
signed by a person occupying a responsible official
G
position in relation to the operation of the relevant device
or the management of the relevant activities (whichever
is appropriate) shall be evidence of any matter stated
in the certificate; and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best
of the knowledge and belief of the person stating it. H
460 SUPREME COURT REPORTS [2019] 17 S.C.R.

A (5) For the purposes of this section,—
(a) infomation shall be taken to be supplied to a computer
if it is supplied thereto in any appropriate form and
whether it is so supplied directly or (with or without
human intervention) by means of any appropriate
B equipment;
(b) whether in the course of activities carried on by any
official information is supplied with a view to its being
stored or processed for the purposes of those activities
by a computer operated otherwise than in the course
C of those activities, that information, if duly supplied to
that computer, shall be taken to be supplied to it in the
course of those activities;
(c) a computer output shall be taken to have been produced
by a computer whether it was produced by it directly
D
or (with or without human intervention) by means of any
appropriate equipment.
Explanation.—For the purposes of this section any reference to
information being derived from other information shall be a
reference to its being derived therefrom by calculation,
E
comparison or any other process.”
This provision is reiteration of the legal position 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
F computer shall be deemed to be a “document” and shall be admissible
in evidence subject to satisfying other requirements of the said provision.
26. It may be useful to also advert to Section 95(2)(b) of the
1973 Code, which refers to “document” to include any painting, drawing
or photograph, or other visible representation. And again, the expression
G “document” has been defined in Section 29 of the 1860 Code, which
reads thus:-
‘‘29. “Document”.—The word “document” denotes any matter
expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended
H to be used, or which may be used, as evidence of that matter.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 461
AND ANR. [A. M. KHANWILKAR, J.]

Explanation 1.—It is immaterial by what means or upon what A
substance the letters, figures or marks are formed, or whether
the evidence is intended for, or may be used in, a Court of Justice,
or not.
Illustrations
A writing expressing the terms of a contract, which may be used B
as evidence of the contract, is a document.
A cheque upon a banker is a document.
A power-of-attorney is a document.
A map or plan which is intended to be used or which may be C
used as evidence, is a document.
A writing containing directions or instructions is a document.
Explanation 2.—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 D
within the meaning of this section, although the same may not
be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to
his order. The meaning of the endorsement, as explained by E
mercantile usage, is that the bill is to be paid to the holder. The
endorsement is a document, and must be construed in the same
manner as if the words “pay to the holder” or words to that
effect had been written over the signature.’’
27. Additionally, it may be apposite to also advert to the definition F
of “communication devices” given in Section 2(1)(ha) of the 2000 Act.
The said provision reads thus:-
‘‘2(1)(ha) ‘‘communication device’’ means cell phones, personal
digital assistance or combination of both or any other device used
to communicate, send or transmit any text, video, audio or image’’ G
28. We may also advert to the definition of “information” as
provided in Section 2(1)(v) of the 2000 Act. The same reads thus:-
‘‘2(1)(v) ‘‘information’’ includes data, message, text, images
sound, voice, codes, computer programmes, software and data
bases or micro film or computer generated micro fiche’’ H
462 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 29. Even the definition of “document” given in the General
Clauses Act would reinforce the position that electronic records ought
to be treated as “document”. The definition of “document” in Section
3(18) of the General Clauses Act reads thus:-
‘‘3(18) ‘‘document’’ shall include any matter written, expressed
B or described upon any substance by means of letters, figures or
marks, or by more than one of those means which is intended to
be used, or which may be used, for the purpose of recording that
matter”
30. It may be apposite to refer to the exposition in Halsbury’s
C laws of England15 dealing with Chapter – “Documentary and Real
Evidence” containing the meaning of documentary evidence and the
relevancy and admissibility thereof including about the audio and video
recordings. The relevant exposition reads thus:-
“(12) DOCUMENTARY AND REAL EVIDENCE
D 1462. Meaning of documentary evidence. The term
‘document’ bears different meanings in different contexts.
At common law, it has been held that any written thing
capable of being evidence is properly described as a
document 16 , and this clearly includes printed text,
diagrams, maps and plans17. Photographs are also regarded
E as documents at common law 18 .
Varying definitions have been adopted in legislation 19. A
document may be relied on as real evidence (where its
15
Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure
16
R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.
F 17
A tombstone bearing an inscription is in this sense a document (see Mortimer v.
M’Callan (1840) 6 M & W 58), as is a coffin-plate bearing an inscription (see R v.
Edge (1842) Wills, Circumstantial Evidence (6 th Edn.) 309).
18
See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v.
Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All
ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1
G All ER 160, [1999] 1 WLR 2160, ChD.
19
For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means
anything in which information of any description is recorded: s. 118 (amended by
the Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the
Criminal Justice Act 2003 Pt. 11 (ss. 98-141) (as amended) (evidence), the definition
is the same (see s. 134(1)), save that for the purposes of Pt. 11 Ch. 3 (ss 137-141)
(which includes the provision relating to refreshing memory (see s. 139; and para
H 1438 ante)) it excludes any recording of sounds or moving images (see s. 140).
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 463
AND ANR. [A. M. KHANWILKAR, J.]

existence, identity or appearance, rather than its content, A
is in issue20), or as documentary evidence. Documentary
evidence denotes reliance on a document as proof of its
terms or contents 21. The question of the authenticity of a
document is to be decided by the jury22.
1463. The primary evidence rule. Under the ‘primary B
evidence rule’ at common law23, it was once thought necessary
for the contents of any private document to be proved by
production of the original document24. A copy of an original
document, or oral evidence as to the contents of that document,
was considered admissible only in specified circumstances,
namely: (1) where another party to the proceedings failed to C
comply with a notice to produce the original which was in his
possession (or where the need to produce it was so clear that
no such notice was required)25; (2) where production of the
original was shown to be impossible26; (3) where the original
appeared to have been lost or destroyed27; and (4) where a third D
20
See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman
(1855) 11 Exch 360. Documents produced by purely mechanical means may
constitute real evidence even where reliance is placed on the content: The Statute of
Liberty, Sapporo Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER
195, [1968] 1 WLR 739 (film of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. E
23, CA (computer used as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1
WLR 1372, DC (printout of evidential breath-testing device). See also Garner v.
DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006]
Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence generally see para
1466 post.
21
R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
22
R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a
F
document is, following the general rule, a question for the judge: See para 1360 ante.
A document which the law requires to be stamped, but which is unstamped, is
admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the Finance
Act 1999 s. 109(3), Sch 12 para 3(1), (5)).
23
As to the related ‘best evidence rule’ see para 1367 ante.
24
As to the admissibility of examined or certified copies of public documents at G
common law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.
25
A-G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128;
R v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.
26
Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v.
Furnival (1834) 1 Cr.M. & R 277.
27
R. v. Haworth (1830) 4 C & P 254 H
464 SUPREME COURT REPORTS [2019] 17 S.C.R.

A party in possession of the original lawfully declined to produce
it28….
xxx xxx xxx
1466. Real evidence. Material objects or things (other than
the contents of documents) which are produced as exhibits
B for inspection by a court or jury are classed as real evidence29.
The court or jury may need to hear oral testimony explaining the
background and alleged significance of any such exhibit, and may
be assisted by expert evidence in drawing inferences or
conclusions from the condition of that exhibit 30.
C Where a jury wishes to take an exhibit, such as a weapon, into
the jury room, this is something which the judge has a discretion
to permit31. Jurors must not however conduct unsupervised
experiments32, or be allowed to inspect a thing which has not been
produced in evidence33.
D Failure to produce an object which might otherwise have been
admissible as real evidence does not preclude the admission of
oral evidence concerning the existence or condition of that object,
although such evidence may carry far less weight34.
28
R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that
E contents of a document might be proved by an admission or confession: Slatterie v.
Pooley (1840) 6 M & W 664
29
This include animals, such as dogs, which may be inspected to see if they are
ferocious (Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been
ill-treated, etc. Note however that statements (such as statements of origin) printed
on objects may give rise to issues of hearsay if it is sought to rely on them as true:
Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER
F 599, PC.
30
Expert evidence may often be essential if the court or jury is to draw any kind of
informed conclusions from their examination of the exhibit. It would be dangerous,
for example, for a court or jury to draw its own unaided conclusions concerning the
identity of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972]
AC 100, [1971] 3 All ER 768, PC.
31
R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.
G 32
R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v.
Crees [1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989]
Crim. LR 653, CA.
33
R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.
34
R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist
Bros. [1944] KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex.
H P. Sofaer (1987) 85 Cr.App. Rep. 367, DC. If the object in question is in the
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 465
AND ANR. [A. M. KHANWILKAR, J.]

xxx xxx xxx A
1471. Audio and video recordings. An audio recording is
admissible in evidence provided that the accuracy of the
recording can be proved, the recorded voices can be properly
identified, and the evidence is relevant and otherwise admissible35.
However, that evidence should always be regarded with caution B
and assessed in the light of all the circumstances36.
A video recording of an incident which is in issue is admissible37.
There is no difference in terms of admissibility between a
direct view of an incident and a view of it on a visual display
unit of a camera or on a recording of what the camera has C
filmed. A witness who sees an incident on a display or a
recording may give evidence of what he saw in the same
way as a witness who had a direct view38.”
(emphasis supplied)
31. In order to examine the purport of the term “matter” as found D
in Section 3 of the 1872 Act, Section 29 of the 1860 Code and Section

possession of the prosecutor or of a third person, its production may generally be
compelled by issue of a witness order under the Criminal Procedure (Attendance of
Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the Magistrates’
Court Act, 1980 s. 97 (as substituted and amended) (see para 1409 ante). The E
defendant cannot, however, be served with such an order, lest he be forced to
incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.
35
R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230,
CCA. For the considerations relevant to the determination of admissibility see R. v.
Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R.
v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v.
Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513,
F
97 Cr.App. Rep 365, CA. Where a video recording of an incident becomes available
after the witness has made a statement, the witness may view the video and, if
necessary, amend his statement so long as the procedure adopted is fair and the witness
does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998]
Crim. LR 682, 162 JP 691, CA.
36
R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, G
CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987]
Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to
the tape recording of police interviews see para 971 et seq ante; and as to the exclusion
of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as
amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf
R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted
despite element of entrapment). H
466 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 3(18) of the General Clauses Act, and to ascertain whether the contents
of the memory card can be regarded as “document”, we deem it
appropriate to refer to two Reports of the Law Commission of India.
In the 42nd Law Commission Report39, the Commission opined on the
amendments to the 1860 Code. Dealing with Section 29 of the 1860
Code, the Commission opined as under:-
B
“2.56. The main idea in all the three Acts is the same and the
emphasis is on the “matter” which is recorded, and not on the
substance on which the matter is recorded. We feel, on the
whole, that the Penal Code should contain a definition of
“document” for its own purpose, and that section 29 should be
C retained.”
The said observation is restated in the 156th Report40, wherein
the Commission opined thus:-
“11.08 Therefore, the term ‘document’ as defined in Section
D 29, IPC may be enlarged so as to specifically include therein any
disc, tape, sound track or other device on or in which any matter
is recorded or stored by mechanical, electronic or other means
… … … The aforesaid proposed amendment in section 29 would
also necessitate consequential amendment of the term
“document” under section 3 of the Indian Evidence Act, 1872
E on the lines indicated above.”
Considering the aforementioned Reports, it can be concluded that
the contents of the memory card would be a “matter” and the memory
37
Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191,
F DC.
38
Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191,
DC. As to the admissibility of video recordings as evidence identifying the defendant
see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982]
Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording
showing a road on which an incident had occurred was admitted in R. v. Thomas
[1986] Crim. LR 682. As to the identification of the defendant by still photographs
G taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1
WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455
ante; and as to the admissibility of a copy of a video recording of an incident see
Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.
39
Forty-Second Report, Law Commission India, Indian Penal Code, June, 1971, 32-
35
40
One Hundred Fifty-Sixth Report on the Indian Penal Code (Volume I), August,
H 1997, Law Commission of India, Chapter-XI
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 467
AND ANR. [A. M. KHANWILKAR, J.]

card itself would be a “substance” and hence, the contents of the A
memory card would be a “document”.
32. It is crystal clear that all documents including “electronic
record” produced for the inspection of the Court alongwith the police
report and which prosecution proposes to use against the accused must
be furnished to the accused as per the mandate of Section 207 of the B
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 C
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.
33. We do not wish to dilate further nor should we be understood
to have examined the question of relevancy of the contents of the D
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
chargesheet 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 E
1973 Code?
34. Reverting to the preliminary objection taken by the respondent
for dismissing the appeal at the threshold 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 F
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 chargesheet/police report filed
before the Magistrate. Even the objection regarding incorrect factual
G
narration about the appellant having himself viewed the contents of the
memory card/pen-drive does not take the matter any further, once we
recognize 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. H
468 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 35. 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 No. 8, the
B
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.
36. Considering the principles laid down by this Court in Tarun
Tyagi (supra), we are of the opinion that certain conditions need to be
C
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
D be possible to breach even the security seals incorporated in the
concerned cloned copy. Besides, it will be well-nigh impossible to keep
track of the misuse of the cloned copy and its safe and secured custody.
37. Resultantly, instead of allowing the prayer sought by the
appellant in toto, it may be desirable to mould the relief by permitting
E 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,
F 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
G 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
H the memory card/pen-drive. They may have to eventually depend on
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 469
AND ANR. [A. M. KHANWILKAR, J.]

some expert agency. In our opinion, the accused, who are interested A
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
B
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.
39. 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 C
an approach which would balance both the rights. This principle has
been enunciated in the case of Asha Ranjan v. State of Bihar41
wherein this Court held thus:-
“57. The aforesaid decision is an authority for the proposition that
there can be a conflict between two individuals qua their right D
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 of 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 E
of the collective or social order” would be the principle
to recognise and accept the right of one which has to be
protected.
xxx xxx xxx
61. Be it stated, circumstances may emerge that may necessitate F
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 … G
… ... 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
41
(2017) 4 SCC 397 H
470 SUPREME COURT REPORTS [2019] 17 S.C.R.

A … … ... 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
B
they assert that right by 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
C 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. ... …
…
D
xxx xxx xxx
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
E 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
F 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 certain
circumstances, the interest of the society as a whole, when
G 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.”

H (emphasis supplied)
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 471
AND ANR. [A. M. KHANWILKAR, J.]

40. This Court in Mazdoor Kisan Shakti Sangathan v. Union A
of India42 has restated the legal position in the following terms:-
“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, B
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 that holding of C
demonstrations in the way it has been happening is causing
serious discomfort and harassment to the residents. At the same
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 in Asha Ranjan [Asha Ranjan v. State of Bihar, (2017) D
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 E
protected.”
(emphasis supplied)
41. 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”, F
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 the case of
Superintendent and Remembrancer of Legal Affairs, West Bengal
vs. Satyen Bhowmick & Ors.43, wherein this Court has restated the G
cardinal principle that 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.
42
(2018) 17 SCC 324
43
(1981) 2 SCC 109 H
472 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 42. Nevertheless, the Court cannot be oblivious to the nature of
offence and the principle underlying the amendment to Section 327 of
the 1973 Code, in particular sub-Section (2) thereof and insertion of
Section 228A of the 1860 Code, for securing the privacy of the victim
and her identity. Thus understood, the Court is obliged to evolve a
mechanism to enable the accused to reassure himself about the
B
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 (supra) and Mazdoor
Kisan Shakti Sangathan (supra). The Court is duty bound to issue
C suitable directions. Even the High Court, in exercise of inherent power
under Section 482 of the 1973 Code, is competent to issue suitable
directions to meet the ends of justice.
43. If the accused or his lawyer himself, additionally, intends to
inspect the contents of the memory card/pen-drive in question, he can
D request the Magistrate to provide him inspection in Court, if necessary,
even for more than once alongwith his lawyer and I.T. expert to enable
him to effectively defend himself during the trial. If such an application
is filed, the Magistrate must consider the same appropriately and
exercise judicious discretion with objectivity while ensuring that it is not
an attempt by the accused to protract the trial. While allowing the
E accused and his lawyer or authorized I.T. 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 the contents of
the memory card/pen-drive in any manner. Such multipronged approach
F may subserve the ends of justice and also effectuate the right of
accused to a fair trial guaranteed under Article 21 of the Constitution.
44. In conclusion, we hold that the contents of the memory card/
pen drive being electronic record must be regarded as a document. If
the prosecution is relying on the same, ordinarily, the accused must be
G 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
H sides.
P. GOPALKRISHNAN @ DILEEP v. STATE OF KERALA 473
AND ANR. [A. M. KHANWILKAR, J.]

45. In view of the above, this appeal partly succeeds. The A
impugned judgment and order passed by the trial Court and the High
Court respectively stand modified by giving option to the appellant/
accused to the extent indicated hitherto, in particular paragraphs 37,
38 and 43.
46. Resultantly, the application filed by the appellant before the B
trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly
allowed in the aforementioned terms.
47. We direct the trial Court to ensure that the trial in C.P. No.
16/2017 is concluded expeditiously, preferably within six months from
the date of this judgment. C

Kalpana K. Tripathy Appeal partly allowed.

D

E

F

G

H