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Contents of memory card to be treated as document, says SC; allows actor Dileep to inspect material
New Delhi: The Supreme Court held on Friday that contents of a memory card or pen drive are electronic records and must be treated as "document" under the Indian Evidence Act. In its verdict on a plea by Malayalam actor Dileep, the top court said that if the contents of the memory card/ pen drive are being relied upon by the prosecution in a criminal case, then the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. Challenging the Kerala High Court order, Dileep had sought a copy of memory card of a cell phone pertaining to the 2017 case of abduction and assault on an actress.

A bench of Justices A M Khanwilkar and Dinesh Maheshwari said that 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 of the material to the accused and his/her lawyer or expert for presenting effective defence during the trial. It said the court may issue suitable directions to balance the interests of both sides. "We hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial," the bench said.

In February 2017, a Malayalam film actress was allegedly abducted and molested by eight accused. The entire act, had allegedly taken place in a moving vehicle, which was filmed by to blackmail the actress. P Gopalkrishnan alias Dileep was subsequently arrested and arrayed as an accused in connection with offences under provisions of IPC and IT Act. The top court directed that the trial in case be concluded expeditiously, preferably within six months from the date of the judgment. Dileep had challenged Kerala High Court verdict which dismissed his plea saying that memory card or pen drive cannot be held as a "document" under the Indian Evidence Act and is a material object which cannot be handed over to an accused.

The top court said that the basis of classifying article as a "document" depends upon the information which is inscribed and not on where it is inscribed. "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," it said. It said that all documents including "electronic record" produced for the inspection of the Court along with the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of law. "It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial.

Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India," it said. Dealing with the arguments that it will be unsafe to hand over a cloned copy of the contents of the memory card or pen drive, the top court said, it is of the opinion that certain conditions need to be imposed in the fact situation of the present case. It allowed Dileep to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which he may be advised.

"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," the top court said. It said the accused, 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 it would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL.

The top court had on May 3 stayed the trial against Dileep and others accused in the case. Dileep was arrested on July 10, 2017 and let out on bail by the Kerala High Court on October 3 same year. Seven other persons, including key accused ''Pulsar'' Suni, were arrested in connection with the case. The actress, who has worked in Tamil and Telugu films, was abducted and allegedly molested inside her car for two hours by the accused, who had forced their way into the vehicle on the night of February 17, 2017 and later escaped in a busy area.

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