The accused has given many rights under the Code of Criminal Procedure and under the Indian Constitution. The Right to Fair Trial is the part of the Right to Life which is embodied in Article 21 of the Indian Constitution. The Right to a fair trial includes the right to have copies of the evidence on which the prosecution relies. Section 207 of the CrPC talks about the “documents” which need to be submitted to the accused to enable him to prepare his defence. According to the Section the accused be provided copies of the police report, the FIR recorded under Section 154 CrPC, confessional statements, etc.
Now another question that comes into the minds of the people is whether the electronic records are regarded as documents or not? As per the interpretation clause of the Indian Evidence Act, the evidence includes the electronic records which are produced before the Court for the inspection. On the other hand, the Information Technology Act, 2000 describes “electronic record” as any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.
Therefore on a combined reading of both the Acts we can say that electronic records such as video recordings on a pen drive or a mobile phone are also “documents” and are therefore relevant in evidence.
As mentioned above, it is a well-settled law that the accused should be provided with copies of the documents of evidence so as to prepare his defence. But the contradiction arises in the cases of sexual harassment. The records of the cases of sexual harassment include the identity of the women victim. In the case of P Gopalkrishnan @ Dileep vs. State of Kerela and Anr. the main question for the Court was that what should be the balance between the right of an accused to a fair trial and the right of the victim to privacy and dignity? And how it should be achieved?
In the present case, the allegation of the accused was of sexually assaulting and video graphing the women. The supply of the memory card/pen drive to the accused under Section 207 of the CrPC was in issue. The accused was seeking a copy of the video recording on the ground that there was more than one voice in the said video. Hence, he wanted to get the same examined individually.
But the Court did not grant the permission to provide a copy of the video on the ground that it “would be impinging upon the esteem, decency, chastity, dignity, and reputation of the victim and also against the public interest.” However, the Magisterial Court allowed the accused to examine the said video on the court premises. The learned Single Judge of the High Court of Kerala also disallowed the same, in appeal.
The prosecution itself failed to uphold the privacy and dignity of the victim by naming her in the FIR, in her statements under Section 161 & 164 CrPC, as well as in the charge sheet/police report filed before the magistrate. The Supreme Court directed that supplying a copy of the video to the appellant may be prone to misuse and that safeguards such as watermarks shall not suffice, as “with the advancement of technology”, watermarks may be removed and copies circulated.
Though as per the norm the accused should be supplied with all the evidence relied on by the prosecution. But the Apex Court did not allow the accused in the above-mentioned case. Such exceptions can only be made on the basis of the distinct facts and circumstances of each individual case.
It is imperative that guidelines or legislative amendments be made in order to dictate situations in which such electronic record may or may not be supplied to the accused. It is important to balance the right of an accused to a fair trial with the right to dignity and privacy of a victim.