ANALYSIS OF P. GOPALKRISHNAN v. STATE OF KERALA (2020) 9 SCC 161
To examine the issue as per the case of P. Gopalakrishnan v. State of Kerala, (2020) 9 SCC 161, the use of the IRAC Analysis can be made, which is ‘Issue’, ‘Rule’, ‘Analysis’ and ‘Conclusion’. The following case discusses and analyses the various aspects of Criminal and Constitutional Law. The Honorable Judges first begin with determining whether electronic recording in a pen-drive can be admitted as evidence and considered as a ‘document’ as per the Evidence Act, 1872 and Section 29 of the Indian Penal Code. Furthermore, as it was a rape case, the prosecution’s entire case was dependent on the contents of the pen-drive, which included a video recording of the alleged incident. When the accused asked for a copy of the same, the victim was concerned of her privacy and was afraid to handover the pen-drive to the accused as she feared the possibility of the video being misused. This request of the accused raised serious questions and the need to balance the victim’s right of privacy and the accused’s right to free trial so that he knows what is the prosecution’s case and can prepare accordingly. Both these rights come under the ambit of Article 21 of the Constitution of India which is right to life, that can be curtailed only by a procedure established by law. At the same time both these are rights are not absolute in nature. When a conflict like this arise one fundamental right cannot be preferred over the other. The Judges arrived at an equilibrium by partially preserving both the rights, which ultimately worked out for the best.
ISSUES INVOLVED IN THE CASE
Whether the contents of a memory card/ pen-drive being an electronic record as under Section 2(1)(t) of the Information Technology Act, 2000 would be considered as a ‘document’ under Section 3 of the Indian Evidence Act, 1872 and Section 29 of the Indian Penal Code, 1860.
If yes, whether the Magistrate should have given a cloned copy of the memory card/pen drive to the accused facing prosecution for an alleged offence of rape as the same was appended to the police report and the prosecution relied upon to use it against the accused.
Whether the court can decline the accused’ s request to get a cloned copy of the contents of the pen drive regarding the alleged incident of rape on the ground that it would violate the privacy and dignity of the victim and on the possibility of misuse of the copied version by the accused.
RELEVANT LEGAL PROVISIONS USED (RULE)
Criminal Procedure Code, 1973 – Section 207(v) & (iii) read with \provisos I and II & Section 173(5) and (6)
Article 21 of the Constitution of India
Section 3 of the Indian Evidence Act, 1872
Section 2 (1)(t), (o), (ha) & (v) of the Information and Technology Act 2000; Section 29 of the Indian Penal Code, 1860; Section 3(18) of the General Clauses Act, 1897 etc.
ANALYSIS OF THE ISSUE AND JUDGEMENT
In the given case, it was alleged that the accused had committed rape. The prosecution had a video of the occurrence in a memory card/ pen drive and were relying upon the same to use it against the accused. The accused’s request to get a copy of the same to inspect it was denied by the lower courts on the grounds that it would impinge the privacy and dignity of the victim, and so he appealed before the Supreme Court. The appellant contended that as per his legal right to fair hearing he is entitled to get the copies of CDs, Video and audio footage, etc. On the other hand, the respondents claim that the visual contents of the pen-drive amounts to physical evidence and not a “document” that can be furnished to the accused with the police report, that with respect to the victim’s fundamental right of privacy there is a reason to believe that it could be misused by the appellant to undermine the victim.
There has been a conflict between the fundamental right of the appellant and the respondent. The court cannot uphold one fundamental right and ignore the other, as they are on an equal pedestal. Therefore, there was a need for balancing the same. The Court decided the matter in a three-fold manner; (1) The power of the Magistrate to withhold “Documents”, (2) Classification of the memory card/pen-drive as a document, (3) Need for balancing the conflicting Fundamental Rights
(1) The power of the Magistrate to withhold “Documents”
S.207 of the CrPC states that, a Magistrate can withhold statements of all persons whom the prosecution proposes to examine as its witness recorded under S.161(3), if he is satisfied with the reasons mentioned by the investigating office under S.173(6). In the case of ‘documents’, the Magistrate can only withhold them if it is ‘voluminous’ in his opinion. Thus, the accused can inspect the document personally or through his lawyer.
As laid down in Hardeep Singh v. State of Punjab, under this section the duty of the Magistrate is in the nature of administrative work and he must fully comply with it. It does not require the application of the judicial mind. This was reiterated in Tarun Tyagi v. CBI, wherein the court observed that the prosecution has an obligation to provide the accused, free of cost, the copied of the documents without any delay. It was recognized as a part of right of the accused to a fair trial under Article 21 in the case of Manu Sharma v. State (NCT of Delhi). The court in this case, held that S.207 must be given a liberal and wider meaning to achieve the objective of a fair trial as this right flows from the constitutional jurisdiction. The Court cannot outrightly deny the accused of this right when the case of the prosecution depends upon such a document. It must be disclosed in the interests of justice and a fair investigation.
(2) Classification of the memory card/pen-drive as a document
The Court had widened the meaning of “document” and deduced that a document depends upon the information which is inscribed and not where it is inscribed. Relying upon Tukaram S. Dighole v. Manikrao Shivaji Kokate; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Shamsher Singh Verma v. State of Haryana where tape records of speeches, audio/video cassettes and CDs were considered documents as under S.3 of the Evidence Act. The Court emphasized that if the prosecution did not rely upon the contents of the pen drive and only upon the recovery of the pen drive the it would be a mere material object. On reading S.2(1)(t) and S.2(1)(o) of the IT Act together, it can be inferred that video in a pen drive/ memory card is an electronic record and a document, and evidence would also include documentary evidence. That means even electronic records are admissible evidence.
(3) Need for balancing the conflicting Fundamental Rights
This case involved 8 accused, and the current case was about the appellant who is Accused 8. If he was granted relief the video would be freely available to all the accused and open to misuse. When such apprehension was raised, the appellant suggested he would take help of experts, watermarks could be imposed on the copies. However, it was not sufficient to rule the possibility of misuse as the victim’s privacy was on the stake. The Court partially allowed the appellant’s prayer by permitting him to get the video inspected by an independent agency like the Central Forensic Science Laboratory. The report would be confidential and not accessible to any other agency or any other person except the accused.
Keeping in mind that the case involved a conflict between the two parties with respect to their rights of fair trial and privacy respectively the court applied the test of “greater community interest” or “interest of the collective or social order” as referred in Asha Ranjan v. State of Bihar. As both these rights cannot be ignored there is a need to balance the both. The Court in Asha Ranjan, observed that no fundamental right is absolute and is subject to reasonable restrictions. If the public interest has legitimacy to assert a fundamental right, then that right is protected. In no way, can one be denied a fair trial which forms an essential part of Article 21. The test of primacy based upon public interest is dependent on facts and circumstance of each case. Right to fair trial is not absolute, right of the victim is also included in it. I stand by what the court held in this case, that a fair trial is not what the accused wants in the name of fair trial. It must facilitate ultimate justice in the interest of society.
Another landmark judgement in this regard is Mazdoor Kisan Shakti Sanghatan v. Union of India, here the protests were causing significant inconveniences to residents. The protestors do have a fundamental right to protest but the protests were happening in such a way that caused disturbances, discomfort and harassment to residents which violates their right to live a peaceful life under Article 21. Right of both the classes should be protected. The court ordered the NGT not to ban the proceedings but regulate or direct the protestors to hold demonstrations at a particular place to make sure they don’t disturb the residents. In the present case to balance the conflict between the fundamental rights the court accepted the appellant’s prayer partially. The court was conscious of the fact that a magistrate can withhold documents only if they are voluminous. Thus, an electronic record will not attract this proviso under S.207 CrPC. The Court also cannot just handover the video tape to the accused and jeopardize the privacy of the victim. Hence, it has evolved the above-mentioned mechanism to balance both these rights and is justified in authorizing the agency to inspect the video and not the accused directly.
Therefore, in cases where two fundamental rights are in conflict, right of one party cannot be upheld while ignoring the other. Principle of primacy and test of greater public interest should be used to reach a balance. The Court in such cases becomes duty bound to issue suitable directions and safeguards. The pen-drive was considered as a ‘document’ and could be admitted as evidence. Therefore, the accused has the right to know of its contents as this ensures a fair trial. However, the case at hand was of a very sensitive nature, due regard and respect has to be given to the victim’s wishes and rights as well. Her fear of violation of her right to privacy cannot be ignored. Therefore, the court issued suitable directions to uphold the interests of both the parties. It allowed the accused to get the video examined by an investigatory agency but denied giving him the pen-drive directly. Hence, after the agency inspects the video, the accused can use that report to defend himself during the trial. His right to fair trial was not compromised through this and simultaneously the victim’s privacy and dignity was also secured. Thus, the accused’s appeal was partially allowed.
REFERENCES/ CASE LAWS CITED
Hardeep Singh v. State of Punjab, AIR 2014 SC 1400.
Tarun Tyagi v. CBI, AIR 2017 SC 1136.
Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352.
Tukaram S. Dighole v. Manikrao Shivaji Kokate, AIR 2010 SC 965.
Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, AIR 1975 SC 1788.
Shamsher Singh v. State of Haryana, 2016 (1) CLJ (SC) 142.
Asha Ranjan v. State of Bihar, AIR 2017 SC 1079.
Mazdoor Kishan Shakti Sanghatan v. Union of India, AIR 2018 SC 3476.
Name: VAGISHA SAGAR
Internship Batch: MAY BATCH 2
University/ College: SYMBIOSIS LAW SCHOOL, PUME
SEM: BBA LLB II YR SEM IV