In a criminal writ petition filed before the Bombay High Court to challenge an order dated 02-05-2022 by the Children’s Court, Panaji, Goa, whereby the petitioner was refused a clone copy of the electronic record relied in the charge-sheet and the IO was directed to supply data except the gallery of photos and videos while only allowing the petitioner to view the same in court premises under pretext of victim’s privacy and prevention of misuse, a Single Judge Bench of Justice S.G. Chapalgaonkar partly allowed the writ petition and modified the impugned order while permitting the petitioner to seek a second expert opinion from an independent agency.
On a complaint made by the victim girl’s father for criminal trespassing, molesting the victim by touching her private part and threating of dire consequences, the petitioner was arrested and charged for offences punishable under Sections 451, 354, 376, 506(ii) of the Indian Penal Code, 1860 (IPC) read with Section 8 of the Goa Children’s Act, 2003, and Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). After investigation, a charge-sheet was filed against the petitioner that contained electronic evidence.
On 09-12-2019, the petitioner applied under Section 207 of CrPC for a clone or mirror image of the data on the mobile phone referred to in the charge-sheet. The IO offered a cloned copy, and on 14-12-2021 an order directed the IO to bring a laptop and CD, make a copy and hand it to the accused in the presence of the Public Prosecutor and the accused’s Advocate. However, on 02-05-2022, a successor Judge issued a letter directing the officer to provide the data except the gallery of photos and videos, and permitted the petitioner or his Advocate to view those only in court premises, to protect privacy and prevent misuse. That letter nullified the order of 14-12-2021.
The Court found it trite that accused has a right to claim copies of documents or request Court for production of documents which form part of charge-sheet so that he has a chance of fair defence. It was stated that tape records of speeches and audio/video cassettes including CDs are regarded as documents within Section 3 of the 1872 Act and stand on no different footing than photos. It was also stated that since CrPC was an ongoing statute, Courts are required to adopt construction with continuous updates compatible with contemporary situation.
It was stated that all documents including electronic record produced for inspection of Court along with police report on which prosecution proposes to use against accused needs to be furnished to accused as per mandate of Section 207 of CrPC, and that non-supply of the same would impinge upon the statutory mandate contained in CrPC and the right of accused to fair trial as per Article 21 of the Constitution.
The Court held that the petitioner’s rights had to be balanced against the victim’s privacy, and that supplying a clone copy of the photos and videos could not rule out misuse. It found that password protection and prohibitions on publication and transmission would not be enough, given the advent of technology and easy availability of tools to break security measures. It was stated that in such cases, courts may provide inspection of document to accused or his advocate or any expert of his choice.
Following P. Gopalkrishnan v. State of Kerala and Ors. (2020) 9 SCC 161, the Court stated that the petitioner’s rights could be balanced through another mode, namely a second expert opinion from an independent agency such as the Central Forensic Science Laboratory. It was stated that the forensic report prepared by CFSL or the agency can be kept confidential by not allowing access to any one other than the agency, or the accused or his authorized representative. The Court noted that the petitioner and his advocates were not experts and would have to formulate questions with the help of an expert.
Hence, the Court partly allowed the writ petition and modified the impugned order. The petitioner was permitted to seek a second expert opinion from an independent agency such as the CFSL on specific queries formulated with the help of an expert of his choice. The petitioner, his Advocate and the expert were allowed access to the electronic evidence within Court premises to formulate those queries. The queries, along with a clone copy of the electronic data, were to be forwarded to a reputed forensic laboratory, and the copy was to be returned to Court along with the laboratory report. Lastly, the petitioner was allowed to have access to the electronic record within Court premises, under the supervision of a Court Officer, as directed by the Sessions Court.
