Jackson P. v. , S/o. Varghese VS State Of Kerala, Represented By Public Prosecutor, High Court Of Kerala
2024-07-01
A.BADHARUDEEN
body2024
DigiLaw.ai
ORDER : (A. Badharudeen, J.) : This is a petition filed by the petitioner, who is the sole accused in Crime No.130 of 2023 of Narakkal Police Station, which is now pending as S.C. No.1357/2023 on the files of the Fast Track Special Court, North Paravur, under Section 482 of the Code of Criminal Procedure. 2. In this matter, the petitioner impugns order dated19.01.2024 in Crl.M.P. No.15/2024 in S.C.No.1357/2023 on the files of the Fast Track Special Court, North Paravur for trial of offences under the Protection of Children from Sexual Offences Act ('POCSO Act' for short hereinafter). 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 4. As submitted by the learned counsel for the petitioner, Annexure 1 petition was filed under Section 207 of the Code of Criminal Procedure with a prayer to provide copy of the CD produced by the prosecution as part of the final report. Annexure 2 objection raised, contending that the accused would be permitted to watch the CD and the copy of the CD that would contain privacy of the victim could not be given. 5. Addressing Annexures 1 and 2, the trial court passed Annexure 3 order, whereby the defence counsel was permitted to watch the CD in the presence of Special Public Prosecutor in the laptop of the Confidental Assistant of the Court at 2.00 p.m. on24.01.2024. 6. The learned counsel for the petitioner submitted that the accused is entitled to get copies of all documents form part of the final report in view of Section 207 of Code of Criminal Procedure and the decision of the Apex Court in Gopalakrishnan @ Dileep v. Station of Kerala [2019(4) KLT853 SC], is placed to buttress this contention. 7. The learned Public Prosecutor submitted that the specific allegation of the prosecution is that the accused pulled the hands of the defacto complainant with sexual intent and the copy of the CD now asked contains the visuals of the incident and if it is provided, the same would affect the privacy of the victim. 8. Having addressed the rival contentions, the law is well settled as stated in paragraph 44 of the decision in Gopalakrishnan @ Dileep (supra) that the contents of the memory card/pen drive being electronic record must be regarded as a document.
8. Having addressed the rival contentions, the law is well settled as stated in paragraph 44 of the decision in Gopalakrishnan @ Dileep (supra) 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 there of 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 sides. 9. When the impugned order is perused, the same doesn't say whether the CD contains anything affecting the privacy of the victim in any manner. Therefore, the impugned order stands set aside with a direction to the Special Court to consider the prayer afresh on analysing as to whether the CD contain anything which would affect privacy of the victim. If the CD does not contain anything affecting the privacy of the victim, copy of the same shall be given to the accused, since he is legally entitled for the same. If the same contains anything which would affect the privacy of the defacto complainant, recording the said fact, the trial court shall allow the accused and his counsel to watch the CD by providing a date convenient to them so as to proceed with the trial of the case without much delay. Final decision as directed herein above shall be taken within two weeks from the date of receipt of a copy of this order. Holding so, this Crl.M.C. stands disposed of. Registry is directed to forward a copy of this order to the trial court for information and compliance.