The Supreme Court on Friday allowed Malayalam actor Dileep, an accused in the kidnap of an actress and sexual assault on her two years ago, to either personally inspect the contents of a memory card containing visuals of the attack, in the court or seek a second opinion about its genuineness from an independent agency like the Central Forensic Science Laboratory (CFSL).
A Bench of Justices A.M. Khanwilkar and Dinesh Maheshwari, however, did not allow the actor’s request for a cloned copy of the memory card.
The court, firstly, upheld the view that the memory card, an electronic evidence, was indeed a “document.” In the ordinary course, an accused ought to have access to it to prepare his defence during trial. All documents produced on record by the prosecution before the court should be shared with the accused to even the scales.
However, the top court said, in this case, Mr. Dileep’s right to fair trial has to be balanced with the survivor’s right to privacy. “It is imperative to adopt an approach, which would balance both the rights,” Justice Khanwilkar, who authored the 58-page verdict, reasoned.
The court said it was necessary to evolve a mechanism by which both the rights are protected. Towards this end, the Bench allowed Mr. Dileep to formulate his queries about the “credibility and genuineness” of the memory card with the help of an IT expert and send it to the forensic laboratory for an independent opinion. The report of the CFSL would be kept confidential and accessed only by Dileep or his authorised representative till the end of the trial. The second and independent forensic opinion can be used by the accused to “confront the prosecution witnesses, including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.”
The other option the apex court laid out for the accused was for him to directly inspect the memory card. “If the accused himself or his lawyer, additionally, intends to inspect the contents of the memory card/pen drive in question, he can request the Magistrate to provide him inspection in court, if necessary, even for more than once along with his lawyer and I.T. expert to enable him to effectively defend himself during the trial,” the apex court ordered.
The court said the Magistrate could use “judicious discretion with objectivity” if such an application for inspection makes its way to the court.
“While allowing the accused and his lawyer or authorised IT expert, all care must be taken that they do not carry any devices, much less electronic devices, including mobile phone, which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen drive in any manner,” the court directed.
”Such a multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution,” Justice Khanwilkar concluded.