Video is a document or material object
The seminal question considered by the Supreme Court (SC) in P. Gopalkrishnan @ Dileep v The State Of Kerala filed against the Kerala High Court (HC) judgement is whether the contents of the memory card/pen drive in the form of video of an incident in question, submitted to the trial court along with the police report, can be treated as document as such or material object.
The SC was considering the SLP filed against the HC order which declared the contents of the memory card/pen drive as a material object.
What a document is
The definition of document in Section 3(18) of the General Clauses Act states thus: ‘‘3(18) ‘‘document’’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter.
Even the definition of document given in the General Clauses Act would reinforce the position that electronic contents recorded in a memory card/ pen drive ought to be treated as document.
The basis of classifying article as a document depends upon the information which is inscribed on it and not on where it is inscribed.
No copy needs to be given if it is not a document
If the memory card/pen drive is treated as a material object, the question of furnishing the contents of it to the accused by virtue of Section 207 of CrPC read with Section 173 of CrPC, would not arise.
Copy must be given if it is a document
A person tried for such a serious offence of rape or its conspiracy should be furnished with all the material and evidence in advance, which the prosecution proposes to rely on, against him during the trial. That is basic element of justice.
Any other view would not only impinge upon the statutory mandate contained in the CrPC, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.
All documents including electronic record produced for the inspection of the court along with the police report and which prosecution proposes to use against the accused, must be furnished to the accused as per the mandate of law. That is something close to fair disclosure.
Memory card cannot be a material object
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 thereof to enable him/her to present an effective defence during the trial.
The video footage/ clipping contained in such memory card/pen drive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a document and cannot be regarded as a material object.
Video displays something equivalent to direct view
There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed.
A witness, who sees an incident on a recorded visual display, may give evidence of what he saw in the same way as a witness who had a direct view.
Cloned copy of the video can be given
The SC in its judgement decided that all documents including electronic record produced for the inspection of the court along with the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the CrPC.
That means the contents of the memory card/pen drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen drive.
But issuing a copy of the cloned copy may infringe the privacy of the victim. Therefore, a balancing act was done by the SC.
When issue of a copy infringes privacy of the victim
The SC found that a person being tried for a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial.
Any other view would not only impinge upon the statutory mandate contained in the CrPC, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.
Since this was a case involving the issue of privacy of the complainant/witness or his/her identity, the SC decided to allow only inspection of the video document to the accused and his/her lawyer or expert.
The SC therefore directed that if the accused or his lawyer himself intends to inspect the contents of the memory card/pen drive in question, he can request the Magistrate to provide him inspection in court, once or more, along with his lawyer and Information Technology expert to enable him to effectively defend himself during the trial.
Further reading
P. Gopalkrishnan @ Dileep v The State Of Kerala
