Law Web: Supreme Court: Prosecution should give cloned copy of contents of memory card/pen drive to accused

If the accused or his lawyer himself, additionally, intends to

inspect the contents of the memory card/pendrive

in question,

he can request the Magistrate to provide him inspection in Court,

if necessary, even for more than once alongwith his lawyer and

I.T. expert to enable him to effectively defend himself during the

trial. If such an application is filed, the Magistrate must consider

the same appropriately and exercise judicious discretion with

objectivity while ensuring that it is not an attempt by the

accused to protract the trial. While allowing the accused and his

lawyer or authorized I.T. 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/pendrive

in any manner. Such

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.

44. In conclusion, we hold 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 thereof 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 OF 2019

P. Gopalkrishnan @ Dileep Vs State of Kerala

A.M. Khanwilkar, J.

Dated: November 29, 2019.
Citation: AIR 2020 SC 1,2019 SCC OnLine SC 1532.

1. Leave granted.

2. The conundrum in this appeal is: whether the contents of a

memory card/pendrive

being electronic record as predicated in

Section 2(1)(t) of the Information and Technology Act, 2000 (for

short, ‘the 2000 Act’) would, thereby qualify as a “document”

within the meaning of Section 3 of the Indian Evidence Act, 1872

(for short, ‘the 1872 Act’) and Section 29 of the Indian Penal

Code, 1860 (for short, ‘the 1860 Code’)? If so, whether it is

obligatory to furnish a cloned copy of the contents of such

memory card/pendrive

to the accused facing prosecution for an

alleged offence of rape and related offences since the same is

appended to the police report submitted to the Magistrate and

the prosecution proposes to rely upon it against the accused, in

terms of Section 207 of the Code of Criminal Procedure, 1973 (for

short, ‘the 1973 Code’)? The next question is: whether it is open

to the Court to decline the request of the accused to furnish a

cloned copy of the contents of the subject memory card/pendrive

in the form of video footage/clipping concerning the alleged

incident/occurrence of rape on the ground that it would impinge

upon the privacy, dignity and identity of the victim involved in

the stated offence(s) and moreso because of the possibility of

misuse of such cloned copy by the accused (which may attract

other independent offences under the 2000 Act and the 1860

Code)?

3. The appellant has been arrayed as accused No. 8 in

connection with offence registered as First Information Report

(FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable

under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860

Code and Sections 66E and 67A of the 2000 Act, concerning the

alleged incident/occurrence at around 2030 hrs. to 2300 hrs. on

17.2.2017, as reported by the victim.

4. For considering the questions arising in this appeal, suffice

it to observe that the investigating officer attached to the

Nedumbassery Police Station, Ernakulam, Kerala, after recording

statements of the concerned witnesses and collecting the relevant

evidence, filed police reports under Section 173 of the 1973 Code

before the Judicial First Class Magistrate, Angamaly. First police

report, on 17.4.2017 and the second, on 22.11.2017. When the

appellant was supplied a copy of the second police report on

15.12.2017, all documents noted in the said report, on which the

prosecution proposed to rely, were not supplied to the appellant,

namely, (i) electronic record (contents of memory card); (ii)

Forensic Science Laboratory (for short, ‘the FSL’) reports and the

findings attached thereto in C.D./D.V.D.; (iii) medical reports;

C.C.T.V. footages and (iv) Call data records of accused and

various witnesses etc.

5. It is noted by the concerned Magistrate that the visuals

copied and documented by the forensic experts during the

forensic examination of the memory card were allowed to be

perused by the appellant’s counsel in the presence of the regular

cadre Assistant Public Prosecutor of the Court, in the Court

itself. After watching the said visuals, some doubts cropped up,

which propelled the appellant to file a formal application before

the Judicial First Class Magistrate, Angamaly for a direction to

the prosecution to furnish a cloned copy of the contents of

memory card containing the video and audio footage/clipping, in

the same format as obtained in the memory card, alongwith the

transcript of the human voices, both male and female recorded in

it. In the said application, the appellant inter alia asserted as

follows:“

7. It may be noted that the electronic record in the

form of copy of the alleged video footage of the offending act

committed by accused No.1 on the body and person of the

defacto complainant is a crucial and material record relied

by the prosecution in this case. It is the definite contention

of prosecution that the above electronic record is both the

evidence of commission of crime as well as the object of

commission of crime and hence indisputably the most

material piece of evidence in this case. When the injustice,

in not serving such a vital piece of evidence relied on by the

prosecution in the case, was immediately brought to the

notice of this Hon’ble Court, without prejudice to the right

of petitioner to obtain copies of the same, the defence side

was allowed to watch the alleged video footages by playing

the contents of a pen drive in the lap top made available

before this Hon’ble Court. Head phones were also provided

to the counsel and also to the learned APP who also was

throughout present during this proceedings.

8. It is most respectfully submitted that by watching

the video footage, although in a restricted environment and

with limited facilities in the presence of the Ld. APP and the

Presiding Officer, it is shockingly realised that the visuals

and audio bytes contained in the video are of such a nature

which would completely falsify the prosecution case in the

form presently alleged by the prosecution. As a matter of

fact the video footage is not at all an evidence of

commission of crime as falsely contended by the

prosecution but it is rather a clear case of fabricating false

evidence with intent to foist a false case. It is submitted

that it is after deliberately concealing or withholding the

alleged primary evidence viz. the mobile phone stated to

have been used by accused No.1, by the prosecution in

active connivance with accused No.1, that the prosecution

has produced a memory card which evidently contains only

selected audio and video recording.

9. xxx xxx xxx

10. ……The further Verification and close scrutiny of

the images and audio with scientific aid will in all

probability provide more significant materials necessary to

find out the truth behind the recorded images and the

extent of tampering and the same could only be unearthed

if the mirror copy of the memory card is furnished to the

petitioner which he is entitled to get without any further

delay. As the prosecution is fully aware that the tampering

could be detected and further female voice could be

retrieved by the defense, the prosecution is trying to

prevent the supply of the copy of the memory card in any

form to the defense. It is illegal and the same will clearly

amount to denial of a just and fair trial.

11. xxx xxx xxx

12. A close scrutiny of the contents of mahazar dated

8.3.2017 would show that on 18.2.2017 accused No.1 had

entrusted a 8 GB memory card to Adv. E.G. Poulose, who

had in turn produced the same before the Court of JFCM

Aluva. The investigating agency thereafter obtained custody

of the above electronic record and later the 8 GB memory

card was sent to FSL, where, upon examination, Dr. Sunil

S.P., Assistant director (documents), FSL,

Thiruvananthapuram has allegedly prepared a report in

that regard. The copy of the report has not been furnished

to the petitioner. The mahazar further shows that the

contents of Memory card was transferred to a pen drive for

the investigation purpose. The above mahazar further

categorically states that the pen drive contained the data

transferred from memory card and the same relates to the

video footage of 17.2.2017 from 22:30:55 to 22:48:40 hrs

and it is in order to check and verify whether the voice

contained therein belongs to Suni that the voice sample

was allegedly taken. The description in the mahazar

proceeds as if there is only male voice in the video footage

totally screening the fact that the video footage contains

many vital and material utterances in female voice. Those

utterances were revealed to the petitioner and his counsel

only on 15.12.2017. Everybody present had the benefit of

hearing the said clear female voice. As mentioned earlier

the Ld. APP was also present. But the investigation agency

which should have definitely seen and heard the same has

for obvious reason screened the said material aspects from

the records. The investigation, it appears did not venture to

take steps to compare the female voice in the video footage

with the voice of the female involved in this case, for

obvious reasons. On viewing and hearing, it is revealed that

clear attempt have been made by somebody to delete major

portions from the video footage and from the audio

recording.

13. It is respectfully submitted that utterances made

by the parties involved and seen in the video footage

determines the nature of act recorded in the video footage

and a transcript of the utterances and human voices in the

video footage is highly just and necessary especially in view

of the shocking revelation, found when the video footage

was played on 15.12.2017.

14. Yet another aspect which is to be pointed out is

the mysterious disappearance of the mobile phone allegedly

used for recording the video footage. The strong feeling of

the petitioner is that the investigating agency has not so far

stated the truth regarding the mobile phone allegedly used

to shot the video footage. The prosecution records itself

would strongly indicate that the mobile phone used to

record the occurrence (which now turns out to be a drama)

was with the Police or with the persons who are behind the

fabrication of the video footage as evidence to launch the

criminal prosecution and false implication of the petitioner.

It is revolting to common sense to assume that even after

conducting investigation for nearly one year by a team

headed by a very Senior Police officer like the Addl. DGP of

the Stage, during which accused No.1 was in the custody of

the investigating team for 14 days at a stretch and

thereafter for different spells of time on different occasions

the original mobile instrument used for recording the video

footage could not be unearthed. It appears that the

investigating team was a willing agent to suffer the wrath of

such a disgrace in order to suppress the withholding of the

mobile instrument.

15. It is interesting to note that even in the second

final report dated 22.11.2017 the Police has stated that the

investigation to obtain the original mobile phone is even

now continuing. It is nothing but an attempt to be fool

everybody including the Court.

16. It is most respectfully submitted that in view of

the startling revelation in the video footage, the petitioner

intends to make request to conduct proper, just and

meaningful investigation into the matter so as to ensure

that the real truth is revealed and the real culprits in this

case are brought to justice. For enabling the petitioner to

take steps in that regard. It is highly just and essential that

the cloned copy of the contents of memory card containing

the video and audio content in the same format as obtained

in the Memory card and the transcript of the human voices

recorded in it are produced before Court and copy of the

same furnished forthwith to the petitioner.

17. As mentioned herein before, the prosecution has

chosen to furnish only a small portion of the prosecution

records on 15.12.2017. The petitioner is approaching this

Hon’ble Court with a detailed petition stating the details of

relevant documents which do not form part of the records

already produced before this Hon’ble Court and the details

of the other documents which are not furnished to

petitioner.

18. It is submitted that the petitioner as an accused is

legally entitled to get the copies of all documents including

the CDs, Video footage etc., and the prosecution is bound

to furnish the same to the petitioner.

19. In the above premises it is respectfully prayed

that this Hon’ble Court may be pleased to direct the

prosecution to furnish a cloned copy of the contents of

Memory Card containing the video and audio content in the

same format as obtained in the memory card and the

transcript of human voices, both male and female recorded

in it, and furnish the said cloned copy of the memory card

and the transcript to the petitioner.”

6. The Magistrate vide order dated 7.2.2018, rejected the said

application, essentially on the ground that acceding to the

request of the appellant would be impinging upon the esteem,

decency, chastity, dignity and reputation of the victim and also

against public interest. The relevant portion of the order dated

7.2.2018 reads thus:“

Heard both sides in detail.

The petitioner has also filed reply statement to the

objection and counter statement filed by Special Public

Prosecutor in the case. The allegation against the petitioner

is that he engaged the first accused to sexually assault the

victim and videograph the same. On receipt of summons the

petitioner entered appearance and was served with the

copies of prosecution records. The learned Senior Counsel

appearing for the petitioner requested for the copies of the

contents of memory card. The same could not be allowed &

the investigation official has already a petition filed objecting

the same, with a prayer to permit them to view the same in

the court. Hence they were permitted to view the video

footage and subsequent to the same they had filed this

petition seeking a direction to the prosecution to furnish the

copies of alleged audio and video footage and its transcript.

The prosecution strongly opposed the same stating that the

same will add insult to the victim who had suffered a lot at

the hands of not only the accused but also the media. Hence

they submitted that the petitioner may be permitted to view

the contents of the video during trial.

Here the offence alleged tantamounts to a serious blow to

the supreme honour of a woman. So as to uphold the

esteem, decency, chastity, dignity and reputation of the

victim, and also in the public interest, I am declining the

prayer. But so as to ensure fairness in the proceedings and

for just determination of the truth, the petitioner is

permitted to inspect the contents of the video footage at the

convenience of court.”

7. Aggrieved by the above decision, the appellant carried the

matter to the High Court of Kerala at Ernakulam (for short, ‘the

High Court’) by way of Crl.M.C. No. 1663/2018. The learned

single Judge of the High Court dismissed the said petition and

confirmed the order of the Magistrate rejecting the stated

application filed by the appellant. The High Court, however, after

analyzing the decisions and the relevant provisions cited before

it, eventually concluded that the seized memory card was only

the medium on which the alleged incident was recorded and

hence that itself is the product of the crime. Further, it being a

material object and not documentary evidence, is excluded from

the purview of Section 207 of the 1973 Code. The relevant

discussion can be discerned from paragraph 41 onwards, which

reads thus:“

41. This leads to the crucial question that is to be

answered in this case. Evidently, the crux of the prosecution

allegation is that, offence was committed for the purpose of

recording it on a medium. Memory card is the medium on

which it was recorded. Hence, memory card seized by the

police itself is the product of the crime. It is not the contents

of the memory card that is proposed to be established by the

production of the memory card. The acts of sexual abuse is

to be established by the oral testimony of the victim and

witnesses. It is also not the information derived from the

memory card that is sought to be established by the

prosecution. Prosecution is trying to establish that the

alleged sexual abuse was committed and it was recorded.

Though, in the course of evidence, contents of it may be

sought to be established to prove that, it was the memory

card created by the accused, contemporaneously recorded

on the mobile, along with the commission of offence, that

does not by itself displace the status of the memory card as a

document. Memory card itself is the end product of the

crime. It is hence a material object and not a documentary

evidence. Hence, it stands out of the ambit of section 207

Cr.P.C.

42. The evaluation of the above legal propositions

clearly spells out that, the memory card produced in this

case is not a document as contemplated under section

307 IPC [sic 207 Cr.P.C.]. In fact, it is in the nature of a

material object. Hence, copy of it cannot be issued to the

petitioner herein.

43. Prosecution has a case that, though accused is

entitled for his rights, it is not absolute and even outside

section 207 Cr.P.C., there can be restrictions regarding the

right under section 207 Cr.P.C. It was contended that, if the

above statutory provision infringes the right of privacy of the

victim involved, fundamental right will supersede the

statutory right of the accused. Definitely, in case of Justice

K.S. Puttaswamy (Retd.) and Another v. Union of India and

Ors. (2017) 10 SCC 1 (at page 1), the Constitutional Bench of

the Supreme Court had held that the fundamental rights

emanate from basic notions of liberty and dignity and the

enumeration of some facets of liberty as distinctly protected

rights under Art. 19 does not denude Art.21 of its expansive

ambit. It was held that, validity of a law which infringes the

fundamental rights has to be tested not with reference to the

object of state action, but on the basis of its effect on the

guarantees of freedom. In Sherin V. John’s case (supra), this

Court had held that, when there is a conflict between

Fundamental Rights of a person and statutory rights of

another person, Fundamental Rights will prevail. The

possibility of such contention may also arise. Since that

question does not arise in this case in the light of finding

under section 207 Cr.P.C. I do not venture to enter into that

issue.

44. Having considered the entire issue, I am inclined to

sustain the order of the court below in Crl.M.P. No.49 of

2018 in C.P. No.16 of 2017 dismissing the application,

though on different grounds. However, this will not preclude

the Court from permitting the accused to watch the memory

card only in Court, subject to restrictions, to prepare

defence.”

(emphasis supplied)

8. The appellant being dissatisfied, has assailed the reasons

which found favour with the trial Court, as well as the High

Court. The appellant broadly contends that the prosecution case

is founded on the forensic report which suggests that eight video

recordings were retrieved from the memory card and that the

video files were found to be recorded on 17.2.2017 between

22:30:55 hrs. and 22:48:40 hrs. The same were transferred to

the stated memory card on 18.2.2017 between 09:18 hrs. and

09:20 hrs. Be it noted that the original video recording was

allegedly done by accused No. 1 on his personal mobile phone,

which has not been produced by the investigating agency.

However, the memory card on which the offending video

recording was copied on 18.2.2017 was allegedly handed over by

an Advocate claiming that the accused No. 1 had given it to him.

He had presented the memory card before the Court on

20.2.2017, which was sent for forensic examination at State FSL,

Thiruvananthapuram. After forensic examination, the same was

returned alongwith FSL report DD No. 91/2017 dated 3.3.2017

and DD No. 115/2017 dated 7.4.2017. A pendrive

containing

the data/visuals retrieved from the memory card, was also

enclosed with the report sent by the State FSL.

9. Be that as it may, the prosecution was obviously relying on

the contents of the memory card which have been copied on the

pendrive

by the State FSL during the analysis thereof and has

been so adverted to in the police report. The contents of the

memory card, which are replicated in the pendrive

created by

the State FSL would be nothing but a “document” within the

meaning of the 1973 Code and the provisions of the 1872 Act.

And since the prosecution was relying on the same and proposes

to use it against the accused/appellant, it was incumbent to

furnish a cloned copy of the contents thereof to the

accused/appellant, not only in terms of Section 207 read with

Section 173(5) of the 1973 Code, but also to uphold the right of

the accused to a fair trial guaranteed under Article 21 of the

Constitution of India. The trial Court rejected the request of the

appellant on the ground that it would affect the privacy and

dignity of the victim, whereas, the High Court proceeded on the

basis that the memory card is a material object and not a

“document”. It is well known that a cloned copy is not a

photocopy, but is a mirror image of the original, and the accused

has the right to have the same to present his defence effectively.

In the alternative, it is submitted, that the Court could have

imposed appropriate conditions while issuing direction to the

prosecution to furnish a cloned copy of the contents of memory

card to the accused/appellant.

10. Per contra, the respondentState

and the intervenor (the

victim) have vehementaly opposed the present appeal on the

argument that the appellant before this Court is none other than

the mastermind

of the conspiracy. Although he was not

personally present on the spot, but the entire incident has

occurred at his behest. It is urged that the appeal deserves to be

dismissed as the appellant has disclosed the identity of the

victim in the memo of the special leave petition from which the

present appeal has arisen. Further, the appellant has falsely

asserted that he had himself perused the contents of the pendrive

and even for this reason, the appeal should be dismissed at

the threshold. As a matter of fact, the contents of the pendrive

were allowed to be viewed by the appellant’s counsel and the

regular cadre Assistant Public Prosecutor of the Court. The

asservation of the appellant that after viewing the contents of the

pendrive,

he gathered an impression that the contents of the

memory card must have been tampered with, is the figment of

imagination of the appellant and contrary to forensic report(s) by

the State FSL. The definite case of the respondent is that the

memory card seized in this case containing the visuals of sexual

violence upon the victim is a material object and the pendrive

into which the contents of memory card were documented

through the process of copying by the State FSL and sent to the

Court for the purpose of aiding the trial Court to know the

contents of the memory card and the contents of the said pendrive

is both material object as well as “document”. It is also

urged that the visual contents of the pendrive

would be physical

evidence of the commission of crime and not “document” per se

to be furnished to the accused alongwith the police report. The

contents of the memory card or the pendrive

cannot be parted to

the accused and doing so itself would be an independent offence.

Moreover, if a cloned copy of the contents of the memory card is

made available to the accused/appellant, there is reason to

believe that it would be misused by the accused/appellant to

execute the conspiracy of undermining the privacy and dignity of

the victim. It is urged that the appellant has relied on certain

decisions to contend that the contents of the memory card must

be regarded as “electronic record” and, therefore, a “document”.

The exposition in those decisions are general observations and

would be of no avail to the appellant. The appellant is facing

prosecution for an offence of rape, and the trial thereof would be

an incamera

trial before the Special Court. To maintain the

sanctity and for upholding the privacy, dignity and identity of the

victim, it is urged that the accused/appellant in such cases can

seek limited relief before the trial Court to permit him and his

lawyer or an expert to view the contents of the pendrive

in Court

or at best to permit him to take a second opinion of expert to

reassure himself in respect of the doubts entertained by him.

Such indulgence would obviate the possibility of misuse of the

cloned copy of the video/audio footage/clipping and the same

would be in the nature of a preventive measure while giving a fair

opportunity to the accused to defend himself. The respondent

and the intervenor would urge that the appeal be dismissed

being devoid of merits.

11. As aforesaid, both sides have relied on reported decisions of

this Court, as well as the High Courts and on the provisions of

the relevant enactments to buttress the submissions. We shall

refer thereto as may be required.

12. We have heard Mr. Mukul Rohatgi, learned senior counsel

for the appellant, Mr. Ranjit Kumar, learned senior counsel for

the respondentState

and Mr. R. Basant, learned senior counsel

for the intervenor.

13. The central issue is about the obligation of the investigating

officer flowing from Section 173 of the 1973 Code and that of the

Magistrate while dealing with the police report under Section 207

of the 1973 Code. Section 173 of the 1973 Code ordains that the

investigation under Chapter XII of the said Code should be

completed without unnecessary delay and as regards the

investigation in relation to offences under Sections 376, 376A,

376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860

Code, the same is required to be completed within two months

from the date on which the information was recorded by the

officer in charge of the police station. The investigating officer

after completing the investigation, is obliged to forward a copy of

the police report to a Magistrate empowered to take cognizance of

the offence on such police report. Alongwith the police report,

the investigating officer is also duty bound to forward to the

Magistrate “all documents” or relevant extracts thereof, on which

prosecution proposes to rely other than those sent to the

Magistrate during investigation. Similarly, the statements

recorded under Section 161 of all the persons whom the

prosecution proposes to examine as its witnesses, are required to

be forwarded to the Magistrate alongwith the police report.

Indeed, it is open to the police officer, if in his opinion, any part

of the “statement” is not relevant to the subject matter of the

proceedings or that its disclosure to the accused is not essential

in the interests of justice and is inexpedient in public interest, to

indicate that part of the “statement” and append a note

requesting the Magistrate to exclude that part from the copies to

be granted to the accused and stating his reasons for making

such request. That discretion, however, is not given to him in

respect of the “documents” or the relevant extracts thereof on

which the prosecution proposes to rely against the accused

concerned. As regards the documents, subSection

(7) enables

the investigating officer, if in his opinion it is convenient so to do,

to furnish copies of all or any of the documents referred to in

subSection

(5) to the accused. Section 173, as amended and

applicable to the case at hand, reads thus:‘‘

173. Report of police officer on completion of

investigation.—(1) Every investigation under this Chapter

shall be completed without unnecessary delay.

(1A) The investigation in relation to an offence under sections

376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or

376E of the Indian Penal Code (45 of 1860) shall be

completed within two months from the date on which the

information was recorded by the officer in charge of the

police station.

(2) (i) As soon as it is completed, the officer in charge of the

police station shall forward to a Magistrate empowered to

take cognizance of the offence on a police report, a report in

the form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed

and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so,

whether with or without sureties;

(g) whether he has been forwarded in custody under

section 170;

(h) whether the report of medical examination of the

woman has been attached where investigation relates to

an offence under sections 376, 376A, 376AB, 376B,

376C, 376D, 376DA, 376DB or section 376E of the

Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as

may be prescribed by the State Government, the action

taken by him, to the person, if any, by whom the

information relating to the commission of the offence was

first given.

(3) Where a superior officer of police has been appointed

under section 158, the report, shall, in any case in which the

State Government by general or special order so directs, be

submitted through that officer, and he may, pending the

orders of the Magistrate, direct the officer in charge of the

police station to make further investigation.

(4) Whenever it appears from a report forwarded under this

section that the accused has been released on his bond, the

Magistrate shall make such order for the discharge of such

bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which

section 170 applies, the police officer shall forward to

the Magistrate along with the report—

(a) all documents or relevant extracts thereof on

which the prosecution proposes to rely other than

those already sent to the Magistrate during

investigation;

(b) the statements recorded under section 161 of all

the persons whom the prosecution proposes to

examine as its witnesses.

(6) If the police officer is of opinion that any part of any

such statement is not relevant to the subjectmatter

the proceedings or that its disclosure to the accused is

not essential in the interests of justice and is

inexpedient in the public interest, he shall indicate that

part of the statement and append a note requesting the

Magistrate to exclude that part from the copies to be

granted to the accused and stating his reasons for

making such request.

(7) Where the police officer investigating the case finds it

convenient so to do, he may furnish to the accused

copies of all or any of the documents referred to in subsection

(5).

(8) Nothing in this section shall be deemed to preclude

further investigation in respect of an offence after a report

under subsection

(2) has been forwarded to the Magistrate

and, where upon such investigation, the officer in charge of

the police station obtains further evidence, oral or

documentary, he shall forward to the Magistrate a further

report or reports regarding such evidence in the form

prescribed; and the provisions of subsections

(2) to (6) shall,

as far as may be, apply in relation to such report or reports

as they apply in relation to a report forwarded under subsection

(2).’’

(emphasis supplied)

14. Concededly, as regards the “documents” on which the

prosecution proposes to rely, the investigating officer has no

option but to forward “all documents” to the Magistrate alongwith

the police report. There is no provision (unlike in the case of

“statements”) enabling the investigating officer to append a note

requesting the Magistrate, to exclude any part thereof

(“document”) from the copies to be granted to the accused. SubSection

(7), however, gives limited discretion to the investigating

officer to forward copies of all or some of the documents, which

he finds it convenient to be given to the accused. That does not

permit him to withhold the remaining documents, on which the

prosecution proposes to rely against the accused, from being

submitted to the Magistrate alongwith the police report. On the

other hand, the expression used in Section 173(5)(a) of the 1973

Code makes it amply clear that the investigating officer is obliged

to forward “all” documents or relevant extracts on which the

prosecution proposes to rely against the accused concerned

alongwith the police report to the Magistrate.

15. On receipt of the police report and the accompanying

statements and documents by virtue of Section 207 of the 1973

Code, the Magistrate is then obliged to furnish copies of each of

the statements and documents to the accused. Section 207

reads thus:22

‘‘ 207. Supply to the accused of copy of police report

and other documents.—In any case where the proceeding

has been instituted on a police report, the Magistrate shall

without delay furnish to the accused, free of cost, a copy of

each of the following:—

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under subsection

(3) of section

161 of all persons whom the prosecution proposes to

examine as its witnesses, excluding therefrom any part in

regard to which a request for such exclusion has been made

by the police officer under subsection

(6) of section 173;

(iv) the confessions and statements, if any, recorded under

section 164;

(v) any other document or relevant extract thereof forwarded

to the Magistrate with the police report under subsection

(5)

of section 173:

Provided that the Magistrate may, after perusing any

such part of a statement as is referred to in clause (iii) and

considering the reasons given by the police officer for the

request, direct that a copy of that part of the statement or of

such portion thereof as the Magistrate thinks proper, shall

be furnished to the accused:

Provided further that if the Magistrate is satisfied that

any document referred to in clause (v) is voluminous, he

shall, instead of furnishing the accused with a copy thereof,

direct that he will only be allowed to inspect it either

personally or through pleader in Court.’’

As regards the statements, the first proviso enables the

Magistrate to withhold any part thereof referred to in clause (iii),

from the accused on being satisfied with the note and the

reasons specified by the investigating officer as predicated in

subSection

(6) of Section 173. However, when it comes to

furnishing of documents submitted by the investigating officer

alongwith police report, the Magistrate can withhold only such

document referred to in clause (v), which in his opinion, is

“voluminous”. In that case, the accused can be permitted to take

inspection of the concerned document either personally or

through his pleader in Court. In other words, Section 207 of the

1973 Code does not empower the Magistrate to withhold any

“document” submitted by the investigating officer alongwith the

police report except when it is voluminous. A fortiori, it

necessarily follows that even if the investigating officer appends

his note in respect of any particular document, that will be of no

avail as his power is limited to do so only in respect of

‘statements’ referred to in subSection

(6) of Section 173 of the

1973 Code.

16. Be that as it may, the Magistrate’s duty under Section 207

at this stage is in the nature of administrative work, whereby he

is required to ensure full compliance of the Section. We may

usefully advert to the dictum in Hardeep Singh v. State of

Punjab1 wherein it was held that:“

47. Since after the filing of the chargesheet,

the court

reaches the stage of inquiry and as soon as the court

frames the charges, the trial commences, and therefore, the

power under Section 319(1) CrPC can be exercised at any

time after the chargesheet

is filed and before the

pronouncement of judgment, except during the stage of

Sections 207/208 CrPC, committal, etc. which is only a

pretrial

stage, intended to put the process into motion.

This stage cannot be said to be a judicial step in the true

sense for it only requires an application of mind rather

than a judicial application of mind. At this pretrial

stage,

the Magistrate is required to perform acts in the nature

of administrative work rather than judicial such as

ensuring compliance with Sections 207 and 208 CrPC, and

committing the matter if it is exclusively triable by the

Sessions Court ... … …”

(emphasis supplied)

In yet another case of Tarun Tyagi vs. CBI2, this Court

considered the purport of Section 207 of the 1973 Code and

observed as follows:“

8. Section 207 puts an obligation on the prosecution to

furnish to the accused, free of cost, copies of the

documents mentioned therein, without any delay. It

includes, documents or the relevant extracts thereof which

are forwarded by the police to the Magistrate with its report

under Section 173(5) of the Code. Such a compliance has

to be made on the first date when the accused appears or

is brought before the Magistrate at the commencement of

the trial inasmuch as Section 238 of the Code warrants the

Magistrate to satisfy himself that provisions of Section 207

have been complied with. Proviso to Section 207 states

that if documents are voluminous, instead of furnishing

the accused with the copy thereof, the Magistrate can allow

1 (2014) 3 SCC 92

2 (2017) 4 SCC 490

the accused to inspect it either personally or through

pleader in the Court.”

17. It is well established position that when statute is

unambiguous, the Court must adopt plain and natural meaning

irrespective of the consequences as expounded in Nelson Motis

v. Union of India3. On a bare reading of Section 207 of the

1973 Code, no other interpretation is possible.

18. Be that as it may, furnishing of documents to the accused

under Section 207 of the 1973 Code is a facet of right of the

accused to a fair trial enshrined in Article 21 of the Constitution.

In Sidhartha Vashisht @ Manu Sharma v. State (NCT of

Delhi)4, this Court expounded thus:“

218. The liberty of an accused cannot be interfered with

except under due process of law. The expression “due

process of law” shall deem to include fairness in trial. The

court (sic Code) gives a right to the accused to receive all

documents and statements as well as to move an

application for production of any record or witness in

support of his case. This constitutional mandate and

statutory rights given to the accused place an implied

obligation upon the prosecution (prosecution and the

Prosecutor) to make fair disclosure. The concept of fair

disclosure would take in its ambit furnishing of a

document which the prosecution relies upon whether filed

in court or not. That document should essentially be

3 (1992) 4 SCC 711

4 (2010) 6 SCC 1

furnished to the accused and even in the cases where

during investigation a document is bona fide obtained by

the investigating agency and in the opinion of the

Prosecutor is relevant and would help in arriving at the

truth, that document should also be disclosed to the

accused.

219. The role and obligation of the Prosecutor particularly

in relation to disclosure cannot be equated under our law

to that prevalent under the English system as aforereferred

to. But at the same time, the demand for a fair trial cannot

be ignored. It may be of different consequences where a

document which has been obtained suspiciously,

fraudulently or by causing undue advantage to the accused

during investigation such document could be denied in the

discretion of the Prosecutor to the accused whether the

prosecution relies or not upon such documents, however in

other cases the obligation to disclose would be more

certain. As already noticed the provisions of Section

207 have a material bearing on this subject and make

an interesting reading. This provision not only require

or mandate that the court without delay and free of

cost should furnish to the accused copies of the police

report, first information report, statements,

confessional statements of the persons recorded under

Section 161 whom the prosecution wishes to examine

as witnesses, of course, excluding any part of a

statement or document as contemplated under Section

173(6) of the Code, any other document or relevant

extract thereof which has been submitted to the

Magistrate by the police under subsection

(5) of

Section 173. In contradistinction to the provisions of

Section 173, where the legislature has used the

expression “documents on which the prosecution

relies” are not used under Section 207 of the Code.

Therefore, the provisions of Section 207 of the Code

will have to be given liberal and relevant meaning so as

to achieve its object. Not only this, the documents

submitted to the Magistrate along with the report

under Section 173(5) would deem to include the

documents which have to be sent to the Magistrate

during the course of investigation as per the

requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure of

documents is a limited right but is codified and is the very

foundation of a fair investigation and trial. On such

matters, the accused cannot claim an indefeasible legal

right to claim every document of the police file or even the

portions which are permitted to be excluded from the

documents annexed to the report under Section 173(2) as

per orders of the court. But certain rights of the accused

flow both from the codified law as well as from equitable

concepts of the constitutional jurisdiction, as substantial

variation to such procedure would frustrate the very basis

of a fair trial. To claim documents within the purview of

scope of Sections 207, 243 read with the provisions of

Section 173 in its entirety and power of the court under

Section 91 of the Code to summon documents signifies and

provides precepts which will govern the right of the accused

to claim copies of the statement and documents which the

prosecution has collected during investigation and upon

which they rely.

221. It will be difficult for the Court to say that the accused

has no right to claim copies of the documents or request

the Court for production of a document which is part of the

general diary subject to satisfying the basic ingredients of

law stated therein. A document which has been obtained

bona fide and has bearing on the case of the prosecution

and in the opinion of the Public Prosecutor, the same

should be disclosed to the accused in the interest of justice

and fair investigation and trial should be furnished to the

accused. Then that document should be disclosed to the

accused giving him chance of fair defence, particularly

when nonproduction

or disclosure of such a document

would affect administration of criminal justice and the

defence of the accused prejudicially.”

(emphasis supplied)

19. Similarly, in V.K. Sasikala v. State5, this Court held as

under:“

21. The issue that has emerged before us is, therefore,

somewhat larger than what has been projected by the State

and what has been dealt with by the High Court. The

5 (2012) 9 SCC 771

question arising would no longer be one of compliance

or noncompliance

with the provisions of Section 207

CrPC and would travel beyond the confines of the strict

language of the provisions of Cr.PC and touch upon the

larger doctrine of a free and fair trial that has been

painstakingly built up by the courts on a purposive

interpretation of Article 21 of the Constitution. It is not

the stage of making of the request; the efflux of time that

has occurred or the prior conduct of the accused that is

material. What is of significance is if in a given situation

the accused comes to the court contending that some

papers forwarded to the court by the investigating agency

have not been exhibited by the prosecution as the same

favours the accused the court must concede a right to the

accused to have an access to the said documents, if so

claimed. This, according to us, is the core issue in the case

which must be answered affirmatively. In this regard, we

would like to be specific in saying that we find it difficult to

agree with the view taken by the High Court that the

accused must be made to await the conclusion of the trial

to test the plea of prejudice that he may have raised. Such

a plea must be answered at the earliest and certainly

before the conclusion of the trial, even though it may be

raised by the accused belatedly. This is how the scales of

justice in our criminal jurisprudence have to be balanced.”

(emphasis supplied)

20. The next seminal question is: whether the contents of the

memory card/pendrive

submitted to the Court alongwith the

police report can be treated as “document” as such. Indubitably,

if the contents of the memory card/pendrive

are not to be

treated as “document”, the question of furnishing the same to the

accused by virtue of Section 207 read with Section 173 of the

1973 Code would not arise. We say so because it is nobody’s

case before us that the contents of the memory card/pendrive

be treated as a “statement” ascribable to Section 173(5)(b) of the

1973 Code. Notably, the command under Section 207 is to

furnish “statements” or “documents”, as the case may be, to the

accused as submitted by the investigating officer alongwith the

police report, where the prosecution proposes to rely upon the

same against the accused.

21. The High Court adverted to certain judgments before

concluding that the memory card would be a material object. For

arriving at the said conclusion, the High Court relied on the

decision of the King’s Bench of United Kingdom in The King v.

Daye6, wherein Darling J., adding to the majority opinion, had

held thus:“…

But I should myself say that any written thing

capable of being evidence is properly described as a

document and that it is immaterial on what the writing

may be inscribed. It might be inscribed on paper, as is

the common case now; but the common case once was

that it was not on paper, but on parchment; and long

before that it was on stone, marble, or clay, and it

might be, and often was, on metal. So I should desire to

guard myself against being supposed to assent to the

argument that a thing is not a document unless it be a

paper writing. I should say it is a document no matter

upon what material it be, provided it is writing or printing

and capable of being evidence.”

(emphasis supplied)

6 [1908] 2 K.B. 333

The High Court also relied on the decision of the Chancery Court

in Grant and Another v. Southwester and County Properties

Ltd. and Another7, wherein it was observed as follows:“

There are a number of cases in which the meaning of

the word "document" has been discussed in varying

circumstances. Before briefly referring to such cases, it

will, I think, be convenient to bear in mind that the

derivation of the word is from the Latin "documentum": it is

something which instructs or provides information. Indeed,

according to Bullokar's English Expositor (1621), it meant

a lesson. The Shorter Oxford English Dictionary has as the

fourth meaning for the word the following: "Something

written, inscribed, etc., which furnishes evidence or

information upon any subject, as a manuscript, titledeed,

coin, etc.," and it produces as the relevant quotation: "

These frescoes... have become invaluable as documents,"

the writer being Mrs. Anna Brownell Jameson who lived

from 1794 to 1860.

I think that all the authorities to which I am about to

refer have consistently stressed the furnishing of

information impliedly

otherwise than as to the document

itself as

being one of the main functions of a document.

Indeed, in In Re Alderton and Barry's Application (1941) 59

R.P.C. 56, Morton J. expressly doubted whether blank

workmen's time sheets could be classified as documents

within section 11(1)(b) of the Patent and Design Acts 19071939

expressly because in their original state they

conveyed no information of any kind to anybody...”

It can be safely deduced from the aforementioned expositions

that the basis of classifying article as a “document” depends

upon the information which is inscribed and not on where it is

inscribed. It may be useful to advert to the exposition of this

7 [1975] Ch. 185

Court holding that tape records of speeches8 and audio/video

cassettes9 including compact disc10 were “documents” under

Section 3 of the 1872 Act, which stand on no different footing

than photographs and are held admissible in evidence. It is by

now well established that the electronic record produced for the

inspection of the Court is documentary evidence under Section 3

of the 1872 Act11.

22. It is apposite to recall the exposition of this Court in State

of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court

observed that the Criminal Procedure Code is an ongoing statute.

In case of an ongoing statute, it is presumed that the Parliament

intended the Court to apply a construction that continuously

updates its wordings to allow for changes and is compatible with

the contemporary situation. In paragraph 14 of the said

decision, the Court observed thus:“

14. It must also be remembered that the Criminal

Procedure Code is an ongoing statute. The principles of

interpreting an ongoing statute have been very succinctly

8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329

9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17

10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485

11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

12 (2003) 4 SCC 601

set out by the leading jurist Francis Bennion in his

commentaries titled Statutory Interpretation, 2nd Edn., p.

617:

“It is presumed Parliament intends the court to apply to

an ongoing Act a construction that continuously

updates its wordings to allow for changes since the Act

was initially framed. While it remains law, it has to be

treated as always speaking. This means that in its

application on any day, the language of the Act though

necessarily embedded in its own time, is nevertheless to

be construed in accordance with the need to treat it as a

current law.

***

In construing an ongoing Act, the interpreter is to

presume that Parliament intended the Act to be applied

at any future time in such a way as to give effect to the

original intention. Accordingly, the interpreter is to

make allowances for any relevant changes that have

occurred since the Act's passing, in law, in social

conditions, technology, the meaning of words and other

matters…. That today's construction involves the

supposition that Parliament was catering long ago for a

state of affairs that did not then exist is no argument

against that construction. Parliament, in the wording of

an enactment, is expected to anticipate temporal

developments. The drafter will foresee the future and

allow for it in the wording.

***

An enactment of former days is thus to be read today, in

the light of dynamic processing received over the years,

with such modification of the current meaning of its

language as will now give effect to the original legislative

intention. The reality and effect of dynamic

processing provides the gradual adjustment. It is

constituted by judicial interpretation, year in and

year out. It also comprises processing by executive

officials.””

(emphasis supplied)

23. As aforesaid, the respondents and intervenor would contend

that the memory card is a material object and not a “document”

as such. If the prosecution was to rely only on recovery of

memory card and not upon its contents, there would be no

difficulty in acceding to the argument of the

respondent/intervenor that the memory card/pendrive

is a

material object. In this regard, we may refer to Phipson on

Evidence13, and particularly, the following paragraph(s):“

The purpose for which it is produced determines

whether a document is to be regarded as documentary

evidence. When adduced to prove its physical

condition, for example, an alteration, presence of a

signature, bloodstain or fingerprint, it is real evidence.

So too, if its relevance lies in the simple fact that it

exists or did once exist or its disposition or nature. In

all these cases the content of the document, if relevant

at all, is only indirectly relevant, for example to

establish that the document in question is a lease.

When the relevance of a document depends on the

meaning of its contents, it is considered documentary

evidence.”

... ... ...”

(emphasis supplied)

Again at page 5 of the same book, the definition of “real

evidence14” is given as under:“

Material objects other than documents, produced for

inspection of the court, are commonly called real evidence.

This, when available, is probably the most satisfactory kind

of all, since, save for identification or explanation, neither

testimony nor inference is relied upon. Unless its

13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450

14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5

genuineness is in dispute [See Belt v Lawes, The Times, 17

November 1882.], the thing speaks for itself.

Unfortunately, however, the term “real evidence” is

itself both indefinite and ambiguous, having been used in

three divergent senses:

(1) … … …

(2) Material objects produced for the inspection of the

court. This is the second and most widely accepted

meaning of “real evidence”. It must be borne in mind

that there is a distinction between a document used as

a record of a transaction, such as a conveyance, and a

document as a thing. It depends on the circumstances

in which classification it falls. On a charge of stealing a

document, for example, the document is a thing.

(3) … … …”

A priori, we must hold that the video footage/clipping contained

in such memory card/pendrive

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. Section 2(1)(t) of the

2000 Act reads thus:‘‘

2(1)(t) “electronic record” means data, record or data

generated, image or sound stored, received or sent in an

electronic form or micro film or computergenerated

micro

fiche;’’

24. As the above definition refers to data or data generated,

image or sound stored, received or sent in an electronic form, it

would be apposite to advert to the definition of “data” as

predicated in Section 2(1)(o) of the same Act. It reads thus:“

2(1)(o) “data” means a representation of information,

knowledge, facts, concepts or instructions which are being

prepared or have been prepared in a formalised manner, and

is intended to be processed, is being processed or has been

processed in a computer system or computer network, and

may be in any form (including computer printouts magnetic

or optical storage media, punched cards, punched tapes) or

stored internally in the memory of the computer;’’

On conjoint reading of the relevant provisions, it would be amply

clear that an electronic record is not confined to “data” alone, but

it also means the record or data generated, received or sent in

electronic form. The expression “data” includes a representation

of information, knowledge and facts, which is either intended to

be processed, is being processed or has been processed in a

computer system or computer network or stored internally in the

memory of the computer.

25. Having noticed the above definitions, we may now turn to

definitions of expressions “document” and “evidence” in Section 3

of the 1872 Act being the interpretation clause. The same reads

thus:36

“3. Interpretation clause.Document.

Document" means any matter expressed or

described upon any substance by means of letters, figures or

marks, or by more than one of those means, intended to be

used, or which may be used, for the purpose of recording

that matter.

Illustrations

A writing is a document;

Words printed, lithographed or photographed are

documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A caricature is a document.

Evidence."

Evidence" means and includes—

(1) all statements which the Court permits or requires to

be made before it by witnesses, in relation to matters of

fact under inquiry, such statements are called oral

evidence;

(2) all documents including electronic records produced

for the inspection of the Court,

such documents are called documentary evidence.”

On a bare reading of the definition of “evidence”, it clearly takes

within its fold documentary evidence to mean and include all

documents including electronic records produced for the

inspection of the Court. Although, we need not dilate on the

question of admissibility of the contents of the memory

card/pendrive,

the same will have to be answered on the basis

of Section 65B of the 1872 Act. The same reads thus:37

“65B. Admissibility of electronic records.(

Notwithstanding anything contained in this Act, any

information contained in an electronic record which is

printed on a paper, stored, recorded or copied in optical or

magnetic media produced by a computer (hereinafter

referred to as the computer output) shall be deemed to be

also a document, if the conditions mentioned in this

section are satisfied in relation to the information and

computer in question and shall be admissible in any

proceedings, without further proof or production of the

original, as evidence of any contents of the original or of

any fact stated therein of which direct evidence would be

admissible.

(2) The conditions referred to in subsection

(1) in respect of

a computer output shall be the following, namely:(

a) the computer output containing the information

was produced by the computer during the period

over which the computer was used regularly to

store or process information for the purposes of

any activities regularly carried on over that period

by the person having lawful control over the use

of the computer;

(b) during the said period, information of the kind

contained in the electronic record or of the kind

from which the information so contained is

derived was regularly fed into the computer in the

ordinary course of the said activities;

the computer was operating properly or, if not,

then in respect of any period in which it was not

operating properly or was out of operation during

that part of the period, was not such as to affect

the electronic record or the accuracy of its

contents; and

(d) the information contained in the electronic record

reproduces or is derived from such information

fed into the computer in the ordinary course of

the said activities.”

(3) Where over any period, the function of storing or

processing information for the purposes of any activities

regularly carried on over that period as mentioned in

clause (a) of subsection

(2) was regularly performed by

computers, whether—

(a) by a combination of computers operating over

that period; or

(b) by different computers operating in succession

over that period; or

in succession over that period; or

(d) in any other manner involving the successive

operation over that period, in whatever order, of

one or more computers and one or more

combinations of computers, all the computers

used for that purpose during that period shall be

treated for the purposes of this section as

constituting a single computer; and references in

this section to a computer shall be construed

accordingly.

(4) In any proceedings where it is desired to give a

statement in evidence by virtue of this section, a certificate

doing any of the following things, that is to say,—

(a) identifying the electronic record containing the

statement and describing the manner in which it

was produced;

(b) giving such particulars of any device involved in

the production of that electronic record as may be

appropriate for the purpose of showing that the

electronic record was produced by a computer;

conditions mentioned in subsection

(2) relate,

and purporting to be signed by a person

occupying a responsible official position in

relation to the operation of the relevant device or

the management of the relevant activities

(whichever is appropriate) shall be evidence of any

matter stated in the certificate; and for the

purposes of this subsection

it shall be sufficient

for a matter to be stated to the best of the

knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a

computer if it is supplied thereto in any

appropriate form and whether it is so supplied

directly or (with or without human intervention)

by means of any appropriate equipment;

(b) whether in the course of activities carried on by

any official information is supplied with a view to

its being stored or processed for the purposes of

those activities by a computer operated otherwise

than in the course of those activities, that

information, if duly supplied to that computer,

shall be taken to be supplied to it in the course of

those activities;

produced by a computer whether it was produced

by it directly or (with or without human

intervention) by means of any appropriate

equipment.

Explanation.—For the purposes of this section any

reference to information being derived from other

information shall be a reference to its being derived

therefrom by calculation, comparison or any other

process.”

This provision is reiteration of the legal position that any

information contained in an electronic record which is printed on

a paper, stored, recorded or copied in optical or magnetic media

produced by a computer shall be deemed to be a “document” and

shall be admissible in evidence subject to satisfying other

requirements of the said provision.

26. It may be useful to also advert to Section 95(2)(b) of the

1973 Code, which refers to “document” to include any painting,

drawing or photograph, or other visible representation. And

again, the expression “document” has been defined in Section 29

of the 1860 Code, which reads thus:‘‘

29. “Document”.—The word “document” denotes any

matter expressed or described upon any substance by

means of letters, figures or marks, or by more than one of

those means, intended to be used, or which may be used, as

evidence of that matter.

Explanation 1.—It is immaterial by what means or upon

what substance the letters, figures or marks are formed, or

whether the evidence is intended for, or may be used in, a

Court of Justice, or not.

Illustrations

A writing expressing the terms of a contract, which may be

used as evidence of the contract, is a document.

A cheque upon a banker is a document.

A powerofattorney

is a document.

A map or plan which is intended to be used or which may be

used as evidence, is a document.

A writing containing directions or instructions is a

document.

Explanation 2.—Whatever is expressed by means of letters,

figures or marks as explained by mercantile or other usage,

shall be deemed to be expressed by such letters, figures or

marks within the meaning of this section, although the same

may not be actually expressed.

Illustration

A writes his name on the back of a bill of exchange payable

to his order. The meaning of the endorsement, as explained

by mercantile usage, is that the bill is to be paid to the

holder. The endorsement is a document, and must be

construed in the same manner as if the words “pay to the

holder” or words to that effect had been written over the

signature.’’

27. Additionally, it may be apposite to also advert to the

definition of “communication devices” given in Section 2(1)(ha) of

the 2000 Act. The said provision reads thus:‘‘

2(1)(ha) ‘‘communication device’’ means cell phones,

personal digital assistance or combination of both or any

other device used to communicate, send or transmit any

text, video, audio or image’’

28. We may also advert to the definition of “information” as

provided in Section 2(1)(v) of the 2000 Act. The same reads

thus:‘‘

2(1)(v) ‘‘information’’ includes data, message, text, images

sound, voice, codes, computer programmes, software and

data bases or micro film or computer generated micro fiche’’

29. Even the definition of “document” given in the General

Clauses Act would reinforce the position that electronic records

ought to be treated as “document”. The definition of “document”

in Section 3(18) of the General Clauses Act reads 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”

30. It may be apposite to refer to the exposition in Halsbury’s

laws of England15 dealing with Chapter – “Documentary and Real

Evidence” containing the meaning of documentary evidence and

the relevancy and admissibility thereof including about the audio

and video recordings. The relevant exposition reads thus:“(

12) DOCUMENTARY AND REAL EVIDENCE

1462. Meaning of documentary evidence. The term

‘document’ bears different meanings in different contexts. At

common law, it has been held that any written thing capable

of being evidence is properly described as a document16, and

this clearly includes printed text, diagrams, maps and plans17.

Photographs are also regarded as documents at common law18.

Varying definitions have been adopted in legislation19. A

document may be relied on as real evidence (where its

existence, identity or appearance, rather than its content, is

in issue20), or as documentary evidence. Documentary

15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure

16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.

17 A tombstone bearing an inscription is in this sense a document (see Mortimer v.

M’Callan (1840) 6 M & W 58), as is a coffinplate

bearing an inscription (see R v. Edge

(1842) Wills, Circumstantial Evidence (6th Edn.) 309).

18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex

p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler

International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160,

ChD.

19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means

anything in which information of any description is recorded: s. 118 (amended by the Civil

Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act

2003 Pt. 11 (ss. 98141)

(as amended) (evidence), the definition is the same (see s. 134(1)),

save that for the purposes of Pt. 11 Ch. 3 (ss 137141)

(which includes the provision

relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of

sounds or moving images (see s. 140).

20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855)

11 Exch 360. Documents produced by purely mechanical means may constitute real

evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo

Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film

evidence denotes reliance on a document as proof of its terms

or contents21. The question of the authenticity of a document is

to be decided by the jury22.

1463. The primary evidence rule. Under the ‘primary evidence

rule’ at common law23, it was once thought necessary for the

contents of any private document to be proved by production of the

original document24. A copy of an original document, or oral

evidence as to the contents of that document, was considered

admissible only in specified circumstances, namely: (1) where

another party to the proceedings failed to comply with a notice to

produce the original which was in his possession (or where the

need to produce it was so clear that no such notice was

required)25; (2) where production of the original was shown to be

impossible26; (3) where the original appeared to have been lost or

destroyed27; and (4) where a third party in possession of the

original lawfully declined to produce it28….

xxx xxx xxx

of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator);

Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breathtesting

device). See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005]

EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence

generally see para 1466 post.

21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a

document is, following the general rule, a question for the judge: See para 1360

ante. A document which the law requires to be stamped, but which is unstamped,

is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the

Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).

23 As to the related ‘best evidence rule’ see para 1367 ante.

24 As to the admissibility of examined or certified copies of public documents at common

law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.

25 AG

v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v.

Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival

(1834) 1 Cr.M. & R 277.

27 R. v. Haworth (1830) 4 C & P 254

28 R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a

document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M &

W 664

1466. Real evidence. Material objects or things (other than the

contents of documents) which are produced as exhibits for

inspection by a court or jury are classed as real evidence29. The

court or jury may need to hear oral testimony explaining the

background and alleged significance of any such exhibit, and may

be assisted by expert evidence in drawing inferences or

conclusions from the condition of that exhibit30.

Where a jury wishes to take an exhibit, such as a weapon, into

the jury room, this is something which the judge has a discretion

to permit31. Jurors must not however conduct unsupervised

experiments32, or be allowed to inspect a thing which has not been

produced in evidence33.

Failure to produce an object which might otherwise have been

admissible as real evidence does not preclude the admission of oral

evidence concerning the existence or condition of that object,

although such evidence may carry far less weight34.

xxx xxx xxx

1471. Audio and video recordings. An audio recording is

admissible in evidence provided that the accuracy of the recording

29 This include animals, such as dogs, which may be inspected to see if they are ferocious

(Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been illtreated,

etc.

Note however that statements (such as statements of origin) printed on objects may give

rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v.

Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.

30 Expert evidence may often be essential if the court or jury is to draw any kind of

informed conclusions from their examination of the exhibit. It would be dangerous, for

example, for a court or jury to draw its own unaided conclusions concerning the identity of

fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All

ER 768, PC.

31 R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.

32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees

[1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653,

CA.

33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.

34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944]

KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85

Cr.App. Rep. 367, DC. If the object in question is in the possession of the prosecutor or of

a third person, its production may generally be compelled by issue of a witness order under

the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and

amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended)

(see para 1409 ante). The defendant cannot, however, be served with such an order, lest he

be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.

can be proved, the recorded voices can be properly identified, and

the evidence is relevant and otherwise admissible35. However, that

evidence should always be regarded with caution and assessed in

the light of all the circumstances36.

A video recording of an incident which is in issue is

admissible37. 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

display or a recording may give evidence of what he saw in the

same way as a witness who had a direct view38.”

(emphasis supplied)

31. In order to examine the purport of the term “matter” as

found in Section 3 of the 1872 Act, Section 29 of the 1860 Code

and Section 3(18) of the General Clauses Act, and to ascertain

35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For

the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v.

Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris

[1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App.

Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video

recording of an incident becomes available after the witness has made a statement, the

witness may view the video and, if necessary, amend his statement so long as the

procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts

(Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.

36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As

to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA;

and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police

interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the

Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair

evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep

456, CA (tape recording admitted despite element of entrapment).

37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.

38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As

to the admissibility of video recordings as evidence identifying the defendant see also R. v.

Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v.

Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident

had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of

the defendant by still photographs taken by an automatic security camera see R. v.

Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification

generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an

incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.

whether the contents of the memory card can be regarded as

“document”, we deem it appropriate to refer to two Reports of the

Law Commission of India. In the 42nd Law Commission Report39,

the Commission opined on the amendments to the 1860 Code.

Dealing with Section 29 of the 1860 Code, the Commission

opined as under:“

2.56. The main idea in all the three Acts is the same and

the emphasis is on the “matter” which is recorded, and not

on the substance on which the matter is recorded. We feel,

on the whole, that the Penal Code should contain a

definition of “document” for its own purpose, and that

section 29 should be retained.”

The said observation is restated in the 156th Report40, wherein

the Commission opined thus:“

11.08 Therefore, the term ‘document’ as defined in

Section 29, IPC may be enlarged so as to specifically

include therein any disc, tape, sound track or other device

on or in which any matter is recorded or stored by

mechanical, electronic or other means … … … The

aforesaid proposed amendment in section 29 would also

necessitate consequential amendment of the term

“document” under section 3 of the Indian Evidence Act,

1872 on the lines indicated above.”

Considering the aforementioned Reports, it can be concluded

that the contents of the memory card would be a “matter” and

39 FortySecond

Report, Law Commission India, Indian Penal Code, June, 1971, 3235

40 One Hundred FiftySixth

Report on the Indian Penal Code (Volume I), August, 1997,

Law Commission of India, ChapterXI

the memory card itself would be a “substance” and hence, the

contents of the memory card would be a “document”.

32. It is crystal clear that all documents including “electronic

record” produced for the inspection of the Court alongwith 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 1973 Code. The concomitant is that the

contents of the memory card/pendrive

must be furnished to the

accused, which can be done in the form of cloned copy of the

memory card/pendrive.

It is cardinal that a person tried for

such 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 1973

Code, but also the right of an accused to a fair trial enshrined in

Article 21 of the Constitution of India.

33. We do not wish to dilate further nor should we be

understood to have examined the question of relevancy of the

contents of the memory card/pendrive

or for that matter the

proof and admissibility thereof. The only question that we have

examined in this appeal is: whether the contents of the memory

card/pendrive

referred to in the chargesheet or the police report

submitted to Magistrate under Section 173 of the 1973 Code,

need to be furnished to the accused if the prosecution intends to

rely on the same by virtue of Section 207 of the 1973 Code?

34. Reverting to the preliminary objection taken by the

respondent for dismissing the appeal at the threshold because of

the disclosure of identity of the victim in the memo of the special

leave petition forming the subject matter of the present appeal,

we find that the explanation offered by the appellant is plausible

inasmuch as the prosecution itself had done so by naming the

victim in the First Information Report/Crime Case, the statement

of the victim under Section 161, as well as under Section 164 of

the 1973 Code, and in the chargesheet/police report filed before

the Magistrate. Even the objection regarding incorrect factual

narration about the appellant having himself viewed the contents

of the memory card/pendrive

does not take the matter any

further, once we recognize the right of the accused to get the

cloned copies of the contents of the memory card/pendrive

being mandated by Section 207 of the 1973 Code and more so,

because of the right of the accused to a fair trial enshrined in

Article 21 of the Constitution of India.

35. The next crucial question is: whether parting of the cloned

copy of the contents of the memory card/pendrive

and handing

it over to the accused may be safe or is likely to be misused by

the accused or any other person with or without the permission

of the accused concerned? In the present case, there are eight

named accused as of now. Once relief is granted to the appellant

who is accused No. 8, the other accused would follow the same

suit. In that event, the cloned copies of the contents of the

memory card/pendrive

would be freely available to all the

accused.

36. Considering the principles laid down by this Court in

Tarun Tyagi (supra), we are of the opinion that certain

conditions need to be imposed in the fact situation of the present

case. However, the safeguards/conditions suggested by the

appellant such as to take help of experts, to impose watermarks

on the respective cloned copies etc., may not be sufficient

measure to completely rule out the possibility of misuse thereof.

In that, with the advancement of technology, it may be possible

to breach even the security seals incorporated in the concerned

cloned copy. Besides, it will be wellnigh

impossible to keep

track of the misuse of the cloned copy and its safe and secured

custody.

37. Resultantly, instead of allowing the prayer sought by the

appellant in toto, it may be desirable to mould the relief by

permitting the appellant to seek second expert opinion from an

independent agency such as the Central Forensic Science

Laboratory (CFSL), on all matters which the appellant may be

advised. In that, the appellant can formulate queries with the

help of an expert of his choice, for being posed to the stated

agency. That shall be confidential and not allowed to be

accessed by any other agency or person not associated with the

CFSL. Similarly, the forensic report prepared by the CFSL, after

analyzing the cloned copy of the subject memory card/pendrive,

shall be kept confidential and shall not be allowed to be accessed

by any other agency or person except the concerned accused or

his authorized representative until the conclusion of the trial.

We are inclined to say so because the State FSL has already

submitted its forensic report in relation to the same memory card

at the instance of the investigating agency.

38. Needless to mention that the appellant before us or the

other accused cannot and are not claiming any expertise, much

less, capability of undertaking forensic analysis of the cloned

copy of the contents of the memory card/pendrive.

They may

have to eventually depend on some expert agency. In our

opinion, the accused, who are interested in reassuring

themselves about the genuineness and credibility of the contents

of the memory card in question or that of the pendrive

produced

before the trial Court by the prosecution on which the

prosecution would rely during the trial, are free to take opinion of

an independent expert agency, such as the CFSL on such

matters as they may be advised, which information can be used

by them to confront the prosecution witnesses including the

forensic report of the State FSL relied upon by the prosecution

forming part of the police report.

39. Considering that this is a peculiar case of intraconflict

fundamental rights flowing from Article 21, that is right to a fair

trial of the accused and right to privacy of the victim, it is

imperative to adopt an approach which would balance both the

rights. This principle has been enunciated in the case of Asha

Ranjan v. State of Bihar41 wherein this Court held thus:“

57. The aforesaid decision is an authority for the

proposition that there can be a conflict between two

individuals qua their right under Article 21 of the

Constitution and in such a situation, to weigh the balance

the test that is required to be applied is the test of larger

public interest and further that would, in certain

circumstances, advance public morality of the day. To put

it differently, the “greater community interest” or

“interest of the collective or social order” would be the

principle to recognise and accept the right of one

which has to be protected.

xxx xxx xxx

61. Be it stated, circumstances may emerge that may

necessitate for balancing between intrafundamental

rights. It has been distinctly understood that the test that

has to be applied while balancing the two fundamental

rights or inter fundamental rights, the principles applied

may be different than the principle to be applied in intraconflict

between the same fundamental right … … ... Thus,

there can be two individuals both having legitimacy to

41 (2017) 4 SCC 397

claim or assert the right. The factum of legitimacy is a

primary consideration. It has to be remembered that no

fundamental right is absolute and it can have limitations in

certain circumstances … … ... Therefore, if the collective

interest or the public interest that serves the public cause

and further has the legitimacy to claim or assert a

fundamental right, then only it can put forth that their

right should be protected. There can be no denial of the

fact that the rights of the victims for a fair trial is an

inseparable aspect of Article 21 of the Constitution and

when they assert that right by themselves as well as the

part of the collective, the conception of public interest gets

galvanised. The accentuated public interest in such

circumstances has to be given primacy, for it furthers and

promotes “Rule of Law”. It may be clarified at once that the

test of primacy which is based on legitimacy and the public

interest has to be adjudged on the facts of each case and

cannot be stated in abstract terms. It will require studied

scanning of facts, the competing interests and the ultimate

perception of the balancing that would subserve the larger

public interest and serve the majesty of rule of law. ... … …

xxx xxx xxx

86.1. The right to fair trial is not singularly absolute, as

is perceived, from the perspective of the accused. It

takes in its ambit and sweep the right of the victim(s)

and the society at large. These factors would

collectively allude and constitute the Rule of Law i.e.

free and fair trial.

86.2. The fair trial which is constitutionally protected as a

substantial right under Article 21 and also the statutory

protection, does invite for consideration a sense of conflict

with the interest of the victim(s) or the collective/interest of

the society. When there is an intraconflict

in respect of

the same fundamental right from the true perceptions,

it is the obligation of the constitutional courts to weigh

the balance in certain circumstances, the interest of

the society as a whole, when it would promote and

instil Rule of Law. A fair trial is not what the accused

wants in the name of fair trial. Fair trial must soothe the

ultimate justice which is sought individually, but is

subservient and would not prevail when fair trial requires

transfer of the criminal proceedings.”

(emphasis supplied)

40. This Court in Mazdoor Kisan Shakti Sangathan v.

Union of India42 has restated the legal position in the following

terms:“

61. Undoubtedly, right of people to hold peaceful protests

and demonstrations, etc. is a fundamental right

guaranteed under Articles 19(1)(a) and 19(1)(b) of the

Constitution. The question is as to whether disturbances,

etc. caused by it to the residents, as mentioned in detail by

the NGT, is a larger public interest which outweighs the

rights of protestors to hold demonstrations at Jantar

Mantar Road and, therefore, amounts to reasonable

restriction in curbing such demonstrations. Here, we agree

with the detailed reasoning given by the NGT that holding

of demonstrations in the way it has been happening is

causing serious discomfort and harassment to the

residents. At the same time, it is also to be kept in mind

that for quite some time Jantar Mantar has been chosen as

a place for holding demonstrations and was earmarked by

the authorities as well. Going by the dicta in Asha

Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC

397 : (2017) 2 SCC (Cri) 376] , principle of primacy

cannot be given to one right whereby the right of the

other gets totally extinguished. Total extinction is not

balancing. Balancing would mean curtailing one right of

one class to some extent so that the right of the other

class is also protected.”

(emphasis supplied)

41. We are conscious of the fact that Section 207 of the 1973

Code permits withholding of document(s) by the Magistrate only

if it is voluminous and for no other reason. If it is an “electronic

record”, certainly the ground predicated in the second proviso in

42 (2018) 17 SCC 324

Section 207, of being voluminous, ordinarily, cannot be invoked

and will be unavailable. We are also conscious of the dictum in

the case of Superintendent and Remembrancer of Legal

Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein

this Court has restated the cardinal principle that accused is

entitled to have copies of the statements and documents

accompanying the police report, which the prosecution may use

against him during the trial.

42. Nevertheless, the Court cannot be oblivious to the nature of

offence and the principle underlying the amendment to Section

327 of the 1973 Code, in particular subSection

(2) thereof and

insertion of Section 228A of the 1860 Code, for securing the

privacy of the victim and her identity. Thus understood, the

Court is obliged to evolve a mechanism to enable the accused to

reassure himself about the genuineness and credibility of the

contents of the memory card/pendrive

from an independent

agency referred to above, so as to effectively defend himself

during the trial. Thus, balancing the rights of both parties is

imperative, as has been held in Asha Ranjan (supra) and

43 (1981) 2 SCC 109

Mazdoor Kisan Shakti Sangathan (supra). The Court is duty

bound to issue suitable directions. Even the High Court, in

exercise of inherent power under Section 482 of the 1973 Code,

is competent to issue suitable directions to meet the ends of

justice.

43. If the accused or his lawyer himself, additionally, intends to