IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE K. BABU

THURSDAY, THE 7

TH

DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945

WP(CRL.) NO. 445 OF 2022

PETITIONER:

XXXX

BY ADVS.

T.B.MINI

GAURAV AGRAWAL(6631/1999/BIH)

C.GEORGE THOMAS(D/1081/2012)

RESPONDENTS:

1 STATE OF KERALA,

REPRESENTED BY THE CHIEF SECRETARY,

GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM-695001.

2 SECRETARY TO GOVERNMENT,

HOME DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT,

TRIVANDRUM-695501.

3 DIRECTOR GENERAL OF POLICE,

KERALA,POLICE HEAD QUARTERS, TRIVANDRUM-695010.

4 ADDITIONAL DIRECTOR GENERAL OF POLICE(CRIMES),

POLICE HEAD QUARTERS, TRIVANDRUM-695010.

5 INVESTIGATING OFFICER,

DEPUTY SUPERINTENDENT OF POLICE,CRIME BRANCH,

ALAPPUZHA-688012.

6 STATE FORENSIC SCIENCE LABORATORY,

REPRESENTED BY ITS DIRECTOR, THIRUVANANTHAPURAM-695011.

7 *ADDL.R7: P. GOPALAKRISHNAN @ DILEEP,

PADMA SAROVARAM HOUSE, KOTTARAKADAVU, ALUVA,

ERNAKULAM DISTRICT.

*ADDL. R7 IS IMPLEADED AS PER ORDER DATED 22/07/2022 IN

IA.1/2022 IN WP(CRL).

BY ADVS.

SRI.T A SHAJI, DIRECTOR GENERAL OF PROSECUTION

SRI.P.NARAYANAN, SENIOR GOVERNMENT PLEADER

SRI.SAJJU S SENIOR GOVERNMENT PLEADER

SRI.B.RAMAN PILLAI (SR.)

SRI.PHILIP T.VARGHESE

SRI.THOMAS T.VARGHESE

SMT.ACHU SUBHA ABRAHAM

SMT.V.T.LITHA

SMT.K.R.MONISHA

SMT.NITYA R.

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON

07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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'C.R'

K.BABU, J.

--------------------------------------

W.P (Crl) No.445 of 2022

---------------------------------------

Dated this the 7

th

day of December, 2023

JUDGMENT

A South Indian film actress, who was subjected to gang rape

and sexual harassment, is before the Court complaining that the

sexually explicit videos allegedly recorded by the culprits, which

were seized and produced before the Court as evidence and kept in

the safe custody of the Court, were unauthorisedly accessed,

viewed, copied and transmitted. She apprehends that the contents

of the video may be disseminated at any moment. The distress of

the victim is beyond imagination.

2. The petitioner is the defacto complainant in Crime

No.297/2017 of Nedumbassery Police Station. The case was

registered based on the First Information Statement given by her

on 18.02.2017, alleging that she was subjected to gang rape and

sexual harassment. The Police submitted the final report before

the jurisdictional Magistrate, which committed the case to the

Sessions Court, Ernakulam. The case is now pending as Sessions

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Case No.118/2018 before the Principal Sessions Court, Ernakulam.

3. The prosecution alleges offences punishable under

Sections 120A, 120B, 109, 342, 366, 354, 354B, 357, 376D, 506(i), 201,

204, 212 and 34 of the Indian Penal Code and Sections 66-E and

67-A of the Information Technology Act, 2000.

4. The petitioner pleaded the following:

4.1. The petitioner was on her way to Ernakulam from

Thrissur on 17.02.2017 in a Mahindra XUV car bearing registration

No.KL-39-F-5744. Accused Nos.1 to 6 and respondent No.7

(accused No.8) hatched a criminal conspiracy to abduct the

petitioner and commit rape on her. The petitioner was going from

her home in Thrissur to Ernakulam to record a promotional song in

connection with the movie 'Honey Bee 2'. Accused No.2, Martin

Antony, was entrusted with picking up the petitioner from her

house. Accused No.1 Sunil, made all arrangements to execute the

crime as planned.

4.2. Accused No.2 moved to Ernakulam with the petitioner at

about 7.45 p.m. He informed accused No.1 of the time-to-time

locations throughout the journey. As planned, accused Nos.1, 3, and

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4 were waiting in front of the Adlux Convention Centre, Angamaly,

in a tempo traveller bearing registration No.KL-60-A-9338 awaiting

the arrival of the vehicle carrying the petitioner.

4.3. When the vehicle carrying the petitioner reached in front

of the Adlux Convention Centre, accused Nos.1, 3, and 4 followed

the vehicle. When both the vehicles arrived at Kottai near Athani

junction, accused No.1 intentionally hit his vehicle slightly behind

the vehicle by which the petitioner was travelling with intent to

create a fake accident scene as designed. This happened at 9.15

p.m. The intention of the accused was to stop the vehicle by which

the petitioner was travelling. Accused No.2 stopped the vehicle, got

down from the driver's seat, and made accused Nos.3 and 4 enter

the car without her consent. They caught hold of her mouth and

hand, overpowered her, and forcefully took away her mobile phone.

Thereafter, accused No.2 entered the car, closed all the windows,

centre locked the vehicle doors, wrongfully confined her in the car,

and continued their journey towards Ernakulam.

4.4. Accused No.1 followed the car in the tempo traveller.

Accused Nos.5 and 6 were waiting at Apollo Junction, Kalamassery.

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When both the vehicles reached Apollo Junction, Kalamassery

accused No.5 approached the petitioner's vehicle and got inside

with the active connivance of accused No.2. After watching the

situation in the car, accused No.5 got down from the vehicle and

narrated the scene to accused No.1. Then accused No.6 got into

the petitioner's vehicle and confined her in the rear seat along

with accused No.3 and continued the journey. When they reached

Palarivattom, accused No.6 got out of the vehicle, and accused

No.5 got inside and sat beside her and confined her in the rear

seat along with accused No.3. Accused No.4 also entered the

vehicle and sat in the front side passenger seat and continued the

journey.

4.5. Accused Nos.1 and 6 followed the vehicle. On their way

to Ernakulam, when they reached near 'Design Wood Interior shop'

at Vennala, both vehicles stopped and accused No.2 got down from

the driver seat and handed over the vehicle to accused No.1. From

there, the vehicle was driven by accused No.1. He stopped the

vehicle in front of hotel Kamadenu at Chittethukara and asked

accused No.5 to take his mobile phone from the tempo traveller.

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He criminally intimidated the petitioner/victim to surrender herself

to record her obscene videos. Accused No.1 threatened the

petitioner/victim, committed forced sexual assault on her, and

recorded obscene videos, including the visuals of sexual assault, in

the mobile phone. After committing the gruesome act upon the

petitioner, accused Nos.1 and 3 got down from the car and handed

over the victim's car to accused No.2. He dropped the victim at the

house of one Mr.Lal (CW6).

4.6. After the commission of the crime, accused No.1 went to

his friend's residence at Alappuzha. When his photo was seen on

the television, he left his friend's house at Alappuzha and reached

the residence of Advocate Sri.Paulose at Angamaly. He handed

over the phone with the memory card to Sri.Paulose.

4.7. Advocate Sri.Paulose, during the investigation, informed

the Police that on 18.02.2017, accused No.1, and accused Nos.3 and

4, approached him at 9.00 p.m. to execute vakalath and entrusted a

plastic cover containing ID proof, Passport etc,. After that, he

realised that the cover contained a mobile phone and produced the

articles before the jurisdictional Magistrate. The articles were

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handed over to the Police. A memory card containing the visuals of

sexual assault and rape was included in the items.

4.8. The Court prepared an inventory of the articles that were

sent to the Forensic Science laboratory, Thiruvananthapuram, for

examination on 25.02.2017.

4.9. The Forensic Science Laboratory examined the memory

card, I.D card etc., on 27.02.2017, and submitted a report before the

Magistrate's Court. The Forensic Science Laboratory (FSL) had

assigned hash value for the memory card. They also had given two

pen drives containing retrieved contents of the memory card,

including cloned copies of the visuals, one to the Judicial First

Class Magistrate Court, Angamaly and the other to the Investigating

Officer. The memory card was perfectly sealed and returned to the

Court to be kept in safe custody. The report showed that the

visuals were recorded on 17.02.2017, and the memory card was

accessed on 18.02.2017. The investigation revealed the involvement

of a renowned Malayalam film actor Gopalakrishnan @ Dileep. The

Investigating agency arrested him.

4.10. The Police submitted the final report before the Judicial

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First Class Magistrate Court, Aluva, where the proceedings

commenced as C.P No.16/2017. Accused No.8, during the committal

proceedings, raised an objection that a copy of the memory card

relied on by the prosecution was not furnished to him. He filed

CMP No.49/2018 for a direction to the prosecution to hand over the

cloned copies of the memory card's video footage and the human

voice transcript. Meanwhile, accused No.8 was permitted to watch

the video footage in the presence of his counsel and the Magistrate

on 15.12.2017. The petition filed by accused No.8 seeking to issue a

copy of the memory card was rejected.

4.11. Accused No.8 challenged the order before the Supreme

Court, filing SLP No.10189/2018, which was renumbered as Criminal

Appeal No.1794/2019. The Apex Court partly allowed Criminal

Appeal No.1794/2019 {P.Gopalkrishnan v. State of Kerala, [(2020) 9

SCC 161]} observing thus:

“43. 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

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to the stated agency. That shall be confidential and not

allowed to be accessed by any other agency or person

not associated with CFSL. Similarly, the forensic report

prepared by CFSL, after analysing the cloned copy of

the subject memory card/pen-drive, shall be kept

confidential and shall not be allowed to be accessed by

any other agency or person except the accused or his

authorised representative concerned 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.

xxx xxx xxx

xxx xxx xxx

49. If the accused or his lawyer himself, addi-

tionally, intends to inspect the contents of the memory

card/pen-drive in question, he can request the Magis-

trate to provide him inspection in court, if necessary,

even for more than once along with his lawyer and IT

expert to enable him to effectively defend himself dur-

ing the trial. If such an application is filed, the Magis-

trate must consider the same appropriately and exer-

cise 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 au-

thorised IT expert, all care must be taken that they do

not carry any devices much less electronic devices, in-

cluding mobile phone which may have the capability of

copying or transferring the electronic record thereof or

mutating the contents of the memory card/pen-drive in

any manner. Such multipronged approach may sub-

serve the ends of justice and also effectuate the right

of accused to a fair trial guaranteed under Article 21 of

the Constitution.

50. 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

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effective defence during the trial. The court may issue

suitable directions to balance the interests of both

sides.”

4.12. Following the directions of the Apex Court, on 19.12.2019,

visuals in the memory card were shown to the counsel appearing

for all the accused in the morning. Two IT experts from the State

Forensic Science Laboratory, the Investigating Officer and the

Special Public Prosecutor were also present. When accused No.8

objected, in the afternoon, the Presiding Officer, accused No.8 and

his counsel, and two experts from the State Forensic Science

Laboratory alone had seen the visuals in the memory card putting it

into the laptop in the Court.

4.13. While so, accused No.8 filed a petition seeking direction

to send the memory card to CFSL, Chandigarh. The Court allowed

the petition and directed the State Forensic Science Laboratory to

get the cloned copy of the memory card for sending it to CFSL,

Chandigarh.

4.14. On 10.01.2020, a messenger from the police department

collected the same and entrusted it to the Court. On 10.01.2020, the

Joint Director of the State Forensic Science Laboratory,

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Thiruvananthapuram, called the Investigating Officer and informed

him that the hash value of the memory card had changed. A report

to that effect was prepared and sent to the Court on 29.01.2020. A

Compact Disc containing the visuals was also submitted to the

Presiding Officer along with the report.

4.15. Though the issue regarding the change of hash value of

the memory card was brought to the notice of the Court, the

Presiding Officer kept it secret without any further proceedings.

The Presiding Officer has also not resorted to reporting the matter

to the High Court.

4.16. On 25.12.2021, one Sri.Balachandrakumar, who is

admittedly a close associate of accused No.8, made a disclosure

that the visuals of the inhuman sexual assault committed on the

victim had reached accused No.8 through a VIP, and he witnessed

the accused and others viewing the visuals.

4.17. Based on this information, the Investigating Officer filed

a report seeking permission to conduct further investigation. As the

hash value change of the memory card is a crucial issue, the

Investigating Officer requested the Joint Director of State Forensic

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Science Laboratory, Thiruvananthapuram, for a copy of the report.

In that report, it was stated that the last access to the memory card

was on 13.12.2018.

4.18. The Investigating Officer filed a petition before the

Sessions Court on 04.04.2022 requesting to send the memory card

to the FSL for further examination to ascertain and report about the

following:

(i)Whether any folder of the memory card was

accessed after 18.2.2017; and

(ii)To furnish a copy of the file properties of all

the files and folder of the memory card;

The Trial Court rejected the application.

4.19. The prosecution approached this Court by filing O.P(Crl)

No.257/2022. As per the judgment dated 05.07.2022, this Court set

aside the order rejecting the application filed by the prosecution by

the Trial Court and directed the Court below to forward the

document to the State Forensic Science Laboratory through the

mode envisaged by law.

4.20. The State Forensic Science Laboratory submitted a

report revealing that the memory card was connected to

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computers/mobile phones installed with Windows and Android

Operating Systems, Jio network application, Telegram, WhatsApp,

Instagram etc., and new folders were created.

4.21. The prosecution raised the grievances of the victim

before the Trial Court, raising concern over unauthorised access,

copying and transmission of sexually explicit content.

Prayers in the Writ Petition

5. The petitioner has prayed for the following reliefs:

(i)To issue a writ of mandamus, order or direction

directing the respondents 4 and 5 to do a free,

fair and complete further investigation in Crime

No.297/17 of Nedumbassery Police Station

pending trial as S.C No.118/2018 before the

Additional Special Session Court, (CBI/SPE-III,

Ernakulam) inclusive of the illegal access,

tampering and transmission of the contents of

the memory card while it was in the safe

custody of the trial court and also tampering

made in the mobile phones surrendered by the

Accused No.8 as per the direction of this

Hon'ble Court and to monitor said investigation

by this Hon'ble Court or any other authority as

fixed by this Hon'ble Court without any illegal

interference from any course by calling upon

periodical report regarding the progress of the

investigation till further final report is

submitted before the court below;

(ii) To issue a writ of mandamus, order or

directions directing the 2

nd

respondent conduct

a thorough investigation on the change of hash

value of the memory card (Sandisk 8 GB Micro

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SD Card seized by K.G.Babukumar, Dy.S.P.Aluva

on 20.02.2017 and kept in the safe custody of the

trial court (Principal Sessions Judge,

Ernakulam) under the supervision of this

Hon'ble Court;

(iii)To direct the investigating officer to produce the

report from the FSL which was seized by him

with regard to the change of hash value of

memory card during the same was in judicial

custody along with the statement of the FSL

authorities;

(iv)To issue a writ of mandamus , order or direction

by this Hon'ble Court initiating stringent action

against the persons who are allegedly involved

in the tampering of memory card in the judicial

custody and direct the 2

nd

respondent to

register a crime if so required with regard to

tampering of memory card in the judicial

custody; and to investigate the same either

under the new crime or as part of the further

investigation in Crime No.297/2017 of

Nedumbassary Police Station [S.C.No.118/2018

of the Addl. Special Court (CBI/SPE III,

Ernakulam)].

(v)To issue a order or direction directing the

Additional Special Sessions Court, (CBI/SPE-III,

Ernakulam) to forward Ext.P1 application

submitted by the investigating officer in Crime

No.297/2017 filed before the Additional Special

Sessions Court, (CBI/SPE-III, Ernakulam) on

04.04.22 along with the memory card to the 6

th

respondent for examination and to furnish

details as specified in Exhibit P1.

(vi)To issue such other order or direction which

this Hon'ble Court may deem fit and proper in

the facts and circumstances of the case.”

SUBMISSIONS

6. Heard Sri.Gaurav Agrawal, the learned counsel for the

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petitioner, Sri.T.A.Shaji, the learned Director General of Prosecution

and Sri.B.Raman Pillai the learned Senior Counsel appearing for

respondent No.7/accused No.8.

7. The learned counsel for the petitioner confined the reliefs

to issue a direction to register a crime and investigate the incidents

regarding the unauthorised access of the memory card and copying

and transmission of its contents while it was in judicial custody.

The learned counsel submitted that the petitioner is not pressing

the other reliefs in the petition. The learned counsel further

submitted that the registration of a new crime and investigation

would not affect the trial of the main case. It is further submitted

that the petitioner is interested in seeing that the trial is expedited.

8. The learned counsel for the petitioner further made the

following submissions:

8.1. There is a change in the memory card's hash value, which

shows that the memory card was illegally accessed on 09.01.2018,

13.12.2018 and 19.07.2021. The report of FSL dated 11.07.2022 shows

that the hash value was found to have changed. The memory card

had been illegally accessed when the same was in the custody of

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different Courts. Some persons have illegally accessed, copied and

transmitted the memory card's contents, including the video files.

8.2. The observation in the judgment of this Court dated

05.07.2022 in O.P (Crl) No.257/2022 that the access to a document

after it was produced in the Court cannot be a matter of

investigation or relevant for investigation under any circumstances

since only the Court can pursue that in view of the bar in taking

cognizance under Section 195 Cr.P.C does not come in the way of

the reliefs prayed for by the petitioner.

8.3. Bar under Section 195(1) read with Section 340 Cr.P.C

does not apply to the facts of the present case. It is evident that a

memory card which contains eight video files of the sexual assault

on the petitioner has been illegally accessed when the same was in

a sealed condition in the custody of the Court using Windows

Operating System, Android Operating System, and lastly, in a Vivo

mobile phone leading to the inference that eight video files have

been copied from the memory card into a computer or laptop or

tablet or mobile phone. It is also to be inferred that the persons

who have copied the sexual assault videos would have further

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transmitted the said video files. The illegal access, copying and

transmission of the video files would attract the offences under

Sections 378, 405, 408, 411 and 425 of IPC, Sections 66-B, 66-E and

67 of the Information Technology Act, 2000 and Section 119 of the

Kerala Police Act, 2011.

8.4. The acts of the culprits resulted in the gross violation of

the petitioner's fundamental rights. No one should be able to

unauthorisedly access any document in the custody of the Court

except under due process of law. The violation of the petitioner's

right to privacy is to be seriously viewed.

9. The learned Director General of Prosecution submitted the

following:

There cannot be any dispute that the memory card was

unauthorisedly accessed. This Court, in the order dated 22.09.2022

in Tr.P(Crl) No.52/2022, observed that the memory card was

unauthorisedly accessed. The right to privacy of the petitioner is to

be protected. The bar under Section 195, read with Section 340

Cr.P.C, is only for taking cognizance of the offence, and the same

will not prevent the Police from conducting an investigation of a

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cognizable offence.

10. The learned Senior Counsel Sri.B.Raman Pillai made the

following submissions:

The Investigating Officer took custody of the memory card

from the Court on 20.02.2017, and the same remained with him for

five days until it was returned to the Court on 25.02.2017. The

Investigating Officer had taken custody of the memory card, which

had been kept in a sealed cover after opening the seal and was

thereafter returned without any packing or sealing. The allegation

that there had been illegal access, tampering and transmitting of

the memory card's contents is a matter to be investigated. The

allegation is solely based on the pleading that there has been a

change in the hash value of the memory card kept in the custody of

the Court. The petitioner cannot raise allegations or seek reliefs

based on what is stated in the State Forensic Science Laboratory

report, the veracity of which is to be established in the manner

known to law. It is relevant that the State Forensic Science

Laboratory is part of the Kerala Police Department.

10.1. The alleged change in the hash value does not establish

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the commission of any criminal act.

10.2. The Supreme Court in P. Gopalkrishnan v. State of

Kerala, [(2020) 9 SCC 161] settled the law that the content of the

memory card is a document and therefore, access to the said

document (memory card) during the proceedings of the case

cannot be labelled as illegal or improper.

10.3. Neither the petitioner nor the Investigating agency filed

any application before the Trial Court under Section 340 of Cr.P.C.

Without resorting to the filing of such application, the petitioner

cannot institute this writ petition seeking an investigation in view of

the explicit prohibition under Section 195(1) of the Cr.P.C.

10.4. This Court, in judgment dated 05.07.2022 in O.P(Crl)

No.257/2022, held that the investigation cannot be permitted to

enter into matters which it has no authority to pursue. The

memory card, pen drive and all electronic records were kept in the

treasury chest for safe custody and have been in the treasury chest

except when it was ordered to be produced before the Court.

10.5. During the proceedings of the case, the treasury chest

containing the memory card, pen drive etc., was brought to the

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Court on various dates.

Discussion and Conclusions

Unauthorised access to the memory card

11. On 01.03.2017, the memory card was sent to the State

Forensic Science Laboratory (SFSL). The report dated 03.03.2017

was prepared after analysing the memory card. As per this report,

the hash value of the memory card was noted as 8189-566D-62C8-

CF1B-7E29-9324-2899-824B. The memory card was again sent to

the State Forensic Science Laboratory pursuant to the Supreme

Court's order. After examination of the memory card, the State

Forensic Science Laboratory prepared a report dated 29.01.2020,

which would show that the hash value of the memory card had

changed to 86a1 c2b3 fc2d b05e 0516 6cda 0c65 38ce. For the third

time, the memory card was sent to the State Forensic Science

Laboratory on 07.07.2022 pursuant to the order of this Court dated

05.07.2022 in O.P(Crl) No.257/2022. The State Forensic Science

Laboratory prepared a report dated 11.07.2022, showing that the

hash value had again changed to f37a df05 eddf 2086 7696 5ecf 8bf7

f091.

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12. The report dated 11.07.2022 of the State Forensic Science

Laboratory reads thus:

“ix. The creation of new folder/files and the variation of

metadata of files are the reason for change in hash

value of the questioned memory card marked Q3 from

8189-566D-62C8-CF1B-7E29-9324-2899-824B

(Annexure-1) to 86a1 c2b3 fc2d b05e 0516 6cda 0c65

38ce (Annexure-1A).

x. Examination of the forensic image prepared on

07.07.2022 shows that 34 numbers of folders/files

were newly created/updated in the questioned

memory card marked Q3 on 19.07.2021. The file

properties/metadata of the newly created/updated

folders/files are enclosed in the report (Table-5).

xi. Examination of the forensic image prepared on

07.07.2022 shows that new folders named

com.vivo.gallery, com.jio.myjio,

org.telegram.messenger, .vivoRecycleBin,

com.vivo.favorite, com.whatsapp and

com.instagram.android were created/updated on

19.07.2021 12:19 hrs to 19.07.2021 12:54 hrs, which

indicate that the questioned memory card marked Q3

is used in a Vivo make mobile phone having Android

Operating System and Jio network application in

which Telegram, Whatsapp, Instagram etc. were

installed.

xxxxxxxxx

xiii. The use of questioned memory card in the Vivo make

mobile phone and creation of system folder/files is

the cause of change in hash value of the memory card

from 86a1 c2b3 fc2d b05e 0516 6cda 0c65 38ce

(Annexure-1A) to f37a df05 eddf 2086 7696 5ecf 8bf7

f091 (Annexure-1B).”

13. The State Forensic Science Laboratory report dated

11.07.2022 shows the date and time on which the memory card has

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been accessed.

Date Time Particulars

09.01.201821:58:41

On 09.01.2018, 2 files namely System Volume

Information and Indexer Volume Guid were

created on the memory card, which indicates

that the memory card was connected to a

computer system having Windows Operating

System.

13.12.201822:58:17

On 13.12.2018, 3 files namely Cache, data and

com.android.gallery3d were created on the

memory card, which shows that the memory

card was used in a device having Android

Operating System.

19.07.202112:19:12

Till

12:54:13

On 19.07.2021 34 folders/files were newly

created/updated in the memory card. The

creation of new folders named com.vivo.gallery,

com.jio.myjio, org.telegram.messenger,

vivorecyclebin, com.vivo.favorite, com.whatsapp

and com.instagram.android indicates that, the

questioned memory card marked Q3 was used in

a Vivo make mobile phone having Android

Operating system and Jio network application.

In this device Telegram, WhatsApp, Instagram

etc apps were installed.

14. There are eight video files in the memory card. The report

dated 03.03.2017 shows that eight videos have been created on

18.02.2017 and last accessed on 18.02.2017. However, when the

State Forensic Science Laboratory examined the memory card on

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10.01.2020, it was found that eight video files created on 18.02.2017

were later accessed on 13.12.2018. The resultant conclusion is that

somebody had illegally accessed the memory card.

15. The report dated 11.07.2022 shows that on 09.01.2018 at

21:58:41 hrs, two files were created on the memory card. It is

reported that the memory card was connected to a computer

having Windows Operating System. On 13.12.2018 at 22:58:17 hrs,

three files were created on the memory card, namely cache, data

and com.android.gallery3d, showing that the memory card was

used in a device having Android Operating System. The report

further shows that on 19.07.2021 between 12:19:12 hrs and 12:54:13

hrs 34 folders/files were created.

16. As per the report dated 11.07.2022, on 19.07.2021 between

12:19 hrs and 12.54 hrs, the memory card was used in a Vivo mobile

phone having Android Operating System and Jio network

application. Apps like Telegram, WhatsApp, and Instagram were

installed on the device used.

17. This Court in Tr.P(Crl) No.52/2022 had concluded that

there was a change in the hash value regarding the memory card

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and that the memory card was accessed. The State Forensic

Science Laboratory report dated 11.07.2022 indicates that the

memory card was accessed at 22:58:17 hrs on 13.12.2018, at 21.58.41

hrs on 09.01.2018 and on 19.07.2021 between 12:19 hrs and 12:54 hrs

as stated above. Undoubtedly, access to the memory card on

09.01.2018 and 13.12.2018 is unauthorised. Whether access to the

memory card on 19.07.2021 was authorised or not will be discussed

later in this judgment.

18. The learned counsel for the petitioner and the learned

Director General of Prosecution submitted that the observation of

this Court in O.P(Crl) No.257/2022 that access to a document after it

was produced in Court cannot be a matter of investigation or

relevant for investigation under any circumstances whatsoever,

since only the Court can pursue that, in view of the bar in taking

cognizance under section 195 of the Cr.PC, prevented the

Investigating agency from investigating the allegations regarding

unauthorised access, and copying and transmission of the sexually

explicit contents in the memory card.

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Bar under Section 195(1) read with Section 340 Cr.P.C

19. The learned counsel for the petitioner submitted that the

bar under Section 195(1) read with Section 340 Cr.P.C is not

applicable in the present case. The learned counsel submitted that

the bar comes into play only in respect of the offences enumerated

in Section 195(1) Cr.PC. It is submitted that only in the case of those

offences, the procedure under Section 340 Cr.PC may have to be

followed.

20. The learned Senior Counsel for respondent No.7

submitted that the bar under Section 195(1) Cr.PC is applicable in

the present facts of the case. The learned Senior Counsel further

submitted that the judgment of this Court in O.P(Crl).No.257/2022

would preclude this Court from directing an investigation. The

learned Director General of Prosecution submitted that even if it is

assumed that the bar under Section 195(1) Cr.PC is applicable, the

relevance of the provision comes into play only when taking

cognizance of the offences. Therefore, an investigation by the

Police is not barred by the provisions. The learned counsel for the

petitioner further submitted that the judgment dated 05.07.2022 in

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O.P(Crl) No.257/2022 was passed prior to the State Forensic

Science Laboratory report dated 11.07.2022, which enumerated the

instances of illegal access to the memory card while the same was

in the custody of the Court. The learned counsel submitted that in

the judgment dated 05.07.2022, this Court observed that it was

important for the prosecution to explain the change in the hash

value.

21. The learned Senior Counsel for respondent No.7 relied on

Iqbal Singh Marwah v. Meenakshi Marwah [(2005) 4 SCC 370] to

support his contentions. The learned counsel for the petitioner

relied on the following decisions:

(i)Patel Laljibhai Somabhai v. State of Gujarat [(1971) 2 SCC

376].

(ii)M. Narayandas v. State of Karnataka [(2003) 11 SCC 251]

(iii)CBI v. M. Sivamani [(2017) 14 SCC 855].

(iv)Perumal v. Janaki [(2014) 5 SCC 377].

(v)State of Punjab v. Raj Singh [(1998) 2 SCC 391].

22. It is useful to extract Section 195 Cr.PC.

“195. Prosecution for contempt of lawful authority of

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public servants, for offences against public justice and for

offences relating to documents given in evidence.-

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under sections 172

to 188 (both inclusive) of the Indian Penal

Code (45 of 1860); or

(ii) of any abetment of, or attempt to commit,

such offence, or

(iii) of any criminal conspiracy to commit such

offence,

except on the complaint in writing of the

public servant concerned or of some other

public servant to whom he is

administratively subordinate;

(b)(i) of any offence punishable under any of the

following sections of the Indian Penal Code

(45 of 1860), namely, sections 193 to 196

(both inclusive), 199, 200, 205 to 211 (both

inclusive) and 228, when such offence is

alleged to have been committed in, or in

relation to, any proceeding in any Court; or

(ii) of any offence described in section 463, or

punishable under section 471, section 475 or

section 476, of the said Code, when such

offence is alleged to have been committed in

respect of a document produced or given in

evidence in a proceeding in any Court; or

(iii) of any criminal conspiracy to commit, or

attempt to commit, or the abetment of, any

offence specified in sub-clause (i) or sub-

clause (ii),

except on the complaint in writing of that Court or by such

officer of the Court as that Court may authorise in writing in

this behalf, or of some other Court to which that Court is

subordinate.

(2) Where a complaint has been made by a public

servant under clause (a) of sub-section (1) any authority to

which he is administratively subordinate may order the

withdrawal of the complaint and send a copy of such order

to the Court; and upon its receipt by the Court, no further

proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the

trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term "Court"

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means a Civil, Revenue or Criminal Court, and includes a

Tribunal constituted by or under a Central, Provincial or

State Act if declared by that Act to be a Court for the

purposes of this section.

(4) For the purposes of clause (b) of sub-section (1), a

Court shall be deemed to be subordinate to the Court to

which appeals ordinarily lie from appealable decrees or

sentences of such former Court, or in the case of a Civil

Court from whose decrees no appeal ordinarily lies, to the

principal Court having ordinary original civil jurisdiction

within whose local jurisdiction such Civil Court is situate:

Provided that-

(a) where appeals lie to more than one Court, the

Appellate Court of inferior jurisdiction shall be the Court to

which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue

Court, such Court shall be deemed to be subordinate to the

Civil or Revenue Court according to the nature of the case

or proceeding in connection with which the offence is

alleged to have been committed.”

23. The object of the section is to protect persons from being

needlessly harassed by vexatious prosecutions in retaliation. It is a

check to protect innocent persons from criminal prosecution, which

may be actuated by malice or ill will. The object of the section is to

stop private persons from obtaining sanctions as a means of

wreaking vengeance and to give the Court complete discretion in

deciding whether any prosecution is necessary. The provision

intends that in the case of offences where the act, greatly affects

the dignity and prestige of the Courts concerned, it is deemed

inexpedient to allow such acts to be the sport of personal passions.

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24. The Legislature intended to prevent improper and

reckless prosecutions by private persons for offences in

connection with the administration of public justice and those

relating to the contempt of lawful authority of a public servant. It is

aimed at protecting parties and witnesses against vexatious or

frivolous prosecution for their resorting to Courts and giving

evidence therein. Such protection is afforded by prescribing the

necessity of a complaint by the Courts in or in relation to whose

proceedings the offence is alleged to have been committed.

25. The bar under Section 195, read with Section 340 Cr.P.C. is

on the foundation that the majesty of the judicial process and the

purity of the legal system are to be protected.

26. As the purity of the Court's proceedings is directly

outraged by the crime, the Court is considered the only party

entitled to consider the desirability of complaining about the guilty

party. The offences about which the Court alone is clothed with the

right to complain may, therefore, be appropriately considered to be

only those offences, the commission of which has a close nexus

with the proceeding in that Court.

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27. While dealing with the pari materia provisions in the Code

of Criminal Procedure, 1898 (the Old Code) in Patel Laljibhai

Somabhai a Three-Judge Bench of the Supreme Court observed

thus:

“7. The underlying purpose of enacting Section 195(1)

(b) and (c) and Section 476, seems to be to control the

temptation on the part of the private parties considering

themselves aggrieved by the offences mentioned in those

sections to start criminal prosecutions on frivolous,

vexatious or insufficient grounds inspired by a revengeful

desire to harass or spite their opponents. These offences

have been selected for the court's control because of their

direct impact on the judicial process. It is the judicial

process, in other words the administration of public justice,

which is the direct and immediate object or victim of those

offence and it is only by misleading the courts and thereby

perverting the due course of law and justice that the

ultimate object of harming the private party is designed to

be realised. As the purity of the proceedings of the court is

directly sullied by the crime, the Court is considered to be

the only party entitled to consider the desirability of

complaining against the guilty party. The private party

designed ultimately to be injured through the offence against

the administration of public justice is undoubtedly entitled to

move the court for persuading it to file the complaint. But

such party is deprived of the general right recognized by

Section 190 CrPC, of the aggrieved parties directly initiating

the criminal proceedings. The offences about which the

court alone, to the exclusion of the aggrieved private parties,

is clothed with the right to complain may, therefore, be

appropriately considered to be only those offences

committed by a party to a proceeding in that court, the

commission of which has a reasonably close nexus with the

proceedings in that court so that it can, without embarking

upon a completely independent and fresh inquiry,

satisfactorily consider by reference principally to its records

the expediency of prosecuting the delinquent party. It,

therefore, appears to us to be more appropriate to adopt the

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strict construction of confining the prohibition contained in

Section 196(1)(c) only to those cases in which the offences

specified therein were committed by a party to the

proceeding in the character as such party. It may be recalled

that the superior Court is equally competent under Section

476-A CrPC, to consider the question of expediency of

prosecution and to complain and there is also a right of

appeal conferred by Section 476-B on a person on whose

application the Court has refused to make a complaint under

Section 476 or Section 476-A or against whom such a

complaint has been made. The appellate court is empowered

after hearing the parties to direct the withdrawal of the

complaint or as the case may be, itself to make the

complaint. All these sections read together indicate that the

Legislature could not have intended to extend the prohibition

contained in Section 195(1)( c ) CrPC, to the offences

mentioned therein when committed by a party to a

proceeding in that court prior to his becoming such party. It

is no doubt true that quite often — if not almost invariably —

the documents are forged for being used or produced in

evidence in court before the proceedings are started. But

that in our opinion cannot be the controlling factor, because

to adopt that construction, documents forged long before the

commencement of a proceeding in which they may happen

to be actually used or produced in evidence, years later by

some other party would also be subject to Sections 195 and

476 CrPC. This, in our opinion would unreasonably restrict

the right possessed by a person and recognized by Section

190 CrPC, without promoting the real purpose and object

underlying these two sections. The court in such a case may

not be in a position to satisfactorily determine the question

of expediency of making a complaint.”

28. In Iqbal Singh Marwah, a Constitution Bench of the

Supreme Court, following Patel Laljibhai Somabhai, held that the

section would be attracted only when the offences enumerated in

the said provision have been committed with respect to a document

after it has been produced or given in evidence in a proceeding in

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any Court, i.e. during the time when the document was in custodia

legis. The Constitution Bench further declared that the provision

only creates a bar against taking cognizance of an offence in

certain specified situations except upon complaint by the Court.

29. It is trite that Sections 195 and 340 of the Code do not

control or circumscribe the power of the Police to investigate under

the Code of Criminal Procedure.

30. The Apex Court in State of Punjab v. Raj Singh [(1998) 2

SCC 391] held thus:

“2.............From a plain reading of Section 195 CrPC it is

manifest that it comes into operation at the stage when the

court intends to take cognizance of an offence under Section

190(1) CrPC; and it has nothing to do with the statutory power

of the police to investigate into an FIR which discloses a

cognizable offence, in accordance with Chapter XII of the

Code even if the offence is alleged to have been committed in,

or in relation to, any proceeding in court. In other words, the

statutory power of the police to investigate under the Code is

not in any way controlled or circumscribed by Section 195

CrPC. It is of course true that upon the charge-sheet

(challan), if any, filed on completion of the investigation into

such an offence the court would not be competent to take

cognizance thereof in view of the embargo of Section 195(1)

(b) CrPC, but nothing therein deters the court from filing a

complaint for the offence on the basis of the FIR (filed by the

aggrieved private party) and the materials collected during

investigation, provided it forms the requisite opinion and

follows the procedure laid down in Section 340 CrPC. The

judgment of this Court in Gopalakrishna Menon v. D. Raja

Reddy [(1983) 4 SCC 240 : 1983 SCC (Cri) 822 : AIR 1983 SC

1053] on which the High Court relied, has no manner of

application to the facts of the instant case for there

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cognizance was taken on a private complaint even though the

offence of forgery was committed in respect of a money

receipt produced in the civil court and hence it was held that

the court could not take cognizance on such a complaint in

view of Section 195 CrPC.”

31. In M. Narayandas v. State of Karnataka [(2003) 11 SCC 251]

the Supreme Court reiterated these principles and observed thus:

“8. We are unable to accept the submissions made on

behalf of the respondents. Firstly, it is to be seen that the High

Court does not quash the complaint on the ground that Section

195 applied and that the procedure under Chapter XXVI had not

been followed. Thus such a ground could not be used to sustain

the impugned judgment. Even otherwise, there is no substance

in the submission. The question whether Sections 195 and 340

of the Criminal Procedure Code affect the power of the police

to investigate into a cognizable offence has already been

considered by this Court in the case of State of Punjab v.Raj

Singh [(1998) 2 SCC 391 : 1998 SCC (Cri) 642] . In this case it has

been held as follows:

“2. We are unable to sustain the impugned

order of the High Court quashing the FIR lodged

against the respondents alleging commission of

offences under Sections 419, 420, 467 and 468

IPC by them in course of the proceeding of a

civil suit, on the ground that Section 195(1)(b)(ii)

CrPC prohibited entertainment of and

investigation into the same by the police. From

a plain reading of Section 195 CrPC it is

manifest that it comes into operation at the

stage when the court intends to take

cognizance of an offence under Section 190(1)

CrPC; and it has nothing to do with the statutory

power of the police to investigate into an FIR

which discloses a cognizable offence, in

accordance with Chapter XII of the Code even if

the offence is alleged to have been committed

in, or in relation to, any proceeding in court. In

other words, the statutory power of the police

to investigate under the Code is not in any way

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controlled or circumscribed by Section 195

CrPC. It is of course true that upon the charge-

sheet (challan), if any, filed on completion of the

investigation into such an offence the court

would not be competent to take cognizance

thereof in view of the embargo of Section 195(1)

(b) CrPC, but nothing therein deters the court

from filing a complaint for the offence on the

basis of the FIR (filed by the aggrieved private

party) and the materials collected during

investigation, provided it forms the requisite

opinion and follows the procedure laid down in

Section 340 CrPC. The judgment of this Court in

Gopalakrishna Menon v.D. Raja Reddy [(1983) 4

SCC 240 : 1983 SCC (Cri) 822 : AIR 1983 SC 1053]

on which the High Court relied, has no manner

of application to the facts of the instant case for

there cognizance was taken on a private

complaint even though the offence of forgery

was committed in respect of a money receipt

produced in the civil court and hence it was

held that the court could not take cognizance on

such a complaint in view of Section 195 CrPC.”

Not only are we bound by this judgment but we are also in

complete agreement with the same. Sections 195 and 340 do

not control or circumscribe the power of the police to

investigate under the Criminal Procedure Code. Once

investigation is completed then the embargo in Section 195

would come into play and the court would not be competent to

take cognizance. However, that court could then file a

complaint for the offence on the basis of the FIR and the

material collected during investigation provided the procedure

laid down in Section 340 of the Criminal Procedure Code is

followed. Thus no right of the respondents, much less the right

to file an appeal under Section 341, is affected.”

32. In Basir-Ul-Huq v. State of W.B. (AIR 1953 SC 293), a

Three-Judge Bench of the Supreme Court held that though Section

195 does not bar the trial of an accused person for a distinct offence

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disclosed by the same facts and which is not included within the

ambit of that section, it has also to be borne in mind that the

provisions of that section cannot be evaded by resorting to devices

or camouflages. The Court added that merely by changing the garb

or label of an offence, which is essentially an offence covered by

the provisions of Section 195, prosecution for such an offence

cannot be taken cognizance of by misdescribing it or by putting a

wrong label on it.

33. In S. Dutt (Dr.) v. State of U.P. (AIR 1966 SC 523), the

Supreme Court observed that it is not permissible for the

prosecution to drop a serious charge and select one which does not

require the procedure under Section 195 of the Code of Criminal

Procedure.

34. However, if in the course of the same transaction, two

separate offences are made out, for one of which Section 195 of the

Code is not attracted, and it is not possible to split them up, the drill

of Section 195(1)(b) of the Code must be followed {Vide: Bandekar

Bros. (P) Ltd. v. Prasad Vassudev Keni (AIR 2020 SC 4247)}.

35. While the bar against cognizance of a specified offence is

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mandatory, the same has to be understood in the context of the

purpose for which such a bar is created. The bar is not intended to

take away remedy against a crime but only to protect an innocent

person against false or frivolous proceedings by a private person.

The protection intended by the section against a private person

filing a frivolous complaint is taken care of when the High Court

finds that the matter is required to be gone into in public interest.

Such direction cannot be rendered futile by invoking Section 195 to

such a situation. Once the High Court directs an investigation into a

specified offence mentioned in Section 195, the bar under Section

195(1) cannot be pressed into service {Vide: CBI v. M. Sivamani

[(2017) 14 SCC 855]}.

36. The High Courts, being constitutional Courts invested with

the powers of superintendence over all Courts within the territory

over which the High Court exercises its jurisdiction, are certainly

Courts which can exercise the jurisdiction under Section 195(1)

Cr.P.C. In the absence of any specific constitutional limitation of

prescription on the exercise of such powers, the High Courts may

exercise such power either on an application made to it or suo

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motu whenever the interests of justice demand. The High Courts

not only have the authority to exercise such jurisdiction but also an

obligation to exercise such power in appropriate cases. Such

obligation flows from two factors:

(i)the embargo created by Section 195 restricting

the liberty of aggrieved persons to initiate

criminal proceedings with respect to offences

prescribed under Section 195;

(ii) such offences pertain to either the contempt of

lawful authority of public servants or offences

against public justice.

The power of superintendence, like any other power, impliedly

carries an obligation to exercise powers in an appropriate case to

maintain the majesty of the judicial process and the purity of the

legal system. Such an obligation becomes more profound when the

allegations of commission of offences pertain to public justice

{Vide: Perumal v. Janaki [(2014) 5 SCC 377]}.

The principles that emerge from the precedents

(i) The bar under Section 195(1) of the Code

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applies only to the offences enumerated in

sub-sections (i) and (ii).

(ii)The bar under Section 195 arises only when

the Court proceeds to take cognizance of the

offence alleged. Sections 195 and 340 of Cr.PC

do not control or circumscribe the power of

the Police to investigate under the Criminal

Procedure Code. Once investigation is

completed, then the embargo in Section comes

into play and the Court would not be

competent to take cognizance of the offence.

The Court could then file a complaint for the

offences based on the FIR and the materials

collected during the investigation, provided the

procedure laid down in Section 340 Cr.PC is

followed.

(iii) By changing the garb or label of an offence,

which is essentially an offence covered by the

provisions of Section 195, the Court cannot

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take cognizance of such offence by

misdescribing it or putting a wrong label on it.

(iv) It is not permissible for the prosecution to

drop a serious charge and select one which

does not require the procedure under Section

195 of the Code.

(v) If more than one offence is made out in the

course of the same transaction, for one of

which Section 195 of the Code is not attracted,

it is not possible to split them up, to avoid the

procedure under Section 195 of the Code.

(vi) The Legislature wanted to clothe with the

Court alone the right to complain in respect of

the offences that have close nexus with the

proceedings in that Court. The Legislature

wanted the majesty of the judicial process and

the purity of the legal system to be protected.

(vii) The High Courts, being constitutional Courts

invested with the powers of superintendence

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over all Courts within the territory over which

it exercises its jurisdiction, can direct

investigation into a specified offence

mentioned in Section 195, and then the bar

under Section 195(1) cannot be pressed into

service.

Grievances of the Petitioner

37. The petitioner was subjected to a brutal rape. The

accused recorded the incidents (overt acts) on mobile phones. The

Investigating agency seized the memory card containing the visuals

of sexual assault. The memory card was entrusted to the Court.

Later, it was revealed that when the memory card remained in the

custody of the Court, somebody unauthorisedly accessed it on three

occasions. The petitioner alleges that the contents in the memory

card containing sexually explicit material were copied and

transmitted. The Supreme Court, with intent to protect the privacy

of the victim in Crl.A No.1794/2019 (P.Gopalkrishnan v. State of

Kerala) clarified that it may be justified in only inspecting the

video's contents by the accused and his lawyer for presenting

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effective defence during the trial. The Supreme Court had directed

that all care must be taken that those who are permitted to inspect

the video shall not carry any devices, much less electronic devices,

including mobile phones, which may have the capability of copying

or transferring the electronic record or mutating the contents of

the memory card/pen drive in any manner.

38. The learned Senior Counsel appearing for respondent

No.7 raised a contention that access to the memory card, while it

has been in the Court's custody, cannot be objectionable, especially

when such access to the document is not prohibited in any manner

as stated above. The Supreme Court has in Crl.A No.1794/2019

limited the access to the memory card/pen drive by way of the

inspection alone by the accused and his lawyer. The considerations

that weighed with the Supreme Court while limiting access to that

extent were the victim's privacy and identity.

Privacy

39. The dignity of the individual is a foundational pillar of the

Indian Constitution. The dignity of the individual is closely linked

with privacy, a constitutionally protected right that emerges

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primarily from the guarantee of the life and personal liberty in

Article 21 of the Constitution. Privacy is the constitutional core of

human dignity. Privacy is the ultimate expression of the sanctity of

the individual. There cannot be dignity to an individual without

privacy. Privacy includes, at its core, the preservation of the

sanctity of family life, individual autonomy, and the right and ability

of the individual to protect vital aspects of his or her personal life.

Privacy has both positive and negative content. The negative

content restrains the State from intruding on a citizen's life and

personal liberty. Its positive content imposes an obligation on the

State to take all necessary measures to protect the privacy of the

individual. The dangers to privacy in the age of technology can

originate not only from the State but from the non-state actors as

well {Vide: K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1]}.

40. In Puttaswamy the Constitution Bench of the Supreme

Court declared that the right to privacy is protected as an intrinsic

part of the right to life and personal liberty under Article 21 and as a

part of the freedoms guaranteed by Part III of the Constitution.

41. In the case of women, it is their particular individual

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situation coupled with perversive societal gender-based

discrimination that facilitates their being threatened and targeted

by violence. In my view, the unauthorised access and viewing of the

video is violence against the woman involved, if not an offence.

Access to the memory card not in the manner and for the purpose

as directed by the Supreme Court in P.Gopalkrishnan v. State of

Kerala by any individual is an intrusion upon the victim's privacy. It

is an infringement into the fundamental right of the petitioner under

Article 21 of the Constitution.

42. Therefore, the contention of the learned Senior Counsel

that access to the contents of the memory card is not objectionable

deserves no merit.

Three instances of unauthorised access

09.01.2018

43. On 09.01.2018 at 21:58:41 hrs, somebody accessed the

memory card. Two files, namely System Volume Information and

Indexer Volume Guid were created. The indication is that the

memory card was connected to a computer device with Windows

Operating System.

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13.12.2018

44. Three files, namely, Cache, data and

com.android.gallery3d, were created on the memory card. There

was an unauthorised access to the memory card. The indication is

that on 13.12.2018 at 22:58:17 hrs, the memory card was used in a

computer device with Android Operating System.

19.07.2021

45. As per proceedings dated 16.07.2021, the Trial Court

granted permission to the newly appointed counsel for accused

No.1 to inspect the video footage on 19.07.2021. The Forensic

Science Laboratory report dated 11.07.2022 shows that the memory

card was accessed through a Vivo mobile phone with an Android

Operating System and Jio Network Application installed with

Telegram, WhatsApp, Instagram etc.

46. The learned Director General of Prosecution made

available Annexure R5(h), a memo dated 19.07.2021 submitted by

the counsel for accused No.1 stating that at 3.00 p.m, he viewed the

video footage inside the Court hall. The learned Director General of

Prosecution submitted that the counsel for accused No.1, who was

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permitted to inspect the video footage on 19.07.2021, had not

accessed the video between 12:19:12 hrs and 12:54:13 hrs. The

learned Director General of Prosecution, relying on the prosecution

records, submitted that till 2.00 p.m., on that day, the tower location

of the phone regularly used by the lawyer was at Thrippunithura

and Aluva. The learned Director General of Prosecution further

submitted that the counsel for accused No.1 had never accessed the

memory card on 19.07.2021 as reported in the Forensic Science

Laboratory.

47. The learned counsel for accused No.1 must not have

viewed the video from the memory card; rather he might have

viewed the same from the pen drive. The learned counsel for the

petitioner and the Director General of Prosecution relying on

Anx.R5(h) (the original of which has been produced by the Trial

Court confidentially to this Court) asserted that there was no

possibility that the new counsel for accused No.1 inspected the

memory card on 19.07.2021 between 12:19:12 hrs and 12:54:13 hrs. It

is revealed from the State Forensic Science Laboratory report

dated 11.07.2022 that at the time mentioned above, 34 folders/files

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were newly created/updated in the memory card, indicating that the

memory card was used in a Vivo mobile phone having an Android

Operating System and Jio Network installed with Telegram,

WhatsApp, Instagram etc,.

48. The alleged unauthorised access on 19.07.2021 has a very

close nexus with the Court proceedings. I have no material to

understand the procedure adopted by the Trial Court in permitting

the counsel for accused No.1 to inspect the contents of the video.

There are also no materials to conclude whether somebody

authorised by the Court supervised the inspection of the video. The

learned Director General of Prosecution asserted that the counsel

for accused No.1 did not inspect the video between 12:19 hrs and

12:54 hrs. If that is the case, somebody unauthorisedly accessed

the memory card.

49. It is important to note that the Supreme Court had

specifically directed that all care must be taken to see that while

allowing a person to inspect the video footage, he does not carry

any device, much less electronic devices, including mobile phones,

which may have the capability of copying or transferring the

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electronic records thereof or mutating the contents of the memory

card/pen drive in any manner. The Supreme Court specifically

made it clear that as the matter involves the privacy of the victim or

her identity, only inspection of the footage alone is to be permitted.

Access to the memory card on 09.01.2018 and 13.12.2018

50. The alleged unauthorised access on 09.01.2018 and

13.12.2018 has no nexus or connection with the Court's proceedings.

It happened in the odd hours. I have gone through the proceedings

of the Court below. No materials show that the Court concerned

permitted anybody to take out the memory card from safe custody.

It is presumed that the memory card remained in the safe custody

of the Court on those days. Therefore, access to the memory card

is undoubtedly unauthorised.

Offences alleged

51. The learned counsel for the petitioner and the Director

General of Prosecution submitted that the alleged access to the

memory card/pen drive, copying of the contents and transmission

of the same as alleged by the petitioner make out cognizable

offences. The learned counsel for the petitioner submits that the

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illegal access, copying and transmission of the video files would

attract the offences under Sections 378, 405 read with Section 408,

411 and 425 of IPC, Section 66-B, 66-E and 67 of the Information

Technology Act, 2000 and Section 119 of the Kerala Police Act.

52. The learned counsel submitted that the memory card

being a document, the acts alleged amounted to theft of computer

resources or communication devices. It is further submitted that

there is intentional capture, publishing or transmitting of the image

of the private area of a person without his or her consent, violating

the person's privacy. It is also submitted that the alleged acts

amounted to transmission of obscene material in electronic form.

This Court need not conduct a roving enquiry on the offences

alleged, especially when there are no averments touching the

ingredients of the offences alleged in the material produced before

the Court.

Impact of the observation of this Court in O.P (Crl) No.257/2022

53. The learned counsel for the petitioner and the learned

Director General of Prosecution submitted that the observations of

this Court in O.P(Crl) No.257/2022 would not preclude conducting

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the investigation into the offences allegedly committed following

the unauthorised access. The learned counsel for the petitioner

submitted that the judgment dated 05.07.2022 was passed prior to

the State Forensic Science Laboratory report dated 11.07.2022. It is

further submitted that the offences disclosed are not confined to

the narrow ambit of Section 195 of Cr.PC. While passing the

judgment dated 05.07.2022, this Court had not considered the

nature of the offences allegedly committed.

54. A decision is binding not because of its conclusion but

with regard to its ratio and the principle laid down therein. Every

judgment must be read as applicable to the particular facts proved,

or assumed to be proved, since the generality of the expressions

which may be found there are not intended to be expositions of the

whole law, but governed and qualified by the particular facts of the

case in which such expressions are found. In other words, a case is

only an authority for what it actually decides. The judgment must

be read as a whole and the observations from the judgment have to

be considered in the light of the questions which were before the

Court. A decision of the Court takes its colour from the questions

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involved in the case in which it is rendered and while applying the

decision to a later case, the Courts must carefully try to ascertain

the true principle laid down by the decision of the Court and not to

pick out words or sentences from the judgment, divorced from the

context of the questions under consideration by the Court, to

support their reasonings. {Vide: Quinn v. Leathem

MANU/UKHL/0001/1901 : B.Shama Rao v. Union Territory of

Pondicherry (AIR 1967 SC 1480) : CIT v. Sun Engineering Works (P)

Ltd., [(1992) 4 SCC 363]}.

55. The legal problem disclosed by the facts before this Court

were not under consideration while deciding O.P(Crl) No.257/2022.

56. The specific case of the petitioner is that the offences

alleged do not come under Section 195 Cr.PC. Therefore, the

necessary conclusion is that the observations of this Court in

O.P(Crl) No.257/2022 will not bar any investigation into the offences

alleged.

CONCLUSION

57. On three occasions, the memory card was connected to

computer systems installed with devices capable of copying or

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transferring the electronic record or mutating the contents. The

necessary conclusion would be that we failed to protect the victim's

interest, which resulted in the violation of her fundamental

constitutional right. The victim alleges that the contents of the video

footage were copied and transmitted. The emotional and

psychological harm being suffered by the victim is beyond

imagination.

58. Can there be a situation where the victim of such a crime

is rendered remediless? The victim raised the grievances long

back. It is submitted by the learned counsel for the petitioner that

the petitioner's grievances were brought to the notice of the

prosecution and the Trial Court.

59. It is profitable to refer to the observation of the Supreme

Court in paragraph 21 of the judgment in Perumal v. Janaki.

“21. A Constitution Bench of this Court in Iqbal Singh Marwah

v. Meenakshi Marwah [(2005) 4 SCC 370 : 2005 SCC (Cri) 1101] ,

while interpreting Section 195 CrPC, although in a different

context, held that any interpretation which leads to a situation

where a victim of crime is rendered remediless, has to be

discarded. The power of superintendence like any other power

impliedly carries an obligation to exercise powers in an

appropriate case to maintain the majesty of the judicial process

and the purity of the legal system. Such an obligation becomes

more profound when these allegations of commission of

offences pertain to public justice.”

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60. An inquiry/investigation into the allegation that somebody

unauthorisedly accessed the memory card, and copied and

transmitted the contents of it will only remove the cloud on the

judicial system. It will only maintain the majesty of the judicial

process and the purity of the legal system. The offences alleged

pertain to public justice. Therefore, the obligation of the system is

more profound.

61. Therefore, the following directions are issued:

(i) The District and Sessions Judge, Ernakulam

shall conduct a fact-finding inquiry on the

allegations of unauthorised access to the

memory card and copying and transmitting

its contents.

(ii)The District and Sessions Judge is at liberty

to seek the assistance of any agency,

including the Police, for conducting the

inquiry.

(iii)The petitioner is at liberty to present written

submissions before the District and

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Sessions Judge.

(iv)In the inquiry, if the commission of any

offence is disclosed, the District and

Sessions Judge shall proceed as provided in

the Code of Criminal Procedure, 1973.

(v) The District and Sessions Judge shall see

that the inquiry does not affect the trial of

the Sessions Case No.118/2018.

(vi)The District and Sessions Judge shall

complete the inquiry within one month from

this day.

THE GUIDELINES TO BE FOLLOWED IN THE MATTER OF HANDLING

SEXUALLY EXPLICIT MATERIALS.

62. Sri.Gaurav Agrawal, the learned counsel for the

petitioner, suggested that this Court may lay down the guidelines to

be followed by all concerned, including the Courts, to ensure that

any sexually explicit material is preserved in such a manner that

they are not accessed illegally. Sri.T.A.Shaji, the learned Director

General of Prosecution, suggested that the Court may frame the

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guidelines to be followed by the Law Enforcement agencies and the

Courts so that sexually explicit materials are not leaked or

transmitted in such a way as to infringe upon the fundamental

constitutional rights of the victims. The learned Director General of

Prosecution also submitted a series of suggestions.

63. Women and children often become victims of sexual

offences. Law Enforcement agencies may recover electronic

records containing sexually explicit materials during the

investigation of those offences. These electronic records contain

sexually explicit materials that are highly sensitive documentary

evidence of the commission of the crimes.

64. It is submitted at the Bar that there are no rules that

guide Law Enforcement agencies, experts, Courts, etc, on how to

handle sensitive electronic records containing sexually explicit

materials. It is further submitted that there is a pressing need to

issue the guidelines to be followed by various agencies and

institutions that may handle such electronic records containing

sexually explicit materials.

65. Therefore, Law Enforcement agencies, Courts and

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examining authorities are directed to comply with the following

measures in the matter of handling sexually explicit materials till a

law is enacted on the subject:

Measures to be adopted by Law Enforcement Agencies

66. If any officer of a law enforcement agency happens to

seize or recover any electronic record related to a crime and

realizes or has reason to believe that it must be taken into custody,

he shall seize it with the utmost caution, preventing any chance of

destruction to the electronic records and their contents. This

process should be conducted maintaining the highest level of

secrecy and privacy regarding the contents. The process shall be

documented separately in a mahazer.

66.1. The electronic record shall be separately packed and

sealed in damage-proof packets. Each packet should be labelled

with a unique label that clearly states 'Sexually Explicit Materials'

(abbreviated as SEM) in luminous red ink.

66.2. The law enforcement agency should maintain a register

of electronic records containing Sexually Explicit Materials that

have been seized and are in their custody. This register should

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include details such as the date, time, place of recovery, the source

from whom it was recovered, the officer responsible for the

recovery, and the officers involved in packing and sealing the

material. All entries in the register should include the names and

official designations of the officers involved and must be signed by

them.

66.3. The sealed packet containing sexually explicit material

shall be securely stored in lockers. The time and date of placing the

packet in the locker shall be recorded in the aforementioned

register, along with the acknowledgment of the person responsible

for the locker’s custody. It should only be removed from the locker

for transmission to the relevant Court. When it is taken out of the

locker for transmission to the Court, this action should also be

recorded in the register, including the time, date, and details of the

officer who removed the sealed packet from the locker.

Furthermore, the details of the officer entrusted with the sealed

packet for delivery to the concerned Court, and information

regarding which Court it was transmitted to, must be documented

in the same register.

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66.4. If it is discovered that any person has accessed the

electronic record after it has been sealed and before it is entrusted

to the Court, the individuals responsible should be held

accountable.

Measures to be taken by the Courts in handling electronic records

containing Sexually Explicit Materials

67. Every Court should maintain a register of electronic

records containing sexually explicit materials received by the

Court. This register should include the time and date of receipt,

details of the crime, a description of the packet, and information

about the person who presented the sealed packet to the Court.

Additionally, there should be a declaration from the transmitting

officer confirming that the packet was transmitted without any

destruction or tampering.

67.1. The sealed packets shall be presented to the Chief

Ministerial Officer of the Court. The Chief Ministerial Officer is

responsible for examining the sealed packet and ensuring that it is

properly sealed and has not been damaged or tampered with.

67.2. The officer who receives the sealed packet shall provide

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proper acknowledgment to the officer who entrusted the sealed

packet, provided that the sealed packet is received in proper

condition. If the packet is not in proper condition or is suspected of

tampering or misuse, it must be reported to the Judicial Officer. The

Judicial Officer shall summon the officer responsible for

transmitting the packet to the Court, and a proceeding shall be

drawn up concerning signs of tampering of the packet with

acknowledgment from the officer concerned. The details of such

proceedings shall be recorded in the aforementioned register. If a

scientific investigation is required to determine the misuse of the

electronic record during its transmission, the Court shall order

such an investigation.

67.3. Upon receiving the sealed packet in proper condition,

which contains the electronic record containing sexually explicit

material, it shall be presented before the Judicial Officer without

delay. In the presence of the Judicial Officer, the packet shall be

securely placed in a locker or chest, and the keys shall be Kept

either by the Judicial Officer or the Chief Ministerial Officer.

67.4. The time, date and details such as which officer placed

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the packet in the locker/chest, etc., shall be recorded in the

aforementioned register.

67.5. If the Court receives any request for the examination of

the electronic record by any authority, the packet shall be removed

from the locker/chest in the presence of the Judicial Officer. Details

regarding the time, date, and the officers who handled the material

shall be noted in the said register.

67.6. The sealed packet containing the electronic record shall

be further packaged within the Court without causing any damage

to the sealed packet. An outer label shall be affixed, noting

‘Sexually Explicit Material (SEM)’ in luminous red ink.

67.7. The details of transmission for examination, including

the date, time, destination authority, the officer through whom it

was transmitted, etc., shall be recorded in the aforementioned

register.

67.8. When the examining authority returns the electronic

record after examination, it shall be sent to the Court in a sealed

packet, following the same procedure detailed above. The date and

time of receipt shall once again be entered in the register. The

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sealed packet, along with any additional electronic records created

by the examining authorities containing sexually explicit materials,

shall be deposited in the locker/chest in the presence of the

Judicial Officer in a similar manner.

67.9. No copies of such sexually explicit electronic records,

including newly created electronic records as a result of scientific

examination, shall be provided to any person, including the

accused, in the said case. The Court may allow the accused or their

lawyer to view them under the conditions mentioned hereafter:

(a) Permission to view the electronic record in

camera shall be granted by the Court only

based on an order passed by the Court upon a

petition for the same filed either by the

prosecution or the accused. The Court shall

aim to minimize instances of playing the

electronic records, and all applications filed

may be considered together, with a single

opportunity made available for viewing by all

petitioners together. The Court shall not

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entertain further applications except in

exceptional situations, for which the Court

must record reasons before granting such

permission. In cases with multiple lawyers for

any accused, only one among them shall be

allowed to view the electronic record.

(b) The electronic record shall only be accessed

by experts from the examining authority, and

these experts shall take sufficient precautions

to maintain the authenticity of the electronic

records, including their hash value, despite

viewing. If duplications of such electronic

records are created during scientific

examination, and the contents are identical,

only the duplicated copy, such as a pen drive

or CD, need be allowed to be viewed.

(c) The Court shall take sufficient precautions to

ensure that no equipment or secret devices are

used by any person present while playing the

electronic record, as ordered, which could

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enable the copying, destruction, or mutilation of

the contents of the electronic record.

(d) The Court shall record detailed proceedings

regarding the viewing/playing of the electronic

record, including the participants’ details, date,

time, details of experts present, and the

measures adopted to preserve the authenticity

of the electronic document.

(e) The date, time, and details of the proceedings

shall also be entered in the aforementioned

register.

(f) Upon the finality of the case, including any

appeals, the Court shall send the electronic

record to the examining authority for permanent

destruction. The Court shall obtain a detailed

destruction report from the examining authority

or a similarly notified authority. This report shall

be retained by the Court as a permanent record,

with the report's details entered into the

aforementioned register. The transmission for

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destruction, along with the necessary order for

such destruction, in respect to the electronic

document shall follow the same procedure as

detailed above for its examination.

(g) The Judicial Officer shall not permit any Court

officer to remove electronic records containing

sexually explicit materials from the chest without

a special order, and the details of this order

shall be recorded in the special register

mentioned above. The electronic record shall

only be removed from the chest for trial,

hearings, or any other trial-related matter upon

a special written request from the prosecution or

defense, or for any purpose deemed necessary

by the Court based on a written order. Once the

electronic record is removed from the chest, the

Judicial Officer shall take suitable measures to

ensure that any Court staff does not misuse it

while the packet is unsealed.

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Measures to be adopted by the Examining Authorities.

68. The Examining Authority shall maintain a register of

electronic records containing sexually explicit materials to record

such electronic record's receipt, return, or destruction.

68.1. The Examining Authority shall receive the sealed

packets only after confirming that the sealed packet is received

without tampering with its seals. The packets marked Sexually

Explicit Material, shall be stored in lockers/chests after making

proper entries in the aforementioned register. If there is any

evidence of tampering with the seals or suspicion thereof, it shall

be promptly reported to the Court for further instructions.

68.2. As and when the sealed packet containing Sexually

Explicit Material is received, it shall be recorded in the register,

providing details such as the time, date, the expert who conducted

the investigation, and the examination period etc,.

68.3. The expert shall take sufficient precautions to ensure

that no other person has accessed the electronic record while in

his/her custody. If assistance from any other person is sought

during the examination, the details of such persons shall also be

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entered in the aforementioned register.

68.4. If any additional electronic documents containing

Sexually Explicit Material are created during the examination or

analysis, the details of the same shall also be entered in the

aforementioned register. These newly created electronic records

shall be returned to the Court in separate sealed packets, each

clearly labelled in luminous red ink to indicate that it contains

Sexually Explicit Material. No such electronic records shall be sent

along with the reports; reports and electronic records shall be sent

to the Court in separate sealed packets.

68.5. If the examining authority takes any copies of the

electronic records or mirror images, the details of the same may

also be entered in the aforementioned register. The examining

authority shall securely store these copies in safe lockers for

future examination purposes, and they shall be forwarded to the

Court as detailed above, if ordered by the Court.

68.6. If any sexually explicit electronic record or any part or

extractions from it are forwarded to any other division of the

examining authority for examination, the internal transmission to

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such division shall be recorded in the aforementioned register. The

same procedures shall be followed in such internal transmission to

preserve the authenticity and secrecy of such electronic records.

68.7. If any electronic record containing Sexually Explicit

Material is received for destruction, it may be destroyed without

providing any opportunity for copying or extraction. The procedure

and proceedings regarding the destruction shall be reported to the

Court.

68.8. The head of the department of the examining authority

shall pay special attention to ensure that its officers follow the

aforementioned directions without any lapses.

69. Before parting with this judgment, I would wish to request

the Central and State Governments to formulate necessary rules

for the safe handling of electronic records containing sexually

explicit materials.

70. I place on record my appreciation for the able assistance

rendered by Sri.T.A.Shaji, the learned Director General of

Prosecution as well as Sri.Gaurav Agrawal, the learned counsel

appearing for the petitioner in formulating the aforementioned

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guidelines.

71. The Registry shall forward a copy of this judgment to the

Chief Secretary to the Government of Kerala, the State Police Chief

and the District Judges for necessary action.

The Writ Petition (Criminal) is disposed of as above.

Sd/-

K.BABU,

JUDGE

KAS

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APPENDIX OF WP(CRL.) 445/2022

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED

BY THE INVESTIGATING OFFICER BEFORE THE

TRIAL COURT WITH CONNECTED DOCUMENTS,

DATED 4.4.2022.

EXHIBIT P2 TRUE COPY OF THE ARGUMENT NOTE

SUBMITTED BY THE PROSECUTION BEFORE THE

TRIAL COURT DATED 19.05.2022

EXHIBIT P3 TRUE COPY OF THE STATEMENT FILED BY THE

FIRST RESPONDENT IN CRL.M.C 1106/2021

DATED 08.03.2022.

EXHIBIT P4 TRUE COPY OF THE PETITION FILED BY THE

RESPONDENTS IN CRL.M.C 803/22 FOR

EXTENSION OF TIME FOR COMPLETING THE

INVESTIGATION DATED 07.04.2022.

EXHIBIT P5 (SEALED

COVER)

TRUE COPY OF THE CYBER FORENSIC

ANALYSIS REPORT OF THE STATE FORENSIC

SCIENCE LABORATORY, TRIVANDRUM DATED

11.07.2022

EXHIBIT P6 (SEALED

COVER)

TRUE COPY OF THE FINAL REPORT FILED BY

THE DEPUTY SUPERINTENDENT OF POLICE,

CRIME BRANCH, ALAPPUZHA BEFORE THE

JUDICIAL FIRST CLASS MAGISTRATE COURT.

RESPONDENT EXHIBITS

ANNEXURE R5(a) TRUE COPY OF THE REPORT FROM THE FSL,

THIRUVANANTHAPURAM DATED 29.01.2020

ANNEXURE R5(b) COPY OF THE ORDER DATED 09.05.2022 OF

THE TRIAL COURT

ANNEXURE R5(c) COPY OF THE FORWARDING NOTE DATED

30.05.2022 SUBMITTED BEFORE THE TRIAL

COURT.

ANNEXURE R5(d) COPY OF THE STATEMENT OF SRI.PRASOON

BENNY, THEN APP GR.II, JFCM, ANGAMALY.

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ANNEXURE R5(e)

(SEALED COVER)

THE TRUE COPY OF THE ORDER DATED

07.02.2018 BY JFCM ANGAMALY IN CRLMP

49/2018 IN CP 16/2017

ANNEXURE R5(f)

(SEALED COVER)

THE TRUE COPY OF THE COMMON ORDER IN

CRLMP 2968/2019, 3083/2019, 3113/2019,

3082/2019, 3084/2019, 3114/2019 IN SC

118/2018 BY ADDITIONAL SPECIAL JUDGE

(SPE/CBI)III ERNAKULAM

ANNEXURE R5(g)

(SEALED COVER)

THE TRUE COPY OF THE PETITION CMP

1187/2021 IN SC 118/2018 FILED BY THE

COUNSEL FOR A1

ANNEXURE R5(h)

(SEALED COVER)

THE TRUE COPY OF THE MEMO DATED

19.07.2021 FILED BY THE COUNSEL FOR A1

ANNEXURE R5(i)

(SEALED COVER)

THE TRUE PHOTOCOPY OF THE NEWSPAPER

REPORT IN MALAYALA MANORAMA DAILY DATED

17.07.2022 AND ITS ENLARGED AND LEGIBLE

PORTION

EXHIBIT R7 TRUE COPY OF THE ORDER OF THE SUPREME

COURT OF INDIA IN M.A.NO.62/2022 IN

CRL.A. NO.1794/2019 DATED 24.01.2022

EXHIBIT R7 (a) TRUE COPY OF THE ORDER OF THE HIGH

COURT OF KERALA IN CRL.M.A.NO.6/2022 IN

CRL.M.C.NO.803/2022 DATED 19.04.2022

EXHIBIT R7 (b) TRUE COPY OF THE ORDER OF HIGH COURT OF

KERALA IN TR.P.(CRL) NO.52/2022 DATED

22.09.2022

EXHIBIT R7 (c) TRUE COPY OF THE ORDER OF THE SUPREME

COURT OF INDIA IN M.A.NO.1433/2022 IN

CRL.A.NO.1794/2019 DATED 05.09.2022

EXHIBIT R7 (d) TRUE COPY OF THE ORDER NO.

NO.T9/28733/2017/PHQ ISSUED BY THE

STATE POLICE CHIEF DATED 06.01.2022

EXHIBIT R7 (e) TRUE COPY OF THE ORDER PASSED BY THE

ADDITIONAL SPECIAL SESSIONS COURT

(SPE/CBI)-III, ERNAKULAM IN SC

NO.118/2018 DATED 17.12.2019

EXHIBIT R7 (f) TRUE COPY OF THE JUDGMENT OF THE HIGH

COURT OF KERALA IN OP (CRL) NO.257/2022

DATED 05.07.2022

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EXHIBIT R7 (g) TRUE COPY OF THE PROCEEDINGS OF SC

NO.118/2018 OF THE ADDITIONAL SPECIAL

SESSIONS COURT (SPE/CBI)-III, ERNAKULAM

DATED 16.07.2021 UPLOADED IN THE E-

COURT SERVICES

Exhibit R7 (h) TRUE COPY OF THE PROCEEDINGS OF

11.08.2023 TAKEN FROM E-COURTS

EVIDENCING ISSUANCE OF SUMMONS TO CW

437.

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