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 andI.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.
Citation: AIR 2020 SC 1,2019 SCC OnLine SC 1532.
