In a significant judgment, the High Court of Kerala has held that CCTV footage of a crime is not a 'material object' and therefore the accused is entitled to receive a copy of it as per Section 207 of the Code of Criminal Procedure.
"CCTV footage in the instant case is "data" as defined under S.2(o) of the Information Technology Act, 2000 and it is an electronic record as defined under S.2(t) of the I.T. Act. If that be the case, the electronic record produced for the inspection of the Court has to be regarded as documentary evidence. In that view of the matter, I am unable to accept the logic of the prosecution in producing the CCTV footage as a material object and in refusing to supply a copy of the same to the accused", held the single bench comprising Justice Raja Vijayaraghavan.
As an adversarial system is followed in our country, the accused is entitled to a copy of the records so that he can bring to the notice of the courts exculpatory material or such other aspects in the prosecution case, which may be to his advantage, said the Court.
The Court was dealing with a revision petition filed by Jisal Razaq, an accused in the Abhimanyu murder case, challenging the order of Magistrate that rejected his application for copies of the CCTV footage.
Advocate John S Ralph, counsel for the accused, contended that the footage would show that the accused was not present at the time of crime. The Special Public Prosecutor Suman Chakravarthy took the stand that the footage was 'material evidence' and that there is no requirement under law to supply a copy of material object to the accused.
To decide the issue, the Court took the assistance of Advocate D Prem Kamath as amicus curiae. The amicus submitted that a combined reading of the "document" and "evidence" together with the provisions of the Information Technology Act unambiguously would lead to the conclusion that CCTV footage is definitely "data", which is an "electronic record" that comes within the definition of "document" .
The Court noted that with the advent of technology, the line between categorizing a thing as a 'material thing' or a document has become more or less obliterated.
"If a hard disk or a magnetic disk containing data is stolen and the same is seized and produced in court, it may sometimes be difficult to categorize it as 'a thing' produced for inspection of the court or a 'document'. One way of distinguishing it is by asking a question as to whether the item is relevant in itself or whether the item is relevant because of the information that can be retrieved from it. In other words, if a material thing is produced in court to rely on the data that it contains, it is probably a document and it has to be regarded as such. On the other hand, if the material thing is brought to court in order to rely on it as it is, it is a thing and may be exhibited as a material object."
Reference was made to the Supreme Court's decision in Tarun Tyagi v CBI case, where the Court ordered the supply of cloned copies of hard disk to the accused under Section 207.
The Court however added that in cases where supply of copies of digital evidence is "impracticable or unjustifiable" - such as video footage containing visuals of sexual violence or footage of terrorism crimes raising concerns of national security - copies can be denied to the accused.
"I hold that cloned Digital copies of the footage relied on by the prosecution have to be made available to the accused, unless it is impracticable or unjustifiable. For instance, in a case of brutal sexual abuse, if the incident has been videotaped, in view of the element of privacy or to prevent misuse, copy may be refused. In a case in which the accused is being prosecuted for possessing pedophilic material, copies of the same can be refused. In such cases, the Court may grant permission to the counsel or the accused to have a private screening to have a proper defense. Same is the case in a terrorism prosecution, wherein national security interests demands non-disclosure of the digital evidence, which has been collected. These are merely illustrative and not exhaustive."
The discussion in the judgment touched upon the meaning of the term 'electronic evidence'. The Court observed that it is not confined to mere computer outputs such as scanned documents or printouts, which are ordinarily used in the course of business.
"It includes any data, information or other record stored in electronic medium irrespective of when, how or by whom such record was created. It may include sound recordings of intercepted communications or video footage of crimes. It may also comprise of voluminous data stored on cloud services wherein the device and storage infrastructure are indeterminable. It may also be stored in third party storage platforms, or in social media platforms like Facebook, Twitter, Whatsapp etc. or in e mails and Camera Footage or photographs. Thus the wide scope of obtaining digital evidence yields a commensurate potential for recoverable evidence"
Electronic records are created with every day actions of individuals and in criminal offences, it is extensively used to establish the guilt of the accused, said the Court.
The Supreme Court is at present considering the issue whether an accused is entitled to copy of a 'memory card' containing the visuals of an alleged sexual crime. This is in the appeal filed by actor Dileep against the Kerala High Court judgment which refused to supply copy on the reasoning that 'memory card' was a 'material object'.
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