Jisal Rasak Vs. The State of Kerala
2019 (4) KHC 928
In the High Court of Kerala at Ernakulam
Crl MC 4148/2019(G)
Before Justice Raja Vijayaraghavan V.
Decided on September 30, 2019
Relevancy of the case: Whether a copy of CCTV footage should be provided to the accused?
Statutes & Provisions Involved
- The Information Technology Act, 2000 (Section 2(t), Section-4)
- The Evidence Act, 1872 (Section-3)
Relevant Facts of the Case
- The petitioner approached the learned Magistrate and filed an application seeking to obtain copies of
(a) the CCTV footage relied on by the prosecution,
(b) the FSL report obtained from the Forensic Science Laboratory relating to the CCTV footage, and
(c) the report submitted by the investigating agency seeking further investigation.
- The prosecution vehemently opposed the handing over of the CCTV footage and it was argued that the footage having been produced as a material object, the digital copies of the same cannot be furnished.
- The learned Magistrate ordered for the issuance of the records, which were requested for, but refused to issue digital copies of the camera footage.
Prominent Arguments by the Advocates
- The learned counsel appearing for the petitioner submitted that
the learned Magistrate has egregiously erred in concluding that the electronic evidence relied on by the prosecution is a material object and refused to furnish copies of the same to the petitioner. He contended that Section 3 of the Indian Evidence Act, 1872 defines “evidence” as all documents, including electronic records produced for the inspection of the Court. Referring to the relevant provisions of the Information Technology Act, 2000, it was argued that a document under Section 3 of the Indian Evidence Act, 1872 would definitely include electronic records as defined under Section 2(t) of the Information Technology Act, 2000.
- The learned Senior Public Prosecutor
resisted the submissions advanced by the learned counsel appearing for the petitioner. Relying on a decision of this court in Sherin V. John v. State of Kerala 2018 (3) KHC 725, he argued that the law recognises a third category of evidence in addition to oral evidence as well as documentary evidence, which is ‘real evidence’ or ‘physical evidence’ and it consists of material objects other than documents produced for the inspection of the Court. It is urged that material evidence is not covered under Section 207 of the Cr.P.C. and there is no law, which provides for the issuance of a copy of a material object. Alternatively, it is argued that the electronic record having been produced as a material object, it is a piece of real evidence and will not fall in the category of an electronic record or document. If that be the case, the prosecution is not obliged to serve a copy of the same to the accused and for the self-same reason, the accused cannot clamour of prejudice and claim it as a matter of right.
Opinion of the bench
- Section 4 of the Information Technology Act provides for legal recognition of electronic records. It states that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is-
(a) rendered or made available in an electronic form; and
(b) accessible so as to be usable for a subsequent reference.
- “Evidence” has been defined to mean and include all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. Thus, after the amendment which was brought into effect from 17.10.2010, electronic records have been placed in the category of documentary evidence.
- This petition will stand allowed.
- The digital copies of the electronic record relied on by the prosecution and sought for by the petitioner shall be issued to him by imposing appropriate safeguards that the jurisdictional court may deem fit and proper.