Plea Against Polygamy and Nikah-Halala

-Abhay Saxena

Background:

Section 207 of the code of criminal procedure, 1973 deals with the legal provision of the supply to the accused of copy of police report and other documents.

This section adjures a duty upon the magistrate to furnish to the accused relevant documents or extracts thereof where the proceeding has been instituted on a police report so that the accused may know the charges brought against him and the material based on which they are going to be substantiated by the prosecution.

In the case where the proceeding has been instituted on a police report, the magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

  1. Police Report
  2. The First Information Report (FIR) recorded under section 154 of CrPC
  3. The statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part regarding which a request for such exclusion has been made by the police officer under sub-section (6) of section 173
  4. The confessions and statements, if any, recorded under section 164
  5. any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

Current Issue:

In February 2017, A Malayalam Film Actress was ostensibly abducted and molested by eight accused. The entire act had allegedly taken place in a moving vehicle, which was filmed by to blackmail the actress. P Gopalkrishnan alias Dileep was subsequently arrested and arrayed as an accused in connection with the offences under the Indian Penal Code (IPC) and the Information technology (IT) Act.

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The Kerala High Court directed that the trial in the case be concluded expeditiously, preferably within the date of judgment. Dileep had challenged the decision of the Kerala High Court which had dismissed his plea saying that memory card or pen drive can’t be held as a “document” under the Indian Evidence Act and is a material object which can’t be handed over to the accused.

The case went to the Supreme Court and a Two-Judge bench was commissioned which comprised of Justice A.M.Khanwalikar and Justice Dinesh Maheshwari to decide whether the accused is entitled to a copy of memory card under section 207 of the Code of Criminal Procedure.

Question under Law:

There were two instances before the Supreme Court:

(a) Whether the Memory Card/Pen-Drive is a “Document” or a “Material Object”?

(b) Can the Magistrate withhold Any Document Submitted Along with Police Report except when it is Voluminous?

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The Supreme Court bench comprising of Justices A.M.Khanwalikar and Dinesh Maheshwari overturned the verdict given by the Kerala High Court which held that the memory card was a material object and hence doesn’t come under the ambit of section 207 of the CrPC.

The judgment referred to Section 3 of the Indian Evidence Act, which includes electronic record as a “Documentary Evidence”. Section 2(1)(t) of the Information Technology Act,2000 also defined electronic record to mean “data, record, or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated micro-fiche”. It also referred to the reports on the 42nd and 156th reports of the Law Commission of India, which recommended amendment to section 29 of the IPC 1860, which defines ‘document ‘to specifically include therein any “disc, tape, soundtrack or other device on or in which any matter is recorded or stored by mechanical, electronic or other means”.

The Supreme Court also held that the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of CrPC does not empower the Magistrate to withhold any “document” submitted by the investigating officer along with the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of ‘statements’ referred to in sub-Section (6) of Section 173 of the 1973 Code.

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Conclusion:

While going through the Judgments of the Honorable High Court of Kerala as well as the Supreme Court of India, I perceive that the judgment given by the Supreme Court is scrupulous on Section 207 of CrPC that electronic record including tapes, images, memory card, etc. comes in the definition of “Documentary Evidence” and the honourable magistrate cannot withhold the documents from the accused expect if it is voluminous.

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