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P. Gopalkrishnan @ Dileep Vs. State of Kerala [29/11/19]

Section

P. Gopalkrishnan @ Dileep Vs. State of Kerala and Anr.

[Criminal Appeal No. 1794 of 2019 arising out of SLP (Crl.) No. 10189/2018]

A.M. Khanwilkar, J.

1. Leave granted.

2. The
conundrum in this appeal is: whether the contents of a memory card/pendrive being
electronic record as predicated in Section 2(1)(t) of the Information and
Technology Act, 2000 (for short, the 2000 Act) would, thereby qualify as a
“document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (for
short, the 1872 Act) and Section 29 of the Indian Penal Code, 1860 (for
short, the 1860 Code)? If so, whether it is obligatory to furnish a cloned
copy of the contents of such memory card/pendrive to the accused facing
prosecution for an alleged offence of rape and related offences since the same
is appended to the police report submitted to the Magistrate and the
prosecution proposes to rely upon it against the accused, in terms of Section
207 of the Code of Criminal Procedure, 1973 (for short, the 1973 Code)? The
next question is: whether it is open to the Court to decline the request of the
accused to furnish a cloned copy of the contents of the subject memory
card/pendrive in the form of video footage/clipping concerning the alleged incident/occurrence
of rape on the ground that it would impinge upon the
privacy, dignity and identity of the victim involved in the stated offence(s)
and moreso because of the possibility of misuse of such cloned copy by the
accused (which may attract other independent offences under the 2000 Act and
the 1860 Code)?

3. The
appellant has been arrayed as accused No. 8 in connection with offence
registered as First Information Report (FIR)/Crime Case No. 297/2017 dated
18.2.2017 punishable under Sections 342, 366, 376, 506(1), 120B and 34 of the
1860 Code and Sections 66E and 67A of the 2000 Act, concerning thenalleged
incident/occurrence at around 2030 hrs. to 2300 hrs. on 17.2.2017, as reported
by the victim.

4. For
considering the questions arising in this appeal, suffice it to observe that
the investigating officer attached to the Nedumbassery Police Station,
Ernakulam, Kerala, after recording statements of the concerned witnesses and
collecting the relevant evidence, filed police reports under Section 173 of the
1973 Code before the Judicial First Class Magistrate, Angamaly. First police report,
on 17.4.2017 and the second, on 22.11.2017.

When the appellant
was supplied a copy of the second police report on 15.12.2017, all documents
noted in the said report, on which the prosecution proposed to rely, were not
supplied to the appellant, namely, (i) electronic record (contents of memory
card); (ii) Forensic Science Laboratory (for short, the FSL) reports and the findings
attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. footages and
(iv) Call data records of accused and various witnesses etc.

5. It is noted
by the concerned Magistrate that the visuals copied and documented by the
forensic experts during the forensic examination of the memory card were
allowed to be perused by the appellants counsel in the presence of the regular
cadre Assistant Public Prosecutor of the Court, in the Court itself. After
watching the said visuals, some doubts cropped up, which propelled the
appellant to file a formal application before the Judicial First Class
Magistrate, Angamaly for a direction to the prosecution to furnish a cloned
copy of the contents of memory card
containing the video and audio footage/clipping, in the same format as obtained
in the memory card, alongwith the transcript of the human voices, both male and
female recorded in follows:”

7. It may
be noted that the electronic record in the form of copy of the alleged video
footage of the offending act committed by accused No.1 on the body and person
of the defacto complainant is a crucial and material record relied by the
prosecution in this case. It is the definite contention of prosecution that the
above electronic record is both the evidence of commission of crime as well as
the object of commission of crime and hence indisputably the most material piece of evidence in this
case. When the injustice, in not serving such a vital piece of evidence relied
on by the prosecution in the case, was immediately brought to the notice of
this Honble Court, without prejudice to the right of petitioner to obtain
copies of the same, the defence side was allowed to watch the alleged video
footages by playing the contents of a pen drive in the lap top made available before
this Honble Court. Head phones were also provided to the counsel and also to
the learned APP who also wasthroughout present during this proceedings.

8. It is
most respectfully submitted that by watching the video footage, although in a
restricted environment and with limited facilities in the presence of the Ld.
APP and the Presiding Officer, it is shockingly realised that the visuals and
audio bytes contained in the video are of such a nature which would completely
falsify the prosecution case in the form presently alleged by the prosecution.
As a matter of fact the video
footage is not at all an evidence of commission of crime as falsely contended
by the prosecution but it is rather a clear case of fabricating false evidence
with intent to foist a false case. It is submitted that it is after
deliberately concealing or withholding the alleged
primary evidence viz. the mobile phone stated to have been used by accused
No.1, by the prosecution in active connivance with accused No.1, that the
prosecution has produced a memory card which evidently contains only selected
audio and video recording.

9. xxx xxx
xxx

10.The
further Verification and close scrutiny of the images and audio with scientific
aid will in all probability provide more significant materials necessary to find
out the truth behind the recorded images and the extent of tampering and the
same could only be unearthed if the mirror copy of the memory card is furnished
to the petitioner which he is entitled to get without any further delay. As the
prosecution is fully aware that the tampering could be detected and further
female voice could be retrieved by the defense, the prosecution is trying to prevent
the supply of the copy of the memory card in any form to the defense. It is
illegal and the same will clearly amount to
denial of a just and fair trial.

11. xxx xxx
xxx

12. A close
scrutiny of the contents of mahazar dated 8.3.2017 would show that on 18.2.2017
accused No.1 had entrusted a 8 GB memory card to Adv. E.G. Poulose, who had in
turn produced the same before the Court of JFCM Aluva. The investigating agency
thereafter obtained custody of the above electronic record and later the 8 GB
memory card was sent to FSL, where, upon examination, Dr. Sunil S.P., Assistant
director (documents), FSL, Thiruvananthapuram has allegedly prepared a report
in that regard. The copy of the report has not been furnished to the
petitioner. The mahazar further shows that the contents of Memory card was
transferred to a pen drive form the investigation purpose.

The above
mahazar further categorically states that the pen drive contained the data transferred
from memory card and the same relates to the video footage of 17.2.2017 from
22:30:55 to 22:48:40 hrs and it is in order to check and verify whether the
voice contained therein belongs to Suni that the voice sample was allegedly
taken. The description in the mahazar proceeds as if there is only male voice
in the video footage ntotally screening the fact that the video footage
contains many vital and material utterances in female voice. Those utterances
were revealed to the petitioner and his counsel only on 15.12.2017.

Everybody
present had the benefit of hearing the said clear female voice. As mentioned
earlier the Ld. APP was also present. But the investigation agency which should
have definitely seen and heard the same has for obvious reason screened the
said material aspects from the records. The investigation, it appears did not
venture to take steps to compare the female voice in the video footage with the
voice of the female involved in this case, for obvious reasons. On viewing and
hearing, it is revealed that clear attempt have been made by somebody to delete
major portions from the video footage and from the audio recording.

13. It is
respectfully submitted that utterances made by the parties involved and seen in
the video footage determines the nature of act recorded in the video footage and
a transcript of the utterances and human voices in the video footage is highly
just and necessary especially in view of the shocking revelation, found when
the video footage was played on 15.12.2017.

14. Yet
another aspect which is to be pointed out is the mysterious disappearance of
the mobile phone allegedly used for recording the video footage. The strong
feeling of the petitioner is that the investigating agency has not so far stated
the truth regarding the mobile phone allegedly used to shot the video footage.
The prosecution records itself would strongly indicate that the mobile phone
used to record the
occurrence (which now turns out to be a drama) was with the Police or with the
persons who are behind the fabrication of the video footage as evidence to
launch the criminal prosecution and false implication of the petitioner.

It is
revolting to common sense to assume that even after conducting investigation
for nearly one year by a team headed by a very Senior Police officer like the
Addl. DGP of the Stage, during which accused No.1 was in the custody of the
investigating team for 14 days at a stretch and thereafter for different spells
of time on different occasions the original mobile instrument used for
recording the video footage
could not be unearthed. It appears that the investigating team was a willing
agent to suffer the wrath of such a disgrace in order to suppress the
withholding of the mobile instrument.

15. It is
interesting to note that even in the second final report dated 22.11.2017 the
Police has stated that the investigation to obtain the original mobile phone is
even now continuing. It is nothing but an attempt to be fool everybody
including the Court.

16. It is
most respectfully submitted that in view of the startling revelation in the
video footage, the petitioner intends to make request to conduct proper, just
and meaningful investigation into the matter so as to ensure that the real
truth is revealed and the real culprits in this case are
brought to justice. For enabling the petitioner to take steps in that regard.
It is highly just and essential that the cloned copy of the contents of memory
card containing the video and audio content in the same format as obtained in
the Memory card and the transcript of the human voices recorded in it are
produced before Court and copy of the same furnished forthwith to the
petitioner.

17. As
mentioned herein before, the prosecution has chosen to furnish only a small
portion of the prosecution records on 15.12.2017. The petitioner is approaching
this Honble Court with a detailed petition stating the details of relevant
documents which do not form part of the records already produced before this
Honble Court and the details of the other documents which are not furnished to
petitioner.

18. It is
submitted that the petitioner as an accused is legally entitled to get the
copies of all documents including the CDs, Video footage etc., and the
prosecution is bound to furnish the same to the petitioner.

19. In the
above premises it is respectfully prayed that this Honble Court may be pleased
to direct the prosecution to furnish a cloned copy of the contents of Memory
Card containing the video and audio content in the same format as obtained in
the memory card and the transcript
of human voices, both male and female recorded in it, and furnish the said
cloned copy of the memory card and the transcript to the petitioner.”

6. The
Magistrate vide order dated 7.2.2018, rejected the said application,
essentially on the ground that acceding to the request of the appellant would
be impinging upon the esteem, decency, chastity, dignity and reputation of the
victim and also against public interest. The relevant portion of the order
dated 7.2.2018 reads thus:”Heard both
sides in detail. The petitioner has also filed reply statement to the objection
and counter statement filed by Special Public Prosecutor
in the case. The allegation against the petitioner is that he engaged the first
accused to sexually assault the victim and videograph the same. On receipt of
summons the petitioner entered appearance and was served with the copies of
prosecution records. The learned Senior Counsel appearing for the petitioner
requested for the copies of the contents of memory card.

The same
could not be allowed the investigation official has already a petition
filed objecting the same, with a prayer to permit them to view the same in the
court. Hence they were permitted to view the video footage and subsequent to
the same they had filed this petition seeking a direction to the prosecution to
furnish the copies of alleged audio and video footage and its transcript. The
prosecution strongly opposed the same stating that the same will add insult to
the victim who had suffered a lot at the hands of not only the accused but also
the media.

Hence they
submitted that the petitioner may be permitted to view the contents of the
video during trial. Here the offence alleged tantamounts to a serious blow to the
supreme honour of a woman. So as to uphold the esteem, decency, chastity,
dignity and reputation of the victim, and also in the public interest, I am
declining the prayer. But so as to ensure fairness in the proceedings and for
just determination of the truth, the petitioner is permitted to inspect the
contents of the video footage at the convenience of court.”

7. Aggrieved
by the above decision, the appellant carried the matter to the High Court of
Kerala at Ernakulam (for short, the High Court) by way of Crl.M.C. No.
1663/2018. The learned single Judge of the High Court dismissed the said
petition and confirmed the order of the Magistrate rejecting the stated application
filed by the appellant. The High Court, however, after analyzing the decisions
and the relevant provisions cited before it, eventually concluded that the
seized memory card was only the medium on which the alleged incident was
recorded and hence that
itself is the product of the crime. Further, it being a material object and not
documentary evidence, is excluded from the purview of Section 207 of the 1973
Code. The relevant discussion can be discerned from paragraph 41 onwards, which
reads thus:”

41. This
leads to the crucial question that is to be answered in this case. Evidently,
the crux of the prosecution allegation is that, offence was committed for the
purpose of recording it on a medium. Memory card is the medium on which it was
recorded. Hence, memory card seized by the police itself is the product of the
crime. It is not the contents of the memory card that is proposed to be
established by the production
of the memory card. The acts of sexual abuse is to be established by the oral
testimony of the victim and witnesses. It is also not the information derived
from the memory card that is sought to be established by the prosecution.

Prosecution
is trying to establish that the alleged sexual abuse was committed and it was
recorded. Though, in the course of evidence, contents of it may be sought to be
established to prove that, it was the memory card created by the accused,
contemporaneously recorded on the mobile, along with the commission of offence,
that does not by itself displace the status of the memory card as a document.
Memory card itself is the end product of the crime. It is hence a material
object and not a documentary evidence. Hence, it stands out of the ambit of
section 207 Cr.P.C.

42. The
evaluation of the above legal propositions clearly spells out that, the memory
card produced in this case is not a document as contemplated under section 307
IPC [sic 207 Cr.P.C.]. In fact, it is in the nature
of a material object. Hence, copy of it cannot be issued to the petitioner
herein.

43.
Prosecution has a case that, though accused is entitled for his rights, it is
not absolute and even outside section 207 Cr.P.C., there can be restrictions
regarding the right under section 207 Cr.P.C. It was contended that, if the above
statutory provision infringes the right of privacy of the victim involved,
fundamental right will supersede the statutory right of the accused.
Definitely, in case of Justice K.S.
Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1 (at
page 1), the Constitutional Bench of the Supreme Court had held that the
fundamental rights emanate from basic notions of liberty and dignity and the enumeration
of some facets of liberty as distinctly protected rights under Art. 19 does not
denude Art.21 of its expansive ambit.

It was held
that, validity of a law which infringes the fundamental rights has to be tested
not with reference to the object of state action, but on the basis of its
effect on the guarantees of freedom. In Sherin V. Johns case (supra), this Court
had held that, when there is a conflict between Fundamental Rights of a person
and statutory rights of another person, Fundamental Rights will prevail. The possibility
of such contention may also arise. Since that question does not arise in this
case in the light of finding under section 207 Cr.P.C. I do not venture to
enter into that issue.

44. Having
considered the entire issue, I am inclined to sustain the order of the court
below in Crl.M.P. No.49 of 2018 in C.P. No.16 of 2017 dismissing the
application, though on different grounds. However, this will not preclude the
Court from permitting the accused to watch the memory card only in Court,
subject to restrictions, to prepare defence.” (emphasis supplied)

8. The
appellant being dissatisfied, has assailed the reasons which found favour with
the trial Court, as well as the High Court. The appellant broadly contends that
the prosecution case is founded on the forensic report which suggests that
eight video recordings were retrieved from the memory card and that the video
files were found to be recorded on 17.2.2017 between 22:30:55 hrs. and 22:48:40
hrs. The same were transferred to the stated memory card on 18.2.2017 between
09:18 hrs. and 09:20 hrs. Be it noted that the original video recording was allegedly
done by accused No. 1 on his personal mobile phone, which has not been produced
by the investigating agency.

However,
the memory card on which the offending video recording was copied on 18.2.2017
was allegedly handed over by an Advocate claiming that the accused No. 1 had
given it to him. He had presented the memory card before the Court on 20.2.2017,
which was sent for forensic examination at State FSL, Thiruvananthapuram. After
forensic examination, the same was returned alongwith FSL report DD No. 91/2017
dated 3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pendrive containing the
data/visuals retrieved from the memory card, was also enclosed
with the report sent by the State FSL.

9. Be that as
it may, the prosecution was obviously relying on the contents of the memory
card which have been copied on the pendrive by the State FSL during the
analysis thereof and has been so adverted to in the police report. The contents
of the memory card, which are replicated in the pendrive created by the State
FSL would be nothing but a “document” within the meaning of the 1973 Code and
the provisions of the 1872 Act. And since the prosecution was relying on the
same and proposes to use it against the accused/appellant, it was incumbent to furnish a
cloned copy of the contents thereof to the accused/appellant, not only in terms
of Section 207 read with Section 173(5) of the 1973 Code, but also to uphold the right of the accused to a fair
trial guaranteed under Article 21 of the Constitution of India.

The trial Court rejected the request of the appellant on the ground that it would affect the privacy and dignity of the victim, whereas, the High Court proceeded on the basis
that the memory card is a material object and not a “document”. It is well
known that a cloned copy is not a photocopy, but is a mirror image of the
original, and the accused has the right to have the same to present his defence
effectively. In the alternative, it is submitted, that the Court could have imposed
appropriate conditions while issuing direction to the prosecution to furnish a
cloned copy of the contents of memory card to the accused/appellant.

10. Per contra,
the respondentState and the intervenor (the victim) have vehementaly opposed
the present appeal on the argument that the appellant before this Court is none
other than the mastermind of the conspiracy. Although he was not personally
present on the spot, but the entire incident has occurred at his behest. It is
urged that the appeal deserves to be dismissed as the appellant has disclosed
the identity of the victim in the memo of the special leave petition from which
the present appeal has arisen. Further, the appellant has falsely asserted that
he had himself perused the contents of the pendrive and even for this reason,
the appeal should be dismissed at the threshold.

As a matter
of fact, the contents of the pendrive were allowed to be viewed by the
appellants counsel and the regular cadre Assistant Public Prosecutor of the
Court. The asservation of the appellant that after viewing the contents of the pendrive,
he gathered an impression that the contents of the memory card must have been
tampered with, is the figment of imagination of the appellant and contrary to
forensic report(s) by the State FSL. The definite case of the respondent is
that the memory card seized in this case containing the visuals of sexual violence
upon the victim is a material object and the pendrive into which the contents
of memory card were documented through the process of copying by the State FSL
and sent to the Court for the purpose of aiding the trial Court to know the contents
of the memory card and the contents of the said pendrive is both material
object as well as “document”.

It is also urged
that the visual contents of the pendrive would be physical evidence of the
commission of crime and not “document” per se to be
furnished to the accused alongwith the police report. The contents of
the memory card or the pendrive cannot be parted to the accused and doing so
itself would be an independent offence. Moreover, if a cloned copy of the
contents of the memory card is made available to the accused/appellant, there
is reason to believe that it would be misused by the accused/appellant to execute
the conspiracy of undermining the privacy and dignity of the victim.

It is urged
that the appellant has relied on certain decisions to contend that the contents
of the memory card must be regarded as “electronic record” and, therefore, a
“document”. The exposition in those decisions are general observations and would
be of no avail to the appellant. The appellant is facing prosecution for an
offence of rape, and the trial thereof would be an incamera trial before the
Special Court.

To maintain
the sanctity and for upholding the privacy, dignity and identity of the victim,
it is urged that the accused/appellant in such cases can seek limited relief
before the trial Court to permit him and his lawyer or an expert to view the
contents of the pendrive in Court or at best to permit him to take a second
opinion of expert to reassure himself in respect of the doubts entertained by
him. Such indulgence would obviate the possibility of misuse of the cloned copy
of the video/audio footage/clipping and the same would be in the nature of a
preventive measure while giving a fair opportunity to the accused to defend
himself. The respondent and the intervenor would urge that the appeal be
dismissed being devoid of merits.

11. As
aforesaid, both sides have relied on reported decisions of this Court, as well
as the High Courts and on the provisions of the relevant enactments to buttress
the submissions. We shallB refer thereto as may be required.

12. We have
heard Mr. Mukul Rohatgi, learned senior counsel for the appellant, Mr. Ranjit Kumar,
learned senior counsel for the respondentState and Mr. R. Basant, learned
senior counsel for the intervenor.

13. The central
issue is about the obligation of the investigating officer flowing from Section
173 of the 1973 Code and that of the Magistrate while dealing with the police
report under Section 207 of the 1973 Code. Section 173 of the 1973 Code ordains
that the investigation under Chapter XII of the said Code should be completed
without unnecessary delay and as regards the investigation in relation to
offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or
376E of the 1860 Code, the same is required to be completed within two months from
the date on which the information was recorded by the officer in charge of the
police station.

The
investigating officer after completing the investigation, is obliged to forward
a copy of the police report to a Magistrate empowered to take cognizance of the
offence on such police report. Alongwith the police report, the
investigating officer is also duty bound to forward to the Magistrate “all
documents” or relevant extracts thereof, on which prosecution proposes to rely
other than those sent to the Magistrate during investigation. Similarly, the
statements recorded under Section 161 of all the persons whom the prosecution
proposes to examine as its witnesses, are required to be forwarded to the
Magistrate alongwith the police report.

Indeed, it
is open to the police officer, if in his opinion, any part of the “statement”
is not relevant to the subject matter of the proceedings or that its disclosure
to the accused is not essential in the interests of justice and is inexpedient
in public interest, to indicate that part of the “statement” and append a note requesting
the Magistrate to exclude that part from the copies to be granted to the
accused and stating his reasons for making such request. That
discretion, however, is not given to him in respect of the “documents” or the
relevant extracts thereof on which the prosecution proposes to rely against the
accused concerned. As regards the documents, subsection (7) enables the
investigating officer, if in his opinion it is convenient so to do, to furnish
copies of all or any of the documents referred to in subSection (5) to the
accused. Section 173, as amended and applicable to the case at hand, reads
thus:”

173.
Report of police officer on completion of investigation.-(1) Every
investigation under this Chapter shall be completed without unnecessary delay.

(1A) The
investigation in relation to an offence under sections 376, 376A, 376AB, 376B,
376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be
completed within two months from the date on which the information was recorded
by the officer in charge of the police station.

(2) (i) As
soon as it is completed, the officer in charge of the police station shall
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the State Government, stating-

(a) the names
of the parties;

(b) the
nature of the information;

(c) the
names of the persons who appear to be acquainted with the circumstances of the
case;

(d) whether
any offence appears to have been committed and, if so, by whom;

(e) whether
the accused has been arrested;

(f) whether
he has been released on his bond and, if so, whether with or without sureties;

(g) whether
he has been forwarded in custody under section 170;

(h) whether
the report of medical examination of the woman has been attached where investigation
relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The
officer shall also communicate, in such manner as may be prescribed by the
State Government, the action taken by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.

(3) Where a
superior officer of police has been appointed under section 158, the report,
shall, in any case in which the State Government by general or special order so
directs, be submitted through that officer, and he may, pending the orders of
the Magistrate, direct the officer in charge of the police station to make
further investigation.

(4)
Whenever it appears from a report forwarded under this section that the accused
has been released on his bond, the Magistrate shall make such order for the
discharge of such bond or otherwise as he thinks fit.

(5)
When such report is in respect of a case to which section 170 applies, the police
officer shall forward to the Magistrate along with the report-

(a) all
documents or relevant extracts thereof on which the prosecution proposes to
rely other than those already sent to the Magistrate during investigation;

(b) the
statements recorded under section 161 of all the persons whom the prosecution
proposes to examine as its witnesses.

(6) If
the police officer is of opinion that any part of any such statement is not
relevant to the subjectmatter of the proceedings or that its disclosure to the
accused is not essential in the interests of justice and is inexpedient in the
public interest, he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to be granted
to the accused and stating his reasons for making such request.

(7)
Where the police officer investigating the case finds it convenient so to do,
he may furnish to the accused copies of all or any of the documents referred to
in subsection (5).

(8) Nothing
in this section shall be deemed to preclude further investigation in respect of
an offence after a report under subsection

(2) has
been forwarded to the Magistrate and, where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or documentary,
he shall forward to the Magistrate a further report or reports regarding such
evidence in the form prescribed;
and the provisions of subsections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in relation to a report
forwarded under subsection (2). (emphasis supplied)

14. Concededly,
as regards the “documents” on which the prosecution proposes to rely, the
investigating officer has no option but to forward “all documents” to the
Magistrate alongwith the police report. There is no provision (unlike in the
case of “statements”) enabling the investigating officer to append a note requesting
the Magistrate, to exclude any part thereof (“document”) from the copies to be
granted to the accused. SubSection (7), however, gives limited discretion to
the investigating officer to forward copies of all or some of the documents,
which he finds it convenient to be given to the accused. That does not permit
him to withhold the remaining documents, on which the prosecution proposes to
rely against the accused, from being submitted to the Magistrate alongwith the
police report. On the other hand, the expression used in Section 173(5)(a) of
the 1973 Code makes it amply clear that the investigating officer is obliged to
forward “all” documents or relevant extracts on which the prosecution proposes
to rely against the accused concerned alongwith the police report to the
Magistrate.

15. On receipt
of the police report and the accompanyingstatements and documents by virtue of
Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies
of each of the statements and documents to the accused. Section 207 reads thus:22

” 207.
Supply to the accused of copy of police report and other documents.-In any
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:-

(i) the
police report;

(ii) the
first information report recorded under section 154;

(iii) the
statements recorded under subsection (3) of section 161 of all persons whom the
prosecution proposes to examine as its witnesses, excluding therefrom any part
in regard to which a request for such exclusion has been made by the police
officer under subsection (6) of section 173;

(iv) the
confessions and statements, if any, recorded under section 164;

(v) 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.

As regards
the statements, the first proviso enables the Magistrate to withhold any part
thereof referred to in clause (iii), from the accused on being satisfied with
the note and the reasons specified by the investigating officer as predicated
in subsection (6) of Section 173. However, when it comes to furnishing of
documents submitted by the investigating officer alongwith police report, the
Magistrate can withhold only such document referred to in clause (v), which in
his opinion, is “voluminous”.

In that
case, 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 the 1973 Code does not empower the Magistrate to withhold any “document”
submitted by the investigating officer alongwith 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 subsection (6) of Section 173 of the 1973 Code.

16. Be that as
it may, the Magistrates duty under Section 207 at this stage is in the nature
of administrative work, whereby he is required to ensure full compliance of the
Section. We may usefully advert to the dictum in Hardeep
Singh v. State of Punjab1 wherein it
was held that:”

47. Since
after the filing of the chargesheet, the court reaches the stage of inquiry and
as soon as the court frames the charges, the trial commences, and therefore,
the power under Section 319(1) CrPC can be exercised at any time after the
chargesheet is filed and before the pronouncement of judgment, except during
the stage of Sections 207/208 CrPC, committal, etc. which is only a pretrial stage,
intended to put the process into motion. This stage cannot be said to be a
judicial step in the true sense for it only requires an application of mind
rather than a judicial application of mind. At this pretrial stage, the
Magistrate is required to perform acts in the nature

of
administrative work rather than judicial such as ensuring compliance with Sections
207 and 208 CrPC, and committing the matter if it is exclusively triable by the
Sessions Court. In yet another case of Tarun Tyagi vs. CBI2, this
Court considered the purport of Section 207 of the 1973 Code and observed as
follows:”

(emphasis supplied).

8. Section
207 puts an obligation on the prosecution to furnish to the accused, free of
cost, copies of the documents mentioned therein, without any delay. It includes,
documents or the relevant extracts thereof which are forwarded by the police to
the Magistrate with its report under
Section 173(5) of the Code. Such a compliance has to be made on the first date
when the accused appears or is brought before the Magistrate at the
commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate
to satisfy himself that provisions of Section 207 have been complied with.
Proviso to Section 207 states that if documents are voluminous, instead of
furnishing the accused
with the copy thereof, the Magistrate can allow the accused to inspect it
either personally or through pleader in the Court.”

17. It is well
established position that when statute is unambiguous, the Court must adopt
plain and natural meaning irrespective
of the consequences as expounded in Nelson Motis v. Union of
India3. On a bare reading of Section 207 of the 1973 Code, no other
interpretation is possible.

18. Be that as
it may, furnishing of documents to the accused under Section 207 of the 1973
Code is a facet of right of the accused to a fair trial enshrined in Article 21
of the Constitution. In Sidhartha Vashisht @ Manu Sharma v.
State (NCT of Delhi)4, this
Court expounded thus:”

218. The
liberty of an accused cannot be interfered with except under due process of
law. The expression “due process of law” shall deem to include fairness in
trial. The court (sic Code) gives a right to the accused to receive all documents
and statements as well as to move an application for production of any record
or witness in support of his case. This constitutional mandate and statutory
rights given to the accused place an implied obligation upon the prosecution
(prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure
would take in its ambit furnishing of a document which the prosecution relies
upon whether filed in court or not. That document should essentially be furnished
to the accused and even in the cases where during investigation a document is
bona fide obtained by the investigating agency and in the opinion of the Prosecutor
is relevant and would help in arriving at the truth, that document should also
be disclosed to the accused.

219. The
role and obligation of the Prosecutor particularly in relation to disclosure
cannot be equated under our law to that prevalent under the English system as
aforereferred to. But at the same time, the demand for a fair trial cannot be
ignored. It may be of different consequences where a document which has been
obtained suspiciously, fraudulently or by causing undue advantage to the
accused during
investigation such document could be denied in the discretion of the Prosecutor
to the accused whether the prosecution relies or not upon such documents,
however in other cases the obligation to disclose would be more certain.

As
already noticed the provisions of Section 207 have a material bearing on this
subject and make an interesting reading. This provision not only require or
mandate that the court without delay and free of cost should furnish to the
accused copies of the police report, first information report, statements, confessional
statements of the persons recorded under Section 161 whom the prosecution
wishes to examine as witnesses, of course, excluding any part of a statement or
document as contemplated under Section 173(6) of the Code, any other document
or relevant extract thereof which has been submitted to the Magistrate by the
police under subsection (5) of Section 173.

In
contradistinction to the provisions of Section 173, where the legislature has
used the expression
“documents on which the prosecution relies” are not used under Section 207 of
the Code.Therefore, the provisions of Section 207 of the Code will have to be
given liberal and relevant meaning so as to achieve its object. Not only this,
the documents submitted
to the Magistrate along with the report under Section 173(5) would deem to
include the documents which have to be sent to the Magistrate during the course
of investigation as per the requirement of Section 170(2) of the Code.

220. The
right of the accused with regard to disclosure of documents is a limited right
but is codified and is the very foundation of a fair investigation and trial.
On such matters, the accused cannot claim an indefeasible legal right to claim
every document of the police file or even the portions which are permitted to
be excluded from the documents annexed to the report under Section 173(2) as per
orders of the court. But certain rights of the accused flow both from the
codified law as well as from equitable concepts of the constitutional
jurisdiction, as substantial variation to such procedure would frustrate the
very basis of a fair trial. To claim
documents within the purview of scope of
Sections 207, 243 read with the provisions of Section 173 in its entirety and
power of the court under Section 91 of the Code to summon documents signifies
and provides precepts which will govern the right of the accused to claim
copies of the statement and documents which the prosecution has collected
during investigation and upon which they rely.

221. It
will be difficult for the Court to say that the accused has no right to claim
copies of the documents or request the Court for production of a document which
is part of the general diary subject to satisfying the basic ingredients of law
stated therein. A document which has been obtained bona fide and has bearing on
the case of the prosecution and in the opinion of the Public Prosecutor, the
same should be
disclosed to the accused in the interest of justice and fair investigation and
trial should be furnished to the accused. Then that document should be disclosed
to the accused giving him chance of fair defence, particularly when
nonproduction or disclosure of such a document would affect administration of
criminal justice and the defence of the accused prejudicially.”

(emphasis supplied).

19. Similarly, in
V.K. Sasikala v. State5, this
Court held as under:”

21. The
issue that has emerged before us is, therefore, somewhat larger than what has
been projected by the State and what has been dealt with by the High Court. The question
arising would no longer be one of compliance or noncompliance with the
provisions of Section 207 CrPC and would travel beyond the confines of the
strict language of the provisions of Cr.PC and touch upon the larger
doctrine of a free and fair trial that has been painstakingly built up by the
courts on a purposive interpretation of Article 21 of the Constitution. It is not
the stage of making of the request; the efflux of time that has occurred or the
prior conduct of the accused that is material.

What is of
significance is if in a given situation the accused comes to the court
contending that some papers forwarded to the court by the investigating agency have
not been exhibited by the prosecution as the same favours the accused the court
must concede a right to the accused to have an access to the said documents, if
so claimed. This, according to us, is the core issue in the case which must be
answered affirmatively. In this regard, we would like to be specific in saying
that we find it difficult to agree with the view taken by the High Court that
the accused must be made to await the conclusion of the trial to test the plea
of prejudice that he may have raised. Such a plea must be answered at the
earliest and certainly before the conclusion of the trial, even though it may
be raised by the accused belatedly. This is how the scales of justice in our
criminal jurisprudence have to be balanced.” (emphasis supplied)

20. The next
seminal question is: whether the contents of the memory card/pendrive submitted
to the Court alongwith the police report can be treated as “document” as such.
Indubitably, if the contents of the memory card/pendrive are not to be treated
as “document”, the question of furnishing the same to the accused by virtue of
Section 207 read with Section 173 of the 1973 Code would not arise. We say so
because it is nobodys case before us that the contents of the memory
card/pendrive be treated as a “statement” ascribable to Section 173(5)(b) of
the 1973 Code. Notably, the command under Section 207 is to furnish “statements”
or “documents”, as the case may be, to the accused as submitted by the
investigating officer alongwith the police report, where the prosecution
proposes to rely upon the same against the accused.

21. The High
Court adverted to certain judgments before concluding that the memory card
would be a material object. For arriving at the said conclusion, the High Court
relied on the decision of the Kings Bench of United Kingdom in The
King v. Daye6, wherein Darling J., adding to the majority opinion, had held thus:-

“.But I
should myself say that any written thing capable of being evidence is properly
described as a document and that it is immaterial on what the writing may be
inscribed. It might be inscribed on paper, as is the common case now; but the
common case once was that it was not on paper, but on parchment; and long before
that it was on stone, marble, or clay, and it might be, and often was, on metal. So I
should desire to guard myself against being supposed to assent to the argument
that a thing is not a document unless it be a paper writing. I should say it is
a document no matter upon what material it be, provided it is writing or
printing and capable of being evidence.”

(emphasis supplied).

The High
Court also relied on the decision of the Chancery Court in Grant
and Another v. Southwester and County Properties Ltd. and Another7, wherein
it was observed as follows:”There are a
number of cases in which the meaning of the word “document” has been
discussed in varying circumstances. Before briefly referring to such cases, it will,
I think, be convenient to bear in mind that the derivation of the word is from
the Latin “documentum”: it is something
which instructs or provides information. Indeed, according to Bullokar’s
English Expositor (1621), it meant a lesson. The Shorter Oxford English
Dictionary has as the fourth meaning for the word the following:
“Something written, inscribed, etc., which furnishes evidence or information
upon any subject, as a manuscript, titledeed, coin, etc.,” and it produces
as the relevant quotation:”

These
frescoes have become invaluable as documents,” the writer being Mrs.
Anna Brownell Jameson who lived from 1794 to 1860. I think
that all the authorities to which I am about to refer have consistently
stressed the furnishing of information impliedly otherwise than as to the
document itself as being one of the main functions of a document. Indeed, in In
Re Alderton and Barry’s Application (1941) 59 R.P.C. 56,
Morton J. expressly doubted whether blank workmen’s time sheets could be
classified as documents within section 11(1)(b) of the Patent and Design Acts
19071939 expressly because in their original state they conveyed no information
of any kind to anybody.”

It can be
safely deduced from the aforementioned expositions that the basis of
classifying article as a “document” depends upon the information which is
inscribed and not on where it is inscribed. It may be useful to advert to the
exposition of this Court holding that tape records of speeches8 and
audio/video cassettes9 including compact disc10 were “documents” under Section
3 of the 1872 Act, which stand on no different footing than photographs and are
held admissible in evidence. It is by now well established that the electronic
record produced for the inspection of the Court is documentary evidence under
Section 3 of the 1872 Act11.

22. It is
apposite to recall the exposition of this Court in State
of Maharashtra vs. Dr. Praful B. Desai12, wherein
this Court observed that the Criminal Procedure Code is an ongoing statute. In
case of an ongoing statute, it is presumed that the Parliament intended the
Court to apply a construction that continuously updates its wordings to allow
for changes and is compatible with the contemporary situation. In paragraph 14
of the said decision, the Court observed thus:”

14. It
must also be remembered that the Criminal Procedure Code is an ongoing statute. The
principles of interpreting an ongoing statute have been very succinctly set out
by the leading jurist Francis Bennion in his commentaries titled Statutory
Interpretation, 2nd Edn., p.617:

“It is
presumed Parliament intends the court to apply to an ongoing Act a construction
that continuously updates its wordings to allow for changes since the Act was
initially framed. While it remains law, it has to be treated as always
speaking. This means that in its application
on any day, the language of the Act though necessarily embedded in its own
time, is nevertheless to be construed in accordance with the need to treat it
as a current law.

In construing
an ongoing Act, the interpreter is to presume that Parliament intended the Act
to be applied at any future time in such a way as to give effect to the original
intention. Accordingly, the interpreter is to make allowances for any relevant
changes that have occurred since the Act’s passing, in law, in social conditions,
technology, the meaning of words and other matters. That today’s construction
involves the supposition that Parliament was catering long ago for a state of
affairs that did not then exist is no argument against that construction.
Parliament, in the wording of an enactment, is expected to anticipate temporal developments.
The drafter will foresee the future and allow for it in the wording.

An enactment
of former days is thus to be read today, in the light of dynamic processing
received over the years, with such modification of the current meaning of its language
as will now give effect to the original legislative intention. The
reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation,
year in and year out. It also comprises processing by executive officials.”

(emphasis supplied).

23. As
aforesaid, the respondents and intervenor would contend that the memory card is
a material object and not a “document” as such. If the prosecution was to rely
only on recovery of memory card and not upon its contents, there would be no difficulty
in acceding to the argument of the respondent/intervenor that the memory card/pendrive
is a material object. In this regard, we may refer to Phipson
on Evidence13, and particularly, the following paragraph(s):

“The
purpose for which it is produced determines whether a document is to be
regarded as documentary evidence. When adduced to prove its physical condition,
for example, an alteration, presence of a signature, bloodstain or fingerprint,
it is real evidence. So too, if its relevance lies in the simple fact that it exists
or did once exist or its disposition or nature. In all these cases the content
of the document, if relevant at all, is only indirectly
relevant, for example to establish that the document in question
is a lease. When the relevance of a document depends on the meaning of its
contents, it is considered documentary evidence.”

(emphasis supplied).

Again at page
5 of the same book, the definition of “real evidence14” is given as
under: “Material objects other than documents, produced for inspection of the court, are
commonly called real evidence. This, when available, is probably the most
satisfactory kind of all, since, save for identification or explanation,
neither testimony nor inference is relied upon. Unless its genuineness is in
dispute [See Belt v Lawes, The Times, 17 November 1882.], the thing speaks for
itself. Unfortunately, however, the term “real evidence” is itself both
indefinite and ambiguous, having been used in three
divergent senses:

(1) … … …

(2) Material
objects produced for the inspection of the court. This is the
second and most widely accepted meaning of “real evidence”. It must be borne in
mind that there is a distinction between a document used as a record of a
transaction, such as a conveyance, and a document as a
thing. It depends on the circumstances in which classification it falls. On a
charge of stealing a document, for example, the document is a thing.

(3) … … …”

A priori,
we must hold that the video footage/clipping contained in such memory
card/pendrive being an electronic record as envisaged by Section 2(1)(t) of the
2000 Act, is a “document” and cannot be regarded as a material object. Section
2(1)(t) of the 2000 Act reads thus: “2(1)(t)
“electronic record” means data, record or data generated, image or sound
stored, received or sent in an electronic form or micro film or
computergenerated micro fiche;

24. As the
above definition refers to data or data generated, image or sound stored,
received or sent in an electronic form, it would be apposite to advert to the
definition of “data” as predicated in Section 2(1)(o) of the same Act. It reads
thus:

“2(1)(o)
“data” means a representation of information, knowledge, facts, concepts or
instructions which are being prepared or have been prepared in a formalised
manner, and is intended to be processed, is being processed or has been processed
in a computer system or computer network, and may be in any form (including
computer printouts magnetic or optical storage media, punched cards, punched
tapes) or stored internally in the memory of the computer;

On conjoint
reading of the relevant provisions, it would be amply clear that an electronic
record is not confined to “data” alone, but it also means the record or data
generated, received or sent in electronic form. The expression “data” includes
a representation of information, knowledge and facts, which is either intended
to be processed, is being processed or has been processed in a computer system
or computer network or stored internally in the memory of
the computer.

25. Having
noticed the above definitions, we may now turn to definitions of expressions
“document” and “evidence” in Section 3 of the 1872 Act being the interpretation
clause. The same reads thus:36

“3.
Interpretation clause.Document: – “Document”
means any matter expressed or described upon any substance by means of letters,
figures or marks, or by more than one of those means, intended to be used, or
which may be used, for the purpose of recording that matter. Illustrations A
writing is a document; Words
printed, lithographed or photographed are documents; A map or plan is a
document; An inscription on a metal plate or stone is a document; A caricature
is a document.

Evidence.” Evidence”
means and includes-

(1) 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;

(2) all
documents including electronic records produced for the inspection of the
Court, such documents are called documentary evidence.” On a bare
reading of the definition of “evidence”, it clearly takes within its fold
documentary evidence to mean and include all documents including electronic
records produced for the inspection of the Court. Although, we need not dilate
on thequestion of admissibility of the contents of the memory card/pendrive, the
same will have to be answered on the basis of Section 65B of the 1872 Act. The
same reads thus:

“65B.
Admissibility of electronic records.(1) Notwithstanding anything
contained in this Act, any information contained in an electronic record which
is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer (hereinafter referred to as the computer output) shall
be deemed to be also a document, if the conditions mentioned in this section
are satisfied in relation to the information and computer in question and shall
be admissible in any proceedings, without further proof or production of the original,
as evidence of any contents of the original or of any fact stated therein of
which direct evidence would be admissible.

(2) The
conditions referred to in subsection (1) in respect of a computer output shall
be the following, namely:-

(a) the
computer output containing the information was produced by the computer during
the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that
period by the person having lawful control over the use of the computer;

(b) during
the said period, information of the kind contained in the electronic record or
of the kind from which the information so contained is derived was regularly
fed into the computer in the ordinary course of the said activities;

(c)
throughout the material part of the said period, the computer was operating
properly or, if not, then in respect of any period in which it was not operating
properly or was out of operation during that part of the period, was not such
as to affect the electronic record or the accuracy of its contents; and

(d) the
information contained in the electronic record reproduces or is derived from
such information fed into the computer in the ordinary course of the said
activities.”

(3) Where
over any period, the function of storing or processing information for the
purposes of any activities regularly carried on over that period as mentioned
in clause (a) of subsection (2) was regularly performed by computers,
whether-

(a) by a
combination of computers operating over that period; or

(b) by
different computers operating in succession over that period; or

(c) by
different combinations of computers operating in succession over that period;
or

(d) in any
other manner involving the successive operation over that period, in whatever
order, of one or more computers and one or more combinations
of computers, all the computers used for that purpose during that period shall
be treated for the purposes of this section as constituting
a single computer; and references in this section to a computer shall be
construed accordingly.

(4) In any
proceedings where it is desired to give a statement in evidence by virtue of
this section, a certificate doing any of the following things, that is to say,-

(a)
identifying the electronic record containing the statement and describing the
manner in which it was produced;

(b) giving
such particulars of any device involved in the production of that electronic
record as may be appropriate for the purpose of showing that the electronic
record was produced by a computer;

(c) dealing
with any of the matters to which the conditions mentioned in subsection (2)
relate, and purporting to be signed by a person occupying a
responsible official position in relation to the operation of the relevant
device or the management of the relevant activities (whichever
is appropriate) shall be evidence of any matter stated in the certificate; and
for the purposes of this subsection it shall be sufficient for a matter to be
stated to the best of the knowledge and belief of the person stating it.

5) For the
purposes of this section,-

(a)
infomation shall be taken to be supplied to a computer if it is supplied
thereto in any appropriate form and whether it is so supplied directly or
(with or without human intervention) by means of any appropriate equipment;

(b) whether
in the course of activities carried on by any official information is supplied
with a view to its being stored or processed for the purposes of those
activities by a computer operated otherwise than in the course of those
activities, that information, if duly supplied to that computer, shall be taken
to be supplied to it in the course of those activities;

(c) a
computer output shall be taken to have been produced by a computer whether it
was produced by it directly or (with or without human intervention) by means of
any appropriate equipment.

Explanation.-For
the purposes of this section any reference to information being derived from
other information shall be a reference to its being derived therefrom by
calculation, comparison or any other process. “This
provision is reiteration of the legal position that any information contained
in an electronic record which is printed on a paper, stored, recorded or copied
in optical or magnetic media produced by a computer shall be deemed to be a
“document” and shall be admissible in evidence subject to satisfying other requirements
of the said provision.

26. It may be
useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to
“document” to include any painting, drawing or photograph, or other visible
representation. And again, the expression “document” has been defined in
Section 29 of the 1860 Code, which reads thus:

“29.
“Document”.-The word “document” denotes any matter expressed or described
upon any substance by means of letters, figures or marks, or by more than one
of those means, intended to be used, or which may be used, as evidence of that
matter.

Explanation
1.-It is immaterial by what means or upon what substance the letters, figures
or marks are formed, or whether the evidence is intended for, or may be used
in, a Court of Justice, or not. Illustrations A writing expressing the terms of
a contract, which may be used as
evidence of the contract, is a document. A cheque upon a banker is a document. A
powerofattorney is a document. A map or
plan which is intended to be used or which may be used as evidence, is a
document. A writing containing directions or instructions is a document.

Explanation
2.-Whatever is expressed by means of letters, figures or marks as explained by
mercantile or other usage, shall be deemed to be expressed by such letters,
figures or marks within the meaning of this section, although the same may not
be actually expressed. Illustration
A writes his name on the back of a bill of exchange payable to his order. The
meaning of the endorsement, as explained by
mercantile usage, is that the bill is to be paid to the holder. The endorsement
is a document, and must be construed in the same manner as if the words “pay to
the holder” or words to that effect had been written over the signature.

27. Additionally,
it may be apposite to also advert to the definition of “communication devices”
given in Section 2(1)(ha) of the 2000 Act. The said provision reads thus:”2(1)(ha)
“communication device means cell phones, personal digital assistance or
combination of both or any other device used to communicate, send or transmit
any text, video, audio or image

28. We may also
advert to the definition of “information” as provided in Section 2(1)(v) of the
2000 Act. The same reads thus: “2(1)(v) “information
includes data, message, text, images sound, voice, codes, computer programmes,
software and data bases or micro film or computer generated micro fiche

29. Even the
definition of “document” given in the General Clauses Act would reinforce the
position that electronic records ought to be treated as “document”. The
definition of “document” in Section 3(18) of the General Clauses Act reads
thus: “3(18)
“document shall include any matter written, expressed or described upon any
substance by means of letters, figures or marks, or by more than one of those means
which is intended to be used, or which may be used, for the purpose of
recording that matter”

30. It may be
apposite to refer to the exposition in Halsburys laws of England15 dealing
with Chapter “Documentary and Real Evidence” containing the meaning of
documentary evidence and the relevancy and admissibility thereof including
about the audio and video recordings. The relevant exposition reads thus:

“(12)
DOCUMENTARY AND REAL EVIDENCE 1462. Meaning of documentary evidence. The term document
bears different meanings in different contexts. At common law, it has been held
that any written thing capable of being evidence is properly described as a
document16, and this clearly includes printed text, diagrams, maps and
plans17. Photographs are also regarded as documents at common law18. Varying
definitions have been adopted in legislation19. A document
may be relied on as real evidence (where its existence, identity or appearance,
rather than its content, is in issue20), or
as documentary evidence. Documentary evidence
denotes reliance on a document as proof of its terms or contents21. The
question of the authenticity of a document is to be
decided by the jury22.

1463.
The primary evidence rule. Under the primary evidence rule at common
law23, it was
once thought necessary for the contents of any private document to be proved by
production of the original document24. A copy of an original
document, or oral evidence as to the contents of that document, was considered admissible
only in specified circumstances, namely: (1) where another party to the
proceedings failed to comply with a notice to produce the original which was in
his possession (or where the need to produce it was so clear that no such
notice was required)25; (2) where production of the original was shown to be impossible26; (3) where
the original appeared to have been lost or destroyed27; and (4)
where a third party in possession of the original lawfully declined to produce
it28.

1466.
Real evidence. Material objects or things (other than the contents
of documents) which are produced as exhibits for inspection by a court or jury
are classed as real evidence29. The court or jury may need to
hear oral testimony explaining the background and alleged significance of any
such exhibit, and may be assisted by expert evidence in drawing inferences or conclusions
from the condition of that exhibit30. Where a jury wishes to
take an exhibit, such as a weapon, into the jury room, this is something which
the judge has a discretion to permit31. Jurors
must not however conduct unsupervised experiments32, or be
allowed to inspect a thing which has not been produced in
evidence33. Failure to produce an object which might otherwise have been admissible
as real evidence does not preclude the admission of oral evidence concerning
the existence or condition of that object, although such evidence may carry far
less weight34.

1471.
Audio and video recordings. An audio recording is admissible in evidence
provided that the accuracy of the recording can be proved, the recorded voices
can be properly identified, and the evidence is relevant and otherwise
admissible35. However, that evidence
should always be regarded with caution and assessed in the light of all the
circumstances36. A video recording of an incident which is in issue is admissible37. There
is no difference in terms of admissibility between a direct view of an incident
and a view of it on a visual display unit of a camera or on a recording of what
the camera has filmed. A witness who sees an incident on a display
or a recording may give evidence of what he saw in the same way as a witness
who had a direct view38.” (emphasis supplied)

31. In order to
examine the purport of the term “matter” as found in Section 3 of the 1872 Act,
Section 29 of the 1860 Code and Section 3(18) of the General Clauses Act, and
to ascertain whether the contents of the memory card can be regarded as “document”,
we deem it appropriate to refer to two Reports of the Law Commission of India.
In the 42nd Law Commission Report39, the Commission opined on
the amendments to the 1860 Code. Dealing
with Section 29 of the 1860 Code, the Commission opined as under:

“2.56. The
main idea in all the three Acts is the same and the emphasis is on the “matter”
which is recorded, and not on the substance on which the matter is recorded. We
feel, on the whole, that the Penal Code should contain a definition of
“document” for its own purpose, and that section 29 should be retained.” The said
observation is restated in the 156th Report40, wherein the
Commission opined thus:

“11.08
Therefore, the term document as defined in Section 29, IPC may be enlarged so
as to specifically include therein any disc, tape, sound track or other device on
or in which any matter is recorded or stored by mechanical, electronic or other
means. The aforesaid
proposed amendment in section 29 would also necessitate consequential amendment
of the term “document” under section 3 of the Indian Evidence Act, 1872 on the
lines indicated above.” Considering
the aforementioned Reports, it can be concluded that the contents of the memory
card would be a “matter” and the memory card itself would be a “substance” and
hence, the contents of the memory card would be a “document”.

32. It is
crystal clear that all documents including “electronic record” produced for the
inspection of the Court alongwith the police report and which prosecution
proposes to use against the accused must be furnished to the accused as per the
mandate of Section 207 of the 1973 Code. The concomitant is that the contents
of the memory card/pendrive must be furnished to the accused, which can be done
in the form of cloned copy of the memory
card/pendrive. It is cardinal that a person tried for such a serious offence
should be furnished with all the material and evidence in advance, on which the
prosecution proposes to rely against him during the trial. Any other view would
not only impinge upon the statutory mandate contained in the 1973 Code, but
also the right of an accused to a fair trial enshrined in Article 21 of the
Constitution of India.

33. We do not
wish to dilate further nor should we be understood to have examined the
question of relevancy of the contents of the memory card/pendrive or for that
matter the proof and admissibility thereof. The only question that we have examined
in this appeal is: whether the contents of the memory card/pendrive referred to
in the chargesheet or the police report submitted to Magistrate under Section
173 of the 1973 Code, need to be furnished to the accused if the prosecution
intends to rely on the same by virtue of Section 207 of the 1973 Code?

34. Reverting
to the preliminary objection taken by the respondent for dismissing the appeal
at the threshold because of the disclosure of identity of the victim in the
memo of the special leave petition forming the subject matter of the present
appeal, we find that the explanation offered by the appellant is plausible inasmuch
as the prosecution itself had done so by naming the victim in the First
Information Report/Crime Case, the statement

of the
victim under Section 161, as well as under Section 164 of the 1973 Code, and in
the chargesheet/police report filed before the Magistrate. Even the objection
regarding incorrect factual narration about the appellant having himself viewed
the contents of the memory card/pendrive does not take the matter any further,
once we recognize the right of the accused to get the cloned copies of the
contents of the memory card/pendrive as being
mandated by Section 207 of the 1973 Code and more so, because of the right of
the accused to a fair trial enshrined in Article 21 of the Constitution of
India.

35. The next
crucial question is: whether parting of the cloned copy of the contents of the
memory card/pendrive and handing
it over to the accused may be safe or is likely to be misused by the accused or
any other person with or without the permission of the accused concerned? In
the present case, there are eight named accused as of now. Once relief is
granted to the appellant who is accused No. 8, the other accused would follow
the same suit. In that event, the cloned copies of the contents of the memory
card/pendrive would be freely available to all the accused.

36. Considering
the principles laid down by this Court in Tarun Tyagi (supra), we
are of the opinion that certain conditions need
to be imposed in the fact situation of the present case. However, the
safeguards/conditions suggested by the appellant such as to take help of
experts, to impose watermarks on the respective cloned copies etc., may not be
sufficient measure to completely rule out the possibility of misuse thereof. In
that, with the advancement of technology, it may be possible to breach even the
security seals incorporated in the concerned cloned
copy. Besides, it will be wellnigh impossible to keep track of the misuse of
the cloned copy and its safe and secured custody.

37. 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 to the stated agency. That shall be confidential and not allowed to
be accessed by any other agency or person not associated with the CFSL.
Similarly, the forensic report prepared by the CFSL, after analyzing the cloned
copy of the subject memory card/pendrive, shall be kept confidential and shall
not be allowed to be accessed by any other agency or person except the
concerned accused or his authorized representative 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.

38. Needless to
mention that the appellant before us or the other accused cannot and are not
claiming any expertise, much less, capability of undertaking forensic analysis
of the cloned copy of the contents of the memory card/pendrive. They may have
to eventually depend on some expert agency. In our opinion, the accused, who
are interested in reassuring themselves about the genuineness and credibility
of the contents of the memory card in question or that of the pendrive produced
before the trial Court by the prosecution on which the prosecution would rely
during the trial, are free to take opinion of an independent expert agency,
such as the CFSL on such matters as they may be advised, which information can
be used by them to confront the prosecution witnesses including the forensic
report of the State FSL relied upon by the prosecution forming part of the
police report.

39. Considering
that this is a peculiar case of intraconflict of fundamental rights flowing
from Article 21, that is right to a fair trial of the accused and right to
privacy of the victim, it is imperative to adopt an approach which would
balance both the rights. This principle has been enunciated in the case of Asha
Ranjan v. State of Bihar41 wherein
this Court held thus:

“57. The aforesaid
decision is an authority for the proposition that there can be a conflict
between two individuals qua their right under Article 21 of the Constitution
and in such a situation, to weigh the balance the test that is required to be
applied is the test of larger public
interest and further that would, in certain circumstances, advance public
morality of the day. To put it differently, the “greater community interest” or “interest
of the collective or social order” would be the principle to recognise and
accept the right of one which has
to be protected.

61. Be it
stated, circumstances may emerge that may necessitate for balancing between
intrafundamental rights. It has been distinctly understood that the test that has
to be applied while balancing the two fundamental rights or inter fundamental
rights, the principles applied may be different than the principle to be
applied in intraconflict between the same fundamental right . Thus, there
can be two individuals both having legitimacy to claim or assert the right. The
factum of legitimacy is a primary consideration. It has to be remembered that
no fundamental right is absolute and it can have limitations in certain
circumstances. Therefore, if the collective interest or
the public interest that serves the public cause and further has the legitimacy
to claim or assert a fundamental right, then only it can put forth that their right
should be protected.

There can be no denial of the fact that the rights of the
victims for a fair trial is an inseparable
aspect of Article 21 of the Constitution and when they assert that right by
themselves as well as the part of the collective, the conception of public
interest gets galvanised. The accentuated public interest in such circumstances
has to be given primacy, for it furthers and promotes “Rule of Law”. It may be
clarified at once that the test of primacy which is based on legitimacy and the
public interest has to be adjudged on the facts of each case and cannot be stated in abstract
terms. It will require studied scanning of facts, the competing interests and
the ultimate perception of the balancing that would subserve the larger public
interest and serve the majesty of rule of law.

86.1. The
right to fair trial is not singularly absolute, as is perceived, from the
perspective of the accused. It takes in its ambit and sweep the right of the
victim(s) and the society at large. These factors would collectively allude and
constitute the Rule of Law i.e. free and
fair trial.

86.2. The fair
trial which is constitutionally protected as a substantial right under Article
21 and also the statutory protection, does invite for consideration a sense of
conflict with the interest of the victim(s) or the collective/interest of the
society. When there is an intraconflict pect of thin
rese same fundamental right from the true perceptions, it is the
obligation of the constitutional courts to weigh the
balance in certain circumstances, the interest of the society as a whole, when
it would promote and instil Rule of Law. A fair trial is not what the
accused wants in the name of fair trial. Fair trial must soothe the ultimate
justice which is sought individually, but is subservient
and would not prevail when fair trial requires transfer of the criminal
proceedings.”

(emphasis supplied).

40. This Court in
Mazdoor Kisan Shakti Sangathan v. Union of India42 has restated
the legal position in the following terms:

“61.
Undoubtedly, right of people to hold peaceful protests and demonstrations, etc.
is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution.
The question is as to whether disturbances, etc. caused by it to the residents,
as mentioned in detail by the NGT, is a larger public interest which outweighs
the rights of protestors to hold demonstrations at Jantar Mantar Road and,
therefore, amounts to reasonable restriction in curbing such demonstrations.
Here, we agree with the detailed reasoning given by the NGT that holding of
demonstrations in the way it has been happening is causing serious discomfort
and harassment to the residents. At the same time, it is also to be kept in
mind that for quite some time Jantar Mantar has been chosen as a place for
holding demonstrations and was earmarked by the authorities as well. Going by
the dicta in Asha Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC

397 :
(2017) 2 SCC (Cri) 376] , principle of primacy cannot be given to one right
whereby the right of the other gets totally extinguished. Total extinction is
not balancing. Balancing would mean curtailing one right of one class to some
extent so that the right of the other class is also protected.”

(emphasis supplied).

41. We are
conscious of the fact that Section 207 of the 1973 Code permits withholding of
document(s) by the Magistrate only if it is voluminous and for no other reason.
If it is an “electronic record”, certainly the ground predicated in the second
proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and
will be unavailable. We are also conscious of the dictum in the case of Superintendent
and Remembrancer of Legal Affairs,
West Bengal vs. Satyen Bhowmick Ors.43, wherein this
Court has restated the cardinal principle that accused is entitled to have
copies of the statements and documents accompanying the police report, which
the prosecution may use against him during the trial.

42. Nevertheless,
the Court cannot be oblivious to the nature of offence and the principle
underlying the amendment to Section 327 of the 1973 Code, in particular subsection
(2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy
of the victim and her identity. Thus understood, the Court is obliged to evolve
a mechanism to enable the accused to reassure himself about the genuineness and
credibility of the contents of
the memory card/pendrive from an independent agency referred to above, so as to
effectively defend himself during the trial.

Thus,
balancing the rights of both parties is imperative, as has been held in Asha
Ranjan (supra) and Mazdoor Kisan Shakti
Sangathan (supra). The Court is duty bound to issue suitable directions. Even the
High Court, in exercise of inherent power under Section 482 of the 1973 Code, is
competent to issue suitable directions to meet the ends of justice.

43. 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 and I.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.

45. In view of
the above, this appeal partly succeeds. The impugned judgment and order passed
by the trial Court and the High Court respectively stand modified by giving
option to the appellant/accused to the extent indicated hitherto, in particular
paragraphs 37, 38 and 43.

46. Resultantly,
the application filed by the appellant before the trial Court being Crl.M.P.
No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms.

47. We direct
the trial Court to ensure that the trial in C.P. No.16/2017 is concluded
expeditiously, preferably within six months from the date of this judgment.

…………………………..J
(A.M. Khanwilkar)

…………………………..J
(Dinesh Maheshwari)

New
Delhi;

November
29, 2019.

1 (2014) 3
SCC 92

2 (2017) 4 SCC
490

3 (1992) 4
SCC 711

4 (2010) 6
SCC 1

5 (2012) 9
SCC 771

6 [1908] 2
K.B. 333

7 [1975] Ch.
185

8 Tukaram S.
Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329

9 Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdas Mehra Ors., (1976) 2 SCC 17

10 Shamsher
Singh Verma vs. State of Haryana, (2016) 15 SCC 485

11 Anwar P.V.
vs. P.K. Basheer, (2014) 10 SCC 473

12 (2003) 4 SCC
601

13 Hodge M. Malek,
Phipson on Evidence, 19th Edn, 2018, pg. 1450

14 Hodge M.
Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5

15 Fourth
Edition, 2006
reissue, Vol. 11(3) Criminal Law, Evidence and Procedure

16 R v. Daye
[1908] 2 KB 333 at 340, DC, per Darling J.

17 A tombstone
bearing an inscription is in this sense a document (see Mortimer v. MCallan
(1840) 6 M W 58), as is a coffinplate bearing an inscription (see R v.
Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309).

18 See also
Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p.
Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor
Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160,
[1999] 1 WLR 2160, ChD.

19 For the
purposes of the Police and Criminal Evidence Act 1984, document means anything
in which information of any description is recorded: s. 118 (amended by the
Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the
Criminal Justice Act 2003 Pt. 11 (ss. 98141) (as amended) (evidence), the
definition is the same (see s. 134(1)), save that for the purposes of Pt. 11
Ch. 3 (ss 137141) (which includes the provision relating to refreshing memory
(see s. 139; and para 1438 ante)) it excludes any recording of sounds or moving
images (see s. 140).

20 See eg R.
v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855) 11 Exch
360. Documents produced by purely mechanical means may constitute real evidence
even where reliance is placed on the content: The Statute of Liberty, Sapporo Maru
(Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739
(film of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used
as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC
(printout of evidential breathtesting device). See also Garner v. DPP (1989)
Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56,
[2005] ALL ER (D) 324 (May). As to real evidence generally see para 1466 post.

21 R. v.
Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

22 R. vs. Wayte (1982) 76
Cr.App. Rep. 110 at 118, CA. The admissibility of a document is, following the
general rule, a question for the judge: See para 1360 ante. A document which
the law requires to be stamped, but which is unstamped, is admissible in
criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the Finance Act 1999
s. 109(3), Sch 12 para 3(1), (5)).

23 As to the
related best evidence rule see para 1367 ante.

24 As to the
admissibility of examined or certified copies of public documents at common law
see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.

25 AG v. Le
Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C P 128; R v. Elworthy
(1867) LR 1 CCR 103, 32 JP 54, CCR.

26 Owner v. Be
Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1
Cr.M. R 277.

27 R. v.
Haworth (1830) 4 C P 254

28 R. v. Nowaz
(1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a document
might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M
W 664

29 This
include animals, such as dogs, which may be inspected to see if they are
ferocious (Line v. Taylor (1862) 3 F F 731) or whether they appear to
have been illtreated, etc. Note however that statements (such as statements of origin)
printed on objects may give rise to issues of hearsay if it is sought to rely
on them as true: Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC
367, [1965] 3 All ER 599, PC.

30 Expert
evidence may often be essential if the court or jury is to draw any kind of informed
conclusions from their examination of the exhibit. It would be dangerous, for example,
for a court or jury to draw its own unaided conclusions concerning the identity
of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC
100, [1971] 3 All ER 768, PC.

31 R. v.
Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.

32 R. v. Maggs
(1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996]
Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR
653, CA.

33 R. v.
Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.

34 R. v.
Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB
120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer
(1987) 85 Cr.App. Rep. 367, DC. If the object in question is in the possession
of the prosecutor or of a third person, its production may generally be
compelled by issue of a witness order under the Criminal Procedure (Attendance
of Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the
Magistrates Court Act, 1980 s. 97 (as substituted and amended) (see para 1409
ante). The defendant cannot, however, be served with such an order, lest he be
forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP
12.

35 R. v.
Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For the
considerations relevant to the determination of admissibility see R. v.
Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171;
R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R.
v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All
ER 513, 97 Cr.App. Rep 365, CA. Where a video recording of an incident becomes
available after the witness has made a statement, the witness may view the
video and, if necessary, amend his statement so long as the procedure adopted
is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael),
R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.

36 R. v.
Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to
the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR
823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape
recording of police interviews see para 971 et seq ante; and as to the
exclusion of a tape recording under the Police and Criminal Evidence Act, 1984
s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987]
Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape
recording admitted despite element of entrapment).

37 Taylor v. Chief
Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.

38 Taylor v.
Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to
the admissibility of video recordings as evidence identifying the defendant see
also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim.
LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a
road on which an incident had occurred was admitted in R. v. Thomas [1986]
Crim. LR 682. As to the identification of the defendant by still photographs
taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1
WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455
ante; and as to the admissibility of a copy of a video recording of an incident
see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.

39 FortySecond
Report, Law Commission India, Indian Penal Code, June, 1971, 3235

40 One Hundred
FiftySixth Report on the Indian Penal Code (Volume I), August, 1997, Law
Commission of India, ChapterXI

41 (2017) 4
SCC 397

42 (2018) 17
SCC 324

43 (1981) 2 SCC 109

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