Actor Sexual Assault Case : Kerala High Court Orders Enquiry By Sessions Judge On Unauthorised Access Of Memory Card

The Kerala High Court on Thursday directed the Ernakulam District and Sessions Judge to conduct a fact finding enquiry on the allegations raised by the survivor in the 2017 actor sexual assault case pertaining to unauthorized access and copy and transfer of the visuals from the Memory Card relating to the incident. 

Justice K. Babu, passed the Order on a plea filed by the survivor seeking a court-monitored investigation into the alleged leakage of visuals from the Memory Card, and the change in hash value of the memory card thereof, that was kept in court custody.

"The District and Sessions Judge is at liberty to seek the assistance of any agency including the police for conducting the enquiry. The petitioner is at liberty to present written submissions before the District and Sessions Judge. In the inquiry, if the commission of any offence is disclosed, the District and Sessions Judge shall proceed as provided in the Code of Criminal Procedure, 1973,"  it observed. 

The Court further clarified that the enquiry was to be completed by the District and Sessions Judge within a month from today. 

The Court added that it had also formulated guidelines to be followed by trial courts for preservation of digital evidence submitted to the courts, as had been sought by the counsel for the petitioner Advocate Gaurav Agarwal and the Director General of Prosecution T.A. Shaji. The Court also recorded its appreciation for the counsel in this regard. 

It orally added that the petitioner would be at liberty to approach the Court again.  It is pertinent to note that the 8th accused in the case, prominent Malayalam cine actor Dileep, who is accused of hatching the criminal conspiracy behind the attack, also moved a plea recently to stop the hearing in the plea regarding leakage of visuals of the incident.

Dileep alleges that the enquiry into the incident is being demanded by the prosecution in order to prolong the trial.

In 2022, reports emerged that the footage of the survivor's assault was leaked. Following the same, the survivor approached the High Court seeking an investigation. The survivor also sought an inquiry in the change in hash value of the memory card of the device in which the visuals of the incident was allegedly stored.

Petitioner's Submissions

Advocate Gaurav Agarwal appearing on behalf of the survivor had submitted that the Memory Card had been accessed three times while in court custody. He submitted that on the first instance on January 9, 2018, two files had been created in the Memory Card while it was in the custody of Angamali Judicial First Class Magistrate Court, and on the second instance on December 13, 2018 at 10.58 P.M., three files were created in the Memory Card while it was in the custody of the District Principal Sessions Court, and was accessed on a device having Android Operating System. The third instance as per the Counsel was on July 19, 2021, when 34 new files were created upon being accessed Vivo Mobile phone having Android OS.

He added that it had been established by the SFSL report that the hash value had been changed, and also states the reason for the same as being illegal access during the period of the custody of the Memory Card in different courts.

Agarwal had submitted that the same would amount to offences under Sections 378 (theft), 405 r/w 408 (criminal breach of trust), 411 (Dishonestly receiving stolen property), and 425 (Mischief) of the IPC and Sections 66B (Punishment for dishonestly receiving stolen computer resource or communication device), 66E (Punishment for violation of privacy), and 67 (Punishment for publishing or transmitting obscene material in electronic form) of the IT Act, 2000, and Section 119 (Punishment for atrocities against women) of the Kerala Police Act.

He thus averred that the bar under Section 195(1)(b) r/w S 340 CrPC would not be applicable in the present case. He added that the survivor's right to privacy had also been infringed in the present case.

The Apex Court had earlier directed the trial in the matter to be completed by July 31, 2023. The Bench of Justices Dinesh Maheshwari and Sanjay Kumar also asked the Trial Judge to submit a fresh report on the progress of the trial by August 4, 2023.