POCSO Accused Can Get Unredacted Prosecution Records, Balance To Be Struck Between Their 'Right To Defend' And Minor's Privacy: Kerala HC

A single judge bench of Justice A. Badharudeen in its order said, "When reading Section 207 and 208 of Cr.P.C. in juxtaposition with Section 19(4) of the Kerala Criminal Rules of Practice, brought into in view of the verdict of the Apex Court the right of the accused to get all documents which form part of the prosecution records to defend his case is well protected. At the same time, Section 33(7) of POCSO Act imposes restrictions so as to ensure that the identity of the child is not disclosed. So the courts should consider a balance between the privacy of the victims of rape and POCSO offences with that of the right of the accused to defend his case and also give effect to all the above provisions, without making any of the provisions as redundant or superfluous". 

Section 207 CrPC pertains to the supply to the accused a copy of police report and other documents. Section 208 pertains to supply of copies of statements and document to accused in other cases triable by Court of Session.

Meanwhile Section 33 of the POCSO Act pertains to the procedure and powers of Special Court. Subsection 7 states that the Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial, provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. 

Therefore, the court said, when prosecution records are given to the accused in compliance of provisions of the CrPC and POCSO Act, it wont be fair to hold that the accused is not entitled to get the records without being masked to defend the case. It further said that if the statements are masked, it would be "difficult to use the statements for contradicting" the witnesses properly.

The Court however emphasized that it is the duty of the accused and his counsel to "ensure that the privacy of the victim" would not be infringed by way of printing, publishing, reporting or commenting.

The petitioners who are accused in different POCSO cases had approached the High Court challenging the decision of the respective special courts denying them unmasked copy of prosecution records.

The Court also added that the accused would not be entitled to copies of contents of pendrive/ memory card/ CD/ DVD in the form of digital evidence which would contain chats or visuals of victim detrimental to her privacy. The Court held that in such cases, the decision of Supreme Court in Gopalakrishnan @ Dileep v State of Kerala (2019) is to be followed.

The Court observed that an accused has a constitutional right to fair trial. The Court added that he has a right to defend his case and prove his innocence for which he should get all the prosecution records before trial to point out the flaw in the prosecution case and establish his innocence in an appropriate manner.

"Therefore, the view taken by the Special Courts in the orders impugned not to provide unmasked copies of prosecution records under the guise of protecting privacy of the victim, could not be justified and the same is not within the orbit of fair trial or part of the fair trial. Therefore, the orders impugned are set aside," the court said. 

Allowing the petitions, the high court ordered the respective Special Courts to serve unmasked copies of the prosecution records to the accused/or his counsel after directing them to ensure privacy, without disclosing it in public domain.

Case Title: Sharun v State of Kerala and Others & Conncected cases

Case No: Crl.M.C 6391 0f 2023 and other connected cases

Citation: 2024 LiveLaw (Ker) 655