Kerala High Court Lays Down Guidelines On Handling Digital Evidence Containing Sexually Explicit Materials

The Kerala High Court on Thursday laid down comprehensive guidelines to be followed by law enforcement agencies and Courts while handling sexually explicit materials. 

The Single Judge Bench of Justice K. Babu issued the guidelines while ordering 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 a Memory Card relating to the incident.

The Court today took a grave view of the fact that the memory card was connected to computer systems installed with devices capable of copying or transferring the electronic record or mutating the contents on three occasions, which underscored the systemic failure to protect the victim's interests, and violated her fundamental constitutional right.

"The emotional and psychological harm being suffered by the victim is beyond imagination...An inquiry/investigation into the allegation that somebody unauthorisedly accessed the memory card, and copied and transmitted the contents of it will only remove the cloud on the judicial system. It will only maintain the majesty of the judicial process and the purity of the legal system. The offences alleged pertain to public justice. Therefore, the obligation of the system is more profound," the Court observed while ordering the inquiry to be carried out by the District and Sessions Judge, Ernakulam within a month. 

Taking note of the requests made by the counsel for the petitioner Advocate Gaurav Agarwal and the Director General of Prosecution T.A. Shaji for the issuance of guidelines to be followed by Law Enforcement agencies and Courts to ensure that sexually explicit materials are not leaked or transmitted, so as to infringe upon the fundamental constitutional rights of the victims, the Court observed:

"Women and children often become victims of sexual offences. Law Enforcement agencies may recover electronic records containing sexually explicit materials during the investigation of those offences. These electronic records contain sexually explicit materials that are highly sensitive documentary evidence of the commission of the crimes...Therefore, Law Enforcement agencies, Courts and examining authorities are directed to comply with the following measures in the matter of handling sexually explicit materials till a law is enacted on the subject". 

Guidelines Issued by the Court

The following guidelines were thus issued by the Court to each of the agencies/authorities, while handling Sexually Explicit Materials(SEM): 

A. Measures to be adopted by Law Enforcement Agencies

i. If any officer of a law enforcement agency happens to seize/recover any electronic record related to a crime and realizes/has reason to believe that the same ought to be taken into custody, it shall be seized with the utmost caution, preventing any chance of destruction to the electronic records and their contents, and that the same shall be conducted maintaining the highest level of secrecy and privacy regarding the contents;

ii. The electronic record ought to be separately packed and sealed in damage-proof packets, labelled clearly as 'Sexually Explicit Materials' (SEM) in luminous red ink; 

iii. Maintenance of register of electronic records containing SEM that have been seized and are in their custody; 

iv. Storing sealed packets in lockers, and thereafter after recording the time and date of placing the packet in the locker in the register. 

v. Responsible Individuals to be held liable, in case of access of the electronic record by any person after the same has been sealed and before entrustment of the record to the Court. 

B. Measures to be adopted by Courts

i. Register of electronic records containing SEM received to be maintained by each Court;

ii. Register to include the time and date of receipt, details of the crime, a description of the packet, information about the person who presented the sealed packet to the Court, and declaration from the transmitting officer confirming that the packet was transmitted without any destruction or tampering;

iii. Sealed Packets to be presented to the Chief Ministerial Officer of the Court, who shall examine the same for any damage or tampering;

iv. Any packet not in proper condition or suspected of tampering to be reported to the Judicial Officer, who in turn shall summon the officer responsible for transmitting the packet to the Court, and draw a proceeding concerning signs of tampering of the packet with acknowledgment from the concerned officer; 

v. Sealed packets in proper condition to be presented before the Judicial Officer without delay, who shall place the same in a locker, after recording details such as time, date, etc. of placing the packet in the locker; 

vi. Details of transmission for examination, including the date, time, destination authority, the officer through whom it was transmitted, etc., to be recorded in the register; 

vii. Electronic Record returned after examination by the examining authority to be sent to the Court in a sealed packet, following the same procedure;

viii. No copies of such SEM electronic records, including newly created electronic records as a result of scientific examination, to be provided to any person, including the accused, in the said case.

ix. Stringent conditions for access of the electronic records by the accused or their lawyer have also been laid down by the Court. 

C. Measures to be adopted by Examining Authorities

i. Register of electronic records containing SEM stating the record's receipt, return, or destruction to be maintained by Examining Authorities; 

ii. Examining Authority to receive sealed packets only after confirming that the same is without tampering, and any evidence of tampering with the seals or suspicion thereof to be reported to the Court for further instructions;

iii. Packets marked SEM to be stored in lockers after making appropriate entries in register regarding the time, date, the expert who conducted the investigation, and the examination period etc; 

iv. Experts to take adequate precautions to ensure that no other person has accessed the electronic record while in their custody;

v. Newly created electronic documents containing SEM to be returned to the Court in separate sealed packets, each clearly labelled as such in luminous red ink;

vi. Details of any copies of the electronic records or mirror images taken by the Examining Authority also to be entered in the register;

vii. Any electronic record containing Sexually Explicit that has been received for destruction to be destroyed without providing any opportunity for copying or extraction, and the procedure of destruction to be reported to Court;

The Court also urged the Central and State Governments to formulate necessary rules for the safe handling of electronic records containing SEM in furtherance of the guidelines. 

Counsel for the Petitioner: Advocates T.B. Mini, Gaurav Agarwal, and C. George Thomas

Counsel for the Respondents: Director General of Prosecution T.A. Shaji, Senior Government Pleaders P. Narayanan and Sajju S., Senior Advocate B. Raman Pillai, and Advocates Philip T. Varghese, Thomas T. Varghese, Achu Subha Abraham, V.T. Litha, K.R. Monisha, and Nitya R. 

Citation: 2023 LiveLaw (Ker) 713

Case Title: XXX v. State of Kerala

Case Number: W.P. (Crl.) 445/ 2022

Click Here To Read/Download The Judgment