S.207 CrPC | Can't Supply Documents To Accused If There Is Risk Of Disclosure Of Minor Victim's Identity, Can Only Permit Inspection: Calcutta HC

The Calcutta High Court while enumerating upon the scope of Section 207 of the CrPC which allows documents relied upon by the prosecution to be supplied to an accused, underscored that when there is a possibility of disclosure of identity of a minor victim of sexual offences then instead of supplying it would be expedient to allow the accused or his lawyer to inspect the said documents.

Justice Jay Sengupta observed, 

"..it is abundantly clear that when there is a possibility of disclosure of identity of a minor victim, albeit minor at the time of commission of offence then instead of supplying, copying such documents to the accused, it would be expedient to allow the accused or his lawyer to inspect the said documents. After all, once a document is supplied to the accused, there is no means to ensure that the identity of the victim would not be disclosed by misusing of such document. However, it has also been provided that the accused would have a right to have such a document inspected by an expert of Information Technology."

Reliance was placed on the Supreme Court judgment in P. Gopalkrishnan alias Dileep v. State of Kerala and Another in this regard wherein the Apex Court had held that 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 was adjudicating upon an application preferred against an order of the concerned Sessions Judge wherein supply of documents including electronic records in terms of Section 207 of the CrPC was denied to the petitioner who was an accused in a criminal case involving offences under various provisions of the Information Technology Act, Indian Penal Code and the Protection of Children from Sexual Offences Act, 2012. 

The counsel appearing for the petitioner submitted that the petitioner was an accused in a case wherein he had been alleged to have committed offences in respect of several women including a victim who was minor at the time of offence. The Court was apprised that the petitioner had filed two applications praying for supply of copies of some documents afresh because the same were not legible and also the contents of a hard disk that was seized in connection with the case. The hard disk contained screen shots taken from mobile phone, WhatsApp, chat history etc. 

It was further submitted that by the impugned order, the concerned Sessions Judge had refused to give a copy of hard disk drive seized in connection with the case on the ground that cloning it may be damage the drive. Although it was directed that other documents of legible copies which have not been supplied to the petitioner, would be supplied to them, subsequently, the concerned Trial Court did not comply with the previous direction and went ahead to fix a date for framing of charge. 

The counsel for the petitioner further contended that the Supreme Court in the case of P. Gopalkrishnan alias Dileep v. State of Kerala and Another had held that documents relied upon against an accused have to be supplied to the accused regardless of any issue of privacy of the complainant or witness that may be there.

On the contrary, the counsel appearing for the State government submitted that when the issue of privacy of a complainant or witness or disclosure of identity of a minor becomes an issue, then the documents cannot be supplied to the accused and at best, an inspection can be given to the accused or his lawyer. It was further argued that only inspection can be made with regards to the hard drive of the contents or the materials that can disclose the identity of a minor victim.

Pursuant to the rival submissions, the Court observed that the inference drawn by the concerned Trial Court hat copying the hard drive would damage is not based on opinion of an expert and thus directed the Trial Court to look at the issue afresh.

However, upholding the importance of protecting the identity of minor victims of sexual offences, the Court issued the following directions, 

a) Legible copies of documents shall be supplied to the accused which were directed to be supplied on 11.04.2022 and did not have any scope of disclosing the identity of the minor victim.

b) Copies of documents, if any, available in the electronic medium, which do not have any scope to disclose the identity of the minor victim would also be supplied to the accused, if the learned Court find that copying the drive would not damage the original.

c) The accused would be permitted to inspect the electronic evidence along with his learned advocate and I.T. expect, if he chooses to engage such an expert for such purpose.

d) After supply of such copies and/or inspection of documents as referred to above, the learned Trial Court shall fix a date for consideration of charge and proceed thereafter.

Case Title: Sri Anish Loharuka v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 216

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