SC Stays Trial In Malayalam Actor Sexual Assault Case To Decide Whether Memory Card Is A 'Document'

The Supreme Court today stayed the trial in the criminal case in which Malayalam cine actor Dileep is accused of hatching the conspiracy behind the abduction and sexual assault of an actor in February 2017.

The bench of Justices A M Khanwilkar and Ajay Rastogi has posted the matter in July, after the summer vacations.

Dileep had petitioned the Supreme Court in January seeking the handing over of the memory card, which allegedly contains the video footage of the crime.

Both the trial court and the High Court had declined the prayer holding that memory card was not a 'document' within the meaning of Section 207 of the Code of Criminal Procedure which should be handed over to the accused; rather, it was held to be a 'material object'.

In February, the High Court had accepted the request of the survivor for the case to be tried by a woman judge. The matter was transferred to Additional CBI Court, Ernakulam district. Later, the High Court directed the trial to be completed as far as possible within 6 months.

In the petition in SC, Senior Advocate Mukul Rohatgi argued for Dileep that the visuals were doctored. The allegation in the chargesheet was that the actor was attacked in a moving vehicle; however, the visuals of the memory card were of a stationary vehicle. Dileep's lawyers were not shown a single continuous video, but a collection of several edited clips, which contained audio of strangers' voices. To establish the innocence of Dileep, it is highly essential to have copy of the memory card, submitted Rohatgi.

The Government opposed the petition saying "If the copy of the footage is given without taking into consideration the Fundamental Rights and the Right of Privacy of the victim, the same will adversely affect the case of the prosecution".

It further stated that Dileep and his lawyers have already watched the visuals in the memory card in the chamber of Judicial First Class Magistrate, and no prejudice was caused to him due to its non-supply.

The Kerala High Court had dismissed the plea holding that memory card in the case amounted to a material object and not a documentary evidence.

"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", observed Justice Sunil Thomas in the High Court judgment.

On that basis, it was held : "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".