ANISH LOHARUKA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application challenging an order dtd. 11/4/2022 passed by the learned Additional Sessions Judge, Bench - II, Bichar Bhawan, Calcutta in Special Case No. 7 of 2020 arising out of G.R. POCSO Case No. 1465 of 2019 in connection with the Cyber Police Station Case No. 111 dtd. 5/11/2019 under Ss. 66E, 67, 67A, 67B, 84B of the Information Technology Act and Ss. 120B, 354D, 385 and 506 of the Indian Penal Code and Ss. 4 and 8 of the POCSO Act, thereby denying supply of documents including electronic records in terms of Sec. 207 of the Code.

(2.) Learned senior counsel appearing on behalf of the petitioner submits as follows. The petitioner is an accused in this case. It was alleged in the F.I.R. that certain offences were committed as alleged in respect of several women including a victim who was minor at the time of offence. The petitioner 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 and the like. By an impugned order, the learned Trial Court 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 learned Trial Court did not comply with the previous direction and went ahead to fix a date for framing of charge. An accused has an inalienable right of being supplied all the documents which could be relied against him in a criminal trial. Reliance is placed on the decision in P. Gopalkrishnan alias Dileep vs. State of Kerala and Another reported in (2020) 9 SCC 161 and it is submitted that not only the documents are to be supplied to the accused, additionally if the accused or his lawyer intends to inspect the contents of the memory card, he can request Court to provide him inspection even more than once. The accused has also a right to send such document for examination by an expert. A proper interpretation of the ratio laid down in P. Gopalkrishnan (supra) would imply 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.

(3.) Furthermore, the learned Trial Court without any basis whatsoever held that if the document is cloned, the same would damage the hard drive.