Contents of pen drive/memory card amount to documentary evidence

In P. Gopalkrishnan v. State of Kerala, CRIMINAL APPEAL NO.1794 OF 2019, the question before the Supreme Court was whether the contents of a memory card/pen­drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (for short, ‘the 1872 Act’) and Section 29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)?

The Supreme Court observed that indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. Referring to decision of the King’s Bench of United Kingdom in The King v. Daye and Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another, It can be safely deduced from the aforementioned expositions that the basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed. On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. Although, we need not dilate on the question of admissibility of the contents of the memory card/pen­ drive, the same will have to be answered on the basis of Section 65B of the 1872 Act. 

In the 42nd Law Commission Report, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of the 1860 Code, the Commission opined, that the contents of the memory card would be a “matter” and the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

Finally, the Supreme Court concluded It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen­drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen­drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.