SC allows Malayalam actor Dileep access to memory card

The Supreme Court, however, declines to grant him copy of memory card.

The Supreme Court on Friday ruled that the contents of a memory card or pen drive being relied upon by the prosecution as electronic record would be treated as a document which should be provided to an accused for an effective defence during the trial.

However, in cases involving issues of privacy of the complainant or witness, the court may be justified in providing only inspection to the accused and his lawyer or expert, it added.

“It is cardinal that a person tried for 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, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution,” a bench of Justices A M Khanwilkar and Dinesh Maheshwari said.

The top court held that the contents of the memory card would be a “document”.

It passed its ruling allowing Malayalam actor Dileep access to the memory card of a mobile phone in a trial in an actress assault case of 2017. The court allowed him inspection of the record (memory card) for effective trial.

The court, however, asked P Gopalkrishnan alias Dileep to seek help from CFSL experts, who would prepare a report after analyzing the cloned copy of the subject memory card and would be kept confidential until the conclusion of the trial.

“This is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights,” the bench said in its 58-page judgement.

Justice Khanwilkar pronounced the order on a petition by Dileep challenging the validity of the Kerala HC's order of August 14, 2018.

The top court had reserved its judgement on September 17, 2019.

The legal question involved in the matter included if the memory card was a part of the police document, which has to be provided to the accused under Section 207 of the Criminal Procedure Code.

The Kerala High Court had ruled that the memory card was not a document, which can be provided to the accused. The HC also said it can't be released as it contained sensitive information which could harm the reputation of the victim.

Dileep, for his part, contended he had a constitutional right to the fair trial.

He said the memory card of the alleged assault was filed before a magistrate by a lawyer as the original phone was still not recoverable.

According to the police, the actor had hatched conspiracy with the other accused to abduct the actress and take her nude photographs, as he harboured ill-feeling against her for spoiling his previous marriage. Dileep, who was arrested on July 10, 2017, was released on bail on October 3, 2017.