The Kerala High Court on Monday reserved for orders the plea filed by the survivor in the 2017 actor assault case seeking a court-monitored investigation into the leakage of visuals from the Memory Card, and the change in hash value of the memory card thereof, that was kept in court custody.
Justice K. Babu, while reserving the matter for pronouncement of verdict, also appointed Advocate Renjith B. Marar as an Amicus Curiae in the case.
In 2022, reports emerged that the footage of the survivor’s assault was leaked. Following the same, the survivor approached the High Court seeking an investigation. The survivor also sought an inquiry in the change in hash value of the memory card of the device in which the visuals of the incident was allegedly stored.
Advocate Gaurav Agarwal appearing on behalf of the survivor submitted that the Memory Card had been accessed three times while in court custody. He submitted that on the first instance on January 9, 2018, two files had been created in the Memory Card while it was in the custody of Angamali Judicial First Class Magistrate Court, and on the second instance on December 13, 2018 at 10.58 P.M., three files were created in the Memory Card while it was in the custody of the District Principal Sessions Court, and was accessed on a device having Android Operating System. The third instance as per the Counsel was on July 19, 2021, when 34 new files were created upon being accessed Vivo Mobile phone having Android OS.
"In the first two instances, the access could not have happened during the Court proceedings. On July 19, the 1st Accused Pulsar Suni engaged a new lawyer. Even then, the lawyer would have had to view the visuals from the pen drive and not from the Memory Card. Somebody has put it on a Vivo Phone and 34 files were created. That is very serious. The Judicial officer has not passed any order so there is no question of the Judicial Officer being investigated, the only question here is as to who had accessed the same," Agarwal said while pressing for the investigation.
He added that it had been established by the SFSL report that the hash value had been changed, and also states the reason for the same as being illegal access during the period of the custody of the Memory Card in different courts.
"This constitutes prima facie material to make out a cognizable offence that someone has accessed memory card while in the custody of different courts," the Counsel submitted.
He added that the same would amount to offences under Sections 378 (theft), 405 r/w 408 (criminal breach of trust), 411 (Dishonestly receiving stolen property), and 425 (Mischief) of the IPC and Sections 66B (Punishment for dishonestly receiving stolen computer resource or communication device), 66E (Punishment for violation of privacy), and 67 (Punishment for publishing or transmitting obscene material in electronic form) of the IT Act, 2000, and Section 119 (Punishment for atrocities against women) of the Kerala Police Act.
Agarwal thus averred that the bar under Section 195(1)(b) r/w S 340 CrPC would not be applicable in the present case.
"However, assuming Your Lordship does make out that there is a bar, that bar is at time of cognizance and not at time of investigation as laid down by the Supreme Court," the Counsel argued.
Agarwal further submitted that the survivor's right to privacy had also been infringed in the present case.
"Somebody has accessed my videos illegally. I am seeking redress and find out who has accessed while it was in court custody. Your Lordships are protected with a higher right to protect my Fundamental Right to privacy. If someone has illegally accessed my videos, Your Lordship may take the strictest action," the Counsel pleaded.
He went on to submit,
"No one should be able to access any document in Court custody which is more so in the case of documents in court custody. Your Lordship may hence further lay down strict guidelines to ensure that any sexually explicit materials in court custody are not accessed illegally, and ensure that guilty persons are found out and brought to book. Although the respondents have argued that sexually explicit videos are mere documents, it is submitted that such videos can never be like any other material, and the Court ought to send a strong message that such misdemeanour shall not be condoned".
It is pertinent to note that the 8th accused in the case, prominent Malayalam cine actor Dileep, who is accused of hatching the criminal conspiracy behind the attack, also moved a plea recently to stop the hearing in the plea regarding leakage of visuals of the incident.
Dileep alleges that the enquiry into the incident is being demanded by the prosecution in order to prolong the trial.
Responding to the same during the hearing today, Agarwal averred that the trial in the case was at the fag end and the Apex Court had also extended the time to complete the trial till March 31, 2024.
"It is submitted that petitioner has made it clear that there is no intention or wish to delay trial. The petitioner has been waiting for the past 6 years for justice," the Counsel added.
The Court thus reserved the matter for judgment. It sought Advocate Marar's assistance regarding the formulation of guidelines to be issued.
The Apex Court had earlier directed the trial in the matter to be completed by July 31, 2023. The Bench of Justices Dinesh Maheshwari and Sanjay Kumar also asked the Trial Judge to submit a fresh report on the progress of the trial by August 4, 2023.
The Supreme Court subsequently extended the time till March 31, 2024, after accepting the report of the Trial Court Judge Honey M. Varghese bringing to the attention of the former that further time was required in the trial in order to complete the examination of witnesses.
Case Title: XXX v. State of Kerala
Case Number: W.P. (Crl.) 445/ 2022
https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-2017-actor-assault-case-plea-probe-leakage-visuals-reserve-order-235733
