Can Unmasked Copies Of Prosecution Records Be Served To POCSO Accused? Kerala HC Answers
The Kerala High Court observed that unmasked copies of prosecution records can be served to the POCSO accused to ensure a fair trial, but subject to some restrictions.
The Court however said that on getting copies of the documents the accused and the counsel appearing for the accused are duty-bound to ensure the privacy of the victim without being disclosed by printing, publishing, reporting and commenting which would have the effect of infringing upon the privacy of the victims in any manner.
In the present case, the Court was hearing a bunch of Criminal Miscellaneous Cases pending before the Special Court for the trial of the Protection of Children from Sexual Offences Act, 2012 Offences, whereby the Special Judge dismissed an application filed by the Petitioner to give unmasked copies of charge sheet and other records to contest the trial.
The bench of Justice A Badharudeen observed, “…unmasked copies of prosecution records shall be served to the accused to ensure fair trial.”
Advocate KK Dheerendrakrishnan appeared for the Appellant and PP MP Prasanth appeared for the Respondent.
The Court observed, “…the right of the accused to defend a case and to prove his innocence is a constitutional right and for which he should get all the prosecution records before trial to point out the flaw in the prosecution case and also to establish his innocence in a befitting manner.”
“This is the reason why as per Section 207 of Cr.P.C., Magistrates are empowered to furnish copies of Police report and other documents while dealing with the same and Sessions Courts are empowered to do the said exercise under Section 208 of Cr.P.C.”, the Court added.
The Court observed, “…when prosecution records are given to the accused in compliance with Section 207 and 208 of Cr.P.C and under Section 19(4) of the Kerala Criminal Rules of Practice vis-a-vis provision under Section 33 (7) of POCSO Act, it is not fair to hold that the accused is not entitled to get prosecution records without being masked to defend the case, since if the statements are masked it is difficult to use the statements for contradicting the witness/witnesses properly in terms of Section 145 of the Indian Evidence Act, 1872 and under Section 162 of the Cr.P.C.”
The Court said, “when copies of the contents of the pendrive/memory card/CD/DVD in the form of digital evidence which would contain the chats or visuals of the victim detrimental to her privacy shall not be given to the accused and in such cases the ratio of the decisions of the Apex Court, in Gopalakrishnan @ Dileep v. State of Kerala [2019 (4) KLT 853] and subsequent decisions following the same ratio will have to be applied.”
Accordingly, the Court set aside the impugned orders and allowed the Criminal Miscellaneous Cases.
Cause Title: Sharun v. State of Kerala (Neutral Citation: 2024:KER:76155)