Kerala HC Issues Guidelines For Handling Digital Evidence Containing Sexually Explicit Material

We must note right at the start that the Kerala High Court comprising of a Single Judge Bench – Hon’ble Mr Justice K Babu in a most persuasive, pragmatic, progressive, peculiar, pertinent and powerful judgment titled XXXX vs State of Kerala & Ors in WP (Crl.) No. 445 of 2022 and cited in Neutral Citation No.: 2023/KER/77356 that was pronounced as recently as on December 7, 2023 has passed a set of guidelines for law enforcement agencies, courts and examining authorities towards the handling of digital evidence containing sexually explicit material. The Court addressed a petition that had been filed by the victim of the 2017 South Indian actress assault case who was subjected to gang rape and sexual harassment concerning the suspected tampering of digital evidence of sexually explicit videos allegedly recorded by the culprits. It was brought to notice in this leading case that the memory card holding visuals of the assault was accessed without authorization while it was in the custody of different authorities including the Trial Court. It was pointed out that the case was now pending as Sessions Case No. 118/2018 before the Principal Sessions Court, Ernakulam.

It cannot be overlooked that the victim had expressed concerns that the video contents might be shared anytime. It must be mentioned that the Kerala High Court observed that an investigation into the allegation that somebody unauthorisedly accessed the memory card and copied and transmitted the contents of it will only remove the cloud on the judicial system and that it will only maintain the majesty of the judicial process and the purity of the legal system. While noting that the offences alleged had pertained to public justice, the High Court held that there was a profound obligation of the system. We thus see that the Kerala High Court in light of the same thus directed that the District and Sessions Judge conduct a fact-finding inquiry on the allegations of unauthorized access to the memory card and copying and transmitting its contents.

Most of all, we thus see that the Kerala High Court also laid down guidelines to be followed by all concerned, including the Courts, to ensure that any sexually explicit material is preserved in such a manner that they are not accessed illegally. We thus see that it is mentioned in para 61 for maintaining the majesty of the judicial process and the purity of the legal system that, “Therefore, the following directions are issued:

(i) The District and Sessions Judge, Ernakulam shall conduct a fact-finding inquiry on the allegations of unauthorised access to the memory card and copying and transmitting its contents.

(ii) The District and Sessions Judge is at liberty to seek the assistance of any agency, including the Police, for conducting the inquiry.

(iii) The petitioner is at liberty to present written submissions before the District and Sessions Judge.

(iv) In the inquiry, if the commission of any offence is disclosed, the District and Sessions Judge shall proceed as provided in the Code of Criminal Procedure, 1973.

(v) The District and Sessions Judge shall see that the inquiry does not affect the trial of the Sessions Case No.118/2018.

(vi) The District and Sessions Judge shall complete the inquiry within one month from this day.”

Measures to be adopted by Law Enforcement Agencies

We must note that while dwelling on the measures to be adopted by the Law Enforcement Agencies, it is entailed in para 66 that,

“If any officer of a law enforcement agency happens to seize or recover any electronic record related to a crime and realizes or has reason to believe that it must be taken into custody, he shall seize it with the utmost caution, preventing any chance of destruction to the electronic records and their contents. This process should be conducted maintaining the highest level of secrecy and privacy regarding the contents. The process shall be documented separately in a mahazer.

66.1. The electronic record shall be separately packed and sealed in damage-proof packets. Each packet should be labelled with a unique label that clearly states ‘Sexually Explicit Materials’ (abbreviated as SEM) in luminous red ink.

66.2. The law enforcement agency should maintain a register of electronic records containing Sexually Explicit Materials that have been seized and are in their custody. This register should include details such as the date, time, place of recovery, the source from whom it was recovered, the officer responsible for the recovery, and the officers involved in packing and sealing the material. All entries in the register should include the names and official designations of the officers involved and must be signed by them.

66.3. The sealed packet containing sexually explicit material shall be securely stored in lockers. The time and date of placing the packet in the locker shall be recorded in the aforementioned register, along with the acknowledgment of the person responsible for the locker’s custody. It should only be removed from the locker for transmission to the relevant Court. When it is taken out of the locker for transmission to the Court, this action should also be recorded in the register, including the time, date, and details of the officer who removed the sealed packet from the locker. Furthermore, the details of the officer entrusted with the sealed packet for delivery to the concerned Court, and information regarding which Court it was transmitted to, must be documented in the same register.

66.4. If it is discovered that any person has accessed the electronic record after it has been sealed and before it is entrusted to the Court, the individuals responsible should be held accountable.”

Measures to be taken by the Courts in handling electronic records containing Sexually Explicit Materials

On this count, it is enunciated in para 67 that,

“Every Court should maintain a register of electronic records containing sexually explicit materials received by the Court. This register should include the time and date of receipt, details of the crime, a description of the packet, and information about the person who presented the sealed packet to the Court. Additionally, there should be a declaration from the transmitting officer confirming that the packet was transmitted without any destruction or tampering.

67.1. The sealed packets shall be presented to the Chief Ministerial Officer of the Court. The Chief Ministerial Officer is responsible for examining the sealed packet and ensuring that it is properly sealed and has not been damaged or tampered with.

67.2. The officer who receives the sealed packet shall provide proper acknowledgment to the officer who entrusted the sealed packet, provided that the sealed packet is received in proper condition. If the packet is not in proper condition or is suspected of tampering or misuse, it must be reported to the Judicial Officer. The Judicial Officer shall summon the officer responsible for transmitting the packet to the Court, and a proceeding shall be drawn up concerning signs of tampering of the packet with acknowledgment from the officer concerned. The details of such proceedings shall be recorded in the aforementioned register. If a scientific investigation is required to determine the misuse of the electronic record during its transmission, the Court shall order such an investigation.

67.3. Upon receiving the sealed packet in proper condition, which contains the electronic record containing sexually explicit material, it shall be presented before the Judicial Officer without delay. In the presence of the Judicial Officer, the packet shall be securely placed in a locker or chest, and the keys shall be Kept either by the Judicial Officer or the Chief Ministerial Officer.

67.4. The time, date and details such as which officer placed the packet in the locker/chest, etc., shall be recorded in the aforementioned register.

67.5. If the Court receives any request for the examination of the electronic record by any authority, the packet shall be removed from the locker/chest in the presence of the Judicial Officer. Details regarding the time, date, and the officers who handled the material shall be noted in the said register.

67.6. The sealed packet containing the electronic record shall be further packaged within the Court without causing any damage to the sealed packet. An outer label shall be affixed, noting ‘Sexually Explicit Material (SEM)’ in luminous red ink.

67.7. The details of transmission for examination, including the date, time, destination authority, the officer through whom it was transmitted, etc., shall be recorded in the aforementioned register.

67.8. When the examining authority returns the electronic record after examination, it shall be sent to the Court in a sealed packet, following the same procedure detailed above. The date and time of receipt shall once again be entered in the register. The sealed packet, along with any additional electronic records created by the examining authorities containing sexually explicit materials, shall be deposited in the locker/chest in the presence of the Judicial Officer in a similar manner.

67.9. No copies of such sexually explicit electronic records, including newly created electronic records as a result of scientific examination, shall be provided to any person, including the accused, in the said case. The Court may allow the accused or their lawyer to view them under the conditions mentioned hereafter:

(a) Permission to view the electronic record in camera shall be granted by the Court only based on an order passed by the Court upon a petition for the same filed either by the prosecution or the accused. The Court shall aim to minimize instances of playing the electronic records, and all applications filed may be considered together, with a single opportunity made available for viewing by all petitioners together. The Court shall not entertain further applications except in exceptional situations, for which the Court must record reasons before granting such permission. In cases with multiple lawyers for any accused, only one among them shall be allowed to view the electronic record.

(b) The electronic record shall only be accessed by experts from the examining authority, and these experts shall take sufficient precautions to maintain the authenticity of the electronic records, including their hash value, despite viewing. If duplications of such electronic records are created during scientific examination, and the contents are identical, only the duplicated copy, such as a pen drive or CD, need be allowed to be viewed.

(c) The Court shall take sufficient precautions to ensure that no equipment or secret devices are used by any person present while playing the electronic record, as ordered, which could enable the copying, destruction, or mutilation of the contents of the electronic record.

(d) The Court shall record detailed proceedings regarding the viewing/playing of the electronic record, including the participants’ details, date, time, details of experts present, and the measures adopted to preserve the authenticity of the electronic document.

(e) The date, time, and details of the proceedings shall also be entered in the aforementioned register.

(f) Upon the finality of the case, including any appeals, the Court shall send the electronic record to the examining authority for permanent destruction. The Court shall obtain a detailed destruction report from the examining authority or a similarly notified authority. This report shall be retained by the Court as a permanent record, with the report’s details entered into the aforementioned register. The transmission for destruction, along with the necessary order for such destruction, in respect to the electronic document shall follow the same procedure as detailed above for its examination.

(g) The Judicial Officer shall not permit any Court officer to remove electronic records containing sexually explicit materials from the chest without a special order, and the details of this order shall be recorded in the special register mentioned above. The electronic record shall only be removed from the chest for trial, hearings, or any other trial-related matter upon a special written request from the prosecution or defense, or for any purpose deemed necessary by the Court based on a written order. Once the electronic record is removed from the chest, the Judicial Officer shall take suitable measures to ensure that any Court staff does not misuse it while the packet is unsealed.”

Kerala HC Sets Guidelines for Handling Sexually Explicit Digital Evidence

Measures to be adopted by the Examining Authorities.

On this score, we see that the Bench propounds in para 68 holding that,

“The Examining Authority shall maintain a register of electronic records containing sexually explicit materials to record such electronic record’s receipt, return, or destruction.

68.1. The Examining Authority shall receive the sealed packets only after confirming that the sealed packet is received without tampering with its seals. The packets marked Sexually Explicit Material, shall be stored in lockers/chests after making proper entries in the aforementioned register. If there is any evidence of tampering with the seals or suspicion thereof, it shall be promptly reported to the Court for further instructions.

68.2. As and when the sealed packet containing Sexually Explicit Material is received, it shall be recorded in the register, providing details such as the time, date, the expert who conducted the investigation, and the examination period etc,.

68.3. The expert shall take sufficient precautions to ensure that no other person has accessed the electronic record while in his/her custody. If assistance from any other person is sought during the examination, the details of such persons shall also be entered in the aforementioned register.

68.4. If any additional electronic documents containing Sexually Explicit Material are created during the examination or analysis, the details of the same shall also be entered in the aforementioned register. These newly created electronic records shall be returned to the Court in separate sealed packets, each clearly labelled in luminous red ink to indicate that it contains Sexually Explicit Material. No such electronic records shall be sent along with the reports; reports and electronic records shall be sent to the Court in separate sealed packets.

68.5. If the examining authority takes any copies of the electronic records or mirror images, the details of the same may also be entered in the aforementioned register. The examining authority shall securely store these copies in safe lockers for future examination purposes, and they shall be forwarded to the Court as detailed above, if ordered by the Court.

68.6. If any sexually explicit electronic record or any part or extractions from it are forwarded to any other division of the examining authority for examination, the internal transmission to such division shall be recorded in the aforementioned register. The same procedures shall be followed in such internal transmission to preserve the authenticity and secrecy of such electronic records.

68.7. If any electronic record containing Sexually Explicit Material is received for destruction, it may be destroyed without providing any opportunity for copying or extraction. The procedure and proceedings regarding the destruction shall be reported to the Court.

68.8. The head of the department of the examining authority shall pay special attention to ensure that its officers follow the aforementioned directions without any lapses.”

Most fundamentally, the Bench very rightly directs in para 69 that,

“Before parting with this judgment, I would wish to request the Central and State Governments to formulate necessary rules for the safe handling of electronic records containing sexually explicit materials.”

Conclusion

Finally, the Bench then concludes by holding in para 71 that, “The Registry shall forward a copy of this judgment to the Chief Secretary to the Government of Kerala, the State Police Chief and the District Judges for necessary action. The Writ Petition (Criminal) is disposed of as above.”

All told, there can be no gainsaying that what the Kerala High Court has directed must definitely be promptly implemented. The Central and State Governments must also promptly comply with accordingly as directed so commendably in this leading case! No denying it!

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