Kerala HC issues guidelines to handle sexually explicit digital evidence

The single bench judge Justice K Babu was hearing the plea filed by the survivor in the actress assault case of 2017.

BySouth First Desk

Published Dec 08, 2023 | 4:20 PMUpdated Dec 08, 2023 | 4:21 PM

Kerala HC issues guidelines to handle sexually explicit digital evidence

The Kerala High Court on Thursday, 8 December, issued guidelines for the authorities— court, police, and other enforcement agencies to handle the digital evidence that contains sexually explicit content.

The court laid down the guidelines to be followed when handling sexually explicit materials due to the absence of rules to guide law enforcement agencies, experts, and courts on handling sensitive electronic records containing such content.

Single bench judge Justice K Babu was hearing the plea filed by the victim of the actress assault case of 2017 in which actor Dileep is also an accused.

The Crime Branch had earlier told the court that a memory card, which was crucial evidence in the case and was submitted before the court, was forwarded to the forensic laboratory but was found with a change in the hash value of the card, which indicates unauthorised access.

The Crime Branch, which is probing the case, had approached the high court against a trial court order halting the probe on the alleged leaking of evidence from the court during the trial.

The high court also ordered a fact-finding inquiry into the allegation of leakage of evidence from a memory card.

It also directed that the inquiry should not affect the trial of the sexual assault case going on in a sessions court and the probe shall be completed within one month from Thursday, December 7.

Leaked footage

Justice K Babu passed the order based on a plea filed by the survivor who sought a court-monitored investigation into the alleged leakage of visuals from the memory card related to the incident, and the change in hash value of the memory card that was in the court custody.

The High Court, while directing the District and Sessions Judge, Ernakulam, to carry out the inquiry, said, “We failed to protect the victim’s interest which resulted in the violation of her fundamental Constitutional right”.

Justice Babu said only a probe into the allegation of unauthorised access to the memory card will remove “the cloud on the judicial system”.

The court noted that on three occasions, the memory card was connected to computer systems installed with devices capable of copying or transferring the electronic record or mutating the contents.

“The victim alleges that the contents of the video footage were copied and transmitted. The emotional and psychological harm being suffered by the victim is beyond imagination,” it said.

Also Read: Crime Branch seeks nod to hold R Sreelekha in contempt for Dileep remarks

Guidelines

The Bar and Bench reported that the court requested the Union and state governments to “formulate necessary rules for the safe handling of electronic records containing sexually explicit materials”.

In view of the absence of such guidelines, the court has issued the below directives for the court, law enforcement and examining authorities.

Seizure of evidence

In the detailed guidelines issued by the court on handling of sexually explicit materials, it said that when a law enforcement agency seizes or recovers such a record, it should be done with “utmost caution” so as to prevent any chance of destruction of its contents.

Electronic records should be separately packed, sealed, and labelled with a unique ‘Sexually Explicit Materials’ (SEM) tag.

“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,” the court said.

The court has also ordered to maintain a record of all the evidence seized that contains sexually explicit content.

The guidelines lay down how such materials should be packed, sealed, labelled, recorded in a register, stored and removed for being placed before the court.

Related: Kerala HC seeks report on alleged unauthorised access of memory card in actor assault case

Handling of evidence

The HC also laid down the measures to be taken by courts while handling such material and it included maintaining a register of all such evidence, examining it for tampering when presented during trial, its storage in court and how any authority should be allowed to examine it.

Sealed packets should be kept safely in a chest or locker upon receipt. It is necessary to keep thorough records of all activities, including the time, date, and identity of the accountable officer.

After receiving the sealed packets, authorities need to verify their condition and store them safely in chests or lockers. The court has emphasized that reporting any allegation of tampering to the court right away is advised in order to receive additional instructions.

“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 said.

Upon case completion, including any appeals, the court should ensure the permanent disposal of electronic records. A comprehensive destruction report from the inspecting authority or a similarly informed body should be acquired and kept as a permanent record.

In order to take the appropriate measures, the Court directed the registry to send a copy of the ruling to the District Judges, the Chief Secretary of Kerala, and the State Police Chief.

The case

The actress-survivor was abducted and allegedly molested in a car on the night of 17 February 2017 and later escaped in a busy area. The prime accused, Pulsar Suni, was later arrested.

The entire act was filmed to blackmail the actress.

There are 10 accused in the 2017 case, including actor Dileep, and police have arrested seven. Dileep was arrested subsequently and released on bail.

Meanwhile, Dileep — the eighth accused in the case of hatching the criminal conspiracy behind the attack, recently moved a plea to stop the hearing in the plea regarding leakage of visuals of the incident.

The actor alleged that the prosecution was demanding an enquiry into the incident only to prolong the trial.

(With PTI inputs)