"Privacy violation": Kerala High Court orders probe into unauthorised access of memory card in actress assault case

The Kerala High Court on Thursday directed the Ernakulam District and Sessions Judge to conduct a fact-finding enquiry into the allegations raised by the survivor of the 2017 actress assault case regarding unauthorized access to the memory card which allegedly contains footage of the assault [xxxx v State of Kerala & Ors.]..Single-judge Justice K Babu directed the concerned sessions judge to investigate the allegations within a period of one month, with the assistance of the police if necessary. It was made clear that the enquiry should not impact the ongoing trial of the case.Pertinently, Justice Babu labeled the unauthorized video access as violence against women, an infringement on privacy and a violation of constitutional rights."The necessary conclusion would be that we failed to protect the victim's interest, which resulted in the violation of her fundamental constitutional right. 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," the Court said in its judgment. .Amongst the persons accused in the rape case is Malayalam cine actor Dileep who is alleged to have orchestrated the attack on the survivor to settle some personal scores.While the trial is underway before the Ernakulam District and Sessions Court, the survivor actress moved the High Court alleging that the memory card which holds visuals of the attack and which was seized as evidence, was accessed, copied, and transmitted without authorisation.It is submitted in the survivor's plea that even though the Forensic Science Lab submitted a report confirming the illegal leak, the presiding officer of the trial court has not taken any action or permitted the court staff to be interviewed by the investigating officer.It was contended that the fundamental right of the petitioner to a fair trial and her right to privacy guaranteed under Article 21 of the Constitution were violated.The survivor, therefore, sought the interference of the High Court to ensure a fair and impartial investigation and trial..Before the High Court, the Director General of Prosecution and Senior Advocate TA Shaji affirmed the undisputed unauthorized access to the memory card, highlighting that legal restrictions on court cognizance don't hinder police investigation into a cognizable offense..Senior Advocate B Raman Pillai, representing Dileep, argued that the allegations of illegal tampering with the memory card's contents must be investigated. However, he said that the petitioner cannot seek reliefs based on a report of the forensic lab since the veracity of the same is to be established as per law.Pillai also contended that access to the memory card, while it has been in the Court's custody, cannot be objectionable..The High Court reviewed multiple State Forensic Science Laboratory reports on the memory card, noting changes in hash values and unauthorized access on specific dates, concluding that there was unauthorised access on January 9, 2018 and December 13, 2018.The judgment reserved discussion on the authorization of access on July 19, 2021, for later consideration..The Court emphasised that it is imperative to adhere to the Supreme Court's directives restricting video footage inspection to prevent copying or altering electronic records and safeguarding the victim's privacy.It also opined that an inquiry into unauthorized access to the memory card is essential to address the victim's grievances and uphold the integrity of the judicial process in cases involving violations of public justice..Therefore, it ordered the enquiry and also issued comprehensive guidelines on handling sexually explicit materials for law enforcement agencies, courts, and examining authorities. .The survivor actress was represented by Senior Advocate Gaurav Agarwal and advocates TB Mini and C George Thomas.The State authorities were represented by Senior Advocate TA Shaji (Director General of Prosecution), and advocates P Narayanan (Senior Government Pleader), and Sajju S (Senior Government Pleader).Dileep was represented by Senior Advocate B Raman Pillai and advocates Philip T Varghese, Thomas T Varghese, Achu Subha Abraham, VT Litha, KR Monisha and Nitya R..[Read Judgment]