Right to Fair Trial Includes Right to Access Digital Evidence: Delhi High Court Directs Supply of Hard Disk Copy to Accused for Effective Defence

“You Can’t Cross-Examine on Blindfold — Electronic Records Are Documents, and Accused Has a Right to Cloned Copy”, - In a significant order reinforcing the right to fair trial in the digital era, the Delhi High Court directed the trial court to furnish a cloned copy of a hard disk — being relied upon by the prosecution — to the accused at their own expense. Justice Vikas Mahajan emphasized that electronic evidence, if used against the accused, must be made available to them to ensure effective cross-examination and defence, noting that denial of access would violate principles of natural justice and Article 21 of the Constitution.

“The basic principle of natural justice is that the material sought to be used against the accused must be provided to him by the prosecution… Denial of such access would mean denial of the right to a fair trial.”

The petitioners are facing trial in Sessions Case No. 8698 of 2016 at Patiala House Courts. During the trial, PW-7, M. Bhaskar, an expert witness, was recalled on the prosecution’s application under Section 311 CrPC, for the purpose of exhibiting a WD Black colour hard disk (Sr. No. WXGOAA9R1032), which allegedly contained critical digital files.

However, the petitioners contended that they had not been provided a copy of this hard disk, and hence, could not meaningfully cross-examine the witness. Their application for certified copies was denied by the copying agency on the ground that “digital records cannot be given as there is no provision”, prompting them to approach the High Court.

“The Hard Disk Is an Electronic Record — It Must Be Treated as a Document Under Law”

Justice Vikas Mahajan relied on the Supreme Court’s authoritative ruling in P. Gopalakrishnan @ Dileep v. State of Kerala (2020) 9 SCC 161, where it was held that memory cards, pen drives, and hard disks are all ‘documents’ under the Evidence Act, and accused persons are ordinarily entitled to a cloned copy if the prosecution intends to rely on them.

Quoting Dileep, the Court reiterated: “If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial.”

It further added: “There is no issue of privacy or identity involved in the present case… Nor is the document voluminous to justify only inspection.”

“Order Sheets Say ‘Documents Supplied’ — But Where Is the Hard Disk?”

The State argued that all documents, including the hard disk, were supplied during the Section 207 CrPC stage. However, the Court carefully examined the relevant order sheets and noted a critical gap:

“There is no specific mention of the hard disk having been supplied… Had a cloned copy been provided, the same would ordinarily have been recorded.”

Even if it had been provided earlier, the Court held, the accused still retained the right to seek certified/attested copies to effectively cross-examine prosecution witnesses. Failure to allow this would violate the accused’s right to a fair and effective defence.

“Delay Is Not Attributable to Accused — Trial Delay Caused by Prosecution’s Repeated Recalls”

The Court also noted that the accused could not be blamed for any delay in the trial, as it was the State that repeatedly recalled witnesses under Section 311 CrPC — including PW-7, whose cross-examination was pending since 2015.

“Clearly, this protraction of trial cannot be attributed to the petitioners/accused persons.”

Thus, the Court rejected the argument that the request for the hard disk was a tactic to delay trial.

Allowing the application under Section 482 CrPC, the Delhi High Court directed the trial court to provide a cloned copy of the hard disk to the petitioners/accused persons at their expense. It further permitted the trial court to take supervised assistance from IT experts, if necessary, and deferred the cross-examination of PW-7 in the meantime.

“To avoid the trial from getting further protracted, a cloned copy of the hard disk may be made available… so that there is no denial of right of fair trial.”

This ruling affirms that electronic evidence is subject to the same standards of disclosure as physical documents, and that accused persons cannot be made to defend themselves in the dark, especially when digital records form the cornerstone of the prosecution’s case.

Date of Decision: March 6, 2025