KOCHI: The Kerala High Court on Monday dismissed the plea of the survivor seeking a probe by a Special Investigation Team (SIT) into the unauthorised access to the memory card containing the visuals of actor assault and rape in 2017 and copying and transmitting its content. There are eight video files in the memory card.
Justice CS Dias said: "On consideration of facts and the exposition of the law, I am of the definite view that the relief sought in the application are substantive in nature and arise for a fresh and independent cause of action. I hold that the application is not maintainable in law. Consequently, the application is dismissed without precluding the right of the applicant to initiate appropriate proceedings in accordance with law."
Justice C S Dias issued the order on the petition filed by the survivor seeking a probe by a special investigation team by registering an FIR on the unauthorised access to the memory card and pen drive while it was in the custody of the Judicial First Class Magistrate Court, Angamali, and the Principal Sessions Judge, Ernakulam.
The forensic examination revealed that "the memory card is used in a Vivo-made mobile phone having an Android operating system and a Jio network application. In this device, Telegram, WhatsApp, and Instagram apps were installed."
The memory card was accessed on the night of January 9, 2018, and December 13, 2018, at 9.58 pm and 10.58 pm, respectively. The third access was done on July 19, 2021, from 12.19 pm to 12.54 pm.
Following this, the High Court directed the District and Sessions judge Ernakulam to conduct a fact-finding inquiry on the allegations of unauthorised access on April 12.
The inquiry by the district and sessions judge found that three persons, a former Angamaly court magistrate, and two court employees accessed the memory card.
In the affidavit filed before the High Court, the survivor, citing the inquiry report, alleged that Leena Rasheed, the then JFCM, Angamaly, Mahesh Mohan, Senior Clerk of the then Principal and Sessions Judge, who is now a judge of the Kerala High Court, and Thajudeen, then Shirstadar of the trial court, Ernakulam, had accessed it.
Advocates -- Gaurav Agarwal and TB Mini -- representing the survivor argued that the illegal access and transmission violated her right to privacy and right to live with dignity. The report of the sessions judge admitted that there was unlawful access to the memory card.
The contents of the memory card are not ordinary photos/pictures /documents. It contains videos of sexual assault inflicted on her. The persons who accessed the memory card were fully aware of its contents. There was no reason for anybody to have accessed the memory card when it was in court custody.
The memory card had been sealed by the State Forensic Science Laboratory and sent to sessions court on March 3, 2017. It is not clear how the seal was opened in the first place and by whom.
The persons who have done it have, therefore, committed a serious offence by tampering with court records and accessing the videos. This has caused unimaginable trauma and mental agony to the Petitioner.
Despite having found that the memory card has been illegally accessed, the Sessions Judge only recommends departmental action. The Sessions Judge was duty-bound to lodge an FIR.
The survivor further argued that the inquiry/investigation into the allegation that somebody unauthorizedly accessed the memory card, and copied and transmitted the contents of it will only remove the cloud on the judicial system. It will only maintain the majesty of the judicial process and the purity of the legal system.