Prosecution must give accused a cloned copy of memory card, says Kerala HC

The prosecution had the evidence on a pen drive. They showed it to the court but refused to give the accused a copy. The judge said — a cloned copy is as good as the original.

In P Gopalkrishnan v State of Kerala, the accused stood before the Kerala High Court. The State of Kerala had gathered evidence against him, stored on a memory card — a small pen drive holding digital files. The prosecution planned to use this electronic record as proof. But when Gopalkrishnan's lawyer asked for a copy, the prosecution refused. They would show it in court, they said, but they would not hand it over. The pen drive sat on the judge's desk during the hearing — a black plastic rectangle no bigger than a thumb, silent but central to the dispute. The question that landed before the court was deceptively simple: does an accused person have the right to receive a cloned copy of a pen drive before trial?

When the prosecution said no

The case was at the pre-trial stage — the moment before the trial begins, when the accused must be given all the material the prosecution intends to use. Section 207 of the Criminal Procedure Code, 1973 (the law that governs how criminal trials are run) requires the prosecution to furnish the accused with "all documents including 'electronic record' produced for the inspection of the Court along with the police report". The prosecution had the electronic record. They had shown it to the judge. But they argued that giving the accused a copy was not required — or that the original must be handed over, not a copy.

Gopalkrishnan's lawyers pushed back. Without a copy of the pen drive's contents, they argued, the defence could not prepare. How could they challenge the evidence if they could not examine it? How could they find inconsistencies, missing files, or tampering? The right to a fair trial, they said, meant nothing if the accused was fighting blind. Gopalkrishnan's lawyer held a printed copy of Section 207 during the arguments — the edges dog-eared from use, the relevant lines underlined in ink, a physical marker of the legal battle ahead.

The court's answer: a clone is enough

The Kerala High Court agreed with the accused. The bench observed that Section 207 explicitly includes "electronic record" in the list of documents that must be furnished. The court then went a step further: it said the furnishing "can be done in the form of cloned copy of the memory card/pen-drive". A cloned copy — an exact digital duplicate — is legally equivalent to the original for pre-trial disclosure purposes.

The reasoning was rooted in a fundamental principle of criminal justice. The court called it "cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial". Without this, the court held, the trial would violate not just the statutory mandate of the 1973 Code, but also the right to a fair trial guaranteed under Article 21 of the Constitution of India (the fundamental right to life and personal liberty, which the Supreme Court has long interpreted to include the right to a fair trial). The courtroom fell silent as the judge read this portion of the order — the weight of the principle settling over the room.

Why the prosecution's argument failed

The prosecution's position — that they could show the evidence but not share it — rested on a misunderstanding of how electronic evidence works. A pen drive is not like a paper document. You cannot photocopy it page by page. But you can clone it: create an exact bit-for-bit copy that is functionally identical to the original. The court held that this cloned copy satisfies the legal requirement. The accused does not need the physical original pen drive to prepare a defence. A cloned copy is sufficient.

The court also rejected any suggestion that the prosecution could pick and choose what to disclose. Section 207 is mandatory. If the prosecution intends to use an electronic record against the accused, they must provide it. The only question was the form — and the court answered: a cloned copy.

What this means for every criminal trial

This ruling has immediate practical consequences. In any case where the prosecution relies on electronic evidence — a pen drive, a memory card, a hard drive, a phone — the accused now has a clear right to receive a cloned copy before trial. The prosecution cannot hide behind the excuse that the original cannot be duplicated or that sharing a copy is somehow insufficient.

Consider how a defence lawyer might use this right. If the prosecution's case rests on a single pen drive containing chat logs or financial records, the defence can now clone that drive and run their own forensic analysis. They can check whether the files were altered, whether the metadata matches the prosecution's timeline, whether any exculpatory evidence was left out. Without the clone, none of this is possible — the defence is forced to accept the prosecution's version of the evidence at face value. The court's ruling closes that gap.

For defence lawyers, this is a powerful tool. It means they can examine the electronic evidence independently, run their own forensic analysis, and identify any issues before the trial begins. For prosecutors, it means they must prepare cloned copies as a routine part of pre-trial disclosure. The case file on the judge's desk — thin, with a single printed order — now stands as a precedent that will shape countless future hearings.

THE PLAY: In every case involving electronic evidence, demand a cloned copy of the memory card or pen drive under Section 207 CrPC — the court has now held that a clone is legally equivalent to the original for pre-trial disclosure.

The court ended where it began: with a pen drive and a question of fairness. But now, every accused person in Kerala — and by extension, across India, as this ruling carries persuasive weight — knows that a cloned copy is not a favour. It is a right.