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Significance of Providing Un-Relied Documents to Accused An Indicator of a Fair Trial

One of the key facets of the criminal law regime is that an individual/ entity should be given a fair and transparent trial. Sections 207 and 208 of the Code of Criminal Procedure, 1973 (“CrPC”) are in furtherance to the said principle, which relate to providing copies of police report and other documents to accused persons.

In the case of T. Takano v. Securities and Exchange Board of India[1], the Supreme Court, in a matter relating to SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003 (“PFUTP Regulations”), emphasised on the importance of disclosure of documents, and how it was inextricably linked to natural justice. The Supreme Court held that the essence of disclosure is to meet three fundamental purposes[2]:

  1. Reliability: Courts will not be able to discharge its role as an arbiter of disputes efficiently if parties to a proceeding are not allowed to access information and accordingly advance arguments and counter arguments.
  2. Fair Trial: Considering that the judgments passed by the courts are enforced forthwith against the parties to the proceedings, thereby affecting life and liberty, they should ensure that the proceedings take place in an efficacious manner.
  3. Transparency and Accountability: Informing the parties how a judicial body or an investigating agency arrived at a particular conclusion is the hallmark of democratic principles as well as the rule of law. Therefore, decisions arrived at enlist cogent reasons for arriving at the same.

While the Supreme Court made the aforesaid observations in a matter relating to PFUTP Regulations, the focus on disclosure of documents is relevant in a criminal trial as well. The Supreme Court in the case of Manjeet Singh Khera vs. State of Maharashtra[3];  held that it was incumbent upon the Trial Court to supply the copies of documents not relied upon by the prosecution to the accused as this entitlement is a facet of just, fair, and transparent investigation/ trial and constituted an inalienable attribute of the process of fair trial, which Article 21 of the Constitution guarantees to every accused.

Fair disclosure was also emphasised upon in Manoj & Ors. vs. State of Madhya Pradesh[4] wherein the Supreme Court highlighted the dual role played by the public prosecutor and the Court in safeguarding the accused’s right to a fair investigation and trial, by scrutinising the material as well as ensuring fair disclosure.

Thus, Section 207 of the CrPC, which relates to ‘supply to the accused a copy of police report and other documents’, has been enacted not only to ensure that an accused has an inalienable right, but also to fulfil the larger purpose of ensuring that a judicial process is in place to ensure a fair trial and transparency. 

For the purposes of prosecution, investigating agencies may not rely on all the documents that they have, in their possession. It is in such circumstances that documents get bifurcated into “relied” and “un-relied” categories. In V.K. Sasikala vs. State[5], the Supreme Court appreciated that in the course of an investigation, the investigating officer is tasked with the responsibility of segregating documents into two sets, namely, those that benefit the prosecution and those which may be helpful to the accused in its defence. More often than not, such an officer will only bring forth the documents that he finds most favourable for the prosecution’s case and submit them to the Magistrate, even though the prayer made in the petition of the accused would seek inspection of all documents (including those not relied on by the prosecution) in the control of such agencies.

With an intent to iron out the common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes, the Supreme Court[6] suo moto took cognizance of this issue. After hearing suggestions made by the amici curiae, various states and High Courts, the Supreme Court introduced the Draft Criminal Rules on Practice (“Draft Rules”) vide its judgment dated April 20, 2021.

While various guidelines were passed as part of the judgement, the Court also directed that the list of un-relied documents, statements and other material objects should be provided to the accused. It was laid down that along with the list of documents relied upon, a Magistrate needs to ensure that a list of documents not relied upon is furnished to the accused, as such material might be important for effective trial.

Pursuant to the Supreme Court’s Draft Rules in the suo moto case, the Delhi High Court vide anorder dated November 10, 2021, in CBI vs. INX Media Pvt. Ltd. & Ors.[7], allowed the accused to inspect documents that were kept at the CBI malkhana i.e., a room where case properties are kept. While granting permission to the accused, the High Court emphasised on the duty “to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on”.

While the jurisprudence that is being developed of late will benefit the accused in putting up an adequate defence as it allows the accused to inspect those documents that the CBI did not rely upon. The Court also ordered that if any such document is relevant or vital for an accused’s defence or is of sterling quality to demolish the very case of the prosecution, the accused could let the Court know the details of such documents so that copies thereof can be supplied to them. Interestingly, the Supreme Court in the Draft Rules had only specified that a ‘list’ of the documents not relied upon by the agencies shall be shared with the accused, but the Delhi High Court took it a step forward and permitted the inspection and seeking of relevant documents if it met particular criteria.

Interestingly, a co-ordinate single judge bench of the Delhi High Court, in a subsequent case[8] relating to criminal proceedings under the Prevention of Money Laundering Act, 2002, in Bhushan Power & Steel Limited is adjudicating on whether the application under Section 208 of the CrPC merely directs prosecution to supply a list of un-relied documents or does it also mention/ imply supplying the actual documents to the accused.

Quite recently in November 2022, the Full Bench of the Supreme Court[9], in a 2:1 majority, held that failure by some of the High Courts or state governments/ union territories in implementing the Draft Rules cannot cause prejudice to the rights of any accused that have already been recognised.

It is relevant to note that the Punjab and Haryana High Court in Ashok Solomon vs. Directorate of Enforcement[10] has permitted the supply of the list of documents not relied upon by the Investigating Officer to the accused even when the accused did not pray for the same.

Concluding Remarks:

The law on supply of un-relied documents has of late seen significant development. While the Supreme Court’s decision to provide a list of un-relied documents to the accused is praiseworthy, the entire issue has not drawn to a close. Perhaps the final judgment in R.P. Goyal vs. Directorate of Enforcement would bring more clarity on whether the accused can only be provided with a list of un-relied documents or whether they have a right to the actual documents as well, if sought. An implicit indication in this regard has already been given by the Delhi High Court in CBI vs. INX Media Pvt. Ltd. & Ors., but an express view on the subject by the Constitutional Courts would bring more clarity.

[1] 2022 SCC OnLine SC 210

[2] Ibid

[3] (2013) 9 SCC 276

[4] 2022 SCC OnLine SC 677

[5] (2012) 9 SCC 771

[6] In re: To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials vs The State of Andhra Pradesh & Ors. Suo Moto Writ, (2021) 10 SCC 598

[7] Crl.M.C. 1338/2021

[8] RP Goyal v. Directorate of Enforcement, W.P. (Crl) 96/2022

[9] P. Ponnusamy v. The State of Tamil Nadu (SLP (Crl.) No. 9288/2021)

[10] CRM-M-16317 and 19965 of 2022 (O&M)