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Thursday, September 27, 2012

The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.” 20. If the above is the avowed purport and object of the examination of an accused under Section 313 Cr.P.C., we do not see as to how the appellant (second accused) can be denied an access to the documents in respect of which prayers have been made in the applications dated 29.3.2012 (for certified copies of the unmarked documents) and dated 18.4.2012 (for inspection) before the learned trial Court. While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well entrenched principles of law that have been laboriously built by illuminating judicial precedents is sacrificed or compromised. In no circumstance, the cause of justice can be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. In view of what has been stated above and to balance the need to bring the prosecution in the present case to its earliest conclusion and at the same time to protect and preserve the right of the accused to a fair trial we are of the view that the following directions would take care of the conflicting interests that have surfaced in the present case:- (1)The accused No.2, i.e. the appellant herein, be allowed an inspection of the unmarked and unexhibited documents referred to by her in the application dated 29.3.2012, i.e., IA No. 711 of 2012 in CC No. 2008/2004 filed in the Court of XXXVI Additional City Civil & Sessions Judge, Bangalore; (2) Such inspection will be completed within a period of 21 days from the date of receipt of this order by the learned trial court. The venue of such inspection and also the persons who will be permitted to be present at the time of inspection will be decided by the learned trial court. (3) The right of inspection conferred by this order will not affect the validity of any part of the trial till date, including, the examination of the accused No.1 under Section 313 Cr.P.C. which has since been completed or any part of such examination of the second accused that may have been completed in the meantime. (4) In the event the third and the fourth accused also desire inspection of the unmarked and unexhibited documents such inspection will be allowed by the learned trial court. In such an event the process of inspection will also be simultaneously carried out and completed within the period of 21 days stipulated in the present order. 21. In the result, both the appeals shall stand disposed of in terms of the directions as above.


|REPORTABLE       |



           IN THE SUPREME COURT OF INDIA

            CRIMINAL APPELATE JURISDICTION

              CRIMINAL APPEAL No.1497 of 2012

               (Arising out of SLP (Criminal) No.4560 of 2012)



V.K. SASIKALA                                  … Appellant

Versus

STATE REP. BY SUPERINTENDENT               …Respondent   OF POLICE

WITH

CRIMINAL APPEAL No.1498 of 2012
(Arising out of SLP (Criminal) No.4561 of 2012)


                            J  U  D  G  M  E  N T



RANJAN GOGOI, J



      Leave granted.

2.    Two orders of the High Court of Karnataka dated 16th April,  2012  and
28th May, 2012 upholding the rejection of two separate applications made  by
the appellant  herein  for  certified  copies  or  in  the  alternative  for
inspection of certain unmarked and unexhibited documents in a trial  pending
against her is  the  subject  matter  of  challenge  in  the  appeals  under
consideration.  The facts leading  to  the  applications  filed  before  the
learned trial court and the grounds of rejection being largely similar  both
the appeals were heard analogously.

3.    A convenient staring point for the required narration of the  relevant
facts could be the order of this court dated 18th November, 2003  passed  in
Transfer  Petitions  (Criminal)  Nos.77-78  of  2003  (K.   Anbazhagan   vs.
Superintendent of Police and others[1]). By the aforesaid order  dated  18th
November, 2003 this court had transferred the proceeding in CC No.7 of  1997
from the court of the 11th Additional Sessions Judge (Special  Court  No.1),
Chennai to a Special Court in Bangalore to be constituted by  the  State  of
Karnataka in consultation with the  Chief  Justice  of  the  High  Court  of
Karnataka.   The appellant before us is the second accused in the  aforesaid
transferred proceeding which has been registered as  Spl. CC.No.208 of  2004
and is presently pending in the court of the 36th Additional Sessions  Judge
and Special Judge, Bangalore. It may also be  noticed  that  along  with  CC
No.7 of 1997 there was another proceeding i.e. CC No. 2 of  2001 pending  in
the file of the same court, i.e. 11th  Additional  Sessions  Judge  (Special
Court No.1), Chennai against the same accused which was also transferred  to
the Special Court in Bangalore by  the  order  dated  18th  November,  2003.
However, the said proceeding would not be of any relevance  at  the  present
stage as the chargesheet in the said case has since been withdrawn  and  the
matter stands closed.

4.    The transfer of  CC No.7 of 1997 and CC No. 2 of 2001  from the  court
at Chennai was sought  by one Shri K. Anbazhagan, General Secretary  of  DMK
Party, a recognised political party in the State  of  Tamil  Nadu.  In  case
No.CC No. 7  of  1997  then  pending  in  the  competent  court  at  Chennai
allegations of commission of offences  under  Section  120B  of  the  Indian
Penal Code and Section 13(2) read with Section 13(1) (e) of  the  Prevention
of Corruption Act, 1988 were made against  the  present  appellant  who  was
arrayed as the second accused in the case and   also  against  one  Smt.  J.
Jayalalitha, who was arrayed as the first accused.   There  were  two  other
accused in the aforesaid proceeding, namely, accused No.3  and  4,  who  are
relatives of the  present  appellant,  i.e.,  accused  No.2.   The  offences
alleged arose out of certain acts and omissions attributed  to  the  accused
during the period 1991-1996 when the first accused was  the  Chief  Minister
of the State which office she had demitted after the General Elections  held
in  the  State  in  1996.  According  to  the  petitioner  in  the  Transfer
Petitions, chargesheet  in  the  aforesaid  case  had  been  filed  on  21st
October, 1997 and more than 250 prosecution witnesses had been  examined  by
the end of August, 2000. The accused  No.1, once  again,  became  the  Chief
Minister of the State following  the General Elections held  in  May,  2001.
Though the appointment of the  first  accused  as  the  Chief  Minister  was
nullified by this court  and  the  accused  ceased  to  be  Chief  Minister,
w.e.f., 21st September, 2001, she was elected to the State assembly in a by-
election held on 21st February, 2002 and was, once again,  sworn in  as  the
Chief Minister of the State on 2nd  March,  2002.   It  was  stated  in  the
Transfer Petitions that, thereafter, the course of trial of CC.No.7 of  1997
took a peculiar turn and a large number  of  prosecution  witnesses  (76  in
all) who had been discharged were recalled  without  any  objection  of  the
public  prosecutor.   64  of  such  witnesses  resiled  from  their  earlier
versions tendered in  court.   It  was  also  alleged  that  none  of  these
witnesses were declared hostile  by  the  public  prosecutor.   Furthermore,
according to the petitioner, the presence of the first accused in court  for
her examination under Section 313 Cr.P.C. was dispensed with  and,  instead,
a questionnaire was sent to the first accused to which  she  had  responded.
It is in these circumstances that the Transfer Petitions were  filed  before
this Court.

5.    Transfer Petitions Nos.77-78 of 2003 were  allowed  by  the  order  of
this  court  dated  18th  November,  2003  with   certain   directions.   To
recapitulate the said directions, Paragraph  34  of  the  judgment  of  this
court may be extracted:

      “34. In the result, we deem it expedient for the ends  of  justice  to
      allow these petitions. The only point that remains  to  be  considered
      now is to which State the cases should be transferred. We are  of  the
      view that for the convenience of the parties the  State  of  Karnataka
      would  be  most  convenient  due  to  its  nearness  to  Tamil   Nadu.
      Accordingly, the petitions are allowed. CC No. 7 of 1997 and CC No.  2
      of 2001 pending on the file of  the  XIth  Additional  Sessions  Judge
      (Special Court No. 1), Chennai in the State of Tamil Nadu shall  stand
      transferred with the following directions:

           (a) The State  of  Karnataka  in  consultation  with  the  Chief
           Justice of the  High  Court  of  Karnataka  shall  constitute  a
           Special Court under the Prevention of Corruption  Act,  1988  to
           whom CC No. 7 of 1997 and CC No. 2 of 2001 pending on  the  file
           of the XIth Additional Sessions Judge  (Special  Court  No.  1),
           Chennai in the State of Tamil Nadu shall stand transferred.  The
           Special Court to have its sitting in Bangalore.


           (b) As the matter is pending since 1997 the State  of  Karnataka
           shall appoint a Special Judge within a month from  the  date  of
           receipt of this order and the trial  before  the  Special  Judge
           shall commence as soon as possible and will  then  proceed  from
           day to day till completion.
           (c) The State  of  Karnataka  in  consultation  with  the  Chief
           Justice of the High Court of Karnataka shall  appoint  a  senior
           lawyer having experience in criminal trials as Public Prosecutor
           to conduct these cases. The Public Prosecutor so appointed shall
           be entitled to assistance of another lawyer of his  choice.  The
           fees and all other expenses of the  Public  Prosecutor  and  the
           Assistant shall be paid by  the  State  of  Karnataka  who  will
           thereafter be entitled to get the same reimbursed from the State
           of Tamil Nadu. The Public Prosecutor to be appointed within  six
           weeks from today.
           (d)  The  investigating  agency  is  directed  to   render   all
           assistance to the Public Prosecutor and his Assistant.
           (e) The Special Judge so appointed to  proceed  with  the  cases
           from such stage as he deems fit and  proper  and  in  accordance
           with law.
           (f) The Public Prosecutor will be at liberty to apply  that  the
           witnesses who have  been  recalled  and  cross-examined  by  the
           accused and who have resiled from their previous statement,  may
           be again recalled. The Public Prosecutor would be at liberty  to
           apply to the court to have these witnesses declared hostile  and
           to seek permission to cross-examine them. Any  such  application
           if made to the  Special  Court  shall  be  allowed.  The  Public
           Prosecutor will also be at  liberty  to  apply  that  action  in
           perjury to be taken against some or all such witnesses. Any such
           application(s) will be undoubtedly considered on its merit(s).
           (g) The State of Tamil Nadu shall ensure that all documents  and
           records are forthwith transferred to the Special  Court  on  its
           constitution. The State of Tamil Nadu shall also ensure that the
           witnesses are produced before the Special  Court  whenever  they
           are required to attend that court.
           (h) In case any  witness  asks  for  protection,  the  State  of
           Karnataka shall provide protection to that witness.
           (i) The Special Judge shall after completion of evidence put  to
           all the accused all relevant evidence  and  documents  appearing
           against them whilst recording their statement under Section 313.
           All the accused shall personally appear in  court,  on  the  day
           they are called upon to do so,  for  answering  questions  under
           Section 313 of the Criminal Procedure Code.


           These petitions are allowed in the above terms.”



6.  Though a  detailed  recital  will  not  be  necessary  it  appears  that
notwithstanding the above directions of this court  not  much  progress  has
been achieved to bring to trial in  Special  CC  No.  208  of  2004  to  its
logical conclusion. Soon after  the  proceedings  were  transferred  to  the
Special Court at Bangalore an order dated 27th June,  2005  was  passed   by
the learned trial court for clubbing of the two cases.  This order  came  to
be  challenged  before  this  court  by  the  petitioner  in  the   Transfer
Petitions, i.e. Shri K. Anbazihagan and until  the  Special  Leave  Petition
filed (SLP No.3828/2005) was disposed of on 22nd January, 2010 the  criminal
proceedings had remained stayed.  It also appears that  from  time  to  time
applications had been filed before the learned trial court  by  one  or  the
accused  raising  different  interlocutory  issues  and  also   seeking   to
vindicate different facets  of the  right of the accused to a free and  fair
trial.  Such applications, inter alia, were for translation  of  depositions
of prosecution witnesses running into thousands of  pages;  for  corrections
in such translations; for appointment or assistance of  an  interpreter  and
such are the incidental matters.  The orders passed by the  trial  court  on
all such applications invariably came  to  be  challenged  before  the  High
Court and even before this court. On several of  such  occasions  the  trial
came to be  halted  due  to  interim  orders  passed  by  different  courts.
Consequently, as on date the examination of  the  appellant  (accused  No.2)
under Section 313 Cr.P.C. is going on, the same  having  commenced  on  18th
February, 2012.  While such examination of the appellant was midway and  she
had answered over 500 questions out of the contemplated double the   number,
an  application dated 16th April, 2012 was filed  by  the  appellant  before
the learned trial court seeking certified copies  of  certain  unmarked  and
unexhibited documents which were claimed to be in the custody of  the  court
on being so forwarded alongwith the report of  investigation  under  Section
173(5) Cr.P.C.  The learned trial court dismissed the  said  application  by
its order 3rd April, 2012, whereafter,  the  High  Court  of  Karnataka  was
approached by means of Criminal Petition  No.1840  of  2012.   The  petition
having been dismissed by the High Court on 16th April, 2012,  the  appellant
forthwith filed another application before the  learned  trial  court,  this
time, seeking an inspection of the said unmarked and  unexhibited  documents
in respect of which the earlier application was filed  but  rejected.   This
application was also rejected by the learned trial court by its order  dated
21st April, 2012 which led to the inception of Criminal Petition No.2483  of
2012 in the High Court which was dismissed on 28th May,  2002  .   The  said
order dated 28th May, 2012 as well as the earlier order  dated  16th  April,
2012 of the High Court have  been  challenged  before  this  court  in   the
present appeals.

7.     A reading of the orders passed by the  learned  trial  court  on  the
applications filed by the present appellant as  well  as  the  two  separate
orders passed by the High Court affirming the  orders  of  the  trial  court
would go to show that the grounds that found favour with the learned  courts
to reject the prayer made by the appellant are largely similar.  It  is  the
view of the learned trial court as well  as  the  High  Court  that  in  the
present case the charges against the appellant were framed way back  in  the
year 2007. At the time of the framing of the charge the  court  is  required
to satisfy itself that all papers, documents and statements required  to  be
furnished to the accused under Section 207 Cr.P.C. have been  so  furnished.
No grievance in this regard was raised  by  the  appellant  or  any  of  the
accused.  The issue was also not raised at any point of time in  the  course
of examination of any of the prosecution witnesses (over 250  witnesses  had
been examined). It has also been expressed by the  High  Court  that  though
the appellant had answered over  532  questions  in  her  examination  under
Section 313 Cr.P.C. no grievance was raised or any prejudice claimed by  the
appellant at any earlier point of time. It is also  the  view  of  the  High
Court that non furnishing of the copies of the documents  or  not  conceding
to the prayer for inspection will not automatically render  the  prosecution
bad in law in as much as the effect of such action must result in  prejudice
to the accused which question can well be decided  when the matter is  being
considered  on  merits.   The  High  Court  also  took  the  view  that  the
documents, copies or inspection of which  was  sought,  being  unmarked  and
unexhibited documents, objections can always be raised if the accused is  to
be questioned in connection with such documents  in  her  examination  under
section 313 Cr.P.C.  In addition to the above, the High  Court  was  of  the
view that this court having passed clear directions in its order dated  18th
November, 2003 that the criminal proceedings against the accused  should  be
brought to its earliest conclusion by conducting the trial  on  day  to  day
basis, the filing of the applications  for  certified  copies/inspection  of
the unmarked and unexhibited documents constitute  another  attempt  on  the
part of the appellant to over reach  the order of this court and  delay  the
trial.  It is the correctness of the reasons assigned by the High Court  for
ultimate conclusions reached by it that has been assailed before us  in  the
present appeals.

8.     We have heard Shri Shekhar Naphade and Shri  V.Giri,  learned  senior
counsel for the appellant and Shri Rakesh Dwivedi,  learned  senior  counsel
for the respondent. We have also  heard  Shri  T.R.  Andhiyarujina,  learned
senior counsel  appearing  for  the  applicant  Shri  K.Anbazhagan,  General
Secretary,  DMK  Party,  who  has  sought   impleadment   in   the   present
proceedings.  The learned senior counsel had been heard, primarily,  on  the
prayer for impleadment, in the course of which, naturally, he was  permitted
to traverse the relevant facts of the case. Upon hearing the learned  senior
counsel we do not consider it necessary to pass any specific  order  on  the
impleadment application as we are finally disposing both the appeals by  the
present order.

9.    Learned counsel for the appellant have vehemently contended that  from
the objections filed to the applications  seeking  certified  copies  or  an
inspection of the unmarked and unexhibited documents as  well  as  from  the
orders of the learned trial courtpassed on  the  said   applications  it  is
clear that out of the papers forwarded to the court   under  Section  173(5)
Cr.P.C. alongwith the report  of  investigation  some  documents  have  been
marked and exhibited by the prosecution while  some  other  documents   have
not been so utilised.  As all such  documents  had  been  forwarded  to  the
court  upon  completion  of  investigation  the  unmarked  and   unexhibited
documents are in  the  custody  of  the  court.  According  to  the  learned
counsel, the appellant in her application to the  learned  trial  court  (IA
No.711/2012)  had  set  out  a  complete  list  of  the  unmarked  documents
mentioning the particulars of the  search   lists  by  which  the  documents
were seized in the course of investigation.   Learned  counsel  has  further
argued that the conduct of the prosecution in  not  marking  and  exhibiting
the said documents can only indicate  that  the  same  do  not  support  the
prosecution case and in fact may assist the defence of the accused.  As  the
answers to the questions put to the accused under Section  313  are  capable
of being relied upon against or in favour of the accused, the appellant  had
sought copies/inspection of such documents so as to  be  in  a  position  to
assess as to which of the documents can come to the aid of  her  defence  so
that the answers given by her in her examination under Section  313  Cr.P.C.
can be projected without reflecting any inconsistency with the defence  that
may be adduced. The attention of  the  court  has  also  been  drawn  to  an
affidavit filed by  the  petitioner  pinpointing  as  to  how  some  of  the
documents could be  relevant  to  certain  specific  questions  put  to  the
appellant in the course of her examination  under  Section  313  Cr.P.C.  In
fact, according to the learned counsel the right of the appellant to  copies
or, at least, to an inspection of the documents constitute  a  part  of  the
larger right of the appellant to  a  fair  trial  of  the  charges  levelled
against her.  Reliance has been placed on the decisions  of  this  court  in
Sidhartha  Vashisht  alias  Manu  Sharma  vs.  State  (NCT)  of  Delhi[2]  ,
Sanatan   Naskar  and  another vs.  State of  West  Bengal[3]  and Manu  Sao
vs. State of Bihar[4].

10.   On the other hand, learned counsel for the State  has  contended  that
when the documents copies or inspection of which has  been  sought  are  not
being relied on by the prosecution,  in  any  manner,  to  bring  home   the
charge against the appellant it is not open for the appellant to  insist  on
any right to the copies of such documents or to inspect  the  same.   It  is
urged that the documents relevant to the charge had been  furnished  to  the
appellant under Section 207at the appropriate stage of the  proceeding   and
also that such documents had been duly considered at the time of framing  of
charges.  No issue in this  regard  was  raised  by  the  appellant  at  any
earlier point of time.  In fact,  though  different  objections  to  various
other facets of the trial were raised by the appellant from time to time  by
filing repeated/successive applications it is only when the  examination  of
the appellant under Section 313 Cr.P.C. had reached a fairly advanced  stage
that the present applications  have  been  filed.   Both  the  applications,
therefore, are in utter abuse of the process of  law  and  being  calculated
only to delay the trial the same have been rightly rejected by  the  learned
trial courtwhich orders have been  affirmed  by  the  High  Court.   Learned
counsel has also  pointed out that the contention to  the  effect  that  the
documents are required to enable the appellant to  prepare  her  defence  is
wholly untenable as the said stage  would arise only after  the  examination
of all the accused under Section 313 Cr.P.C. is complete.

11.   The parameters governing the process of investigation  of  a  criminal
charge; the duties of the investigating agency and the role  of  the  courts
after the  process  of  investigation  is  over  and  a  report  thereof  is
submitted to the court is exhaustively laid down in the  different  Chapters
of the Code of Criminal Procedure, 1973 (Cr.P.C.).  Though the power of  the
investigating agency is large and expansive and the courts  have  a  minimum
role in this regard there are inbuilt provisions in the Code to ensure  that
investigation of a criminal  offence  is  conducted   keeping  in  mind  the
rights of an accused to a fair process  of   investigation.   The  mandatory
duty cast on the investigating agency to maintain  a  case  diary  of  every
investigation on a day to day basis   and  the  power  of  the  court  under
Section 172 (2) and the plenary  power  conferred  in  the  High  Courts  by
Article 226 the Constitution are adequate safeguards to ensure  the  conduct
of a fair investigation.  Without dilating on the said aspect of the  matter
what has to be taken note of now are the provisions of the  Code  that  deal
with a situation/stage after completion of the investigation of a case.   In
this regard the provisions of Section 173 (5)  may  be  specifically  noted.
The said provision  makes  it  incumbent  on  the  Investigating  agency  to
forward/transmit to the concerned court  all  documents/statements  etc.  on
which the prosecution proposes to rely in the course of the trial.   Section
173(5), however, is subject  to  the  provisions  of  Section  173(6)  which
confers a power on the investigating officer to request the concerned  court
to exclude any part of the statement or documents  forwarded  under  Section
173(5) from the copies to be granted  to  the  accused.   The  court  having
jurisdiction to deal with the matter, on  receipt  of  the  report  and  the
accompanying documents under Section 173, is next required to decide  as  to
whether cognizance of the offence alleged is to  be  taken  in  which  event
summons for the appearance of the accused before the court is to be  issued.
 On such appearance, under Section 207 Cr.P.C., the   concerned   court   is
required  to furnish to the accused  copies of the following documents:

        i) The police report;
       ii) The first information report recorded under section 154;
      iii) The statements recorded under sub-section (3) of section 161  of
           all persons whom the prosecution  proposes  to  examine  as  its
           witnesses, excluding therefrom any part in  regard  to  which  a
           request for such exclusion has been made by the  police  officer
           under sub-section (6) of section 173;
       iv) The confessions and statements, if any, recorded  under  section
           164;
        v) Any other document or relevant extract thereof forwarded to  the
           Magistrate with the  police  report  under  sub-section  (5)  of
           section 173.
12.   While the first proviso to Section 207 empowers the court  to  exclude
from the copies to be furnished to the  accused  such  portions  as  may  be
covered by Section 173(6), the second proviso to Section  207  empowers  the
court to provide to the accused an inspection of the  documents  instead  of
copies thereof, if, in the opinion of the court it  is  not  practicable  to
furnish  to  the  accused  the  copies  of  the  documents  because  of  the
voluminous content thereof.  We would like  to  emphasise,  at  this  stage,
that while referring to the  aforesaid  provisions  of  the  Code,  we  have
deliberately  used  the  expressions  “court”  instead  of  the   expression
“Magistrate”   as  under  various  special  enactments  the  requirement  of
commitment of a  case  to  a  higher  court   (court  of  Sessions)  by  the
Magistrate as mandated by the Code has been dispensed with and  the  special
courts constituted under a special statute have been  empowered  to  receive
the report of the investigation along with the relevant  documents  directly
from the investigating agency and  thereafter  to  take  cognizance  of  the
offence, if so required.

13.   It is in the  context  of  the  above  principles  of  law  and  the
provisions of the Code that the rights of the appellant will  have  to  be
adjudicated upon by us in the present case.  It is  not  in  dispute  that
after the appearance of the accused in the Court of the  Special  Judge  a
large number of documents forwarded to  the  Court  by  the  Investigating
Officer along  with  his  report,  had  been  furnished  to  the  accused.
Thereafter, charges against the accused had been framed way  back  in  the
year 2007 and presently the trial has reached the stage of examination  of
the second accused, i.e. appellant under the  provisions  of  Section  313
Cr.P.C.  At no earlier point of time (before the examination of the second
accused under Section 313 Cr.P.C.) the accused had pointed out that  there
are documents in the Court which have been forwarded to it  under  Section
173 (5) and which have not been relied upon by  the  prosecution.   It  is
only at such an advanced stage  of  the  trial  that  the  accused,  after
pointing out the said facts, had claimed an entitlement to copies  of  the
said documents or at least an inspection of the same on  the  ground  that
the said documents favour the accused.

14.    Seizure  of  a  large  number  of  documents  in  the   course   of
investigation of a criminal case is a common feature.  After completion of
the process of investigation and before submission of the  report  to  the
Court under Section 173 Cr.P.C., a fair amount of application of  mind  on
the part of the  investigating  agency  is  inbuilt  in  the  Code.   Such
application of mind is both with regard to the  specific  offence(s)  that
the Investigating Officer may consider  to  have  been  committed  by  the
accused and also the identity and particulars of  the  specific  documents
and records, seized in the course of  investigation,  which  supports  the
conclusion of the Investigating Officer  with  regard  to  the  offence(s)
allegedly committed.  Though it is only such  reports  which  support  the
prosecution case that are required to be  forwarded  to  the  Court  under
Section 173 (5) in every situation where some of  the  seized  papers  and
documents do not support  the  prosecution  case  and,  on  the  contrary,
supports the accused, a duty is  cast  on  the  Investigating  Officer  to
evaluate the two  sets  of  documents  and  materials  collected  and,  if
required, to exonerate the accused at that stage itself.  However,  it  is
not impossible to visualize a situation whether the Investigating  Officer
ignores the part of the seized documents  which  favour  the  accused  and
forwards to the Court only those documents which support the  prosecution.
If such a situation is pointed by the accused and such documents have,  in
fact, been forwarded to the Court would it not be the duty of the Court to
make available such documents  to  the  accused  regardless  of  the  fact
whether  the  same  may  not  have  been  marked  and  exhibited  by   the
prosecution?  What would happen in a situation where  such  documents  are
not forwarded by the Investigating Officer to the Court is a question that
does not arise in the present case.   What  has  arisen  before  us  is  a
situation where evidently the unmarked and unexhibited  documents  of  the
case that are being demanded by the accused  had  been  forwarded  to  the
Court under Section  173  (5)  but  are  not  being  relied  upon  by  the
prosecution.  Though the prosecution has tried to cast some cloud  on  the
issue as to whether the unmarked and unexhibited documents are a  part  of
the report under Section 173 Cr.P.C., it is not denied by the  prosecution
that the said unmarked and unexhibited  documents  are  presently  in  the
custody of the Court.  Besides, the accused in her application before  the
learned Trial court(IA 711/2012) had furnished  specific  details  of  the
said documents and had correlated the  same  with  reference  to  specific
seizure  lists  prepared   by   the   investigating   agency.    In   such
circumstances, it can be safely assumed that what has been happened in the
present case is that along with the report of investigation a large number
of documents have been forwarded to the Court out of which the prosecution
has relied only on a part  thereof  leaving  the  remainder  unmarked  and
unexhibited.

15.   In a recent pronouncement in  Siddharth  Vashisht  @  Manu  Sharma  V.
State (NCT of Delhi) (supra) to which  one  of  us  (Sathasivam,  J)  was  a
party, the role of a public prosecutor and his  duties  of  disclosure  have
received a wide and in-depth consideration of this Court.   This  Court  has
held that though the primary duty of a Public Prosecutor is to  ensure  that
an accused is punished, his  duties  extend  to  ensuring  fairness  in  the
proceedings and also to ensure that all  relevant  facts  and  circumstances
are brought to the notice of the Court  for  a  just  determination  of  the
truth so that due justice  prevails.   The  fairness  of  the  investigative
process so as to maintain the citizens’ rights under Articles 19 and 21  and
also  the  active  role  of  the  court  in  a  criminal  trial  have   been
exhaustively dealt with by this Court.  Finally, it was held that it is  the
responsibility of the investigating agency as well as that of the courts  to
ensure that every investigation is fair and does not erode  the  freedom  of
an individual except in accordance with law.  It was also held that  one  of
the established facets of a just, fair and transparent investigation is  the
right of an accused to ask for all such documents that he  may  be  entitled
to under the scheme contemplated by the Code  of  Criminal  Procedure.   The
said scheme was duly considered by this Court  in  different  paragraphs  of
the report.  The views expressed would certainly be useful  for  reiteration
in the context of the facts of the present case:-

      “216. Under  Section  170,  the  documents  during  investigation  are
      required to be forwarded to the Magistrate, while in terms of  Section
      173(5) all documents or relevant extracts and the  statement  recorded
      under Section  161  have  to  be  forwarded  to  the  Magistrate.  The
      investigating officer is entitled to collect all the  material,  which
      in his wisdom is required for proving the guilt of  the  offender.  He
      can record statement  in  terms  of  Section  161  and  his  power  to
      investigate the matter is a very wide one, which is regulated  by  the
      provisions of the Code. The statement recorded under  Section  161  is
      not evidence per se under Section 162 of the Code. The  right  of  the
      accused to receive the documents/statements submitted before the court
      is absolute and it must be adhered to by the prosecution and the court
      must  ensure  supply  of  documents/statements  to  the   accused   in
      accordance with law. Under the proviso to Section 162(1)  the  accused
      has a statutory right of confronting the witnesses with the statements
      recorded under Section 161 of the Code thus indivisible.




      217. Further, Section 91 empowers the court to  summon  production  of
      any document or thing which the court considers necessary or desirable
      for the purposes of  any  investigation,  inquiry,  trial  or  another
      proceeding under the provisions of the Code.  Where  Section  91  read
      with Section 243 says that if the accused is called upon to enter  his
      defence and produce his evidence there he  has  also  been  given  the
      right to apply to the court for issuance of process for compelling the
      attendance of any witness  for  the  purpose  of  examination,  cross-
      examination or the production of any document or other thing for which
      the court has to pass a reasoned order.




      218. The liberty of an accused cannot be interfered with except  under
      due process of law. The expression “due process of law” shall deem  to
      include fairness in trial. The court (sic Code) gives a right  to  the
      accused to receive all documents and statements as well as to move  an
      application for production of any record or witness in support of  his
      case. This constitutional mandate and statutory rights  given  to  the
      accused place an implied obligation upon the prosecution  (prosecution
      and the Prosecutor) to make  fair  disclosure.  The  concept  of  fair
      disclosure would take in its ambit furnishing of a document which  the
      prosecution relies upon whether filed in court or not.  That  document
      should essentially be furnished to the accused and even in  the  cases
      where during investigation a document is bona  fide  obtained  by  the
      investigating agency and in the opinion of the Prosecutor is  relevant
      and would help in arriving at the truth, that document should also  be
      disclosed to the accused.




      219. The  role  and  obligation  of  the  Prosecutor  particularly  in
      relation to disclosure  cannot  be  equated  under  our  law  to  that
      prevalent under the English system as aforereferred  to.  But  at  the
      same time, the demand for a fair trial cannot be ignored. It may be of
      different consequences  where  a  document  which  has  been  obtained
      suspiciously, fraudulently  or  by  causing  undue  advantage  to  the
      accused during investigation such document  could  be  denied  in  the
      discretion of the Prosecutor to the accused  whether  the  prosecution
      relies or  not  upon  such  documents,  however  in  other  cases  the
      obligation to disclose would be more certain. As already  noticed  the
      provisions of Section 207 have a material bearing on this subject  and
      make an interesting  reading.  This  provision  not  only  require  or
      mandate that the court without delay and free of cost  should  furnish
      to the accused copies of the police report, first information  report,
      statements, confessional statements  of  the  persons  recorded  under
      Section 161 whom the prosecution wishes to examine  as  witnesses,  of
      course, excluding any part of a statement or document as  contemplated
      under Section 173(6) of the  Code,  any  other  document  or  relevant
      extract thereof which has been submitted  to  the  Magistrate  by  the
      police under sub-section (5) of Section 173. In  contradistinction  to
      the provisions of Section 173, where  the  legislature  has  used  the
      expression “documents on which the prosecution relies”  are  not  used
      under Section 207 of the Code. Therefore, the  provisions  of  Section
      207 of the Code will have to be given liberal and relevant meaning  so
      as to achieve its object. Not only this, the  documents  submitted  to
      the Magistrate along with the report under Section 173(5)  would  deem
      to include the documents which have  to  be  sent  to  the  Magistrate
      during the course of investigation as per the requirement  of  Section
      170(2) of the Code.




      220. The right of the accused with regard to disclosure  of  documents
      is a limited right but is codified and is the  very  foundation  of  a
      fair investigation and trial. On  such  matters,  the  accused  cannot
      claim an indefeasible legal right  to  claim  every  document  of  the
      police file or even the portions which are permitted  to  be  excluded
      from the documents annexed to the report under Section 173(2)  as  per
      orders of the court. But certain rights of the accused flow both  from
      the  codified  law  as  well  as  from  equitable  concepts   of   the
      constitutional  jurisdiction,  as  substantial   variation   to   such
      procedure would frustrate the very basis of a  fair  trial.  To  claim
      documents within the purview of scope of Sections 207, 243  read  with
      the provisions of Section 173 in its entirety and power of  the  court
      under Section 91  of  the  Code  to  summon  documents  signifies  and
      provides precepts which will govern the right of the accused to  claim
      copies of the  statement  and  documents  which  the  prosecution  has
      collected during investigation and upon which they rely.




      221. It will be difficult for the Court to say that the accused has no
      right to claim copies of  the  documents  or  request  the  Court  for
      production of a document which is part of the general diary subject to
      satisfying the basic ingredients of law  stated  therein.  A  document
      which has been obtained bona fide and has bearing on the case  of  the
      prosecution and in the opinion of  the  Public  Prosecutor,  the  same
      should be disclosed to the accused in the interest of justice and fair
      investigation and trial should be furnished to the accused. Then  that
      document should be disclosed to the accused giving him chance of  fair
      defence, particularly when non-production  or  disclosure  of  such  a
      document would affect  administration  of  criminal  justice  and  the
      defence of the accused prejudicially.”

                                                         (emphasis supplied)

                (Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1)




16.   The declaration of the law in Sidhartha Vashisht  (supra)  may  have
touched upon the outer fringe of the issues arising in the  present  case.
However, the positive advancement that has been achieved  cannot,  in  our
view, be allowed to take a roundabout turn and the march has  only  to  be
carried forward.  If the claim of the appellant is viewed in  context  and
perspective outlined above, according to  us,  a  perception  of  possible
prejudice, if the documents or at least an inspection thereof  is  denied,
looms large.  The absence of any claim on the part of the accused  to  the
said documents at any earlier point of time  cannot  have  the  effect  of
foreclosing such a right of the accused.   Absence of such a  claim,  till
the  time  when  raised,  can  be  understood  and  explained  in  several
reasonable  and  acceptable  ways.   Suffice  it  would  be  to  say  that
individual notion of prejudice, difficulty or handicap in putting  forward
a defence would vary from person to person and there  can  be  no  uniform
yardstick to measure such  perceptions.   If  the  present  appellant  has
perceived certain difficulties in answering or explaining some part of the
evidence brought by the prosecution on the basis of specific documents and
seeks to ascertain if the allegedly incriminating documents can be  better
explained by reference to some other documents which are  in  the  court’s
custody, an opportunity must be given to the accused to satisfy herself in
this regard.  It is not for the prosecution or for the Court to comprehend
the prejudice that is likely to be caused to the accused.  The  perception
of prejudice is for the accused to develop and if the same is founded on a
reasonable basis it is the duty of the Court as well as the prosecution to
ensure that the accused should not  be  made  to  labour  under  any  such
perception and the same must be put to rest at the earliest.  Such a view,
according to us, is an inalienable attribute of  the  process  of  a  fair
trial that Article 21 guarantees to every accused.

17.   The issue that has emerged before us is, therefore, somewhat  larger
than what has been projected by the State and what has been dealt with  by
the High Court.  The question arising would no longer be one of compliance
or non-compliance with the provisions of Section  207  Cr.P.C.  and  would
travel beyond the confines of the strict language of the provisions of the
Cr.P.C. and touch upon the larger doctrine of a free and fair  trial  that
has  been  painstakingly   built  up  by  the  courts   on   a   purposive
interpretation of Article 21 of the Constitution.  It is not the stage  of
making of the request; the efflux of time that has occurred or  the  prior
conduct of the accused that is material.  What is of significance is if in
a given situation the accused comes to  the  court  contending  that  some
papers forwarded to the Court by the investigating agency  have  not  been
exhibited by the prosecution as the same favours  the  accused  the  court
must concede a right to in the accused to  have  an  access  to  the  said
documents, if so claimed.  This, according to us, is the core issue in the
case which must be answered affirmatively.  In this regard, we would  like
to be specific in saying that we find it difficult to agree with the  view
taken by the High Court that  the  accused  must  be  made  to  await  the
conclusion of the trial to test the plea of prejudice  that  he  may  have
raised.  Such a plea must be answered at the earliest and certainly before
the conclusion of the trial, even though it may be raised by  the  accused
belately.  This is how the scales of justice in our Criminal Jurisprudence
have to be balanced.

18.   There is yet another possible dimension of  the  case.   It  is  the
specific  contention  of  the  accused  in  both  the  applications  dated
29.3.2012 (for certified copies of the unmarked documents)  and  18.4.2012
(for inspection) that it is in  the  course  of  the  examination  of  the
accused under Section 313 Cr.P.C. that a perception had developed that the
accused may be giving incomplete/ incorrect answers  in  response  to  the
questions put to her by the  Court  and  that  she  needs  copies  of  the
documents or at least an opportunity of inspection of the same  to  enable
her to provide effective answers and to appropriately prepare her defence.

19.   Any debate or discussion with regard to the purport  and  object  of
the examination  of  an  accused  under  Section  313  Cr.P.C.  is  wholly
unnecessary as the law in this regard is fairly well  settled  by  a  long
line of the decisions of this Court.  The examination of an accused  under
Section 313 Cr.P.C. not  only  provides  the  accused  an  opportunity  to
explain the incriminating  circumstances  appearing  against  him  in  the
prosecution evidence but such examination also permits him to put  forward
his own version, if he so chooses,  with  regard  to  his  involvement  or
otherwise in the crime alleged against him.  Viewed from the latter  point
of view, the examination of an accused under Section 313 Cr.P.C. does have
a fair nexus with the defence that he may choose to  bring,  if  the  need
arises.  Any failure on the part of the accused to put forward his version
of the case in his examination under Section  313  Cr.P.C.  may  have  the
effect of curtailing his rights in the event the accused chooses  to  take
up a specific defence and examine defence witnesses.  Besides, the answers
given by the accused in his examination, if incorrect or  incomplete,  may
also jeopardise him as such incorrect or incomplete answers may  have  the
effect of strengthening the prosecution case against the accused.  In this
connection it may be  appropriate  to  refer  to  two  paragraphs  of  the
judgment of this Court in  Manu  Sao  Vs.  State  of  Bihar[5]  which  are
extracted below:-

            “13. As already noticed, the object of recording  the  statement
      of  the  accused  under  Section  313  of  the  Code  is  to  put  all
      incriminating evidence against the accused so as  to  provide  him  an
      opportunity to  explain  such  incriminating  circumstances  appearing
      against him in the evidence of the prosecution. At the same time, also
      to permit him to put forward his own version  or  reasons,  if  he  so
      chooses, in relation to his involvement or otherwise in the crime. The
      court has been empowered to examine the accused  but  only  after  the
      prosecution evidence has been concluded. It is a mandatory  obligation
      upon the court and besides ensuring the compliance therewith the court
      has to keep in mind that the accused gets a fair chance to explain his
      conduct. The option lies with the accused to maintain silence  coupled
      with simpliciter denial or in the alternative to explain  his  version
      and reasons for his alleged involvement in the  commission  of  crime.
      This is the statement which the accused makes without fear or right of
      the other party to cross-examine him. However, if the statements  made
      are false, the court is entitled to draw adverse inferences  and  pass
      consequential orders, as may be called for, in  accordance  with  law.
      The primary purpose is to establish  a  direct  dialogue  between  the
      court and the accused and  to  put  to  the  accused  every  important
      incriminating piece of evidence and grant him an opportunity to answer
      and explain. Once such a statement is recorded, the next question that
      has to be considered by the court is to what extent  and  consequences
      such statement can be used during the enquiry and the trial. Over  the
      period of time, the courts have explained this concept and now it  has
      attained,  more  or  less,  certainty  in  the   field   of   criminal
      jurisprudence.




            14. The statement of  the  accused  can  be  used  to  test  the
      veracity of the exculpatory nature of the admission, if any,  made  by
      the accused. It can be taken into  consideration  in  any  enquiry  or
      trial but  still  it  is  not  strictly  evidence  in  the  case.  The
      provisions of Section 313(4)  explicitly  provides  that  the  answers
      given by the accused may be taken into consideration in  such  enquiry
      or trial and put in evidence against the accused in any other  enquiry
      or trial for any other offence for which such answers may tend to show
      he has committed. In other words, the use is permissible  as  per  the
      provisions of the Code but has its own  limitations.  The  courts  may
      rely on a portion of the statement of the accused and find him  guilty
      in consideration  of  the  other  evidence  against  him  led  by  the
      prosecution, however, such statements made under this  section  should
      not be considered  in  isolation  but  in  conjunction  with  evidence
      adduced by the prosecution.”




20.   If the above is the avowed purport and object of the examination  of
an accused under Section 313  Cr.P.C.,  we  do  not  see  as  to  how  the
appellant (second accused) can be denied an access  to  the  documents  in
respect of  which  prayers  have  been  made  in  the  applications  dated
29.3.2012 (for certified copies  of  the  unmarked  documents)  and  dated
18.4.2012 (for inspection) before  the  learned  trial  Court.  While  the
anxiety to bring the trial to its earliest conclusion has to be shared  it
is fundamental that in the process none of the well entrenched  principles
of  law  that  have  been  laboriously  built  by  illuminating   judicial
precedents is sacrificed or compromised.  In no circumstance, the cause of
justice can be made to suffer, though, undoubtedly, it is highly desirable
that the finality of any trial is achieved in the quickest possible  time.
In view of what has been stated above and to balance the need to bring the
prosecution in the present case to its earliest conclusion and at the same
time to protect and preserve the right of the accused to a fair  trial  we
are of the view that the following  directions  would  take  care  of  the
conflicting interests that have surfaced in the present case:-

(1)The accused No.2, i.e. the appellant herein, be  allowed  an   inspection
of the unmarked  and  unexhibited  documents  referred  to  by  her  in  the
application dated 29.3.2012, i.e., IA No. 711 of 2012 in  CC  No.  2008/2004
filed in the  Court  of  XXXVI  Additional  City  Civil  &  Sessions  Judge,
Bangalore;

(2) Such inspection will be completed within a period of 21  days  from  the
date of receipt of this order by the learned  trial  court.   The  venue  of
such inspection and also the persons who will be permitted to be present  at
the time of inspection will be decided by the learned trial court.

 (3) The right of inspection conferred by this order  will  not  affect  the
validity of any part of the trial till date, including, the  examination  of
the accused No.1 under Section 313 Cr.P.C. which has  since  been  completed
or any part of such examination of the second accused  that  may  have  been
completed in the meantime.
(4) In the event the third and the fourth accused also desire inspection  of
the unmarked and unexhibited documents such inspection will  be  allowed  by
the learned trial court.  In such an event the process  of  inspection  will
also be simultaneously carried out and completed within  the  period  of  21
days stipulated in the present order.


21.   In the result, both the appeals shall stand disposed of in terms  of
the directions as above.



                                       ...…………………………J.
                                        [P. SATHASIVAM]



                                        .........……………………J.
                                        [RANJAN GOGOI]
New Delhi,
September 27, 2012.







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[1]         (2004) 3 SCC 767

[2]         (2010) 6 SCC 1

[3]         (2010) 8 SCC 249

[4]         (2011) 7 SCC 310

[5]    2010 (12) SCC 3100



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