|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stage as the chargesheet in the said case has since been withdrawn and the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.
-----------------------
[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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