The right of the accused with regard to disclosure of documents

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)

JUDGMENT

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 others1). 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of any relevance at the present stage as the chargesheet in the said case has since been withdrawn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 recognized 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 Delhi2 , Sanatan Naskar and another vs. State of West Bengal3 and Manu Sao vs. State

of Bihar4.

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:

(iii The first information report recorded under section 154;

(iiii The statements recorded under subsection (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;

(ivi The confessions and statements, if any, recorded under section 164;

(vi 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 Codeto 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 Bihar5 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.