The petition was filed under Sections 482/483 Cr.P.C. read with Article 227 of the Constitution of India, seeking quashing of a lower court order which, at the stage of Section 207 Cr.P.C., denied the accused persons/petitioners a copy of certain statements recorded under Section 161 Cr.P.C. Other statements of the same witness under Section 161 Cr.P.C. had been filed alongside the chargesheet.

The Court held that on a conjoint reading of Sections 173(5), 173(6) and first proviso to Section 207 of Cr.P.C., the police officer was bound to forward all statements mentioned in Section 173(5)(b) to the Magistrate, to enable the Magistrate to supply copies to the accused under Section 207 Cr.P.C. The High Court held that the investigating agency had to bring all the evidence it collected to the notice of the Court without picking and choosing what did not support the prosecution version. (para 43-44).

The prosecution denied that the statement sought by the Petitioners had been recorded, and instead claimed it was merely oral. The Court held, however, that this was contradicted by the prosecution’s own record. The Court held that since the said statement was written and had been mentioned in various other documents, it acquired the status of a Section 161 Cr.P.C. statement. The Court allowed the petition, and directed the trial court to consider the Section 161 Cr.P.C statement at the time of passing the order on charge.

This judgment highlights the rights of the victim of a crime on the issue of supply of documents. In an appeal against a High Court judgment directing that the Section 164 statement of the appellant/victim be supplied to the accused, the Supreme Court held that the mere filing of the charge-sheet, by itself, does not entitle an accused to copies of Section 164 statements. The Court held that the accused’s right to receive a copy of such statements arises only after cognizance is taken and at the stage contemplated by Sections 207 and 208 Cr.P.C. (para 15-20)

The Supreme Court was hearing an appeal against conviction, wherein the accused alleged that the conduct of the prosecution was done in such a manner that it deprived him of his fundamental right to a fair trial, secured under Article 21 of the Constitution. Specifically, it was argued that the prosecutor had suppressed evidence (lab reports) which was a breach of the duty of disclosure and thus vitiated the trial [Paragraph 183]. It was further argued that the duty of disclosure went beyond material being relied upon by the prosecution [Paragraph 189]. While the appeal was dismissed, the Court made some important observations on this issue.

The Supreme Court emphasised that a fair trial and a fair investigation were not only the right of an accused, but an integral part of the rule of law itself [Paragraphs 197-199]. It linked the duty of disclosure upon investigating agencies and prosecutors to this idea of a fair trial, which it understood as being “the very foundation of a fair investigation and fair trial” [Paragraph 220]. The Court held that there was an “implied obligation” to make a fair disclosure, which “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.” [Paragraph 218]. The Court specifically included all materials sent to the court during an investigation under Section 170 of the Cr.P.C. as part of the materials that had to be provided to an accused [Paragraph 219]. However, it did note that the Indian prosecutor’s duty was not identical to that imposed under English law and that the disclosure obligations were not absolute [Paragraphs 219-222].

The Supreme Court was hearing challenges to two orders of the Karnataka High Court, whereby it had upheld the rejection of two applications made by the Applicant for being supplied with copies of documents / right to inspect documents that were purportedly filed with the court but not exhibited by the prosecution in a pending trial. The Applicant had not raised any objection to the non-supply of this material when Section 207 proceedings were conducted or even afterwards. but filed the applications in question when her Statement under Section 313 Cr.P.C. was being recorded, in a bid to be able to respond to the questions more effectively and not be prejudiced while making the 313 statement [Paragraphs 1, 7-8].

The Supreme Court allowed the petition and permitted the applicant to inspect the court record. While doing so, the Court specifically rejected the argument that the Applicant’s right to material was foreclosed as it was raised at a late stage in the trial. The Court held that trial courts must consider any plea suggesting prejudice due to non-supply of materials at the earliest, and that the claims of prejudice were fact-specific [Paragraphs 20-21]. Furthermore, the Court also implied that the duty of disclosure must go beyond providing only the materials relied upon by the prosecution and cover all materials that are filed in court, as it would otherwise render an accused person defenceless against the suppression of exculpatory material by investigators / prosecutors [Paragraph 17].

A Single Judge Bench of the Delhi High Court was hearing an application under Section 482 of the Cr.P.C., challenging framing of charges against the accused person, since the lower courts did not consider certain documents placed by him which were not part of the chargesheet filed by the police. In this case, the investigating agency withheld certain supplementary Section 161, Cr.P.C. statements recorded by them. The High Court held that if the Investigating Officer withholds any evidence collected by him, the accused has a right to rely on the evidence and tell the Court to consider the same while framing charges. If it is brought to the attention of the Court that the Investigating Agency deliberately withheld evidence or documents so that the truth does not come out, the court before framing charges can ask the agency to produce the entire investigation and case diaries before it. After considering this material, the High Court discharged the accused from charges framed by the Ld. MM (and upheld by the Ld. Sessions Judge) under Section 406, IPC [Paragraphs 4, 6]

A Single Judge Bench of the Delhi High Court was hearing an application under Section 482 of the Cr.P.C., challenging the dismissal of applications under Section 207 filed by the Applicant in an ongoing trial against him and other accused persons. It was argued that the materials supplied to the Applicant did not contain all the statements recorded under Section 161 Cr.P.C.: Not only had some statements been withheld altogether, but it appeared that multiple statements under Section 161 had been recorded for certain proposed witnesses and all of them were not supplied. During arguments, it was argued by the investigating agency that there was no requirement to furnish the statements of persons not proposed to be examined as prosecution witnesses [Paragraphs 1, 3, 5, 9].

The High Court observed that the only legally permissible way to withhold statements was for an investigating agency to tender a specific request in terms of Section 173(6), Cr.P.C., giving reasons why public interest demanded that the statement be withheld from an accused person. Since no such request had been preferred in the present case, no restrictions could be crafted upon the duty to supply an accused person with all the statements recorded under Section 161, Cr.P.C. during an investigation [Paragraphs 16-18]. The Court also specifically rejected the contention that only statements of the persons proposed to be examined as prosecution witnesses were to be supplied, noting that such an interpretation would permit unscrupulous investigators / prosecutors “with utmost ease able to keep the court in the dark”, and further that it would “seriously prejudice the rights of the accused as enshrined in the Constitution of India.” [Paragraphs 26-27]

The trial court had allowed an application filed by the accused under Section 207, Cr.P.C. for supply of all relied upon and un-relied upon materials as well as statements recorded under Section 161 of the Cr.P.C. Aggrieved, the complainant in the case filed an application challenging the said order before the Delhi High Court, claiming that the order was contrary to law as there was no such right for an accused to seek un-relied upon materials and statements. [Paragraph 2, 7]

The High Court dismissed the said application and upheld the order of the trial court. While doing so, it followed (among others) the decisions in Manu Sharma [(2012) 6 SCC 1], and Ashutosh Verma [2014 SCC OnLine Del 6931], and held that “wherein an accused seeks documents which support his case and do not support the case of the prosecution and the investigating officer ignores these documents and forward only those documents which favour the prosecution, in such a scenario, it would be the duty of investigating officer to make such documents available to accused.” [Paragraph 16]

In addition to the above, in the context of supply of documents in complaint cases triable exclusively by a Court of Sessions, the judgment in Viniyoga International, New Delhi v. The State, 1984 SCCOnline Del 155 [Delhi High Court, Division Bench] should be considered. A petition under Section 482 was filed seeking copies of statements recorded under Section 161, Cr.P.C. in a case where a complaint was filed for offences under the IPC and Imports and Exports (Control) Act, 1947. Under the provisions of the latter statute, cognizance could only be taken on a complaint filed by the competent authority, and not on a police report filed by the CBI (which investigated the offences). The Delhi High Court noted that a complaint filed by a competent authority could not be equated with a private complaint case and hence, complete disclosure of documents at the threshold as in the case of a case instituted on a police report ought to be made even in a complaint case [Paragraph 5, 9, 15].

W.P. (Crl) No. 986/2020

The High Court here was hearing a Public Interest Litigation seeking supply of the report given by the jail superintendent and the report given by the investigating officer to the accused before a hearing.

The court held: “Ordinarily, as a general rule, it ought to be kept in mind by the Courts that whenever any report is called for from the Jail Superintendent and is given to the Court either directly or through APP, copy thereof should be given to the applicant of the bail application. Whenever such copy is not supplied to the applicant of the application under Code of Criminal Procedure, especially under Sections 437, 438 and 439 of the Code of Criminal Procedure, then reasons will be recorded by the Court in the order. Every rule has its own exceptions and, depending upon the facts and circumstances of the case, there may be some cases where the report cannot be so supplied. However, as a general rule, a copy of the report given by the Jail Superintendent as well as the report given by the Investigating Officer should be supplied to the applicant so that accused can properly understand the reasons given therein and defend their case in the Court of law. This is a basic need for access to justice and for rendering justice to the public at large.

It further appears from the facts of the case that as far as possible, the report of the Investigating Officer as well as of the Jail Superintendent should be given to the Court in advance. Similarly, copies of these reports should also be given to the accused/applicant in advance so that they can also defend their case effectively and efficiently in the Court of law.” (para 6-7)