V.K. Sasikala Vs State Rep. By Superintendent of Police

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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

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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

1 (2004) 3 SCC 767

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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chargesheet in the said case has since been withdrawn and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)

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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

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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,

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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.

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(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

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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,

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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

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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

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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

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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

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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

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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

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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

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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 2 (2010) 6 SCC 1 3 (2010) 8 SCC 249 4 (2011) 7 SCC 310

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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

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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

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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:

(ii The police report;

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(iiiThe first information report recorded under

section 154;

(iiii 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;

( vi i 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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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

5 2010 (12) SCC 3100

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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

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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

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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

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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.

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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.

41

V.K. SASIKALA Vs STATE REP. BY SUPERINTENDENT OF POLICE

V.K. SASIKALA Vs STATE REP. BY SUPERINTENDENT OF POLICE