Neharica Sahay

Introduction 

The Supreme Court, during the recent formulation of the Draft Rules on Criminal Procedure [Draft Rules], recognised the lack of fair disclosure of exculpatory documents to the accused to be an important issue for fair trial rights. The non-disclosure of exculpatory documents widens the power imbalance between the accused and the State, and denies the accused the opportunity to defend himself on the basis of potentially exonerating evidence. However, the statutory framework governing the supply of documents to the accused is convoluted, prejudicial to the accused and contributes to an inequitable power imbalance. Through Rule 4, the draft rules mandate the fair disclosure of all evidence, including exculpatory evidence to the accused. Whilst judgements mandating disclosure provide some weight for this procedure, the proposed amendment must be incorporated within the statutory framework in order for the same to be established. 

Supply of Documents as per the CRPC 

The statutory law for supplying documents to the accused is governed by Sections 173, 207 and 208 of the CRPC. A holistic reading of these provisions reveal that, among other things, the accused must be given – 

  1. Documents and statements which the prosecution proposes to rely on, as per Section 173(5), and
  2. Statements of prosecution witnesses, excluding any part for which a request for exclusion has been made under Section 173(6), subject to approval by the Magistrate. 

By mandating disclosure of collected evidence that only the prosecution relies on, the Code lays more emphasis on securing convictions, rather than facilitating the exposure of truth. The Code disregards the fact that accused persons often do not have the resources to discover evidence in their support and present the truth before the court. It turns a blind eye to the sparse means available to an individual to defend themselves, particularly when put up against evidence collected by the organised police force of a state. Injustice against the accused mounts further when this organised force falsifies or withholds evidence to justify the results of their superficial investigations (Refer: here, here and here). 

Limited Expansion of the Accused’s Rights

Although the Court has recognised the relevance of disclosure to fair trial rights, its interpretation of the process is restrictive and rife with ambiguities. A landmark case, Manu Sharma, aimed to discuss how a right to fair disclosure could be adopted in India. In substance, however, the Court only reiterated the importance of the already existing provisions. It mandated the furnishing of documents “which the prosecution relies upon, whether filed in court or not” [paragraph 218]. It also held that sections 91 and 243 could be read together for the accused to summon or produce any witness or document as part of their defence. This limits the scope of disclosure to the trial stage alone, despite the fact that section 91 applies to all stages envisaged under the Code. It also continued to burden the accused to determine the evidence in their support so that it could be summoned. 

The judgement also held that a document that “in the opinion of the prosecution is relevant and would help in arriving at the truth” ought to be furnished to the accused [paragraphs 218 and 221]. This pronouncement remained vague when concerning evidence in favour of the accused. The 2022 judgement in Manoj v. The State of Madhya Pradesh however, expanded this specific aspect of the rights of the accused by endorsing the Draft Rules. Through this decision, the court solidified the rights of the accused to be supplied with a list of documents, objects and exhibits “that are not relied on by the Investigating Officer” [Draft Rules, Para 4(i)]  as well. Notably, this stage is envisaged under Sections 173, 207 and 208 and does not place the burden of discovering evidence on the accused. The judgement did not, however, address the differences between Manu Sharma and the Draft Rules regarding the stage at which this right exists. 

Subsequently in P. Ponnusamy, the court addressed further gaps in the procedure, such as the need to supply the accused with documents that have been forwarded to the Magistrate but not to them, and to ensure that material evidence is not withheld from the Magistrate, despite the statutory requirements to supply them. It directed the government to make necessary legislative changes to incorporate the Rules within six months, also holding that the new procedure would be in force regardless of incorporation as the lack of formal amendments could not prejudice the rights of the accused. 

Undoubtedly these judgements are essential in bringing about change in the present system. Nevertheless, a degree of ambiguity remains due to differing interpretations of the pronounced law and the usage of varied terminology. This leaves open the possibility of inconsistent procedures in the future.

Continuing Ambiguities in the Procedural System 

In spite of earnest attempts by the judiciary to provide clarity in this process, inconsistencies regarding the stage of fair disclosure, the state’s duty with respect to complete disclosure, and the appropriate state official to exercise  discretion in providing documents persist

For instance, the majority in Ponnusamy interprets the disclosure requirement laid by Manoj to apply at the trial stage and appellate stages, after charges are framed. This contradicts the requirement under the Draft Rules to supply documents before the framing of charges. Supplying a list of documents prior to the initiation of the trial is essential to ensure that the accused has the capability to seek appropriate orders for producing the material. The judgement also held that the court must give one opportunity of disclosure that the accused may choose to avail at that stage. No such duty to provide an opportunity has been referred to in either of the earlier judgements and there is no rationale for this interpretation for subsequent orders to differentiate from if needed.  

Another pending ambiguity is the interchangeable reliance on the discretion of the “prosecution” and that of the “investigative officer”. Sections 173, 207 and 208 of the current Code refers to material which the prosecution proposes to rely upon, while the Draft Rules refer to material that an I.O relies upon. Furthermore, the court, while referring to the Rules, deems that it speaks of the prosecution rather than the I.O [paragraph 13]. Given that most states have separate oversights over the prosecution and the police, this fluctuating usage of terms is likely to cause further confusion in the procedure. 

Finally, while the Rules rely on the investigating officer’s discretion regarding evidence, the Code speaks of different state authorities entirely. Both Section 173 and 170, which are the only sections requiring the discretion of a police officer, refer to “officer in charge of the police station”, implying the need for oversight by a superior-ranking officer. This ambiguity must be addressed to determine who is to be held accountable for furnishing evidence to the Magistrate. 

In the pendency of relevant amendments in statutes and regulations, judicial pronouncements are the only reliable source of law for the expansion of the rights of the accused. However, long-term reliance on judgements can create inconsistencies in the application of these procedures and further aggravate accused persons across the country. 

Conclusion 

A coherent framework, incorporating the right of an accused to access documents not relied upon by the police/prosecution, will require formal amendments to the law. More importantly, the proposed Rules must be assessed for further inconsistencies whilst amending the law. Furthermore, disparities in the application of this procedure can arise in various parts of the country, not just due to the lack of legislative changes but also due to varying judicial interpretations. As was recognised by the Supreme Court, such disparity is prejudicial to the rights of accused persons. Given how the legislative incorporation of precise and unambiguous rules is the only way to overcome this disparity, the same must necessarily be done as swiftly and meticulously as possible.

Neharica Sahay is a 4th-year student at Symbiosis Law School, Pune

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