New Delhi, Nov 10.
The Supreme Court has said that state governments and High Courts must include in their rules a draft rule, which makes it mandatory for all evidence and material to be shared with the accused to ensure that he gets a fair trial.
Draft rule 4 had introduced a requirement of providing a list (at the commencement of trial) of all documents, material, evidence, etc. seized during the course of investigation or in the possession of the prosecution, regardless of whether the prosecution plans to rely on it.
Only some states have incorporated Draft rule 4 into their practice rules
Some states and High Courts have included it in their practice rules, the court noted. This, the court, creates an anomalous situation in which the rights of an accused in one state prejudicially differs from that granted to an accused in another.
It is not the stage of making of the request; the efflux of time or the prior conduct of the accused that is material, the top court said in a ruling on Monday.
If accused claims prosecution didn’t exhibit something favouring him, court must concede right
“… if in a given situation the accused comes to the court contending that… papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as (it)… favours the accused, the court must concede a right to the accused to have an access to the documents….”
This, according to us, is the core issue in the case which must be answered affirmatively.
Draft Rule 4 must be incorporated in gazette if needed in 6 months
The top court ordered all High Courts and states to take expeditious steps to incorporate the draft rules, 2021, as part of rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated in the gazette in 6 months.
Rules were drafted in In Re state of Andhra Pradesh and Others, 2021
These draft rules were drawn up on the recommendations of amici curiae in a suo motu case reported as criminal trials guidelines regarding inadequacies and deficiencies, In re. v. State of Andhra Pradesh and Others, 2021.
The recommendations were based on extensive exchanges with the stakeholders, throwing up many common deficiencies in the criminal justice system in absence of uniform guidelines.
Amici curiae (plural of amicus) said accused is kept in dark on material in possession of prosecution
The amici curiae had pointed out that before commencement of trial, the accused only receives a list of documents and statements relied upon by the prosecution but is kept in the dark on other material in the possession of the prosecution, even if it has exculpatory value.
The draft rules were a product of a consultative exercise undertaken to remedy asymmetries caused by the lack of uniformity in rules across states, which could hamper appreciation of evidence, and in turn delay proceedings, especially at the appellate stage, the bench said.
Need to mitigate delays in trial can’t be at cost of accused’s right to have a fair trial
But the recognition of the need to streamline trials or mitigate delays cannot come at the cost of the accused’s right to fair trial.
The court said this while rejecting a plea by an accused in a death case seeking directions to the public prosecutor for additional information (P. Ponnuswamy & Others versus the state of Tamil Nadu). The court said that this particular attempt was a move to delay hearing of the case.
Disclosure part of fair trial guaranteed under Article 21
However, the court said, in general the requirement of disclosure, is an intrinsic part of the right to fair trial under Article 21 of the Constitution.
It was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 guarantees to every accused.
Non-compliance with Section 207, CrPC, would impinge on free and fair trial
The question would no longer be one of non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC 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.
SC disagrees with High Court view in Sasikala case
The top court said that it did not agree with the High Court view in the Sasikala case 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 belatedly.
This is how the scales of justice in our criminal jurisprudence have to be balanced, the court said, quoting an earlier judgement.
It is undeniable that there could also arise a situation wherein the investigating officer, ignores or does not rely on seized documents, material or evidence which favours the accused, and fails to forward it to the Magistrate as required under Section 173 CrPC, specifically sub-section (6).
Merely, because it is not already on the record of the court, cannot disentitle the accused from accessing material that may have exculpatory value. It is this gap that was recognised and addressed in the suo motu proceedings.
This safeguards the right of the accused in a situation where concern has been raised regarding evidence or material in possession of the prosecution, that had not been furnished, but was material to the trial and disposal of the case.
The ambit of the disclosure requirement laid down in earlier judgements would be that:
(a) It applies at the trial stage, after the charges are framed.
(b)The court is required to give one opportunity of disclosure, and the accused may choose to avail of the facility at that stage.
(c) In case documents are sought, the trial court should exercise its discretion, having regard to the rule of relevance in the context of the accused’s right of defence. If the document or material is relevant and does not merely have remote bearing to the defence, its production may be directed. This opportunity cannot be sought as the attempt is to delay.
(d) At the appellate stage, the rights of the accused are to be worked out within the parameters of Section 391 CrPC.
