It is no more res integra that an Accused has a Right to Free and Fair trial which flows from Article 21 of the Constitution of India. In fact, the procedural law for a criminal trial contained in the Code of Criminal Procedure, 1973 (In Short ‘CrPC’) is also meant to ensure a Free & Fair Trial. Section 207 CrPC commands that an Accused must be supplied with a copy of all the evidence and material collected against him during the course of Investigation and being relied upon by the Prosecution, in the Charge Sheet. Rule 16 of Bar Council of India Rules casts a duty upon an ‘Advocate’ appearing for the Prosecution to disclose all such material, to an Accused, which is capable of establishing his innocence. But are there any exceptions to this Right or is it Indefeasible?
FIR & INVESTIGATION
The Right to Free & Fair Trial starts from the stage of registration of a First Information Report under Section 154 CrPC and continues till the conclusion of the case at the Appellate stage. The Hon’ble Supreme Court in “Sidhartha Vashishth vs State”, held that
“In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India. A person is entitled to be tried according to the law in force at the time of commission of offence. A person could not be punished for the same offence twice and most significantly cannot be compelled to be a witness against himself and he cannot be deprived of his personal liberty except according to the procedure established by law”.
During the course of Investigation of an information in relation to a Cognizable Offence, the Investigating Officer may inter-alia collect/recover evidence in form of Documents, record statements of the witnesses under Section 161 CrPC, and may even get a confession or a statement recorded under Section 164 CrPC. Based on the evidence so collected, the Investigating Officer forms his opinion and readies a report which may either be a Closure Report (in cases where the evidence is insufficient to put the Accused to Trial) or a ‘Charge Sheet’ (incase where the Evidence is sufficient to put the Accused to trial), both of which are filed under Section 173 of the CrPC. These reports only contain the opinion of the Investigating Officer.
CLOSURE REPORT OR CHARGE SHEET
It is common knowledge that a report of an Investigating Officer, is his opinion, and once filed in court, the Court must form its own opinion on the said report and the evidence so forwarded with it. In case of a Closure Report, the court must call upon the Complainant/Victim to hear his objections to the said report. Thereafter the Court may, in its discretion, either accept the Closure Report and close the case or may direct further investigation under Section 173(8) CrPC or may summon the Accused to face trial, if it finds the evidence sufficient to proceed. The Investigating Officer is duty bound to file his report, be it a Closure Report or a Charge Sheet, in accordance with Section 173(2) of CrPC.
If in the opinion of the Investigating Officer there is sufficient evidence as per Section 170 CrPC to proceed against the Accused, a Charge Sheet must be accompanied with the documents & statements in accordance with Section 173(5) CrPC. The Officer must forward all documents or part thereof, which are relied upon by the Prosecution other than those which have already been forwarded to the Magistrate during the course of Investigation. Similarly, the Prosecution must also forward all statements of witnesses recorded under Section 161 CrPC, whom the Prosecution proposes to examine before the Court to prove its case. Interestingly the Officer filing this report is granted some discretion in terms of sub Section 173 (6) CrPC to request a Magistrate to exclude a certain category of ‘Statements’ from being supplied to an Accused but the same discretion is not available to him in case of ‘Documents’, which have been forwarded to a Magistrate, either during an investigation or along with the Final Report.
The Hon’ble High Court of Delhi in a matter titled, “Dharambir Vs Central Bureau of Investigation” held that “The scheme of the above two sections indicates that the Legislature has intended to differentiate between documents forwarded to a court by the police along with the charge sheet or sent to it earlier during the course of investigation on the one hand and the statements of prospective witnesses recorded by the police during investigation under Section 161 CrPC, copies of which are also forwarded to the Court along with the charge sheet, on the other. This is plain from the language of Section 173(5)(a) when compared with that of Section 173(5)(b) read with Section 173(6) and the first and second provisos to Section 207(v) CrPC. For instance, the reference in Section 173(6) to 'any such statement' is to the statement of witnesses referred to in Section 173(5)(b) CrPC, i.e statements recorded of prospective witnesses under Section 161 CrPC. In relation to these statements the police office has a discretion under Section 173(6) CrPC to withhold a part thereof if he forms an opinion that it is inexpedient in public interest to do so and inform the Magistrate accordingly. Further, the first proviso to Section 207(v) gives a discretion to the Magistrate to provide to the accused even those statements which 'the Magistrate thinks appropriate' shall be furnished. This is in contrast to the position regarding documents. Section 173(5)(a) CrPC refers to documents 'on which the prosecution proposes to rely' other than 'those already sent to the Magistrate during the investigation'. These documents are to be forwarded to the Magistrate along with report. Therefore at the stage when the supply of documents has to be made in terms of Section 207(v) CrPC what the Magistrate has with him are those documents which have already been sent to the Magistrate during the course of investigation and those documents that are forwarded by the police officer along with the charge sheet.
Under Section 207(v), the Magistrate has no discretion in the matter of not supplying such documents. The only limited discretion that the Magistrate has in terms of the second proviso to Section 207(v) CrPC is if the documents are so voluminous, he can direct that the accused will be permitted only an inspection of the documents.”
Thereafter the Court takes cognizance of the offence under Section 190 CrPC and issues a process to an Accused under Section 204 CrPC to appear and face trial.
SECTION 207, Code of Criminal Procedure 1973
Section 207 CrPC recognizes an indispensable right of an Accused at the very inception of a Criminal Trial. This Section ensures that each and every material, which is sought to be relied upon, against an Accused, is fully disclosed to him. A Free and Fair Trial can only be ensured by complete disclosure of all material, which is sought to be used against an Accused in order to enable him to defend himself during the Trial. Therefore Section 207 CrPC mandates that an Accused must get a copy of the Charge Sheet filed under Section 173(2) CrPC, First Information Report recorded under Section 154 CrPC, all the statements of witnesses recorded under Section 161 CrPC, any confessions/statements recorded under Section 164 CrPC and any other Document or relevant extract thereof forwarded to the magistrate with the police report under 173 (5) CrPC.
Way back in 1981, the Hon’ble Supreme Court in the case of “Satyen Bhownik” upheld the right of an Accused to get access to all statements and documents being relied upon by the prosecution even in a trial for offences punishable under Official Secrets Act, 1923 (In short the ‘OS Act’). The Hon’ble Supreme Court negated the contention that an Accused could be denied access to statements or documents in a trial for offenses punishable under the said act by taking aid of Section 14 of the OS Act. The Hon’ble Court held
“It is well settled that fouler the crime the higher should be the proof. If an accused is not supplied either the statements recorded by the police or the statements of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross-examine the witnesses successfully and effectively so as to disprove the prosecution case. We, therefore, think that Section 14 could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the criminal law of the land. The legislature when it passed the Act in 1923 was aware of the provisions of the CrPC which had conferred the valuable right on an accused in order to defend himself. Indeed, if any of these rights were to be taken away, we should have expected a clearer and more specific language used in Section 14 to connote such an intention.”
However, there are two provisos to Section 207 CrPC. Under the first Proviso, the Magistrate may use its discretion to either supply copies of such Statements of witnesses regarding which a request has been made by the Police Officer under Section 173(6) CrPC or may exclude them. Under the Second Proviso, incase the Magistrate finds documents filed along with the Charge Sheet to be ‘Voluminous’, then he may, instead of supplying copies of such ‘Voluminous’ documents, may only permit its inspection by the Accused or his Pleader.
EXCEPTIONS TO THE RULE?
In the case of ‘Statements’, as noticed in Dharambir Vs Central Bureau of Investigation (Supra), there is some element of discretion with the Police Officer and the Magistrate to withhold certain category of ‘Statements’ but can there be any exception(s) where certain kind of ‘Documents’ could be withheld from an Accused even if they are not ‘Voluminous’?
It is common in Criminal Trials for a certain category of Offences such as the ones punishable under the OS Act or Protection of Children from Sexual Offences Act, 2012 (In Short ‘POCSO Act’) or offences dealing with the Modesty of a Woman under the Indian Penal Code 1860 (In Short ‘IPC’), a request is made by the Prosecutor to withhold from an Accused, certain kind of Documents, including Electronic Documents or other records which may prejudice the rights of the Victim or may be in form of sensitive material. Though the language of Section 207 CrPC is unambiguous and does not leave any shadow of a doubt that only ‘Voluminous’ documents can be excluded from being supplied by permitting its Inspection, but there have been occasions where the Courts are called upon to balance the Constitutional/Human rights of Accused & that of the Victim or even Prosecution, and in such cases, the courts have granted conditional access to documents or electronic record despite them not being ‘Voluminous’.
In a recent case titled, “P. Gopalkrishnan Vs State of Kerala and Ors”, the Supreme Court was required to balance the intra conflict of fundamental rights flowing from Article 21, that a ‘right to fair trial’ of the accused and ‘right to privacy’ of the victim. The Accused in that case was facing Trial inter-alia for an offence punishable under Section 376 IPC. The Supreme Court applied the test of larger public interest to advance public morality since there was a conflict between the rights of two individuals under Article 21 of the Constitution. The Supreme Court also noted observations made in an earlier decision titled “State of Maharashtra vs Praful B. Desai” wherein the Hon’ble Court had observed that the Code of Criminal Procedure,1973 is an ongoing statue and in case of an ongoing statute the court must apply a construction that it continuously updates its wording to allow for changes and is compatible with the contemporary situation. The court went on to hold that
“It is crystal clear that all documents including "electronic record" produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the Accused must be furnished to the Accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen-drive must be furnished to the Accused, which can be done in the form of cloned copy of the memory card/pen-drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code but also the right of an Accused to a fair trial enshrined in Article 21 of the Constitution of India.”
However, in order to balance the intra conflict of Constitutional rights, the Hon’ble Supreme Court held that
“Considering that this is a peculiar case of intra-conflict of fundamental rights flowing from Article 21, that is right to fair trial of the Accused and right to privacy of the Victim, it is imperative to adopt an approach which would balance both the rights.”
The court further held that “We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an "electronic record", certainly the ground predicated in the second proviso in Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick and Ors. wherein this Court has restated the cardinal principle that Accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section 327 of the 1973 Code, in particular Sub-Section (2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy of the victim and her identity.
Thus understood, the Court is obliged to evolve a mechanism to enable the Accused to reassure himself about the genuineness and credibility of the contents of the memory card/pen-drive from an independent agency referred to above, so as to effectively defend himself during the trial. Thus, balancing the rights of both parties is imperative, as has been held in Asha Ranjan (supra) and Mazdoor Kisan Shakti Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power Under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.If the Accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen-drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the Accused to protract the trial. While allowing the Accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen-drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of Accused to a fair trial guaranteed Under Article 21 of the Constitution.In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the Accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing the only inspection thereof to the Accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides. In view of the above, this appeal partly succeeds.
The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the Appellant/Accused to the extent indicated hitherto, in particular paragraphs 37, 38 and 43.”
*As noted, in the above case, the Accused were only allowed to inspect the contents of memory-card/pen-drive and that too conditionally, despite that the same could not be labelled as ‘Voluminous’ being an electronic record and could have been easily supplied.
In another case before the Hon’ble Supreme Court titled “Tarun Tyagi vs CBI”, CBI was prosecuting the Appellant/Accused under Sections 66 of IT Act, 2000 & 63 and 63(B) read with Section 14b(ii) Copyright Act, 1957. A Charge Sheet was filed, and certain hard disks were relied upon by the prosecution but the same were not supplied to the Appellant/Accused. The Application for supply of these hard disks was moved before the Trial Court but the same was dismissed. Even the High Court declined the request and the dissension reached the Hon’ble Supreme Court. The CBI expressed apprehensions that if these hard disks were supplied to the Accused, they may continuously be misused thereby infringing valuable rights of the Victim. The Supreme Court noted the submissions and held that, “Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report Under Section 173(5) of the Code. Such a compliance has to be made on the first date when the Accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the Accused with the copy thereof, the Magistrate can allow the Accused to inspect it either personally or through pleader in the Court.”
The Hon’ble Court further held that “It is clear from the above that the CBI had seized some hard disks marked Q-2, 9 and 20 from the premises of the Appellant which contained the source code of the data recovery software. Defence of the Appellant is that this source code was exclusively prepared by him and was his property. On the other hand, case of the prosecution is that the recovered CDs are in fact same or similar to the software stolen in 2005. In a case like this, at the time of trial, the attempt on the part of the prosecution would be to show that the seized material, which contains the source code, is the property of the complainant. On the other hand, the Appellant will try to demonstrate otherwise and his attempt would be to show that the source code contained in those CDs is different from the source code of the complainant and the seized material contained the source code developed by the Appellant. It is but obvious that in order to prove his defence, the copies of the seized CDs need to be supplied to the Appellant. The right to get these copies is statutorily recognized Under Section 207 of the Code, which is the hallmark of a fair trial that every document relied upon by the prosecution has to be supplied to the defence/accused at the time of supply of the chargesheet to enable such an Accused to demonstrate that no case is made out against him and also to enable him to prepare his cross-examination and defense strategy. There is no quarrel up to this point even by the prosecution.
The only apprehension of the prosecution is that if the documents are supplied at this stage, the Appellant may misuse the same. The aforesaid apprehension of the prosecution is based on the opinion of Government Examiner (Expert) who has opined that if the cloned copy of the hard disk was required, then the same could be prepared by the laboratory on supply of new hard disk of 500 GB but such cloned copy could not be write protected.In view of this opinion of the Expert, it needs to be ensured that the Appellant, when given the cloned copy of the hard disk, is not able to erase or change or remove the same. If that can be achieved by putting some safeguards, it would be the ideal situation inasmuch as provisions of Section 207 of the Code which ensure fair trial by giving due opportunity to the Accused to defend himself shall be fulfilled and the apprehension of the prosecution would also be taken care of.
We find that CBI, under similar circumstances in the case of Rupesh Kumar, accepted the order of the trial court whereby directions were given to the CBI to supply the hard disk. In the said case, the trial court found that there was no answer from the CBI whether the software in question was unique and there was no other software in the market for the recovery of lost data from the logical cracked hard disk. Number of softwares are available in the market which negated the arguments of CBI that by supplying the mirror image of the documents, the complainant will lose its money and it will be in violation of the Copyright Act, 1957. In that case, the Court took undertaking from the Appellant that he would not misuse the copy of cloned CD.
We, thus, are of the opinion that in order to comply with the provision of Section 207 of the Code, the hard disks marked Q-2, 9 and 20 be supplied to the Appellant subject to the following conditions:
(a) Before supplying the said CDs, the contents thereof shall be recorded in the Court, in the presence of complainant as well as the Appellant and both of them shall attest the veracity thereof by putting their signatures so that there is no dispute about these contents later thereby removing the possibility of tempering thereof by the Appellant.
(b) The Appellant shall not make use of the source code contained in the said CDs or misuse the same in any manner and give an affidavit of undertaking to this effect in the trial court.”
*In this case also, the Hard Disks were supplied only after putting conditions and restrictions on its use. The Hon’ble Supreme Court struck a balance between the rights of the Accused and that of the Prosecution as well as the Victim.
In a case titled “Ujjal Das Gupta Vs State,” a single judge of the Hon’ble High Court of Delhi dealt with a situation where the accused was being denied Documents relied upon by the prosecution in the Charge-Sheet on the ground that they were classified as Secret Documents and that its disclosure and misuse will be an offence under the OS Act. The Hon’ble High Court, relying upon the decision of “Satyen Bhowmick” (Supra) held that “In view of the authoritative pronouncement of the Supreme Court in Satyen Bhowmik the objections raised by the prosecution in the present case are not well founded in law. As long as the prosecution is relying upon the documents forwarded by it to the trial Court along with the chargesheet it will not be open to the prosecution to deprive the accused the copies of those documents. As explained in Satyen Bhowmick merely because the case is under the OSA, the legal position cannot be different.
The only difference is that the prosecution can insist and rightly so that neither the accused nor the lawyer of the accused will be permitted to make the documents public or pass them on to any person or disseminate them in any manner whatsoever. If in fact either the accused or the lawyers of the accused do not observe this prohibition, they run the risk of committing an offence under the OSA.
*In this case, the Documents, which were in the nature of Official Secrets, were supplied by imposing certain conditions against its misuse, in order to safeguard the rights of the Prosecution.
- The Investigating Officer filing his ‘Final Report’ under 173(2) CrPC is granted some discretion in terms of sub Section 173 (6) CrPC to request a Magistrate to exclude a certain category of ‘Statements’ from being supplied to an Accused. The Magistrate is not obliged to supply such ‘Statements’ in respect of which the aforesaid request has been made by virtue of Section 207 (iii) CrPC. However, the first proviso to Section 207 CrPC grants a discretion to the Magistrate to supply even the aforesaid ‘Statements’ despite a request by the Police Officer.
- A copy of Charge Sheet, First Information Report & all statements & confessions recorded under Section 164 CrPC must be supplied in terms of Section 207 (iv) CrPC.
- Ordinarily the Magistrate has no discretion in the matter of Supply of ‘Documents’ in terms of Section 207(v) CrPC. The only limited discretion that the Magistrate has, is in terms of the second proviso to Section 207 CrPC i.e. in case of ‘Voluminous’ documents, he may only permit its Inspection.
- Where Prosecution expresses reasonable Apprehension of misuse of ‘Sensitive’ Documents or Material, the Court will supply such Documents, but on such conditions which ensure that such sensitive Document/Material is not misused by the Accused or his Advocate.
- Only in exceptional and rare circumstances, the Court, in order to balance the Conflict of Fundamental/Human Rights of Accused and the Victim, may refuse supply of Documents or Electronic record in case it finds that the same may infringe the ‘Right to Privacy’ of the Victim or is essential to protect the Victim’s Identity. In such cases ‘Inspection’ will be permitted by the Accused & his Lawyer to enable them to properly and effectively defend themselves.
About the Author:
(Rajat Wadhwa is a practicing lawyer in Delhi High Court for the last 17 years. Views expressed above are personal to the Author.He can be reached at his email: firstname.lastname@example.org)
1: (2010) 6 SCC 1
2: ILR (2008) II DELHI 842
3: (1981) 2 SCC 109
4: (2020) 9 SCC 161
5: (2003) 4 SCC 601
6: (2017) 4 SCC 490
7: 2008 (103) DRJ 349