The CrPC, 1973, though a Code dealing with procedural law, is embellished with numerous substantive elements in it. The substantive elements give effect to Articles 14, 20, 21 and 22 of the Constitution of India , 1950 . Any Court that deals with a criminal case, starting at the magisterial level, is duty-bound to give effect to the CrPC, 1973 which would only mean the protection of rights conferred under the Constitution of India , 1950 . To put it differently, the CrPC, 1973 is a handbook introduced to maintain and uphold fair play in a criminal case, starting with the investigation and ending with the acquittal or a conviction leading to a sentence.
SUPPLY OF DOCUMENTS
Section 173 of the Code of Criminal Procedure, 1898
“173. Report of police officer.-
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(4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of, the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”
Section 207A of the Code of Criminal Procedure, 1898
“207A. Procedure to be adopted in proceedings instituted on police report.
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(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.”
Section 251A of the Code of Criminal Procedure, 1898
“251A. Procedure to be adopted in cases instituted on police report.
(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.”
Section 207 of the CrPC, 1973
“207. Supply to the accused of copy of police report and other documents.-
In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) 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;
(iv) the confessions and statements, if any, recorded under section 164;
(v ) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 :
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v ) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court .”
Section 208 of the CrPC, 1973
“208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.-
Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:
(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court .”
Section 209 of the CrPC, 1973
“209. Commitment of case to Court of Session when offence is triable exclusively by it.-
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”
Section 238 of the CrPC, 1973
“238. Compliance with Section 207.
When, in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207.”
To understand these provisions, one has to go back to the Code of Criminal Procedure, 1898 (hereinafter referred to as the “CrPC, 1898”). Section 173 of the CrPC, 1898 fixes the responsibility on the officer in charge of police station to serve a copy of the report of the Police Officer and of the First Information Report, along with the requisite documents, on the accused. As per Section 207A of the CrPC, 1898 a Magistrate shall, after the commencement of the inquiry, satisfy himself that there was due compliance of Section 173 of the CrPC 1898 by furnishing all the requisite documents on the accused. Thus, the Magistrate was expected to find out due compliance on the part of the investigating agency and, if not done, must direct it to do so. A similar procedure was adopted under Section 251A of the CrPC, 1898.
Section 207 of the CrPC, 1973 has dispensed with the role of the investigating agency in serving the requisite copies on the accused, replacing it with that of the Magistrate. Additionally, the Magistratre is directed to make sure that due compliance is made at the earliest. Section 208 of the CrPC, 1973 reiterates the aforesaid position in cases instituted otherwise than on a police report and triable by the Court of Sessions. It is only thereafter, that the commitment of the case to a Court of Sessions, regarding an offence exclusively triable by it, shall take place.
Section 238 of the CrPC, 1973 mandates that while dealing with a warrant case instituted on a police report, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 of the CrPC, 1973. In all these cases, due compliance is to be done when the accused is produced or appears before the Magistrate.
Therefore, Section 238 of the CrPC, 1973 reiterates the bounden duty of a Magistrate and, if not done, to be complied with at the time of commencement of the trial. Such a reiteration would only reinforce a renewed emphasis on due compliance being a facet of fair play. An accused shall be put to notice on the incriminating materials leading to the charges framed against him. As stated, the obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at the appropriate stage so that it does not brook any delay.
The idea is to enable an accused to face the trial by thoroughly understanding the case stated against him. However, a mere non-supply of a part of the documents would not lead to the trial being vitiated, unless an accused substantiates before the Court that it has caused prejudice to him. Obviously, it is ultimately for the Court to come to an appropriate conclusion by an adequate assessment of facts placed before it.
Precedents
Naresh Kumar Yadav v . Ravindra Kumar, (2008) 1 SCC 632
“13. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilised against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v . State of Rajasthan [AIR 1964 SC 286] and Shakila Abdul Gafar Khan v . Vasant Raghunath Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri) 1918]. It was held that non-supply is not necessarily prejudicial to the accused.
The court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilised by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes, as has been noted above they are not to be taken note of by the court concerned. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorised access to the official records.”
P. Gopalkrishnan v . State of Kerala, (2020) 9 SCC 161
“21. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution…
22. Similarly, in V.K. Sasikala v . State [(2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , this Court held as under : (SCC p. 788, para 21)
“21. 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 [V.K. Sasikala v . State , 2012 SCC OnLine Kar 9209] . The question arising would no longer be one of compliance or 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 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 by the prosecution as the same favours the accused the court must concede a right to 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 [V.K. Sasikala v . State , 2012 SCC OnLine Kar 9209] 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 belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.”
(emphasis supplied)
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38. It is crystal clear that all documents including “electronic record” produced for the inspection of the court along with 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 .”
In Sunita Devi v. State of Bihar (2024), the court said that,
“17. We make it clear that the right of an accused would arise, in getting the documents relied upon by the prosecution, after taking cognizance and before framing of the charges. Therefore, between taking cognizance and framing of charges, an accused should have sufficient window to go through the documents supplied to him as he is entitled to be heard at a later stage.”
Reference
Sunita Devi v. State of Bihar (2024)