In ordinary cases of criminal trial, the Cr.P.C. imposes a statutory obligation on the public prosecutor to disclose certain evidence to the defence.

Sections 207 and 208

This is brought out by sections 207 and 208 as follows:

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 there from 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:

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, or 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.”

Rule 16 of the Bar Council of India Rules

Rule 16 of the Chapter II, part VI of the Bar Council of India Rules under the Advocates Act, 1961 is as under:

“16. An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided.”

Therefore, it is clear that the Code & the Bar Council of India Rules provide a wide duty of disclosure. But this duty is limited to evidence on which the prosecutor proposes to place reliance during the trial.

In England

Currently, the position in England is governed by the Criminal Procedure and Investigations Act, 1996. Prior to this enactment, the position was squarely covered by common law. This position comes out primarily in two cases.

In R. v Ward (Judith Theresa) (1993) 2 All E.R. 577, Court of Appeal held that it was the duty of the prosecution to ensure fair trial for both the prosecution and the accused. The duty of disclosure would usually be performed by supplying the copies of witness statements to the defense and all relevant experiments and tests must also be disclosed.

It was held that the common law duty to disclose would cover anything which might assist the defense. Non-compliance with this duty would amount to “irregularity in the course of the trial” under Section 2(1)(a) of the Criminal Appeal Act, 1988.

R v. Preston & Ors. (1993) 4 All ER 638, dealt with the non-disclosure of a telephonic conversation in a matter dealing with the Interception of Communications Act, 1985. The relevant material had been destroyed in pursuance of Section 6 of the same Act. In appeal, the defendants essentially argued that the non-disclosure of the contents of the call to the defense amounted to a material irregularity.

The court held that it is true that the mere fact that the material was not to be used as evidence did not mean that the material was worthless, especially, when it might have been of assistance to the defendant. But at the same time, it was also held that:

“since the purpose of a warrant issued under s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence with a view to the prosecution of offenders, and since the investigating authority was under a duty under s.6 of the Act to destroy all material obtained by means of an interception as soon as its retention was no longer necessary for the prevention or detection of serious crime, the destruction of the documents obtained from the interception and their 146 consequent unavailability for disclosure could not be relied upon by Defendants as a material irregularity in the course of their trial”.

Thus the position under common law is clear, i.e. subject to exceptions like sensitive information and public interest immunity, the prosecution should disclose any material which might be exculpatory to the defence.

In India

In 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.

The law in relation to investigation of offences and rights of an accused, in our country, has developed with the passage of time. On the one hand, power is vested in the investigating officer to conduct the investigation freely and transparently. Even the Courts do not normally have the right to interfere in the investigation. It exclusively falls in the domain of the investigating agency. In exceptional cases the High Courts have monitored the investigation but again within a very limited scope.

There, on the other a duty is cast upon the prosecutor to ensure that rights of an accused are not infringed and he gets a fair chance to put forward his defence so as to ensure that a guilty does not go scot free while an innocent is not punished. Even in the might of the State the rights of an accused cannot be undermined, he must be tried in consonance with the provisions of the constitutional mandate.

The cumulative effect of this constitutional philosophy is that both the Courts and the investigating agency should operate in their own independent fields while ensuring adherence to basic rule of law. It is not only the responsibility of the investigating agency but as well that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law.

Equally enforceable canon of criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of bias mind and every effort should be made to bring the guilty to law as nobody stands above law de hors his position and influence in the society.

In the case of Kashmeri Dev v. Delhi Administration and Anrs. [JT 1988 (2) SC 293] it has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The Courts have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of criminal investigation and jurisprudence.

Contra veritatem lex nunquam aliquid permittit: implies a duty on the Court to accept and accord its approval only to a report which is result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but to conduct judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration.

The aim of criminal justice is two-fold- Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the commission of crime, sincerely proving the case of the prosecution before the Court and the guilty is punished in accordance with law.

It is pertinent to note here that one of the established canons of just, fair and transparent investigation is the right of defence of an accused. An accused may be entitled to ask for certain documents during the course of enquiry/trial by the Court.

Right of defence

To understand this concept in its right perspective we must notice the scheme under the provisions of Section 170 to 173 of the Criminal Procedure Code. All these provisions fall under Chapter XII of the Code which deals with, information of the police and their powers to investigate. The power of the police to investigate freely and fairly is well recognized and codified in law.

In terms of Section 170, the investigating officer when satisfied that sufficient evidence or reasonable grounds exist he shall forward accused under custody to a Magistrate along with such weapons or articles which may be necessary to be produced before the Court. Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him.

He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness is recorded during the investigation under Section 161 shall be inserted in that diary. A Criminal Court is empowered under Section 172 (2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial.

However, Sub-section 3 of the same Section provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the Court uses them for the purposes of contradicting such police officers in terms of Section 172 than Sections 161 or 145 provisions would apply.

Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required 154 under this Section.

Provisions of Section 173 (5) contemplates and make it obligatory upon the investigating officer where the provisions of Section 170 apply to forward to the Magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation in terms of Section 170 (2) of the Code. During investigation the statement recorded under Section 161 of all the persons whom the prosecution proposes to examine as witnesses shall also be sent to the Magistrate.

Some element of discretion is vested with the police officer under Section 173 (6) where he is of the opinion that any such statement is not relevant to the subject matter of the proceedings or its disclosure to accused is not essential in the interest of justice and is expedient in the public interest he shall indicate that part of the statement refusing a Magistrate that part from the copies to be granted to the accused and stating his reason for making such a request.

Section 173 (8) empowers an investigating officer to submit a further report if he is able to correct further evidence. Once this report in terms of Section 173 is received the court shall proceed with the trial of the case in accordance with law.