FAIR DISCLOSURE: PRINCIPLE LEFT BEHIND?

This Article is written by Vanshika Jain, student of University Law College, Bangalore University.

 

Introduction

The Indian Constitution envisages the right to a fair trial, the right to defend, the right to be heard,  and the presumption of innocence as facets of Article 21. In order to achieve these objectives, there are various procedural safeguards given in CODE OF CRIMINAL PROCEDURE, 1973 (CrPC) of which Section 207 is of utmost importance.

Although Section 207 is extremely plain worded and ex facie appears to be a simple formality of a trial proceeding, it is an intrinsic part of criminal jurisprudence which catalyses in achieving the objectives of equity and justice. The stage of Section 207 is a very critical stage and often lawyers take it casually. This is that part of the trial where a lawyer gets the opportunity to scrutinize the set of documents upon which the prosecution/investigation agencies have relied as it is the business of the accused to go ahead with the procedure of trial and unless he is not cognizant of what is against him, he would not be in a position to defend himself properly. So, this is the first opportunity when he is legally entitled to such documents.

Fair Disclosure

Though Section 207 somewhere brings the concept of ‘fair disclosure’ to life, it still falls short of it in its true spirit. Disclosure refers to the process of putting on a record and bringing to the notice of court such documents on which the prosecution proposes to rely so that these can be furnished to the accused later which would aid him to prepare his defense by knowing the materials collected against him. But does this include only that evidence which inculpates him or also that material that is exculpatory? Ideally, this should include the evidence which might undermine the case of the prosecution and assist the defense.

The process of development of this issue globally can be recalled in the landmark judgment by the Supreme Court of the USA in Brady v. Maryland (widely referred to as the Brady rule). In this case, the court declared that the right to put up a defense means a complete defense. Failure to disclose favorable material information and where suppression of such information might exonerate the accused, the prosecutor violates the fair process of law guaranteed to the accused under the Fourteenth Amendment to the US Constitution.

In India, the prosecutor is not bound by any statutory duty to furnish information in favor of the accused of his defense. Under the provisions of CrPC, the regard to disclosure of documents is a limited right. The Code does not contain any provision for providing “all” the evidence collected by the investigating agency but only those on which the prosecution ‘proposes to rely’.

While in the past, Courts used to confine supplying of documents only to those documents that the police strictly relied upon but as the law evolved, it has been a matter of grave concern that although the police have seized in its possession a number of documents which goes counter to its case and therefore, the police would be reluctant to mention such documents in the list of documents and annex them with the charge sheet; would the accused be entitled to them?

In the case of Sidhartha Vashisht @ Manu Sharma vs State (NCT Of Delhi), Supreme Court elucidated the broader jurisprudence behind S207 which is the concept of fair disclosure. The Court observed that it is not an indefeasible right of the accused to seek disclosure of every document which is permitted to be excluded under Section 173(2) CrPC.

Hence, while the investigating agency may have collected material that directly points to the innocence of the accused, if not innocence, at least mitigates the role of the accused, they are not obliged under the law previously to supply the same to the accused. Such a procedure is completely opposite to what is followed in various foreign jurisdictions. In America, any document in possession of the prosecution has to be shared with the defense irrespective of the fact whether such documents work in their favour or against them. In many cases, failure to observe this procedure has led to mistrials.

Though India has now recognized prosecutorial disclosure as an essential element of a trial, it still falls short of saying that each and every material piece of document especially which has the bearing on the rights of the accused has to be supplied by the prosecution to the accused. It has nowhere said that the accused has an indefeasible right to demand any such document from the prosecution. However, some progress was made a few years later.

The judgment in the case of V.K. Sasikala v. State is though a step ahead by directing the prosecution to forward every material document to the court although not relied upon by it, but it still falls short of complete fair disclosure. It says that where the Investigating Officer ignores the part of the seized documents which favour the accused and forwards to the Court only those documents which support the prosecution, it would be the duty of the Court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution.

Here arise two points of contention-

  1. What if the prosecution does not forward such a document to the court?
  2. Even if the prosecution forwards such document to the court, defense would not be aware that the prosecution is in possession of such a document that might completely exonerate the accused. It is possible only when the prosecution forwards all the documents to the court, the accused would be in a position to demand it.

Hence, the existence of a void in the law can be seen which needs to be filled. Ideally, the situation should be that any and every material document examined by the investigator must be placed before the court and a copy of the same must be given to an accused person. This lacuna in law aids police to conceal such documents from the court that may eventually if seen by the court may lead to acquittal of the accused.

Why Full and Fair Disclosure?

In the recent judgment of Krishna Lal Chawla v/s State of Uttar Pradesh, Supreme Court held that the trial courts and magistrates are the first line of defense for a harassed and distraught litigant and have as much responsibility as the Supreme Court in safeguarding fundamental rights of citizens. How does a trial court fulfill this responsibility? In order to do so, the procedure adopted by the court in conducting the trial deserves utmost importance.

The very purpose of cross-examination which is impeaching the credit of a witness gets defeated when such documents which are exculpatory in nature are not supplied by the prosecution to the defense. This can be illustrated through the infamous castration case of Gurmeet Ram Rahim wherein the defense filed an application under section 91 CrPC read with section 207 CrPC in the High Court of Punjab and Haryana seeking directions to the prosecution to supply them with statements of 122 witnesses recorded during the course of the investigation which was neither filed by them and nor brought to the notice of the court. Such statements were exculpatory in nature and did not assist the case of prosecution which is why they were not put on record. In the absence of those statements, it would be impossible for the defense to test the veracity of those witnesses and thus in arriving at a just and fair decision.

Though Section 91 CrPC could somehow be called a remedial provision for the defense to pull out exculpatory documents from the prosecution this provision cannot be availed of until the stage of defense. This has been clarified by the Supreme Court in the case of State of Orissa v. Debendra Nath Padhi. The Court held that such documents should be necessary and desirable and what is that ‘necessity’ and ‘desirability’ would be judged according to the stage when the prayer for summoning documents is made under section 91.

During the stage of discharge, the magistrate is bound to exonerate the accused only when the charges are found to be groundless after perusing the documents supplied along with the charge sheet and hearing the arguments from both sides as given under section 239 CrPC. Hence, by drawing a corollary from the aforesaid judgment, it can be said that at the stage of discharge, the accused is without any remedy. There can be no doubt in the statement that with growing times, the amount of frivolous litigations is also piling up and being a source of unnecessary hardships for trial courts. In order to nip this evil in the bud, bringing the concept of full and fair disclosure to life attains great importance.

Somewhere, it can be said that access to a certain set of documents to the prosecution and withholding the same from the accused is against the concept of equality under Article 14.

What Needs to be Done?

Though a mandatory provision directing full and fair disclosure is absent in procedural laws, until then, a vigilant magistracy with the aid of available procedural safeguards can ensure that this principle is complied with in order to arrive at a just decision of the case. By virtue of Section 173(6) CrPC, the police officer is given the power of withholding such statements recording during the investigation from the accused which he believes to be in the interest of justice. For doing so, the officer is required to append a note to the Magistrate requesting him to accede to it.

A conjoint reading of Section 173(6) and proviso to Section 207 CrPC, vests the Magistrate with the discretion of supplying such documents to the accused which he considers are necessary. Such rules of procedure must be diligently adhered to by the trial courts.

The concept of full and fair disclosure is widely accepted and complied with within the United Kingdom. Indian lawmakers can draw inspiration from the Attorney General’s Guidelines on Disclosure and come up with a law or similar guidelines.

Again, it cannot be stressed enough that the apex court has time and again held that the role of the public prosecutor is to assist the court and discover the truth. The Public Prosecutors should consider it to be their duty to do all that is necessary to arrive at what is true even if it means revealing the exculpatory materials as the aim of everyone standing and conducting a trial is nothing but ‘justice’.

References

  1. Attorney General’s Office, Attorney General’s Guidelines On Disclosure, GOVERNMENT OF UK (June 22, 2020).
  2. Brady v. Maryland 373 U.S. 83 (1969).
  3. Gurmeet Ram Rahim v. Central Bureau of Investigation & Others, CRM-M No. 45571 of 2018.
  4. Jayeshbhai Khemchandbhai Patel v. State of Gujarat, 2017 (2) GujLH 580.
  5. Krishna Lal Chawla v/ State of Uttar Pradesh, (2008) 8 SCC 781.
  6. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
  7. State of Orissa v. Debendra Nath Padhi, AIR 2003 SC 1512.
  8. K. Sasikala v. State, (2012) 9 SCC 771.