Disclosure requirements

It was held by the court that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused². The rationale for providing the list of unrelied materials was to ensure that the accused may seek appropriate orders under the CrPC for their production while leading their defense evidence.

This position was affirmed in Manoj and Ors vs State of Madhya Pradesh³ and clarified with granular details in P Ponnuswamy vs State of Tamil Nadu⁴ in para 17,

“... (a) It applies at the trial stage, after the charges are framed.

• The court is required to give one opportunity of disclosure, and the accused may choose to avail of the facility at that stage.

• 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 repeatedly – the trial court can decline to issue orders, if it feels that the attempt is to delay.
• At the appellate stage, the rights of the accused are to be worked out within the parameters of Section 391 CrPC…”

It needs to be highlighted that the disclosure requirements as espoused by the Supreme Court of the United States of America in the landmark case of Brady vs Maryland⁵ popularly called Brady's rule have through a series of judgments reached an exalted status wherein the prosecution is under a constitutional duty to disclose all material, favorable information in their possession to defendants regardless of whether it is requested. A violation of the said rule can also result in overturning the conviction of the accused.

Reconsideration of the position in State of Orissa vs Debendra Nath Padhi⁶

The Supreme Court in 2004 in the case of State of Orissa vs Debendra Nath Padhi ruled that in terms of the scheme of Section 227 of the CrPC, what is necessary and relevant is only the record produced in terms of Section 173 of the CrPC and thus the accused cannot take umbrage under Section 91 of the CrPC to seek production of a document to prove his innocence. It is humbly submitted that this position would require a reconsideration in light of the ratio in Re Criminal Trial which now mandates that the list of unrelied materials has to be mandatorily supplied to the accused, as the record supplied under 173 would inevitably have this list.

Moreover, the plain reading of the Section 91 nowhere provides an embargo on the accused not invoking the said provision at the time of framing of charge. The Section is extremely broad and exhaustive which mandates production of any document which “...is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court…”

The stage of using the unrelied documents

The advancement made in the right to free trial by providing a list of unrelied documents would achieve its true meaning if clinching materials and documents having exculpatory value are allowed to be used during the framing of charge. The aspect of the use of these documents during trial at defense evidence by using Section 91 of the CrPC has been accepted by the Supreme Court in the Ponnuswamy judgment. However, it is inexplicable as to why a clinching document showcasing an accused person as innocent should only be allowed to be used during defense evidence but denied to the accused at the time of framing of charge.

The Supreme Court in 2018 in the case of Nitya Dharmananda vs Gopal Sheelum Reddy⁷ has held that,

“...It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91. However, the court being under the obligation to impart justice and to uphold the law, is not debarred from exercising its power, if the interest of justice in a given case so require, even if the accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that the material available with the investigator, not made part of the chargesheet, has crucial bearing on the issue of framing of charge…”

The judgment of the apex court in Nitya Dharmananda has not been taken into consideration while condensing the use of the unrelied documents in the Poonuswamy case. It is common knowledge among the stakeholders of the criminal justice system that maximum time in a criminal trial is consumed during the evidence stage. If the disclosure of the unrelied documents/statements at the stage of framing of charge can be used by the accused persons to highlight their innocence, it would save precious judicial time and reduce the burden on the Courts. This step would go a long way in ensuring that innocent people can save themselves from the agony of protracted litigation. Unfortunately, this aspect of ensuring effective fair trial has been missed in the new Criminal Law amendments.