Right To Defend Can't Be Illusory: Karnataka HC Orders Evidence Collected Prior To NIA Probe Be Supplied To Accused In 2020 Bangalore Riots Case

A single judge bench of Justice M Nagaprasanna set aside the order passed by the special court rejecting the application filed by accused Muzammil Pasha under Section 207 of CrPC.

The bench said,

"The accused is entitled to a fair trial as the result of trial on rejecting the application could be taking away the personal liberty of the accused and therefore, affording of all opportunity to defend must be the very soul of a fair trial to be conducted against the Accused."

Case Details:

The petitioner had approached the High Court, calling in question September 27 order of Additional City Civil and Sessions Judge (Special Court for Trial of NIA Cases), Bangalore, rejecting the application filed by jim under Section 207 of CrPC.

Advocate Mohammed Tahir for the Petitioner contended that before the investigation was directed to be transferred to NIA, the Police had recorded several statements of witnesses. Those statements of witnesses do not form part of the charge sheet filed by the NIA. But, those statements are required for the defense of the accused in the trial as those statements would reveal innocence of accused No.1 or any other person alleged to be involved in the crime.

Further, a fair trial requires that all documents necessary for the defense, unless they are barred by law, should be furnished to the accused.

Special Public Prosecutor P. Prasanna Kumar for NIA submitted that whatever document that formed part of the charge sheet, is given to the petitioner. Statements that are recorded by the Police prior to the investigation taken up by NIA are not relied on by NIA, they do not form part of the charge sheet and therefore, they cannot be furnished to the petitioner and would submit that it is a matter of trial and when the trial commences, the documents that are needed can be secured in a manner known to law.

Findings:

The bench referred to Section 207(5) CrPC and placed reliance on the Apex court judgment in the case of Criminal Trials Guidelines Regarding Inadequacies And Deficiencies, In Re V. State Of Andhra Pradesh. It said,

"On a conjoint reading of Section 207 of the Cr.P.C. and the aforesaid opinion of the three Judge Bench of the Apex Court in a suo motu proceedings, what would unmistakably emerge is, the statements recorded by the Police under Section 161 or 164 of the Cr.P.C., after registration of the crime should be furnished to the accused. Sub-section (5) of Section 173 of the Cr.P.C. imposes a duty on the Police to submit a charge sheet against the accused persons along with all material documents or relevant extracts on which they propose to rely on."

The bench then noted the entire material was lock stock and barrel transferred to the NIA pursuant to the order of the Government of India. The statements under Section 161 of CrPC recorded by the Police which were transferred to NIA did not become a part of the charge sheet. NIA is in custody of those statements and it being the prosecution, ought to have furnished all those documents to the accused.

Finding fault with the special court order the bench said,

"Sub-section 6 of Section 173 of the Cr.P.C. permits investigating agency to withhold that portion of the statements recorded by them under Section 161 of the Cr.P.C., which is not relevant to the subject matter or the disclosure of which to the accused is not essential in the interest of justice and is inexpedient in public interest. This power to withhold statements or documents cannot be unbridled or uncanalised. It can only be used under the circumstances narrated in sub-section (6) of Section 173 of the Cr.P.C. Therefore, the investigating agency is not entitled to use the power according to its whim to deny the document that would be necessary for the defense of the accused."

Further, the court rejected the argument of the NIA that the accused can seek for documents withheld by the prosecution at the time of entering his or her defense. It observed, "The defense has to be built up from the commencement of trial and not on an ad hoc basis. Unless all the evidence collected during the course of investigation is furnished to the accused, it cripples construction of proper defense. Right to defend cannot be rendered illusory by tying the hands of the accused, depriving him of necessary evidence to defend himself and still claim a fair trial is being conducted."

Finally it said, "it cannot but be held to be an unfair act on the part of the respondent which would lead to an unfair trial."

Accordingly it allowed the petition and set aside the special court order.

Case Title: MUZAMMIL PASHA v. NATIONAL INVESTIGATING AGENCY

Case No: WRIT PETITION No.19012 OF 2021

Citation: 2022 LiveLaw (Kar) 212

Date of order: 06TH DAY OF JUNE, 2022

Appearance: Advocate MOHAMMED TAHIR for petitioner. Special Public Prosecutor P. PRASANNA KUMAR for NIA

Click Here To Read/Download Order