Indian criminal procedure promises an early checkpoint and filter against injustice. The charge or discharge hearing is meant to be precisely that: a judicial pause, a moment to ask whether the material before the court genuinely warrants putting a citizen through the long, coercive ordeal of criminal process; a process that is the punishment itself.

In theory, this is where weak cases die early and strong ones proceed.

In practice, it has become something else altogether: a largely one-sided ritual, where courts are asked to decide whether a case should go to trial by looking only at what the prosecution chooses to show them.

The result is a paradox at the heart of our criminal process: a hearing meant to filter out baseless prosecutions is structurally incapable of seeing the full picture.

The problem begins with how the expression “the record of the case” is understood. Under the Code of Criminal Procedure (CrPC) and its successor Bharatiya Nagarik Suraksha Sanhita (BNSS), the court, at the stage of framing charge or considering discharge, is to examine the police report and the documents submitted along with it. That sounds neutral, until, of-course, one notices what the record of the case really is.

The police report contains only those materials the prosecution relies upon. Everything else collected during investigation - statements that don’t fit the narrative, documents that complicate the story, CCTV footage that contradicts timelines or documents that show a perfect alibi - may remain buried, suppressed and then unseen by the court and unknown to the accused.

The law, as it operates today permits a curious asymmetry:
the State investigates everything, but discloses selectively;
the court adjudicates on charge early, but on a well curated/self-serving prosecutorial record. And finally, the accused is asked to defend a case without knowing the whole picture, without knowing what was left out and, at any rate, without access to those materials, and without being able to get any material before the court herself.

This is not just a procedural quibble. In a system where trials routinely last years, sometimes decades, the charge stage is crucial. It is often the decisive moment when liberty is lost, reputations collapse and punishment begins long before trial even starts.

There was a time when the law appeared more open to course correction. In the late 1990s, the Supreme Court recognised in Satish Mehra - cautiously but clearly - that if an accused could produce unimpeachable material at the charge stage which completely falsifies the prosecution case, the court need not blind itself to it. This was not an invitation to conduct mini-trials, but an acknowledgment of common sense: if the foundation is demonstrably false, why work on building a house of cards?

That line of reasoning, however, was decisively and unfortunately curtailed in Debendra Nath Padhi. The Supreme Court held that the accused has no right to produce material at the stage of framing charge and that the defence must confine itself to the prosecution’s record. Section 91 CrPC, which empowers courts to summon documents, was said to “ordinarily” apply only at the defence stage, not at the stage of discharge.

With this, a door quietly closed. The word “ordinarily” was thought of, by some, as a carve-out for those exceptional cases where the gravity of injustice would compel the court to entertain material even at that stage. But it has unfortunately remained a dead letter in practice and is of little practical utility.

In fairness, the judgment in Padhi rested on a legitimate concern - that charge hearings should not become full-blown trials. But in seeking efficiency, it sacrificed balance. The Court swung to an extreme position where it completely shut out material. It conflated two very different things: speculative defence evidence on the one hand and already-existing, potentially exculpatory material in the State’s possession on the other. While the former should be checked, the latter ought to have been permitted. But the judgment fails to appreciate that distinction. 

The effect of Padhi was not merely doctrinal. It reshaped courtroom culture. Most discharge hearings across the country became predictably mechanical. Judges learned that the safest course was to look only at the charge-sheet, repeat the mantra of “grave suspicion” and “prima facie” case being disclosed, and take the matter to trial.  

The fact that more often than not, judges’ incentives also do not properly incentivise incisive and time-consuming discharge hearings compounds the problem. In simpler words, a judge, on a purely unit/points level (which matter in judges’ performance evaluation), gains more by taking the matter to trial, recording a final judgment/acquittal instead of conducting a discharge hearing and writing a lengthy discharge/charge order. The proper rationalisation of the unit/points system is also long overdue and, probably, a piece for discussion another time.  

This approach of excluding exculpatory material would be defensible if trials were swift and consequences reversible. They are neither.

A person wrongfully charged does not simply “face trial”. They face threat of custody for years, years of court appearances, professional stigma, travel restrictions and the slow erosion of personal and financial stability. For many, acquittal comes too late to repair the damage. Especially when few courts use their powers to punish perjury and false complaints at the time of final disposal of the case.

In this context and background, insisting that exculpatory material (which was clearly available during investigation) must wait until the defence stage is not procedural discipline; it is procedural cruelty.

Consider a simple, recurring scenario: CCTV footage seized during investigation clearly shows the accused elsewhere at the relevant time. The police, unconvinced or indifferent, do not rely on it. The footage is not part of the chargesheet. At the charge stage, the court never sees it. The accused knows it exists but is told that the same is a “matter of trial”. Similarly, important defence material is routinely not considered or made a part of the chargesheet and important materials such as audio recordings and communications - all showing innocence - are disregarded by the police and then by the court.

Years later, Nitya Dharmananda reopened, albeit slightly, what Padhi had shut. Without overruling Padhi, the Court seized upon its qualifying word: “ordinarily”.

The Court clarified that while Section 91 is generally invoked at the defence stage, there may be exceptional cases where documents in the possession of the prosecution, though not relied upon, have a crucial bearing on whether charges should be framed at all. In such situations, the trial court is not powerless.

This was a significant, though understated, course correction. It recognised something fundamental: fairness at the threshold is not an indulgence; it is a constitutional necessity.

But the judgment also exposed a deeper structural flaw. How is an accused to seek documents they do not even know exist? The law, even after Nitya Dharmananda, continued to assume knowledge where there was none. Also, the requirement of those documents being ‘sterling’ and ‘unimpeachable’ without any guidance on what these terms meant, created a barrier so high that few could actually surmount it.  

Recent years have seen movement. Courts have directed investigating agencies to furnish to the accused lists of un-relied-upon documents. Guidelines have been framed. High Courts have insisted on inspection rights. The INX Media litigation, in particular, made an important point: the State cannot seize documents and then deny access to them merely by choosing not to rely on them.

Yet, the dominant judicial approach remains cautious, almost to a fault. The most recent judgment, in Sarla Gupta, reinforces this ambivalence. While recognising the accused’s right to receive a list of seized documents at the charge stage, the Court stopped short of granting access to those documents themselves, relegating that right to a later stage.

Though, again, to Court’s credit, it used the expression "ordinarily", giving future litigants a sliver of hope that this door would be prised upon by compassionate adjudication in future, just like Nitya did.

But this curious procedure where the accused gets a list of un-relied-upon-documents without being able to rely on them, or even see them, does little to restore substantive fairness.

A list cannot contradict a prosecution narrative. A document can. A document that we are still depriving accused persons of.

The recurring anxiety in these cases is the fear of turning charge hearings into mini-trials. That concern is not frivolous. But it is certainly overstated. No one is arguing that disputed facts should be adjudicated at the threshold. The argument is narrower and more principled and can be summarised as: where material already collected by the State clearly negates the prosecution’s case, the court should not be compelled to ignore it.

This is not radical. Comparable jurisdictions impose a positive duty on prosecutors to disclose exculpatory material precisely to prevent wrongful prosecutions from advancing. Our system, by contrast, treats disclosure as a concession rather than an obligation.

The irony is hard to miss. We trust trial courts to decide life and liberty after years of evidence, but hesitate to trust them with limited discretion at the charge stage.

What is needed is neither judicial adventurism nor procedural chaos, but clarity.

First, full disclosure must become the norm, not the exception. At the very least, inspection of all seized material - relied or not - should be available before or at the stage of framing charge. And whatever material is relevant should be looked into without imposing artificial and often insurmountable barriers of those materials being ‘sterling’ or ‘unimpeachable’, because, frankly, no material at that stage usually satisfies such a high threshold.

Second, courts must reclaim their role as active arbiters, not passive recipients of prosecution narratives. The charge stage should involve genuine judicial application of mind, not ritualistic deference. Also, in all cases where the investigators conduct one-sided, self-serving investigations, accountability should be fixed. Investigation is a search for truth; it cannot be allowed to become a self-fulfilling prophecy and a foregone conclusion of guilt. Investigators should not be allowed to get away with only collecting incriminating evidences and presenting half-truths (or lies) before the court. 

Third, the law must recognise that delay itself is punishment. Any procedure that defers meaningful scrutiny until years later is constitutionally suspect in a system plagued by backlog. 

Finally, legislative reform may be inevitable. If the BNSS not clearly empower courts to look at the whole record where justice demands it, ambiguity will continue to be resolved in favour of caution, and against liberty. Till a reasonable future legislature corrects this painfully obvious anomaly, the courts must step in and, by progressive and due-process interpretation of these dry procedural sections, breathe life and humanity into the law.

The charge hearing is not a technical waypoint. It is the moment when the criminal process either justifies itself or exposes its harshness. A system that insists on proceeding to trial while deliberately ignoring exculpatory material in the State’s possession is not merely inefficient; it is also terribly unfair.

If criminal law is to remain a guardian of liberty rather than a conveyor belt of prosecutions, the court must be allowed to see both sides of the story before it is too late. And, that’s the only way we ensure that the criminal justice system does not become the criminal (in)justice system. And we all know that there’s very little difference between the two already.  

Bharat Chugh is an advocate and a former judge.