Hidden evidence, imperiled rights: The case for fair disclosure

In a democratic functioning of the criminal justice system, society naturally expects a fair procedure for investigation and trial. In fact, Article 21 of the Indian Constitution, which protects the life and personal liberty of every person, envisages the principle of a fair and impartial trial. It is naturally expected that the prosecution upholds principles of fairness from the beginning of a criminal trial.

The first stage in a criminal trial is when the accused seeks discharge and the judge has to decide whether to frame charges. At this stage, the judge has to consider whether the evidence at hand shows a sufficient probable cause for the accused to be guilty. For such a consideration to be fair, all material having a bearing on the case should be placed before the court. However, in practice, at the stage of disclosure of evidence to an accused, the prosecution is required to present only the material it intends to rely upon. As a result of this, the court’s consideration at the stage of discharge is restricted to the material disclosed [see Section 230 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Section 207, Code of Criminal Procedure, 1973 (CrPC)].

This article examines whether the ongoing practice of selective disclosure aligns with the principles of fairness in India’s criminal justice system, especially in the adversarial legal framework where equal access to evidence is paramount for justice. It also argues that to avoid miscarriage of justice and reduce the burden on trial courts, new material should be allowed to be considered at the stage of discharge.

Seeking discharge is one of the most protected rights of an accused. It is at this stage where the court gets an opportunity to analyse whether a case for trial has been made out. However, as per the widely adopted legal position, the court’s consideration at this stage is restricted to prosecution’s evidence and the accused is not allowed to produce any defense evidence (See, for instance, State of Gujarat v. Dilipsinh Kishorsinh Rao). As per Section 227 or 239 of the CrPC, the court has to rely on ‘record of the case’ while considering discharge. However, as noted in State of Orissa v. Debendra Nath Padhi, the term ‘record of the case’ is restricted to the material produced by prosecution. Thus, as per the widely adopted legal position, the court cannot consider evidence not forming a part of the chargesheet. 

At the stage of disclosure under Section 207 CrPC (which occurs after the court takes cognizance of the case based on the report of the investigating agency), the court is duty bound to furnish all the materials to an accused, on which the prosecution has chosen to rely upon. The primary aim of disclosing the said material is to ensure that the accused gets a fair chance to conduct his defense.

The provisions concerning discharge and disclosure share a common link, concerning the evidence on which the prosecution seeks to “rely upon” and “proposes to examine”. This gives wide discretion to the prosecuting agency to selectively disclose incriminating evidence, potentially suppressing material that may favour the accused. However, pertinently, the prosecutor is barred from suppressing material that could lead to the accused’s acquittal pursuant to Rule 16 of the Bar Council of India Rules.

Due to the discretionary powers given to the prosecution, the scope of disclosure has been widely discussed before the Indian courts. The watershed moment in this scope of disclosure came in Siddhartha Vashisht @ Manu Sharma v. State, where the Supreme Court observed that disclosure should not merely consist of those documents that the prosecution chooses to rely upon, but even the documents forwarded to the magistrate under Section 170(2) of CrPC. The Court specifically observed that the accused has a right to receive all documents and statements, and has the power to move an application for production of any record. This position was further reaffirmed by the Supreme Court in VK Sasikala v. State and in Nitya Dharmananda v. Gopal Sheelum Reddy.

In Re: Guidelines regarding Inadequacies and Deficiencies, the Supreme Court identified a situation where the investigating officer could ignore or not rely upon seized material, and not forward such material to the magistrate. To avoid such a situation, the Court introduced a certain Rule 4 in the Draft Rules of Criminal Practice, which mandated that the magistrate should be provided with a list of material seized during investigation and in the prosecution’s possession, irrespective of the reliance on the said material by the prosecution.

Despite the judgments above, the interpretation of the courts has been rather inconsistent. For instance, in Ponnuswamy v. State of Tamil Nadu, the Supreme Court restricted the application of this right to provide documents not being relied by the prosecution to only after framing of charges in the trial. Similarly, in Sarala Gupta & Ors v. ED, the Court specifically observed that this right is not available at the stage of discharge. Even in Nitya Dharmananda, the production of material before the magistrate was restricted to the material available with the investigating agency and not the material held by the accused.

In Rukmini Narvekar v. Vijaya Satardekar, Justice Markandey Katju opined that in rare and exceptional cases, some defence material could be looked into even at the time of framing of charges. Dissenting with Justice Katju’s opinion, Justice Altamas Kabir observed that the power under Section 227 of the CrPC is narrow, and a trial court cannot consider any evidence being placed before it by the accused. Justice Kabir, relying on Debendra Nath, distinguished between proceedings under Section 227 of the CrPC with the proceedings for quashing under Section 482 of the CrPC and Article 226 of the Indian Constitution. He held that powers under Section 482 and Article 226 are wide enough to allow the High Court  to consider unimpeachable evidence of sterling quality put forward by the defence.

Ironically, Justice Kabir’s opinion makes it seem that the appellate and writ courts are vested with wide powers to do justice at the early stage of proceedings before them, but the same is not granted to a trial court. This legal position ignores the possibility where the accused may have material demonstrating its innocence. It is principally unfair that the accused cannot produce any material proving his innocence at the stage of discharge before the trial court. The trial court should be driven by a non-adversarial spirit of unearthing the truth and doing complete justice.

The position outside India is seemingly more aligned towards the principle of fair disclosure. For instance, in the United Kingdom (UK) and the United States of America (USA), the prosecution is mandated to identify and disclose any material which is found during investigation, especially when it favours the accused (for United Kingdom, see, Sections 3 and 7A, Criminal Procedure and Investigations Act 1996 and Attorney General’s Guidelines on Disclosure; for USA, see, US Supreme Court judgment in Brady v. Maryland and Standard 3-5.4, American Bar Criminal Justice Standards).

In the UK, non-disclosure of any material found during investigation amounts to “irregularity in the course of the trial”, under Section 2(1)(a) of the Criminal Appeal Act (See, R v. Preston & Ors. (1993) 4 All ER 638). Similarly, in the US, this amounts to prosecutorial misconduct and a violation of the due process termed as the “Brady Violation”. Thus, it is evident that the legal position in India is lagging behind foreign jurisprudence.

A paradox exists in the Indian criminal justice system. When it comes to the stage of discharge, on one hand, the prosecution has the discretion to rely on handpicked evidence, while the accused is forced to rely only on the material relied on by the prosecution. The problem lies in the root, which is lack of complete disclosure regime and a systemic lack of trust in the trial courts’ capacity to evaluate defence evidence independently. The power which is given to the appellate and writ courts should also be given to trial courts.

Genuine procedural fairness in an adversarial justice system demands a level playing field for both sides to put forth their case. The legal position should be adjusted to ensure that when any material is of exculpatory nature, the same should be disclosed and allowed to be relied upon at the stage of framing charges. The accused should be allowed to produce exculpatory materials of sterling and unimpeachable quality while seeking discharge.

Time and again, we hear about how the courts are overburdened with pending cases. Despite this, the criminal justice system often chooses to lament over this issue and consciously avoid adopting procedural reforms offering practical relief. Embracing a liberal disclosure regime and empowering trial courts to consider unimpeachable evidence produced by an accused gives more room to trial courts to avoid such delays, preserving valuable judicial and public resources.

Manu Sharma is a Senior Advocate designated by the Delhi High Court.