It is a matter of great sigh of relief that none other than the Supreme Court of India in a most laudable, learned, landmark, logical and latest judgment titled P Ponnusamy vs State of Tamil Nadu in Criminal Appeal No(s). of 2022 [@ Special Leave Petition (Crl.) No(s). 9288 of 2022] and cited in 2022 LiveLaw (SC) 923 that was pronounced as recently as on November 7, 2022 by a 2 : 1 majority held most rationally, robustly and remarkably that an accused has the right to receive the list of the statements, documents, material etc. in the possession of the prosecution even if Draft Rules of Criminal Practice are not yet adopted.

It would be vital to note that the Hon’ble Mr CJI Uday Umesh Lalit and Hon’ble Mr Justice S Ravindra Bhat disagreed with the Hon’ble Ms Justice Bela M Trivedi who while dismissing a criminal appeal observed that this right is available only after the Draft Rules are brought into force. I too personally will go with majority view because why should the rights of the accused in one state prejudicially different from that afforded to an accused in another state just because State Government errs in not implementing the Draft Rules in time?

It must also be asked: Why should an accused suffer immeasurably just because of a wrong act of the State Government to not implement the Draft Rule in time? You tell me! So I will certainly prefer to lay my unremitting focus only on majority judgment as it will not be possible for me to do justice with both the differing judgments in one go!

At the very outset, it must be mentioned that the Bench of Apex Court comprising of Hon’ble Mr CJI Uday Umesh Lalit and Hon’ble Mr Justice S Ravindra Bhat sets the ball rolling by first and foremost putting forth in para 1 that:
Leave granted. This appeal arises out of an order dated 14.09.2022 in RT No. 2/2021, by the High Court of Judicature at Madras. In those proceedings, the High Court had by order dated 27.04.2022 fixed the hearing of the main proceeding – which is a death reference.

To put things in perspective, the Bench then envisages in para 2 that:
The appellant and some others were convicted under Section 302 of the IPC along with other provisions and Section 120B. The appellant (A1); A3; A4; A5; A7; A8 and A9 were sentenced to death. Consequently, reference was made to the High Court which was seized of all the proceedings and heard it from time to time. On 27.04.2022 after ascertaining convenience of all the counsels the appeals were listed for final hearing on 15.06.2022. The judgment of Bela Trivedi J., has recounted all these facts in detail. The further proceedings which took place before the High Court, the hearing and the order made on 14.09.2022, declining to direct State to produce documents enlisted in letter written to the public prosecutor on behalf of the appellant on 05.09.2022, is impugned here.

It is most important to note that the Bench then observes in para 3 that:
The final order proposed by Bela Trivedi J., of rejecting an appeal is in our opinion justified in the circumstances of the case. However, we are unable to agree with the observations made during the course of her order as to the nature of the directions made in Suo Motu W.P. (Crl.) No. 1 of 2017, concerning the right of the accused to be supplied with documents or material, seized or collected during the investigation, but not relied upon.

Simply put, the Bench then mentions in para 4 that:
While hearing a criminal appeal (Criminal Appeal No. 400/2006) and connected matters, concern was raised regarding common deficiencies and practices adopted by trial courts in the course of criminal trial and disposal of cases, in the absence of uniform guidelines. This resulted in Suo Motu WP (Crl.) No. 1 of 2017, wherein this court appointed amici curiae, and issued notice to all High Courts and governments of all States and Union Territories, so general consensus could be arrived at regarding the need to amend rules of practice/criminal manuals to bring about uniform best practices across the country. (Order dated 30.03.2017 in Suo Motu WP (Crl) No. 1/2017). The court noted salient aspects and inconsistencies in the practices and rules of the High Courts.

As it turned out, the Bench then points out in para 5 that:
A wide consultative process was undertaken. Firstly, High Courts and governments of States/Union Territories, filed their responses. Taking note of these, the amici curiae prepared a consultation paper and invited written responses from stakeholders. Next, a colloquium was convened on 30.03.2019 to discuss this paper, wherein High Courts, governments of States/Union Territories and police departments participated. Based on the feedback, the amici curiae prepared a report containing the ‘Draft Rules of Criminal Practice, 2020’ which was taken on record on 05.03.2020 and made available (accessed on 31.10.2022, 18:28 pm) publicly through the Supreme Court website.

To be sure, the Bench then discloses in para 6 that:
Before passing directions on the same, this court thought it appropriate to hear the High Courts again, on these draft rules. (See order dated 27.10.2020, and again on 19.01.2021 in Suo Motu WP (Crl) No. 1/2017.). Once responses were received from all High Courts, the matter was heard; in the final order dated 20.04.2021 (Reported as Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re. v. State of Andhra Pradesh and Ors., (2021) 10 SCC 598.) it was noted that most of the suggestions had been agreed upon, except in regard to few aspects – the divergence, or additional points of view, were taken note of (Ibid, para 9.).

Briefly stated, the Bench then points out in para 7 that:
The amici curiae had pointed out that before the commencement of the trial, the accused only receives a list of documents and statements relied upon by the prosecution but is kept in the dark on other material in the possession of the prosecution, even if it has exculpatory value. On this, the court unequivocally held:

11. … This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, 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 accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC (Section 91 Summons to produce document or other thing) for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)] (emphasis supplied).

Be it noted, the Bench then specifies in para 8 that:
Rule 4 of Draft Rules of Criminal Practice 2021, which was appended to, and considered part and parcel of this court’s order, reads as follows:

4. Supply of documents under Sections 173, 207 and 208 CrPC.—(i) Every accused shall be supplied with statements of witness recorded under Sections 161 and 164 CrPC and a list of documents, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208 CrPC. Explanation : The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer.

While continuing in the same vein, the Bench then observes in para 9 that:
The matter was disposed of with the following directions:

19. The Court is of the opinion that the Draft Rules of Criminal Practice, 2021, (which are annexed to the present order, and shall be read as part of it) should be hereby finalised in terms of the above discussion. The following directions are hereby issued:

19.1. All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the State Government’s co-operation is necessary in this regard, the approval of the department or departments concerned, and the formal notification of the said Draft Rules, shall be made within the said period of six months.

19.2. The State Governments, as well as the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today.

While duly acknowledging the relentless efforts made in framing Rules, the Bench then commendably notes in para 10 that:
The Draft Rules framed, therefore, were a product of a thorough consultative exercise undertaken to remedy asymmetries caused by the lack of uniformity in Rules across States, which could hamper appreciation of evidence, and in turn delay proceedings, especially at the appellate stage. Recognition of the need to streamline trials or mitigate delays, however, cannot come at the cost of the accused’s right to fair trial.

While elaborating on the relevant case law, the Bench then hastens to add in para 11 that:
Taking note of the case law in Siddharth Vasisht @ Manu Sharma v. State of NCT Delhi (2010) 6 SCC 1 (referred to as ‘Manu Sharma’). See paragraphs 187, 199, 201, 202, 218-222 (relied on in Manoj & Ors. v. State of Madhya Pradesh), this court in Manoj & Ors. v. State of Madhya Pradesh (Judgment dated 20.05.2022 in Criminal Appeal Nos. 248-250 of 2015; 2022 SCC OnLine SC 677.), highlighted the dual role played by the public prosecutor and the court in safeguarding the accused’s right to fair investigation and trial, by scrutinizing the material and ensuring fair disclosure. In light of this, and the aforementioned draft Rule 4, this court went on to hold in Manoj that:

…In view of the above discussion, this court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules.

Furthermore, the Bench then adds in para 12 that:
In addition to the decision in Manu Sharma (as noticed in Manoj), there is another decision – Manjeet Singh Khera v. State of Maharashtra (2013) 9 SCC 276 - which had highlighted how the requirement of disclosure, is an intrinsic part of the right to fair trial under Article 21 of the Constitution. This was also reaffirmed in P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161 where it was held that furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. Relying upon its previous decision in V.K. Sasikala v. State (2012) 9 SCC 771, this court noted in Manjeet Singh Khera:

…In that case, the documents were forwarded to the court under Section 173(5) CrPC but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect: (V.K. Sasikala case [V.K. Sasikala v. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , SCC p. 788, para 21)

21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view [V.K. Sasikala v. State, 2012 SCC OnLine Kar 9209] taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced. (emphasis supplied).

Most significantly, the Bench then unequivocally holds in para 13 that:
It is true that this court in V.K. Sasikala (supra) was dealing with material/documents that were forwarded to the Magistrate under Section 173 CrPC, but were not being relied upon by the prosecution. However, it is undeniable that there could also arise a situation wherein the investigating officer, ignores or does not rely on seized documents, material or evidence which favours the accused, and fails to forward it to the Magistrate [as required under Section 173 CrPC, specifically sub-section (6)]. Merely because it is not already on the record of the court, cannot disentitle the accused from accessing material that may have exculpatory value. It is this gap, that was recognised and addressed (paragraph 11 of final order) in the suo-moto proceedings, and suitably codified in the text of the Draft Rule 4, by introducing a requirement of providing a list (at the commencement of the trial) of all documents, material, evidence, etc. seized during the course of investigation or in the possession of the prosecution, regardless of whether the prosecution plans to rely on it. The facts in Manoj, having reflected such a situation (of suppression of evidence that favoured the accused) similarly, necessitated elaboration of this right.

Equally significant is what is then underscored in para 14 wherein it is mandated that:
The framework that emerges (by reading Section 173, 207, 208 and Draft Rule 4) is that based on the list of statements, documents, etc. received at the commencement of the trial, the accused can seek appropriate orders under Section 91 of the CrPC, wherein the magistrate on application of judicial mind, may decide on whether it ought to be called for. Additionally, by virtue of Section 391 (Appellate Court may take further evidence or direct it to be taken.) of the CrPC, the appellate court, if it deems necessary, may take further evidence (or direct it be taken by a magistrate or court of sessions) upon recording reasoning. This safeguards the right of the accused in a situation where concern has been raised regarding evidence or material in possession of the prosecution, that had not been furnished, but was material to the trial and disposal of the case.

It is worth noting that the Bench then reveals in para 15 that:
By way of Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1 of 2017, this court was apprised of the fact that some states had complied, and other had not complied with the directions in final order dated 20.04.2021 (Suo Motu WP (Crl) No. 1/2017) regarding adoption of the Draft Rules and amending police manuals, etc. in a time-bound manner (6 months); the states were directed (By order dated 28.04.2022 in Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1/2017) to comply within 8 weeks and the matter is still pending.

Most forthrightly, we cannot afford to close our eyes to what the Bench then holds in para 16 that:
That some High Courts or governments of the States/Union Territories have failed to comply with this court’s order and are delayed in adopting the Draft Rules or amending the concerned police/practice manuals, cannot prejudice the right of an accused (to receive this list of the statements, documents, material, etc. in the possession of the prosecution), which has unequivocally been recognized by this court in its final order (Order dated 20.04.2021 in Suo Motu WP (Crl) No. 1/2017, reported as Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re. v. State of Andhra Pradesh and Ors., (2021) 10 SCC 598.) of the suo-motu proceedings (paragraph 11, extracted above), itself. Further, to say that the judgment in Manoj in relation to this, and the right of the accused to receive the said list of documents, material, etc. would only apply after the draft rules are adopted – would lead to an anomalous situation where the right of the accused in one state, prejudicially differs from that afforded to an accused, in another.

It would be worthwhile to mention that the Bench then specifies in para 17 that, As stated earlier, the requirement of disclosure elaborated on in Manoj, not only was premised on the formulation of draft rules, but normatively premised on the ratio of the three-judge bench decision in Manu Sharma (supra). In these circumstances, the proper and suitable interpretation of the disclosure requirement in Manoj (supra) would be that:

1. It applies at the trial stage, after the charges are framed.
    
2. The court is required to give one opportunity of disclosure, and the accused may choose to avail of the facility at that stage.
    
3. 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.
    
4. At the appellate stage, the rights of the accused are to be worked out within the parameters of Section 391 CrPC.

Most remarkably, the Bench then mandates in para 18 that:
That the accused, has a right to fair trial, was not in doubt; but what is reiterated is that this right is manifested in the fair disclosure requirement elaborated above. While the concern of delay in conclusion of trial undoubtedly weighs heavily in the mind of the judge, it cannot entail compromise of the right of the accused to fair investigation and trial.

Finally, the Bench then aptly concludes by holding in para 19 that:
Having regard to the above discussion we are of the opinion that the circumstances in which the request was made – through the letter after appeal was set down for hearing despite repeated opportunities, was not justified. The appellant could have sought recourse by filing an appropriate application, in accordance with the procedures set out above, well in time. We therefore agree that the appeal made at this late stage, appears to be to prolong the hearing. In these circumstances, the Court declines to interfere. The appeal is accordingly dismissed.

To summarize, the long and short of this notable judgment is that accused has the right to receive materials in possession of prosecution even if draft criminal rules have not been adopted in any particular State. Why should an accused be made to suffer punishment only because of a State erring in not notifying the Rules? This alone explains why the majority Bench have so decisively held so in order to protect the legal rights of the accused to which he/she is entitled and cannot be punished for a failure of the State Government to act well in time! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.