India: The Shifting Judicial Sands On Accused's Right To Rely On Exculpatory Material At The Stage Of Discharge

Last Updated: 8 March 2018
Article by Bharat Chugh and Vibhor Jain

A preliminary hearing in a criminal trial is one of great importance, and the right to seek a discharge (threshold dismissal) is an extremely valuable right that the Criminal Justice System guarantees to the Accused. This gives an opportunity to the Court to sift out meritless cases at the very threshold, and throw them out. However, the scope of scrutiny at that stage and the material that the Court can look into, in order to make that decision, are extremely limited. It has been held in a number of cases by the Supreme Court that the Court cannot look beyond the material that the Prosecution chooses to rely on, in order to decide whether to discharge the accused, or take the matter to trial.

Practice has shown that this often leads to the Prosecution relying solely only on 'self-serving' and 'incriminating' material, and suppression/withholding of evidence which is exculpatory in nature and can potentially disprove the case against the accused at that stage itself.

This has been the consistent position over the last few decades. However, the recent judgment of the Supreme Court of India in Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93 ("Nitya") has once again reignited the debate on the rather vexed question of the right of the Accused to rely on material other than the police report, to make out a case for discharge.

To set the context for the discussion right, in Nitya, a Division Bench of the Supreme Court has held:

"...it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge."

The above observations, particularly their consistency with judicial precedent, as also their desirability for the administration of criminal justice and due process, would be the subject of this piece. With that anchor in mind, let us begin at the beginning, with the first principles governing the judicial evaluation at the time of discharge.

The statutory scheme of Discharge

The provisions in the CrPC relating to the framing of charge against an accused are broadly Sections 227 and 239, depending on the nature of the offence that one is looking at. (Broadly, Section 227 provides for discharge in Sessions cases, whereas, Section 239 provides for discharge in cases triable by a Magistrate). These provisions are being reproduced below for ease of reference:

Section 227 (Discharge in cases triable by Court of Sessions)

"227 – Discharge

If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Section 239 (Discharge in police report cases, triable by a Magistrate)

"239. When accused shall be discharged.

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing"

A perusal of the above provisions would reveal that Court can discharge an accused if, on a perusal of the police report and documents sent along with it under Section 173 (for convenience, let's just call it "the Police Report"), the Court comes to the conclusion that the charge is groundless. Therefore, the statute mandates the Court to use only the Police Report as the input material, and not evaluate any other evidence, in order to arrive at a decision on framing the charge.

With that being the case, the next question that arises is: what all does this Police Report contain? Is it required to contain evidence favorable to the accused, or should it be confined to material that the prosecution seeks to rely on? What about the statements of those witnesses examined by the Investigating Officer, who have gone on to support the defence case?

The answer lies in Section 173(5) of the CrPC, which reads as follows:

"173. Report of police officer on completion of investigation.

(...)

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses..."(emphasis supplied)

Therefore, the material sent to the Court as Police Report contains all documents and witness statements which the Prosecution proposes to rely upon and examine. One can see how this can easily be used by the Prosecution in a self-serving manner. The Investigating Officer is, therefore, not mandated by law to forward to the Court, as part of his Police Report, material which might be favorable to the defense. But can the Court, on its own, look at material brought forth by the Accused? Or, is it permissible for the Accused to invoke the powers of the Court under Section 91 of the CrPC, to bring to the Court's attention documents and evidence which are exculpatory in nature, but have not been made part of the Police Report? If the Accused has either of these rights, he would be better equipped to demonstrate the charge to be 'groundless', on the face of it, without being made to go through a trial. Let's see if Section 91 can come to the rescue of such an Accused: 

Section 91 reads as follows:

"91 - Summons to produce document or other thing:

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order..."

On a bare reading, there is nothing in Section 91 that prohibits its exercise at the stage of discharge, however, Sections 227 and 239 (reproduced above) substantially whittle down the scope of looking into material beyond the Police Report, at the stage of discharge. The task of harmonization of these two provisions was taken up by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 (hereinafter, "Padhi").

Debendra Nath Padhi: No right of accused to advance material (beyond charge-sheet) to seek discharge

In Padhi, a Three-Judge Bench of the Supreme Court held that defence material cannot be advanced at the stage of framing of charge since the defence of the Accused is irrelevant at that stage, and reliance can only be placed on the record of the case as submitted by the police along with the charge sheet. The decision further held that ordinarily, there would be no right of the Accused to seek production of a document under Section 91 of the CrPC at the stage of framing of charge.

The decision was in sync with the statutory scheme and also in the interests of avoiding a 'trial within a trial', in order to reduce delays in our already overburdened criminal courts. The Supreme Court in Padhi specifically noted that Section 227 had been introduced with the specific purpose of dispensing with the erstwhile process of the committal magistrate framing charge by making an inquiry (which included examination of witnesses), which protracted the proceedings, and made the criminal justice process lengthy. It was held that the words "record of the case" in Section 227 were to be understood in light of Section 209(c) of the CrPC, which provides that in a case exclusively triable by a Sessions Judge, the Magistrate shall send to the Sessions Court "the record of the case and the documents and articles, if any, which are to be produced in evidence". Reading the two provisions together, the Court found that "No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial."

The decision also relied on the established jurisprudence relating to the nature of scrutiny at charge stage, and held: "All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused."

Even with respect to the words "hearing the submissions of the accused", the Court held that the same cannot mean that an opportunity has been granted to an accused to file material; the submissions have to be confined to "record of the case", i.e. material produced by the police.

Therefore, the legal position effectively was that the judge is to look only at the police report, while deciding whether to 'discharge, or not to discharge'. This made obtaining a discharge a herculean task for any defence lawyer, and reduced, rather unfortunately, most discharge hearings/proceedings to mere foregone conclusions and exercises in futility. This deprived the accused of an important due process right; the right to demonstrate the falsity of the Prosecution case, without going through the rigmarole of a long-drawn trial. This is unfortunate, since elsewhere, preliminary hearings are much more effective and meaningful. For instance, in US, the defence gets to cross-examine Prosecution witnesses at the stage of discharge (called a "preliminary hearing") with a view to demonstrate that there is no probable cause to take the Accused to trial.

In Padhi, what the Supreme Court envisaged was a very limited evaluation at the stage of discharge. This also led to there being practically no remedy in case an Investigating Officer, in flagrant disregard of 'due process', 'duty of fair disclosure' and principles of fair investigation, suppresses or withholds exculpatory material.

Departures from Padhi

However, subsequently, somewhat discordant notes have been struck on this issue by smaller Two-Judge Benches of the Supreme Court, firstly in Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, and recently, in Nitya.

In Rukmini Narvekar, the accused had challenged the issue of process against him by seeking quashing of proceedings before the High Court under Section 482 of the CrPC. The High Court had allowed the accused's petition by relying on evidence recorded in a separate civil proceeding in which the complainant was the plaintiff. The question before the Supreme Court was whether defence material could be relied upon by the High Court while deciding on cognizance. Justice Markandey Katju embarked upon an analysis of Padhi and observed:

"...it may also be pointed out that in para 29 of the same decision it has been observed that the width of the powers of the High Court under Section 482 CrPC and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice..."

He then proceeded to hold:

"Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568], there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted." (emphasis supplied)

Though of great practical utility, the decision in Rukmini Narvekar was decried to be of tenuous legality since the Court in this case appears to have misemployed a standard laid down in the context of inherent powers of the High Court, and proceeded to incorrectly conflate it with the powers of a court while framing a charge, which was not warranted by the decision in Padhi. Though there seems to be no intelligible differentia between the two situations; and there is no justifiable reason as to why the High Court, acting under its Section 482 jurisdiction, can examine documents of unimpeachable character of exculpatory nature, however, the Trial Court cannot.

Be that as it may, unless the Supreme Court equates the two, the law of the land remains like this: the High Court exercising its wide inherent powers can rely upon documents or material advanced by defence/accused of unimpeachable or sterling quality in proceedings under Section 482 CrPC. The same, however, is not the case with the powers of a judge framing charge, in respect of which, guidelines have been laid down in the form of the explicit text of the relevant provisions of the CrPC; reaffirmed by the Supreme Court in Padhi.

This was noticed in Rukmini Narvekar itself, by Justice Altamas Kabir, who gave a 'concurring' opinion, yet, a reading of the same shows that he held a diametrically opposite view from Justice Katju's opinion. Rukmini Narvekar, therefore, is not a good authority for the proposition that defence material can be taken into consideration at the stage of deciding the question of charge. The same was also not the issue before the Court in that case, making its precedential value highly suspect.

Nitya Dharmananda: A possible reconciliation, and a progressive one

Which brings us to Nitya, which, in our opinion, stands on somewhat better legal ground. In this case, a Bench of Justice U. U. Lalit and Justice Adarsh Kumar Goel were faced with the question as to whether an Accused, before framing of charges, can file an application under Section 91 of the CrPC, with a view to summon statements of witnesses and some documents collected in the course of investigation, but not made a part of the Police Report. In this case, the said material (statements of witnesses unfavorable to the Prosecution) was available with the police, however, had not been made part of the Police Report. The High Court allowed the petition filed by the accused and directed the trial court to summon the witness statements available with the police (and also directed the Trial Court to look into the case diary to examine as to availability of other material that had been sought by the accused) [Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449]. The Supreme Court set aside the High Court's judgment in appeal, holding that there was no right of accused under Section 91 to summon material. However, the Court held that in the interest of a fair trial, the court in its discretion may summon such material as has been withheld by the police and not made part of the charge sheet, if it is of "sterling quality" and has a "crucial bearing" on framing of charge. The ruling goes like this:

"5. 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 charge-sheet, has crucial bearing on the issue of framing of charge.

(...)

8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge."

A possible reconciliation of Padhi and Nitya Dharmananda could be the usage of the word "ordinarily" in the relevant passage of Padhi which laid down that an application under Section 91 cannot ordinarily be used by Accused to summon defence material. The new dictum of there being (1) material withheld by police/Prosecution, (2) said material being of sterling quality, and (3) said material having crucial bearing on framing of charge, can then, indeed, be sourced to the law laid down by the Larger Bench in Padhi allowing for such an observation, by saying Section 91 cannot ordinarily be used by accused for this purpose. What would constitute the 'extraordinary' event in which Section 91 can so be used? The three conditions enumerated in Nitya.

Though Nitya's compatibility with older judgments may be debatable, and there may be two views on that, but we firmly believe that the judgment must still be lauded for recognizing that the imperatives of fair trial demand that the Accused (who, unlike the Prosecution, does not have the wherewithal to privately investigate and collect evidence) should be provided exculpatory material, which has been collected by the Investigating Officer during investigation, and allow him to place reliance on the same while arguing for a discharge. In the absence of strong disclosure requirements and discovery proceedings written into the Code of Criminal Procedure itself, this judicial intervention was long due, and would go a long way in making discharge proceedings more effective. Of course, this, by itself, would not allow us to achieve the same levels of fair play that, for instance, the US system allows. Major statutory overhauling would be required to introduce a right to cross-examine (at least the material witnesses) at the stage of discharge, and to introduce defence witnesses.

However, the enormity of changes required and difficulties in implementation should not detain us from aspiring-for what would definitely be a fairer system. We feel that the justification assigned for not implementing such a system on account of courts being overburdened may not a good enough justification to cut short valuable due process guarantees. A need for pragmatism, understandable as it may be, must not take away from what the law ought to be. Until such statutory changes which guarantee that benchmark of fairness, this decision does make the process a bit more fair and objective.

This article has been authored by Bharat Chugh, Managing Associate & Vibhor Jain, Associate at Luthra & Luthra Law Offices, New Delhi.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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