The Accused Person’s Right to Rely on Exculpatory Material at the Stage of Framing of Charges

By Nipun Kalra



The right to seek discharge is one of the most important rights of an accused in a criminal justice system. This gives an opportunity to the court to filter out the cases which are meritless. However, at this stage, the court is confronted with very limited material. In a large number of cases, the Supreme Court has held that the court cannot look beyond the material presented by the prosecution. Ultimately, this leads to prosecution solely choosing the material which is incriminatory in nature. However, in the notable judgment of Nitya Dharmananda v. Gopal Sheelum Reddy, the Supreme Court again raised a question regarding the scope of the right of the accused to rely on material other than the police report, in order to make a case for discharge. The Court, in this regard, stated that if the material is of sterling quality then the same can be relied upon. However, the author believes that the use of this term does not clarify the position of law.

Therefore, through this article, the author explores the scope of the accused person’s right to rely upon the material other than the police report. Firstly, the role of the public prosecutor has been traced. Thereafter, relevant statutory provisions and case laws have been enlisted. By the use of Relevancy and Admissibility as concepts, it is then demonstrated that how not relying upon the accused person’s material can lead to failure of justice.

Role of Public Prosecutor

It is settled law that fair and just investigation is a hallmark of any investigation. The prosecutor has been appointed as the officer of the state under Section 25 of the Code of Criminal Procedure (CrPC). In the case of Ashutosh Verma v. CBI, it was held that prosecution cannot pick and choose evidence, and the accused must be supplied with those materials which support the accused’s case and are ignored by the prosecution. The duties of a public prosecutor extend to ensuring that there is fairness involved in the proceedings. It should be ensured that for the just determination of truth if the magistrate feels appropriate, the accused must be supplied with those materials which are in the prosecution’s possession.

Additionally, in common law jurisdictions, the role of the prosecutor is not restricted to securing convictions but extends to bringing forward all material evidence even if it falls in favor of the accused. The impartiality of the prosecutor is as fundamental as the impartiality of the Court. And it shall be considered as a violation of the due process if prosecution has suppressed evidence which is material to the case of the accused.

Statutory Scheme of Related Provisions

Under CrPC, the law relating to discharge has been given under Section 227 and Section 239. Depending on the nature of the offence, these provisions are applicable (Section 227 provides for discharge in Sessions cases while Section 239 is applied in Magistrate cases). In this article I will only refer to Section 227 for explaining the law, which states:

“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.”

The above provision uses the expression “record of the case”. This leads to the inference that the Court can only decide a case on the basis of the police report and other documents submitted alongside, as to whether the person can be discharged, on consideration of the grounds of conviction. Hence, in most cases, the police report would necessarily entail the material in favour of the prosecution. Therefore, it is important to know what all, this police report contains. The relevant provision in this regard is Section 173(5), which refers to police report containing “all documents or relevant extracts thereof on which the prosecution proposes to rely”. The above expression limits the scope of the report to the material posited by the prosecution.

This provision is openly misused by the investigating agencies to selectively choose the evidence which serves their ends. They go on to heavily rely upon incriminating evidence and avoid the exculpatory material in order to maximize the chances of conviction. In such a situation, either the court or the accused must have a right to summon such material, which has exculpatory tendencies. Section 91(1) of the CrPCstates:

 “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.”

The above provision is wide enough to be used at the stage of discharge by the court. However, this has still been not used due to the effect created by Section 227 and Section 239 (provisions relating to discharge), which limit the scope to the police report, in the first place. Hence, the tussle between the above provisions has resulted in the court choosing only those materials which are filtered down by the investigating agencies.

The effect of the aforementioned provisions was first seen in the case, State of Orissa v. Debendra Nath Padhi. The 3-judge bench of the SC in Paragraph 11 of the judgment ruled that the accused could not avail the right to file material in his/her favour at the stage of discharge. This would practically mean that the said right could only be used at the stage of the trial. In effect, this would lead to prejudice against the accused, leaving him with no remedy against the blatantly wrong conduct of investigating functionaries at the stage of discharge. The above position was repeatedly used by the Court to exclude the accused person’s say from the stage of discharge.

Latest Position: Law of the Land

The Supreme Court in the case of Nitya Dharmananda v. Gopal Sheelum Reddy, in this regard, ruled that: 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.”(Paragraph 9)

The dictionary meaning of the term “sterling” is something which is very good in quality. This expression when used in reference to the material which has been withheld by the prosecution, does not provide a clear meaning to include within it the material which might be in favour of the accused person. The use of this term does not do justice to the purpose that has to be achieved because the same is open to different interpretations and subjectivity when applied by different judges. Evidence that might be of sterling quality to one judge might not be to another. Hence, this accords unguided discretionary power to the judges and makes the law judge-centric in nature.

Thus, in order to give meaning to the term “sterling quality”, it is necessary to recognize the implications that are there in deciding the permissibility of any evidence in the Court of Law.

Relevancy and Admissibility

It is the duty of the prosecution to bring all prima-facie evidence before the court. Although discretion has been accorded to the prosecution, it is required that the prosecution relies on all the relevant evidence. In this regard, a bare reading of the Section 5 of the Indian Evidence Act, 1872 is important. The said section reads as:

“…Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”

Relevant evidence means evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. High probative value of evidence is considered when an examination of its source indicates that it would have been given considerable weight by the judge. That the prosecutor honestly doubted the admissibility or reliability of the undisclosed information does not preclude reversal, because the attention of the court is focused solely on the probable accuracy of the judgment and not on the competency or intent of either counsel. Relevancy Test

For relevancy of a fact, there needs to be satisfaction of two types of relevancies:

  1. Logical relevancy– It means that the evidence must tend to prove or disprove a fact at issue. If a fact present is either the cause or has an effect over the final outcome, then it can be used. For example, if there is any material that has a tendency to negate the dishonest intention on the part of the accused, then the said evidence cannot be excluded. This is because of the logical relation between the facts and the issue at hand. This further means that not all logically connected facts are admissible in the Court of Law.
  2. Legal relevancy– It means the evidence must be admissible and cannot be used to prove something that is inadmissible or not provable in the case. This simply indicates that the evidence in question should be ‘legal’ in nature.

Failure of Justice Caused by Suppression of Evidence

According to S. 465 of the CrPC, any finding, on appeal, of error, omission or irregularity in the course of trial proceedings shall not warrant a vitiation of the proceedings unless such error, omission or irregularity has resulted in a failure of justice. To determine “failure of justice” the Court must examine whether the accused was given a full and fair chance to defend herself. Non-reliance on important evidence must compulsorily necessitate vitiation of proceedings because a tailored or perfunctory case by the prosecutor leading to conviction is regarded as causing injustice to the accused. Moreover, non-disclosure of copies of the relevant material to the accused will deprive him of a reasonable opportunity to defend himself.

Additionally, grave prejudice can be caused to the accused person if the exculpatory evidence is purposely kept out of the purview of the Court. Article 10 of the UDHR and Article 14 of the ICCPR also mandate that everyone should be entitled to fair and public hearing, with equality by the impartial tribunal.

Furthermore, the basic presumption in the criminal administration system is the innocence of the accused till charges are proved beyond reasonable doubt. Therefore, the substantive omission to rely on accused person’s evidence can cause an error of incurable nature, thereby warranting a fresh trial.


The Supreme Court, in the case of Nitya Dharmananda, has taken a liberal stance by ensuring that a fair trial is given to the accused through the application of Section 91. However, this move has to be seen in terms of its compatibility with the earlier position in law, when the accused person had no right to bring up any material during the hearing for discharge. Even after this judgment, the accused person has to prove that the material she has brought before the Court is of sterling quality, the standard for which is not defined anywhere. This does not quite change the accused person’s position for better. The move has rather shifted the burden on the accused to prove that the material he has brought, is good in law.

Although the move to rely on accused person’s evidence is welcomed with open arms, the objective reasons have to be taken into account. Measures like cross-examination of defence witnesses at the stage of discharge can be introduced so that the judges can apply their judicial minds in the most comprehensive way possible. The hurdles in the implementation of necessary measures should not stop us from achieving an equitable system. The overburdened judiciary cannot be used as a defense to prevent important inquiries into a matter as this would practically imply denial of due process and hence, justice. Therefore, only when the decision in Nitya is given an effective meaning, can fairness be ensured in the criminal justice system.

[The author is a second-year B.A. LL.B. (Hons.) student at National Law University, Delhi.]


One thought on “The Accused Person’s Right to Rely on Exculpatory Material at the Stage of Framing of Charges

  1. Iam unable to understand that how not giving an opportunity to accused to produce material in his favour at the stage of framing charges will lead to denial of fair trial and failure of justice. The stage of framing charges, which is first step in the Trial, requires the court to look for prima facie case based on the material produced before court. At this stage court does’nt need to satisfy itself that, whether material is sufficient enough to warrant a conviction. Once court frame charges the defence gets enough opportunity to produce their evidence and cross examine the prosecution. If you advocate for pressing all the evidence from defence side and cross examining at the stage of framing charge itself, then i hardly see trial ever coming to an end. Moreover it is not possible to provide every evidence at the stage of charge and in most of the cases evidence unfolds as the trial proceeds. There are enough safeguards to ensure fair trial to accused including Sect.313 CrPC (Examination of accused by the court) and Sect. 165 Indian Evidence Act (Court’s power to call documents and persons). Imposing an additional requirement in trial procedure( on the already overburdened trial courts) based on a procedural law which is always condemned as more accused friendly and hardly have any space for victims, will actually lead to denial of speedier justice to victims. Rather than to talk about accused rights everytime in the backdrop of a code which ensures enough opportunities to an accused, we should actually focus on ground realities and to look for a procedure which ensures justice in a timely fashion.


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