Prosecutorial fair disclosure – A concept conveniently swept under the carpet?

By: Chaitanya M. Hegde


Recently, when the process of framing charges had begun in the Elgar Parishad case, the accused filed a plea before the Bombay High court seeking stay of the trial as certain vital materials relied by the NIA was not provided to them. This once again has shed the light on the long-standing lacunae in our criminal justice system, the requirement for a complete fair disclosure by the prosecution.

The ultimate aim of a trial is to discover the truth and render justice, and the process has to be fair to all the concerned stakeholders, i.e., the victim, society at large and the accused. Article 21 of the Indian Constitution encompasses a right to a fair trial, which is recognized by the Universal declaration of Human rights and International covenant on civil and political rights as well. By refusing fair trial, injustice is meted on the accused in the same manner as it affects the victim and the society. An accused has the power to defend his/her innocence as per the Code of Criminal procedure, 1973 (‘CrPC’). However, it is only the investigating authority who has power to investigate the case at the pre-trail stage. So, an accused’s power to defend himself emerges once charges have been framed and cognizance has been taken by the Magistrate. It is here that the concept of prosecutorial fair disclosure emerges. It postulates that once the investigation is completed, the investigating authority has to identify and disclose all the information which affects the case. And specifically, those documents that negates the guilt of the accused, mitigates the offence charged or reduces the punishment of the accused if convicted.

The Indian criminal justice system poses a troubling obstacle here, which has been seldom given the due consideration it requires. At the pre-trial stage, there exists no statutory duty on the investigating authority to make a complete fair disclosure and furnish all information collected by them in a case which has been instituted by registering a police complaint and recording a police report (FIR). So, in the process of investigation, if the investigating authority comes across evidence which does not benefit them or supports the case of the accused, there exists a leeway for them to not disclose the same. By virtue of this, discretion is present with the investigating authority to determine the structure of the case, thereby, deeply affecting the rights of an accused at the pre-trial position. In this article, the author elaborates on this unfair procedure, looks at the judicial decisions and addresses the issue.

Procedure under the CrPC

Chapter 12 of the CrPC provides the police with the power to investigate an offence. Once the investigation is completed after registering an FIR, the officer in charge of the investigation is obligated to submit a report or as often called, a charge sheet under section 173 of the CrPC. Following which, if the court deems it a fit case, it takes cognizance under section 190 of CrPC. Thereafter, based on the nature of the case (either summons case or warrants case), process is issued under section 204 of CrPC. After issuance of process, comes the most vital stage of criminal procedure. Under section 207 of CrPC, for the very first time, the accused is entitled to receive a copy of all the documents which have been submitted to the magistrate by the investigating authority. This includes complete charge sheet, statements under section 161 and 164 of CrPC, and other documents which have been furnished before the Magistrate under section 173. Section 207 is a critical stage which is often dealt with a degree of incuriosity by the defence. At this junction, the defence lawyers get to scrutinize the entire set of documents which the investigating authority plans on relying upon, and start building the case for the defence.

However, wide and arbitrary powers have been granted by virtue of section 173 and 207 of CrPC upon the investigating authority. Under section 173, the investigating authority, along with their charge sheet is supposed to forward all the documents and other relevant extracts on which the prosecution plans on relying upon. Section 207 of CrPC mandates that the accused be given the copy of police report and other documents which the prosecution is relying upon. It is pertinent to note that the legislature uses the term ‘relying upon’ and not ‘has come across’ or ‘found’ in both these provisions. So, interestingly, it does not mandate the production of each and every piece of material which has been collected by the investigating authority, but all those materials which the prosecution plans on relying upon. In turn, the relevancy of the information gathered and what has to go into the charge sheet and its annexure will be decided solely by the investigating authority. Thereby, the evidence, which would go counter to the case of the prosecution, and would aid in creating doubt as to the criminality of the accused, might be legally supressed, even if it be of slightest threat to their case. So now, the onus rests upon the accused to gather this evidence that has been strategically left out. However, an accused might not have the ability to find such evidence because the accused is not allowed to conduct investigation from their end, time would have elapsed, insufficient monetary backing to conduct forensic tests, etc.

Failure by the Courts

Generally, where the legislature and executive err, the judiciary takes over the responsibility to correct the same. However, with regards to prosecutorial fair disclosure, the judiciary has taken an interesting journey in this aspect. It has been concerning to observe that courts have followed the practice of providing the defence only with the documents and materials on which the investigating authority seeks to rely on.

Lately though, courts in India are on the right direction by observing that fair disclosure is an essential element of fair trial and thereby broadening the requirements under the provision. The Supreme Court in Siddharth Vashisht v. NCT Delhi observed that The right of the accused to receive the documents/statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of documents/statements to the accused in accordance with law. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating authority and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.” This observation introduced the concept of fair disclosure by the prosecution and set some boundary around it. Taking this further, the Apex court in Sasikala v. State noted that “it is not impossible to visualize a situation whether the Investigating Officer ignores the part of the seized documents which favour the accused and forwards to the Court only those documents which support the prosecution. If such a situation is pointed by the accused and such documents have, in fact, been forwarded to the Court would it not be the duty of the Court to make available such documents to the accused regardless of the fact whether the same may not have been marked and exhibited by the prosecution?”

Where would this help? To give an example of this observation’s application, suppose the investigating authority would have filed a seizure memo before the court, which is basically a list of items or documents which have been seized in relation to the crime. But the investigating authority would only submit this seizure memo and not the documents seized under it. Here, by virtue of the above-mentioned court’s rulings, although the documents have not been filed, but due to its mentioning in the seizure memo, the court can order the prosecution to submit the documents mentioned in the seizure memo.

However, the judiciary has fallen short by not elaborating that even if there is any other material which has been found by the prosecution, and which the prosecution does not want to rely upon has to be supplied, if it is something which has a bearing on the case, especially on the rights and liberty of the accused.


Little is more essential to a fair criminal justice system than prosecutorial disclosure of information to the defence. The accused would generally not be aware of material facts which are beneficial to create reasonable doubt and thereby prove his innocence. Further, such lacunae might also lead to wrongful prosecution which not just affects the accused, but also, denies justice to the victim. In case, somebody in power is accused, this could be misused to conceal material evidences and give clean chits to the accused. In politically sensitive cases, this gives scope to planting of evidences, something which can be seen in the recent Malegaon blast case and the Elgar Parishad case. And a fundamental purpose of cross examination, i.e., to discredit the credibility of a witness, gets vitiated when such exculpatory documents are not supplied.

Section 61 of the Criminal Procedure Act 1986 (“CPA”) of New South Wales, section 3 and 7A of Criminal Procedure and Investigations Act 1996 of United Kingdom and the decision of United States Supreme Court in Brady v. Maryland and standard 3-5.4 of the American Bar Criminal Justice standards of USA mandates identification and disclosure by the prosecution of any material which is found in the due course of investigation, and further states that this has to be done especially if it supports the accused. Taking this a step ahead, section 146 of CPA also provides for sanctions against the prosecution in the event of non-disclosure.

By withdrawing the power to fair chance to the accused to argue his case, the very crux of natural and fair justice is being affected. Thus, it becomes pertinent to recognise the concept of fair disclosure, not doing which has caused a dark spot on the criminal justice system.

Under Section 91 of CrPC, the trial court has the power to summon any necessary or desirable document or thing, for the purpose of inquiry, investigation or trial.  This indicates that trial courts, being the first line of defense to litigants in protecting their fundamental rights, can also assist in receiving those documents which have been shielded off by the prosecution.

What has to be adopted by the Indian Legislature is to change the language of section 173 and 207 of CrPC by providing a uniform approach in defining prosecutorial disclosure that any and every document found and examined by investigators should be placed before the court and a copy of the same should be given to the accused. Unfortunately, we are several steps behind in this aspect.

[The author is a fourth-year law student at Gujarat National Law University, Gandhinagar.]


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