Right to fair trial is the fundamental right of an accused guaranteed under Article 21 of the Indian Constitution. In Husainara Khatoon etc. the Apex Court has held that a fair trial is the most important aspect of the criminal justice system which should not be compromised at any cost. Right to fair trial assures the accused of an opportunity so that he can defend himself and S. 207 Cr.P.C plays an important role in making the documents accessible to the accused that form a part of the investigation. It is the obligation on the Court to provide the relevant documents or extracts in cases where proceedings have been instituted on a police report, so that the accused get to know about the charge levied against him and also about the material through which the charge is going to be corroborated by the prosecution. The duty to supply the copy of FIR, Police report, Statements recorded U/S 161 Cr.P.C., Statements recorded U/S 164 Cr.P.C or any other document on which the prosecution wants to rely has been casted upon the Magistrate and if the Magistrate fails to comply with the procedure laid down then it is a violation of the fundamental right of the accused enshrined under the Indian Constitution. In Kishore v. Sunanda Prasad 2002 CrLJ 802 MP, it was held that the object of S.207 Cr.P.C is to appraise the accused of the whole case against him. It is pertinent to mention that the IO of any case has no option but to submit all the documents which he has procured during the investigation and upon which prosecution will rely upon. Section 173(5)(a) Cr.P.C mandates that the investigating officer shall forward all the documents or relevant extracts on which the prosecution proposes to rely against the accused concerned along with the police report to the Magistrate. A conjoint reading of Section 173(5), 173(6) and first proviso attached to Section 207 of Cr.P.C. leaves no scope of doubt that it is the bounden duty of the police officer to forward to the Magistrate all the statements recorded under sub-section (5)(b) of Section 173 of Cr.P.C. without any exception so as to enable the Magistrate to discharge his duty under Section 207 of Cr.P.C. by furnishing copies of such statements to the accused. In Arvind Kejriwal v. State of NCT, the Hon’ble Delhi High Court held that it is the prime duty of the Investigating Agency to conduct free and fair investigation, thereafter, bring to the notice of the Court all the evidences collected without pick and choose. Without supply of documents it will be impossible for any accused to defend himself and any trial without the compliance of S.207 Cr.P.C will be an unfair trial It is germane to mention here that it is only when the Magistrate is satisfied that the documents are voluminous then he shall instead of furnishing the accused a copy, he will direct that he will only be allowed to inspect it either personally or through a pleader in court or else under any circumstances the magistrate have to comply with the provisions of Section 207 Cr.P.C even with the advent of technology many courts have started directing the prosecution to make an e-copy of all the documents and provide a soft copy of the documents in order to ensure the compliance of S.207 Cr.P.C.
In Manjeet Singh Khera vs. State of Maharashtra: (2013) 9 SCC 276, whereby the Hon‘ble Supreme Court affirming to its earlier decision in V.K. Sasikala vs. State: (2012) 9 SCC 77 held that “the Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After conclusion of investigation and before submission of the report to the court under Section 173 Cr. PC, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall under two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many at times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the court only those documents which support the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the court under Section 173(5) Cr. PC 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 a fair trial which Article 21 of the Constitution guarantees to the accused.” The accused is entitled to all the documents irrespective of the facts that it is favouring him. The Hon’ble Delhi High Court in Ashutosh Verma vs. CBI: 2014 SCC OnLine Del 6931 has observed that even at the stage of scrutiny of documents under section 207 Cr.P.C., the Court shall supply all the documents to the accused even if the same were not relied upon by the prosecution. Further observed that the accused can ask for the documents that withheld his defense and would be prevented from properly defending himself, until all the evidence collected during the course of investigation is given to the accused. Also observed that if there is a situation that arises wherein an accused seeks documents which support his case and do not support the case of prosecution and IO ignores these documents and forward only those documents which favours the prosecution, in such a scenario, it would be the duty of IO to make such documents available to the accused.
SUPPLY OF DOCUMENTS WHEN THERE IS A SUPPLEMENTARY INVESTIGATION- When the IO has been granted permission of further investigation U/S 173 (8) Cr.P.C. and when the supplementary report contains the facts relating to the accused of preliminary charge sheet then the magistrate is bound to provide the copy of the supplementary chargesheet or supplementary police report to the accused.
CONTENTS OF PEN DRIVE/MEMORY CARD WILL AMOUNT TO BE TERMED AS DOCUMENT WITH REGARD TO S.207 CR.P.C. – It is pertinent to mention that any content to be termed as a document can be determined by its nature and not by the place where it is stored. It depends upon the information which is inscribed whether it is relevant or not, of course to be decided by the magistrate. Be that as it may, Section 3 of the Indian Evidence Act, 1872 elaborates that a “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and Section 2(1)(t) of the 2000 Act reads “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computergenerated micro fiche;’’ In Dharambir v. Central Bureau of Investigation , where, inter alia, the Supreme Court held [paras 13 (i) and (ii)] 13 (i) As long as nothing at all is written on to a hard disc and it is subjected to no change, it will be a mere electronic storage device like any other hardware of the computer. However, once a hard disc is subject to any change, then even if it restored to the original position by reversing that change, the information concerning the two steps, viz., the change and its reversal will be stored in the subcutaneous memory of the hard disc and can be retrieved by using software designed for that purpose. Therefore, a hard disc that is once written upon or subjected to any change is itself an electronic record even if does not contain any accessible information at present. In addition there could be active information available on the hard disc which is accessible and convertible into other forms of data and transferable to other electronic devices. The active information would also constitute an electronic record.(ii) Given the wide definition of the words ‘document’ and ‘evidence’ in the amended Section 3 the EA, read with Sections 2(o) and (t) IT Act, a Hard Disc which at any time has been subject to a change of any kind is an electronic record would therefore be a document within the meaning of Section 3 EA. After referring to both the sections and analyzing Dharambir (supra) it can be reduced that contents of pen drive/memory card/audio call/ video footage will be termed as a documents and it will be an obligation of the magistrate u/s 207 Cr.P.C to provide the copy of the same to the accused without delay.
RIGHT OF ACCUSED V. RIGHT TO PRIVACY OF THE VICTIM, – There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.“ For the first time Hon’ble Apex Court denied the supply of any document which violates the privacy of the victim.
SUPPLY OF OFFICIAL DOCUMENTS U/S OFFICIAL SECRETS ACT- In cases where the documents comes under the umbrella of Official Secrets Act in this regard the Apex Court has settled the law that the accused will not be deprived of his right U/S 207 Cr.P.C even if the documents of the cases comes under the preview of OSA. Recently, Delhi High Court in Ujjal Dasgupta v. State observed that, “ relying on the decision of the Supreme Court in Satyen Bhowmik observed that , “the objections raised by the prosecution in the present case are not well founded in law. As long as the prosecution is relying upon the documents forwarded by it to the trial Court along with the chargesheet it will not be open to the prosecution to deprive the accused the copies of those documents. As explained in Satyen Bhowmick merely because the case is under the OSA, the legal position cannot be different. The only difference is that the prosecution can insist and rightly so that neither the accused nor the lawyer of the accused will be permitted to make the documents public or pass them on to any person or disseminate them in any manner whatsoever. If in fact either the accused or the lawyers of the accused do not observe this prohibition they run the risk of committing an offence under the OSA”.
It is an inseparable and essential component for a fair trial to provide the copy of the document’s U/S 207 Cr.P.C and to upheld the right conferred under Article 21 of the Constitution of India. The object of Section 207 Cr.P.C is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial and has no surprise when trial commences. After having gone through the catena of judgments by the Hon’ble Supreme Court and High Courts around the country it can be concluded that it is the duty of the Court to supply copies of documents to the accused. Section 207 casts a duty on the Magistrate to supply to the accused, copies of the police report, the first information report recorded under Section 154, the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other document or relevant extract thereof, which is forwarded to the Magistrate along with police report.
Inputs by Adv. Shahnawaz Abdul Malik, Adv. Karam Pratap Singh, Aniket Rai, Student UPES.
There are no specific guidelines with regard to protection of the right to privacy of the victim. The Hon’ble Supreme Court got an opportunity to deal with the said issue in P.Gopalkrishnan @ Dileep v. State of Kerela & Anr. wherein the Hon’ble Supreme Court held that ..’’ contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial