The Secret Files: How a Supreme Court Ruling in the case of P. Ponnusamy Vs. The State of Tamil Nadu is Changing the "Fair Trial" Game in India?

What if the evidence that could prove your innocence is sitting in a police locker, but the prosecutor isn't required to show it to you? In the high-stakes arena of criminal justice, the "might of the state’s police machinery" often holds a decisive advantage, possessing a mountain of data, witness statements, and physical objects collected during an investigation. Traditionally, the prosecution has been the gatekeeper, sharing only the specific evidence it intends to use to prove guilt. This leaves the accused in a perilous shadow, unaware of materials that might point toward their innocence.

The Supreme Court of India recently confronted this imbalance in P. Ponnusamy v. State of Tamil Nadu. Decided On: 07.11.2022,MANU/SC/1451/2022. This wasn't just a routine appeal; it was a "Death Reference" (RT No. 2/2021) involving several individuals facing the ultimate penalty. The case forced the Court to navigate a treacherous path between the need for efficient, timely trials and the constitutional mandate for a fair defense. This article reveals how the ruling—and its clarification of the "Draft Rules of Criminal Practice"—is fundamentally shifting the landscape of undisclosed materials in Indian courts.

1. The Right to Know What Isn't Being Used

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CCTV in Muddemal Doesn't Mean 'No Copies': Supreme Court's Clear Mandate

 Subtitle: When police misuse “material object” status to avoid furnishing electronic evidence contents under Section 207 CrPC 

OPENING: THE SYSTEMATIC ABUSE IN YOUR COURT

It happens in hundreds of courts across India every week.

A pen drive containing CCTV footage of a crime arrives at the police station. The investigating officer seizes it, documents it, and files a chargesheet saying the video shows the accused committing the crime. The pen drive then goes into the muddemal (evidence room) of the court.

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Supreme Court: Prosecution In All Criminal Cases Shall Furnish List Of Statements, Documents, Material Objects & Exhibits Not Relied Upon By Investigating Officer

 In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the Accused's right to fair investigation, when faced with the might of the state's police machinery. {Para 177}

178. This view was endorsed in a recent three judge decision of this Court in Criminal trials guidelines regarding Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh   MANU/SC/0292/2021 : (2021) 10 SCC 598. This Court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of Rules by all states and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, during investigation-to the Accused. The relevant draft guideline, approved by this Court, for adoption by all states is as follows:

4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CODE OF CRIMINAL PROCEDURE

Every Accused shall be supplied with statements of witness recorded Under Sections 161 and 164 Code of Criminal Procedure and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O.) in accordance with Sections 207 and 208, Code of Criminal Procedure..

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.

179. 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 248-250 of 2015

Decided On: 20.05.2022

Manoj and Ors. Vs. State of Madhya Pradesh

Hon'ble Judges/Coram:

U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi, JJ.

Author: S. Ravindra Bhat, J.

Citation: Citation: 2022 INSC 606, MANU/SC/0711/2022.

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Supreme Court : The court can give Protected Witness's Statement With Identity Redacted to accused as per S 207 of CRPC

  Having said so, we also come to the order passed by the trial court on 11.09.2021 which has been cautiously worded. The order has not only permitted redaction of the address and particulars of the witnesses which could disclose their identities but has further observed as noted aforesaid that even other relevant paras in the statement which would disclose their occupation and identity could be redacted. Thus, a wide discretion has been given and that too for the Special Public Prosecutor to take a call. There could thus have hardly been a grievance raised by the prosecution in this regard. On query to the learned counsel for the respondent as to how this order can in any manner prejudice or have the propensity to disclose the identity of the witnesses or their families with the possibility of harm being caused to them, there has really been no answer. We believe that the order dated 11.09.2021 is both fair and reasonable for the prosecution and defence while protecting the witnesses and not depriving the defence of a fair trial with the disclosure of the redacted portion of the testimony under Section 207 of the Cr.P.C. {Para 27}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.237 OF 2022

WAHEED-UR-REHMAN PARRA  Vs UNION TERRITORY OF JAMMU & KASHMIR

Sanjay Kishan Kaul; M.M. Sundresh, JJ.

Author: SANJAY KISHAN KAUL, J.

February 25, 2022

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Supreme Court: The court Must direct the prosecution to give the statement of protected witness with his identity redacted as per S 207 of CRPC?

  Having said so, we also come to the order passed by the trial court on 11.09.2021 which has been cautiously worded. The order has not only permitted redaction of the address and particulars of the witnesses which could disclose their identities but has further observed as noted aforesaid that even other relevant paras in the statement which would disclose their occupation and identity could be redacted. Thus, a wide discretion has been given and that too for the Special Public Prosecutor to take a call. There could thus have hardly been a grievance raised by the prosecution in this regard. On query to the learned counsel for the respondent as to how this order can in any manner prejudice or have the propensity to disclose the identity of the witnesses or their families with the possibility of harm being caused to them, there has really been no answer. We believe that the order dated 11.09.2021 is both fair and reasonable for the prosecution and defence while protecting the witnesses and not depriving the defence of a fair trial with the disclosure of the redacted portion of the testimony under Section 207 of the Cr.P.C. {Para 27}

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.237 OF 2022 

WAHEED-UR-REHMAN PARRA Vs UNION TERRITORY OF JAMMU & KASHMIR

Coram: Sanjay Kishan Kaul; M.M. Sundresh, JJ. 

Author: SANJAY KISHAN KAUL, J.

Dated: February 25, 2022

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Whether court can allow accused to inspect documents kept in Malkhana?

 The issue raised in the present petition is to a great extent dealt by the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 wherein the Hon'ble Supreme Court issued guidelines regarding inadequacies and deficiencies in criminal trial and while the necessary draft rules were approved, in relation to the documents collected during the course of investigation and not relied upon by the prosecution thus not permitting copy thereof to the accused, the Hon'ble Supreme Court in Para 11 noted as under:

“11. The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, 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 the Cr. PC. 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)]”

10. Further, reproducing Section 91 Cr.P.C. in the footnote does not qualify the directions in Para 11 of the judgment for the reason Hon'ble Supreme Court in response to the suggestion of the learned amicus curiae pointed out that there may be material with the Police or the prosecution which may be exculpatory in nature, or absolve or help the accused, however the accused is kept in dark with the said material. Hon'ble Supreme Court clearly directed that while furnishing the list of statements, documents and the material objects under Section 207/208 Cr.P.C., the Magistrate should also ensure that a list of other materials (such as statements, or objects/documents seized, but not relied upon) should be furnished to the accused so as 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 the Code of Criminal Procedure for their production during the trial. The draft Rules were accordingly modified and considering the efficacy of the draft Rules, the Hon'ble Supreme Court directed all High Courts to take expeditious steps to incorporate the said draft Rules 2021 as part of the Rules governing criminal trial within six months from the date of the order i.e. April 2020.

11. In view of the decision of the Hon'ble Supreme Court, CBI cannot take the plea that since the Rules have not been notified as yet pursuant to the decision of the Hon'ble Supreme Court, the directions as laid down in Para 11 of the judgment whereby the draft Rules were amended, would not have the force of law till the Rules are notified. Hon'ble Supreme Court also noted that Draft Rules of Criminal Practice 2020 as formulated and directed to be notified were not contrary to the provisions of Cr.P.C. 

13. In the present case after the Court has taken the cognizance and is in the process of supplying documents, applications have been filed under Section 207 Cr.P.C. wherein to ensure a fair trial, the impugned order has been passed by the learned Special Court keeping due regard to the fact that at that stage it was deciding neither the relevancy of the unrelied documents nor whether they were of sterling quality.

15. Further contention of CBI is that the documents can be sought under Section 91 Cr.P.C. only at the stage of defence and hence the stage for seeking inspection of the un-relied documents in possession of the CBI and kept in CBI Malkhana has not arrived. It is trite law that an accused can build the defence not only by leading defence evidence but even while cross-examining the prosecution witness. Further, a document which is relevant and is of sterling quality can also be looked into by the Court at the time of framing of charge and the Court is not barred to exercise its power to summon or rely upon the said document at the stage of charge, if it is of sterling quality and has a crucial bearing on the issue of framing of charge. Therefore, at the time of framing of charge an accused can bring to the notice of the Court that an un-relied document recovered during the course of investigation and kept back by the investigating agency is relevant and has a bearing on the prosecution case only if the accused is aware of the said document.

16. Indubitably, while passing an order of inspection of unrelied upon documents, the Court is bound to strike a balance between the competing interest of ensuring a fair trial to the accused as also maintaining the sanctity of further investigation, in case further investigation is to be carried on. 

18. In the decision reported as (2012) 9 SCC 771 V.K. Sasikala v. State Hon'ble Supreme Court noted a common feature that seizure of a large number of documents takes place in the course of investigation in a criminal case and that after completion of the process of investigation and before submission of the report under Section 173 Cr.P.C., the investigating officer is bound to apply its mind to the two sets of documents i.e. the one which support the prosecution case and the other which support the accused, however it is not impossible to visualise a situation where the documents favouring the accused are not forwarded to the Court, even though the prayer in the said case was in relation to the documents forwarded to the Court but not relied by the prosecution.

19. Further, Clause 12.32 of the CBI (Crime) Manual 2020 also lays down the procedure of inspection of documents kept in the Malkhana on Court order. Thus Clause 12.32 of the CBI (Crime) Manual 2020 recognizes the right of the accused to carry out inspection as per the procedure laid down in the Manual of the CBI.

20. In view of the discussion aforesaid and the judgment of the Hon'ble Supreme Court in Suo Moto W.P.(CRL) No. 1/2017 this Court finds no infirmity in the impugned order passed by the learned Special Judge.

In the High Court of Delhi at New Delhi

(Before Mukta Gupta, J.)

Central Bureau of Investigation Vs INX Media Pvt. Ltd. and Others 

Crl.M.C. 1338/2021 and Crl.M.A. 7654/2021(stay)

Decided on November 10, 2021,

Citation: 2021 SCC OnLine Del 4932

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Whether data of hard drive includes its subcutaneous memory?

The word 'data' Therefore includes not only the active memory of the computer, in this case the hard disc, but even the subcutaneous memory. Indeed it was submitted by learned Counsel for CBI that there are six levels of memory in the hard discs and Therefore an information which was written and then rewritten upon more than 5 times could still be retrieved from the subcutaneous memory of the hard disc. Even if there is a doubt whether that entire information can be reconstructed, certainly the information to the effect that the memory in the hard disc has been written and rewritten upon for over six times would be available. It is possible to analyze a hard disc with the help of a software programme, to find out on what date the information was first written with the exact time of such change. It is possible to retrieve such information in respect of each of the occasions when such information is removed and reinserted or changed on the hard disc.

IN THE HIGH COURT OF DELHI

Crl. M.C. 1775, 1980 and 6476/2006

Decided On: 11.03.2008

Dharambir  Vs.  Central Bureau of Investigation

Hon'ble Judges/Coram:

Dr. S. Muralidhar, J.

Citation: ILR (2008) 2 Del 842 

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Whether it is necessary to provide digital copy of CCTV Footage to accused as per S 207 of CRPC?

 In other words, any electronic record, which is printed, stored, recorded or copies made on to an optical or magnetic media and produced by a computer will be deemed to be a document only if the conditions set out in Section 65B(1) of the Evidence Act are satisfied and it was held so in Anwar P.V. v P.K. Basheer MANU/SC/0834/2014 : (2014)10 SCC 473. However, in Shafhi Mohammed v. State of H.P. MANU/SC/0331/2018 : (2018) 5 SCC 311 the Apex Court revisited the principles laid down in Anwar P.V. (supra) and it was held that the applicability of procedural requirement under Section 65B(4) of the Evidence Act for furnishing certificate is not always mandatory. Later, in the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (Civil Appeal No(s). 2407 of 2018 and connected cases) by interim order dated 26.7.2019, their Lordships of the Apex Court had ordered that in view of Anwar P.V. (supra), the pronouncement of this Court in Shafhi Mohammad (supra) needs reconsideration and the matter was referred to be considered by a larger Bench. However, in the instant case, the said question is merely academic as Sri. Suman Chakravarthy, the learned Senior Public Prosecutor, submitted that the requisite certification under Section 65B of the Indian Evidence Act has been obtained for the electronic evidence. In that view of the matter, there is no embargo in providing to the accused a copy of the CCTV Footage, which is relied on by the prosecution in the subject case.

38. In the case on hand, I have no doubt in my mind that the investigating agency has committed a grave error by producing the CCTV footage as a material object and also in refusing to give a copy of the same to the accused. The accused is entitled to a digital copy of the CCTV footage, which is relied on by the prosecution to prove the charge. That being the case, the order passed by the learned Magistrate will stand set aside.

39. This petition will stand allowed. The digital copies of the electronic record relied on by the prosecution and sought for by the petitioner shall be issued to him by imposing appropriate safeguards that the jurisdictional court may deem fit and proper.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 4148 of 2019(G)

Decided On: 30.09.2019

 Jisal Rasak Vs.  The State of Kerala

Hon'ble Judges/Coram:
Raja Vijayaraghavan V., J.

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Whether it is permissible to frame charge without making compliance of S 207 of CRPC

Therefore before framing of the charge or charges against the accused compliance of Section 207 of the Code is mandatory and its non-compliance may result in causing prejudice to the accused. The purpose behind furnishing of documents and statements of witnesses to the accused at the commencement of the trial is to provide an opportunity to the accused to know the evidence and the materials being relied on in support of the charges and to meet those evidence and statements and set up a proper defence. In the case of non-compliance of Section 207 of the Code, the accused may not be able to defend the charges or to contend that no charge is made out against him. In this view of the matter, the provisions of Section 238 of the Code seem to be mandatory in nature. However, there may be a departure in a case where the statements of the witnesses or the documents submitted in support of the charge-sheet are voluminous and preparation of copies thereof is not practicable. In that situation the accused may be permitted to inspect the record.

Equivalent Citation: 2011 2 AWC1224All, 2011CriLJ1088

IN THE HIGH COURT OF ALLAHABAD

Criminal Revision No. 3221 of 2010

Decided On: 17.09.2010

Appellants: Pramod Kumar Sharma
Vs.
Respondent: State of U.P. and Anr.

Hon'ble Judges/Coram:
Shri Kant Tripathi, J.

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Whether prosecution can be directed to provide copy of documents to accused on which it is not relying?

It will be seen that under Section 207, Criminal Procedure Code, where the proceedings are instituted on a police report, the Magistrate is bound to supply free of cost the copy of - (1) the police report; (2) the first information report, recorded under Section 154; (3) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173. In the reported case of the Delhi High Court - S.J. Choudhary State, (1984 Crl LJ 864), a view is taken that if the statements of the witnesses are recorded more than once, then all such statements will have to be supplied to the accused, as the accused may be able to use those statements, if they are contradictory. It has been held that the prosecution cannot choose a particular statement to be supplied and leaving out the other statements. The Delhi High Court has further taken a view that the prosecution would be bound to supply all the statements, even if recorded more than once of such witnesses as contemplated under Section 161(3), whether recorded in a police diary or otherwise, and thereby the valuable right, which has been conferred upon the accused person, would be preserved and the same cannot be denied to him. Reliance also can be placed on another reported decision of the Kerala High Court reported in State of Kerala v. Raghavan(1974 Crl LJ 1373), wherein the Kerala High Court has held that the prosecution cannot pick and choose and refuse to supply to the accused the copies of the statements which are contradictory to the prosecution case on the ground that the prosecution is not going to rely on the statements of those witnesses. Otherwise, it would be in deviation from the mandatory provisions of Criminal Law and to deny the accused the just and fair trial. 

Bombay High Court

Ramesh S/O. Wamanrao Babhulkar, ... vs The State Of Maharashtra, Through ... on 1 January, 1994

Equivalent citations: 1995 CriLJ 3424,1995(2) MHLJ724

Bench: V Sirpurkar

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Supreme Court: Accused should be allowed an inspection of the unmarked and unexhibited documents

 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 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of the Cr.P.C. 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 in 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 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 belately. This is how the scales of justice in our Criminal Jurisprudence have to be balanced.
There is yet another possible dimension of the case. It is the specific contention of the accused in both the applications dated 29.3.2012 (for certified copies of the unmarked documents) and 18.4.2012 (for inspection) that it is in the course of the examination of the accused under Section 313 Cr.P.C. that a perception had developed that the accused may be giving incomplete/ incorrect answers in response to the questions put to her by the Court and that she needs copies of the documents or at least an opportunity of inspection of the same to enable her to provide effective answers and to appropriately prepare her defence.
The accused No.2, i.e. the appellant herein, be allowed an inspection of the unmarked and unexhibited documents referred to by her in the application

Supreme Court of India

V.K. Sasikala vs State Rep. By Superintendent Of ... on 27 September, 2012

Author: Ranjan Gogoi

Bench: Aftab Alam, Ranjana Prakash Desai

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