FAIR DISCLOSURE OF EXCULPATORY EVIDENCE IN INDIA: A PRESSING NEED?

Introduction

The right of fair trial is a universally recognized norm in human rights law. The concept of fair
trial has been mentioned under Article 10 of Universal Declaration of Human Rights, 1948 and
Article 14 of the International Covenant on Civil and Political Rights. An obligation has been
placed on the states to ensure that the trial must be conducted in a manner where the accused
shall have all the rights to defend himself. Since India is an adversarial system the burden to
produce evidence has been placed on the prosecution. The prosecuting agency in India has an
unquestionable right to place documents which it proposes to rely upon and those statements of
witnesses as it proposes to bring on stand. This essentially means that if prosecution agency has a
material which has a capacity to either exonerate the accused or which raises a suspicion about
guilt of the accused, the agency has an option to not produce it before the court. While in United
States, the office of District Attorney has a legal obligation to disclose documents or statements
which proves the innocence of accused, as soon as the discovery is made. Unlike India, the DA's
office has a direct control over prosecution. In India the prosecutor gets to know about
prosecution only when the charge sheet is filed. The prosecution officer has no way of directing
the investigation officer about the course of investigation.

Evolution of concept of fair disclosure

In American Legal System, the concept of fair disclosure can be traced from the landmark
judgment of Brady v. Maryland, which was decided by the US Supreme Court. The said
judgment recognized the accused person’s right to know the exculpatory evidence and therefore
non-disclosure of such evidence amounts to violation of due process. In this case a three factor
test was laid down for disclosing the exculpatory material. Firstly, the information was not
disclosed by the prosecution, secondly, the said information is favorable to the accused and
lastly, the information may result either in acquittal of the accused or create a suspicion in his
guilt. Thus if all three factor are fulfilled then there is legal obligation on the prosecution to
disclose such information before the court.

On the other hand, in India, there is no such mechanism which prevents the prosecution form
concealing the exculpatory evidence. The evolution of concept of fair disclosure in India can be
traced from judicial precedents. The concept of fair trial essentially encompasses the concept of
fair disclosure. In Zahira Habibullah Sheikh v. State of Gujarat, the Hon’ble Supreme Court
observed the evolving horizons of fair trial. It says that every accused has an inbuilt right to be
tried fairly in a trial and if an accused is denied a fair trial this would lead to miscarriage of
justice.

The concept of fair disclosure was first discussed in the case of Pullukuri Kottaya v. King
Emperor. The Privy Council observed that fair disclosure is an important aspect of fair trial and
without a fair trial there can never be a fair judgment. In this case the statement of section 161
were concealed by the investigation officer, now the accused called for them knowing that some
of the witnesses were examined and those witnesses had provided exculpatory evidence to the
IO. The Privy Council held that the courts in India have always regarded the breach of proviso to
section 162 as a matter of great gravity. The council observed, the right given to the accused
person by section 162 is a valuable one and often provides important material for cross
examination of prosecution witnesses. If court refuses to supply the copies of statements made
by the witnesses to the police, it will lead to violation of entire trial and the trial would stand
vitiated and accused can be acquitted on that ground alone.

Later Supreme Court in Shiv Kumar v. Hukam Chand held that the prosecutor is not expected to
convict the accused in every case. The prosecutor should try the accused in a fair manner and if
accused is entitled to any legitimate benefit then prosecutor shall not conceal it rather it should
make it available to the accused. Thus court has placed a legal obligation on the prosecutor to
place the exculpatory material on record.

The case of Manu Sharma v. State (NCT of Delhi), enlarged the horizon of fair disclosure. The
court observed that certain rights of accused flow from both codified law as well as from the
equitable concepts of constitutional law and any substantial variation to such procedure would
frustrate the very basis of fair trial and thus the prosecution has a duty to make fair disclosure of
documents which it is relying upon whether filed in court or not.

Right of accused to rely on exculpatory material at the stage of framing of charges

Section 239 of the code reads that on the perusal of police report and the documents sent along
with it, if the court concludes that the charges are groundless, the accused can be discharged.
Section 173(5) talks about the documents which shall be sent along with the police report. It
reads that the police officer shall forward along with the report the documents which prosecution
proposes to rely upon and secondly the statement of witnesses of persons which prosecution
proposes to examine. Thus it can easily be concluded that the prosecution has a power to only
produce those documents or statement of witnesses which are self-serving in nature.

Although section 91 of the code gives power to the courts to order production of documents
which are necessary for investigation, enquiry, trial or other proceeding but section 229
specifically creates a bar to not look into material beyond the police report. Thus the question
that whether at the stage of framing of charges the trial court can look into the material provided
by the accused is long debated.

Supreme Court in the case of Satish Mehra v. Delhi Administration held that on the stage of
framing of charge the court can look into the material provided by the accused, but later this
decision was overruled by Debendra Nath Padhi case.

In State of Orissa v. Debendra Nath Padhi, it was observed that at the stage of framing of
charge the court can only look into material provided by the prosecution and not beyond that.
This essentially means that the accused while arguing for the application of discharge cannot
place any material which shows his innocence. The court observed that section 227 uses the
expression “record the case”, which leads to the conclusion that court can only look at the police
report and documents submitted by the prosecution.

In Neelesh Jain v. State of Rajasthan, a single judge of Rajasthan High Court has observed that
the prosecution cannot withhold vital, relevant and admissible material from the court. The court
observed that while entertaining an application under section 91 of the code, the court must look
into two factors. Firstly, the police have a reasonable justification for withholding the statements
or documents and secondly, the said documents are necessary or desirable to reach just decision.
Thus if two conditions are met then court can order summon of the documents or statement of
witnesses under section 91 of code.

In Rukmini Narvekar v. Vijaya Satardekar, again the division bench of Supreme Court departed
from the view taken in Debendra Nath Padhi case. It was observed that ordinarily at the stage of
framing of charge, the material provided by the accused cannot be looked into but there may be
rare and exceptional cases where it is quite apparent that prosecution version is completely
absurd and cannot be relied upon. In those rare and exceptional cases the material provided by
the accused can be looked into at the stage of framing of charge.

Recently in Nitya Dharmananda v. Gopal Sheelum Reddy, again the same question came before
the court. The court held that the material beyond the police report can be considered only if (a)
such material is withheld by the police authority and not filed with police report, and (b) the said
material is of sterling quality. However, the term ‘sterling quality’ has not been defined by the
court, and it is left open for interpretation. Unfortunately the position still remains unsettled as
this judgment was passed by division bench vis-à-vis the full bench judgment in Debendra Nath
Padhi case.

CONCLUSION

“…let ten guilty men escape, than one innocent suffer’ is a principle on which our criminal
justice system works. Presently there are no specific provisions in code relating to fair disclosure
which is leading to false conviction of many innocents. Proper investigation and fair trial are
pillars of criminal justice system. In India the prosecution has no control over the investigation.
The role of prosecution comes in play one’s the charge sheet is filed. Thus there is a possibility
of concealment at the stage of investigation also. There is a need to make both police and
prosecutor accountable for any misconduct resulting in miscarriage of justice. To make our
criminal justice system effective, the legislature must formulate the comprehensive rules for
disclosure of favorable information to the accused person so that there is no more wrongful
prosecution.