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TMI Blog2012 (9) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 passed in Transfer Petitions (Criminal) Nos.77-78 of 2003 (K. Anbazhagan vs. Superintendent of Police and others[(2004) 3 SCC 767]). By the aforesaid order dated 18th November, 2003 this court had transferred the proceeding in CC No.7 of 1997 from the court of the 11th Additional Sessions Judge (Special Court No.1), Chennai to a Special Court in Bangalore to be constituted by the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka. The appellant before us is the second accused in the aforesaid transferred proceeding which has been registered as Spl. CC.No.208 of 2004 and is presently pending in the court of the 36th Additional Sessions Judge and Special Judge, Bangalore. It may also be noticed that along with CC No.7 of 1997 there was another proceeding i.e. CC No. 2 of 2001 pending in the file of the same court, i.e. 11th Additional Sessions Judge (Special Court No.1), Chennai against the same accused which was also transferred to the Special Court in Bangalore by the order dated 18th November, 2003. However, the said proceeding would not be of any relevance at the present stage as the chargesheet in the said case has since been withdrawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. It is in these circumstances that the Transfer Petitions were filed before this Court. 5. Transfer Petitions Nos.77-78 of 2003 were allowed by the order of this court dated 18th November, 2003 with certain directions. To recapitulate the said directions, Paragraph 34 of the judgment of this court may be extracted: "34. In the result, we deem it expedient for the ends of justice to allow these petitions. The only point that remains to be considered now is to which State the cases should be transferred. We are of the view that for the convenience of the parties the State of Karnataka would be most convenient due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed. CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred with the following directions: (a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall constitute a Special Court under the Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XIth Additional Sessions Judge (Special Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recording their statement under Section 313. All the accused shall personally appear in court, on the day they are called upon to do so, for answering questions under Section 313 of the Criminal Procedure Code. These petitions are allowed in the above terms." 6. Though a detailed recital will not be necessary it appears that notwithstanding the above directions of this court not much progress has been achieved to bring to trial in Special CC No. 208 of 2004 to its logical conclusion. Soon after the proceedings were transferred to the Special Court at Bangalore an order dated 27th June, 2005 was passed by the learned trial court for clubbing of the two cases. This order came to be challenged before this court by the petitioner in the Transfer Petitions, i.e. Shri K. Anbazihagan and until the Special Leave Petition filed (SLP No.3828/2005) was disposed of on 22nd January, 2010 the criminal proceedings had remained stayed. It also appears that from time to time applications had been filed before the learned trial court by one or the accused raising different interlocutory issues and also seeking to vindicate different facets of the right of the accused to a free and fair trial. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that in the present case the charges against the appellant were framed way back in the year 2007. At the time of the framing of the charge the court is required to satisfy itself that all papers, documents and statements required to be furnished to the accused under Section 207 Cr.P.C. have been so furnished. No grievance in this regard was raised by the appellant or any of the accused. The issue was also not raised at any point of time in the course of examination of any of the prosecution witnesses (over 250 witnesses had been examined). It has also been expressed by the High Court that though the appellant had answered over 532 questions in her examination under Section 313 Cr.P.C. no grievance was raised or any prejudice claimed by the appellant at any earlier point of time. It is also the view of the High Court that non furnishing of the copies of the documents or not conceding to the prayer for inspection will not automatically render the prosecution bad in law in as much as the effect of such action must result in prejudice to the accused which question can well be decided when the matter is being considered on merits. The High Court also took the view that the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned trial court (IA No.711/2012) had set out a complete list of the unmarked documents mentioning the particulars of the search lists by which the documents were seized in the course of investigation. Learned counsel has further argued that the conduct of the prosecution in not marking and exhibiting the said documents can only indicate that the same do not support the prosecution case and in fact may assist the defence of the accused. As the answers to the questions put to the accused under Section 313 are capable of being relied upon against or in favour of the accused, the appellant had sought copies/inspection of such documents so as to be in a position to assess as to which of the documents can come to the aid of her defence so that the answers given by her in her examination under Section 313 Cr.P.C. can be projected without reflecting any inconsistency with the defence that may be adduced. The attention of the court has also been drawn to an affidavit filed by the petitioner pinpointing as to how some of the documents could be relevant to certain specific questions put to the appellant in the course of her examination under Section 313 Cr.P.C. In fact, according to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts have a minimum role in this regard there are inbuilt provisions in the Code to ensure that investigation of a criminal offence is conducted keeping in mind the rights of an accused to a fair process of investigation. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day to day basis and the power of the court under Section 172 (2) and the plenary power conferred in the High Courts by Article 226 the Constitution are adequate safeguards to ensure the conduct of a fair investigation. Without dilating on the said aspect of the matter what has to be taken note of now are the provisions of the Code that deal with a situation/stage after completion of the investigation of a case. In this regard the provisions of Section 173 (5) may be specifically noted. The said provision makes it incumbent on the Investigating agency to forward/transmit to the concerned court all documents/statements etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the provisions of Section 173(6) which confers a power on the investigating officer to request the concerned court to exclude any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by us in the present case. It is not in dispute that after the appearance of the accused in the Court of the Special Judge a large number of documents forwarded to the Court by the Investigating Officer along with his report, had been furnished to the accused. Thereafter, charges against the accused had been framed way back in the year 2007 and presently the trial has reached the stage of examination of the second accused, i.e. appellant under the provisions of Section 313 Cr.P.C. At no earlier point of time (before the examination of the second accused under Section 313 Cr.P.C.) the accused had pointed out that there are documents in the Court which have been forwarded to it under Section 173 (5) and which have not been relied upon by the prosecution. It is only at such an advanced stage of the trial that the accused, after pointing out the said facts, had claimed an entitlement to copies of the said documents or at least an inspection of the same on the ground that the said documents favour the accused. 14. Seizure of a large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same with reference to specific seizure lists prepared by the investigating agency. In such circumstances, it can be safely assumed that what has been happened in the present case is that along with the report of investigation a large number of documents have been forwarded to the Court out of which the prosecution has relied only on a part thereof leaving the remainder unmarked and unexhibited. 15. In a recent pronouncement in Siddharth Vashisht @ Manu Sharma V. State (NCT of Delhi) (supra) to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to pass a reasoned order. 218. The liberty of an accused cannot be interfered with except under due process of law. The expression "due process of law" shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. 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 agency 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. 219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. 221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non-production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially." (emphasis supplied) (Sidhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions would take care of the conflicting interests that have surfaced in the present case:- (1)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 dated 29.3.2012, i.e., IA No. 711 of 2012 in CC No. 2008/2004 filed in the Court of XXXVI Additional City Civil & Sessions Judge, Bangalore; (2) Such inspection will be completed within a period of 21 days from the date of receipt of this order by the learned trial court. The venue of such inspection and also the persons who will be permitted to be present at the time of inspection will be decided by the learned trial court. (3) The right of inspection conferred by this order will not affect the validity of any part of the trial till date, including, the examination of the accused No.1 under Section 313 Cr.P.C. which has since been completed or any part of such examination of the second accused that may have been completed in the meantime. (4) In the event the third and the fourth accused also desire inspection of the unmarked and unexhibited documents such inspection will be allowed by the learned trial court. In such an event the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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