TMI Blog2012 (9) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ccess to the documents in respect of which prayers have been made in the applications. While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well entrenched principles of law that have been laboriously built by illuminating judicial precedents is sacrificed or compromised. In no circumstance, the cause of justice can be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time. In view of what has been stated above and to balance the need to bring the prosecution in the present case to its earliest conclusion and at the same time to protect and preserve the right of the accused to a fair trial we are of the view that the following directions 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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said proceeding would not be of any relevance at the present stage as the chargesheet in the said case has since been withdrawn and the matter stands closed. 4. The transfer of CC No.7 of 1997 and CC No. 2 of 2001 from the court at Chennai was sought by one Shri K. Anbazhagan, General Secretary of DMK Party, a recognised political party in the State of Tamil Nadu. In case No.CC No. 7 of 1997 then pending in the competent court at Chennai allegations of commission of offences under Section 120B of the Indian Penal Code and Section 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act, 1988 were made against the present appellant who was arrayed as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court No. 1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore. (b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion. (c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred 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. Such applications, inter alia, were for translation of depositions of prosecution witnesses running into thousands of pages; for corrections in such translations; for appointment or assistance of an interpreter and such are the incidental matters. The orders passed by the trial court on all such applications invariably came to be challenged before the High Court and even before this court. On several of such occasions the trial came to be halted due to interim orders passed by different courts. Consequently, as on date the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses 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 documents, copies or inspection of which was sought, being unmarked and unexhibited documents, objections can always be raised if the accused is to be questioned in connection with such documents in her examination under section 313 Cr.P.C. In addition to the above, the High Court was of the view that this court having passed clear directions in its order dated 18th November, 2003 that the criminal proceedings against the accused should be brought to its earliest conclusion by conducting the trial on day to day basis, the filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 learned counsel the right of the appellant to copies or, at least, to an inspection of the documents constitute a part of the larger right of the appellant to a fair trial of the charges levelled against her. Reliance has been placed on the decisions of this court in Sidhartha Vashisht alias Manu Sharma vs. State (NCT) of Delhi[(2010) 6 SCC 1] , Sanatan Naskar and another vs. State of West Bengal[(2010) 8 SCC 249] and Manu Sao vs. State of Bihar (2011) 7 SCC 310. 10. On the other hand, learned counsel for the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct 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 part of the statement or documents forwarded under Section 173(5) from the copies to be granted to the accused. The court having jurisdiction to deal with the matter, on receipt of the report and the accompanying documents under Section 173, is next required to decide as to whether cognizance of the offence alleged is to be taken in which event summons for the appearance of the accused before the court is to be issued. On such appearance, under Section 207 Cr.P.C., the concerned court is required to furnish to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 before submission of the report to the Court under Section 173 Cr.P.C., a fair amount of application of mind on the part of the investigating agency is inbuilt in the Code. Such application of mind is both with regard to the specific offence(s) that the Investigating Officer may consider to have been committed by the accused and also the identity and particulars of the specific documents and records, seized in the course of investigation, which supports the conclusion of the Investigating Officer with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution (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 aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest 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) (Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1) 16. The declaration of the law in Sidhartha Vashisht (supra) may have touched upon the outer fringe of the issues arising in the present case. However, the positive advancement that has been achieved cannot, in our view, be allowed to take a roundabout turn and the march has only to be carried forward. If the claim of the appellant is viewed in context and perspective outlined above, according to us, a perception of possible prejudice, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 18. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct. 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 statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into ..... 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