Tuesday, March 20, 2018

The Shifting Judicial Sands on Accused's Right to Rely on Exculpatory Material at the Stage of Discharge

(I am happy to host a guest post co-authored by Mr. Bharat Chugh, Managing Associate, & Mr. Vibhor Jain, Associate, at Luthra & Luthra Law Offices, New Delhi. A modified version of this post first appeared on Mondaq)

A preliminary hearing in a criminal trial is one of great importance, and the right to seek a discharge (threshold dismissal) is an extremely valuable right that the Criminal Justice System guarantees to the Accused. This allows a court to sift out meritless cases at the very threshold, and throw them out. However, the scope of scrutiny at that stage, and the material that the court can look into to make that decision, are extremely limited. It has been held in a number of cases by the Supreme Court that a court cannot look beyond the material that the Prosecution chooses to rely on, to decide whether to discharge the accused, or take the matter to trial. Practice has shown that this often leads to the Prosecution relying solely only on ‘self-serving’ and ‘incriminating’ material, and suppression / withholding of exculpatory evidence that can potentially disprove the case against the accused at that stage itself. 

This has been the consistent position over the last few decades. However, the recent judgment of the Supreme Court in Nitya Dharmananda v. Gopal Sheelum Reddy [(2018) 2 SCC 93 (Nitya)] has once again reignited the debate on the vexed question of an accused's right to rely on material other than the police report, to make out a case for discharge. To set the context for the discussion, in Nitya, a Division Bench of the Supreme Court held: 

…it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge. 

The above observations, particularly their consistency with judicial precedent, as also their desirability for the administration of criminal justice and due process, are the subject of this post. With that anchor in mind, let us begin at the beginning, with the first principles governing the judicial evaluation at the time of discharge. 

What Materials does a Court see during Arguments on Charge?

The provisions in the Criminal Procedure Code 1973 [Cr.P.C.] relating to the framing of charge against an accused are broadly Sections 227, 239, and 245, depending on the nature of the offence that one is looking at. (See, here, for an earlier discussion of these provisions on the Blog)These provisions show that a court can discharge an accused if, on a perusal of the Police Report and documents sent along with it, the court concludes that the charge is groundless. Therefore, the statute mandates the court to use only the Police Report as the input material, and not evaluate any other evidence, in order to arrive at a decision on framing the charge. With that being the case, the next question is what all does this Police Report contain? Is it required to contain evidence favourable to the accused, or should it be confined to material that the prosecution seeks to rely on? What about the statements of those witnesses examined by the Investigating Officer, who have gone on to support the defence case? The answer lies in Section 173(5) of the CrPC, requires the police to forward only those materials which "the prosecution proposes to rely upon" and "statements ... of all those persons whom the prosecution proposes to examine as its witnesses". So, the material sent to court with the Police Report contains all documents and witness statements which the prosecution proposes to rely upon and examine. One can see how this can easily be used by the prosecution in a self-serving manner. The Investigating Officer is, therefore, not mandated by law to forward to the Court, as part of his Police Report, material which might be favourable to the defence. But can the Court, on its own, look at material presented by the accused? Or, can the accused invoke the powers of a court under Section 91 of the Cr.P.C., to bring to the court’s attention documents etc. which are exculpatory in nature, but have not been made part of the Police Report? Having either of these rights would render the accused better equipped to demonstrate the charge to be ‘groundless’, on the face of it, without having to go through a trial. We examine both these claims in reverse order. 

Debendra  Nath Padhi and Excluding Materials from an Accused 

With regards to Section 91, a bare reading of that provision does not suggest anything that prohibits its use at the stage of discharge. So how do we read this together with the limits placed through the provisions on discharge which said the court cannot look at anything beyond the Police Report? The task of harmonising these two provisions was taken up by the Supreme Court in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568 (Padhi)]. In Padhi, a Three-Judge Bench of the Supreme Court held that defence material cannot be advanced during arguments on charge as the defence of the Accused is irrelevant at this stage, and a court can only rely upon the record as submitted by the police with the charge sheet. The decision further held that ordinarily, there would be no right of the accused to seek production of a document under Section 91 of the CrPC at the stage of framing of charge. The decision was in sync with the statutory scheme and also in the interests of avoiding a ‘trial within a trial’, to reduce delays in our already overburdened criminal courts. The Supreme Court in Padhi specifically noted that Section 227 Cr.P.C. had been introduced with the specific purpose of dispensing with the lengthy committal process which involved making an inquiry (which included examination of witnesses), that protracted proceedings and made the criminal justice process slower. 

With respect to the words “hearing the submissions of the accused” in the discharge context, the Court held that this did not mean an opportunity is granted to an accused to file material; the submissions have to be confined to “record of the case”, i.e. material produced by the police. It held that “record of the case” in Section 227 Cr.P.C. was to be understood in light of Section 209(c) Cr.P.C., which provides that in a case exclusively triable by a Sessions Judge, the Magistrate shall send to the Sessions Court “the record of the case and the documents and articles, if any, which are to be produced in evidence”. Reading the two provisions together, the Court found that “No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.” Therefore, the legal position effectively was that the judge could look only at the Police Report while deciding whether to discharge or proceed to trial. This made obtaining a discharge a herculean task for any defence lawyer, and reduced, rather unfortunately, most discharge hearings/proceedings to mere foregone conclusions and exercises in futility. It deprived the accused of an important due process right; the right to demonstrate the falsity of the prosecution case, without going through the rigmarole of a long-drawn trial. This is unfortunate, since elsewhere, preliminary hearings are much more effective and meaningful. For instance, in US, the defence gets to cross-examine Prosecution witnesses at the stage of discharge (called a “preliminary hearing”) with a view to demonstrate that there is no probable cause to take the Accused to trial. 

Departures from Padhi 

In Padhi, the Supreme Court envisaged a very limited evaluation at the stage of charge, which also led to there being practically no remedy in case an Investigating Officer, in flagrant disregard of ‘due process’, ‘duty of fair disclosure’ and principles of fair investigation, suppressed or withheld exculpatory material. However, subsequently, somewhat discordant notes have been struck on this issue by smaller Two-Judge Benches of the Supreme Court, firstly in Rukmini Narvekar v. Vijaya Satardekar [(2008) 14 SCC 1], and recently, in Nitya

In Rukmini Narvekar, the accused challenged the issue of process by seeking quashing of proceedings before the High Court under Section 482 Cr.P.C. The High Court allowed the petition by relying on evidence recorded in a separate civil proceeding where the complainant was plaintiff. The question before the Supreme Court was whether defence material could have been relied upon by the High Court. Justice Markandey Katju embarked upon an analysis of Padhi and observed: that 

Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568], there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 

Though of great practical utility, this decision was decried to be of tenuous legality since the Court appeared to have misemployed a standard laid down in context of inherent powers of the High Court, and proceeded to incorrectly conflate it with the powers of a court while framing a charge, which was not warranted by Padhi. Though there seems to be no intelligible differentia between the two cases; and there is no justifiable reason why the High Court, acting exercising powers, can examine documents of unimpeachable character of exculpatory nature and the Trial Court cannot. Be that as it may, unless the Supreme Court equates the two, the law of the land remained thus: the High Court exercising wide inherent powers can rely upon documents or material advanced by defence / accused of unimpeachable or sterling quality in proceedings under Section 482 Cr.P.C. The same, however, was not so with a judge framing charge, in respect of which, guidelines have been laid down in the form of the explicit text of the relevant Cr.P.C. provisions, reaffirmed by the Court in Padhi. This was noticed in Rukmini Narvekar itself, by Justice Altamas Kabir, who in his concurring opinion hinted at having held a diametrically opposite view from Justice Katju’s opinion. Rukmini Narvekar, therefore, is not a good authority for the proposition that defence material can be taken into consideration at the stage of deciding the question of charge. Since this was also not the issue before the Court in that case, its value as precedent for this proposition is rather suspect. 

Nitya: A Possible Reconciliation, and a Progressive One 

Which brings us to Nitya, which, in our opinion, stands on somewhat better legal ground. In this case, a Bench of Justices U. U. Lalit and Adarsh Kumar Goel was faced with the question as to whether an accused, before framing of charge, can file an application under Section 91 Cr.P.C., to summon materials collected during investigation, but not made a part of the Police Report. In this case, the said material (statements of witnesses unfavourable to the prosecution) was available with the police, but had not been included in the Police Report. The High Court allowed the petition and directed the trial court to summon the witness statements available with the police (and also directed the Trial Court to look into the case diary to examine availability of other material sought by the accused) [Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449]. The Supreme Court set aside the High Court’s judgment in appeal, holding that there was no right of accused under Section 91 Cr.P.C. to summon material. However, the Court held that in the interest of a fair trial, the court in its discretion may summon such material as has been withheld by the police and not made part of the charge sheet, if it is of “sterling quality” and has a “crucial bearing” on framing of charge (the extract was provided at the start of this post). A possible reconciliation of Padhi and Nitya could be the usage of the word “ordinarily” in the relevant passage of Padhi which laid down that an application under Section 91 Cr.P.C. cannot ordinarily be used by the accused to summon material. The new dictum of there being (1) material withheld by police/Prosecution, (2) said material being of sterling quality, and (3) said material having crucial bearing on framing of charge, can then, indeed, be sourced to the law laid down by the larger bench in Padhi allowing for such an observation, by saying Section 91  Cr.P.C. cannot ordinarily be used by an accused for this purpose. What would be the ‘extraordinary’ event in which Section 91 Cr.P.C. can so be used? The three conditions enumerated in Nitya

Though Nitya’s compatibility with older judgments may be debatable, and there may be two views on that, but we firmly believe the judgment must be lauded for recognising that the imperatives of fair trial demand that the accused (who, unlike the prosecution, does not have the wherewithal to privately investigate and collect evidence) should be provided exculpatory material collected by the Investigating Officer during investigation, and allow him to rely on this while arguing for a discharge. Absent strong disclosure requirements and discovery proceedings written into the Cr.P.C. itself, this judicial intervention was long due, and would go a long way in making discharge proceedings more effective. Of course, this, by itself, would not allow us to achieve the same levels of fair play that, for instance, the US system allows. Major statutory overhauling would be required to introduce a right to cross-examine (at least the material witnesses) at the stage of discharge, and to introduce defence witnesses. However, the enormity of changes required and difficulties in implementation should not detain us from aspiring-for what would definitely be a fairer system. We feel that the justification assigned for not implementing such a system on account of courts being overburdened may not a good enough justification to cut short valuable due process guarantees. A need for pragmatism, understandable as it may be, must not take away from what the law ought to be. Until such statutory changes which guarantee that benchmark of fairness, this decision does make the process a bit more fair and objective.


  1. Supreme Court witnessed rare histrionics today as animadversion of court action was begin against advocate Nisha Priya Bhatia after she made derogatory Commentary against the Bench.

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  2. Thanks for this engaging post. I've had this (possibly misguided) doubt fora while now re: the sterling quality test, in that it appears to be paradoxical.

    How will a court make a determination of the quality of material/evidence that is not even before it (yet). To come to a finding that the withheld material is of "sterling quality"(an indeterminate evidentiary standard in itself), the court will have to cause its production u/s 91 in the first place.

    Would like to hear your thoughts on this.

    1. Hi Amartya. I can't speak for the authors, but I share your concerns over this test. You already acknowledge how this will involve some subjective determinations by the trial judge, so I will stick to how it may operate. This might happen in one of two possible ways: (i) accused files an application and during arguments itself the court decides whether or not the quality is "sterling" and is generally useful, or (ii) accused files application, court finds the usefulness requirement met and says get the material before me and then I will decide whether material is of "sterling" quality.


    2. I agree: those are the only two ways I can imagine this will operate in practice. However, in the first case, the court will have to come to a finding about the "sterlingness" of material that is sought to be brought on record, based solely on the arguments and the application. Since it cannot come to such a finding regarding the quality without actually looking at the material, it will necessarily then have to see if there is a crucial bearing on the case. The problem here I feel is that Padhi is unequivocal that the "crucial bearing" question cannot be raised at the 228/240 stage, even after accounting for the "ordinarily". While I agree that Nitya is a step in the right direction, I still think it misreads Padhi.

      Further, the term "sterling quality" was used in Padhi in the context of S.482, and not as a test to be satisfied in any case. Not the way Nitya reads it.
      In any case, these are inchoate thoughts based on my possibly incorrect reading of Padhi. I'd like to see how Nitya is actually argued at the charge stage.

  3. Absolutely. I’d say you are in a pretty good position to see that happening soon.

  4. A preliminary audience in a criminal trial is one of great consequence, and the right to seek a discharge (threshold dismissal) is an enormously valuable right that the Criminal Justice System guarantees to the condemned.

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