Summary of Judgement

The Judgement

M. M. Sundresh, J.:-

1. Criminal Appeal No.3924 of 2023 has been filed by the informant, against the order of remittal passed by the Division Bench of the Patna High Court directing the Trial Court to conduct a de novo trial, while making certain observations against the Special Judge, disapproving his approach in the conduct of the trial. Criminal Appeal Nos.3926-3927 of 2023 have been filed by the learned Special Judge who conducted the trial and thereafter delivered the judgment.

Criminal Appeal No.3925 of 2023 has been filed by the very same learned Judge, aggrieved over the remarks once again made by the High Court in an order of remittal, requesting the Hon'ble Chief Justice of the Patna High Court to consider whether the Judicial Officer should be assigned the function of holding sessions trial which have far reaching consequences, while sending him for fresh training to the State Judicial Academy.

2. Heard Learned Senior Counsel Mr. Vikas Singh for the appellant and Learned Senior Counsel Mr. C. U. Singh for the respondents. We have perused the documents filed along with the written submissions made by the parties.

3. Before going into the submissions on merit, we shall first deal with the provisions governing the legal position in conducting a trial.

VIDEO CONFERENCING

Rule 6 of the Rule for Video Conferencing for Courts, 2020

"6. Application for Appearance, Evidence and Submission by Video Conferencing:

6.1 Any party to the proceeding or witness, save and except where proceedings are initiated at the instance of the Court, may move a request for video conferencing. A party or witness seeking a video conferencing proceeding shall do so by making a request in the form prescribed in Schedule II.

6.2 Any proposal to move a request to for video conferencing should first be discussed with the other party or parties to the proceeding, except where it is not possible or inappropriate, for example in cases such as urgent applications.

6.3 On receipt of such a request and upon hearing all concerned persons, the Court will pass an appropriate order after ascertaining that the application is not filed with an intention to impede a fair trial or to delay the proceedings.

6.4 While allowing a request for video conferencing, the Court may also fix the schedule for convening the video conferencing.

6.5 In case the video conferencing event is convened for making oral submissions, the order may require the Advocate or party in person to submit written arguments and precedents, if any, in advance on the official email ID of the concerned Court.

6.6 Costs, if directed to be paid, shall be deposited within the prescribed time, commencing from the date on which the order convening proceedings through video conferencing is received."

Rule 8 of the Rule for Video Conferencing for Courts, 2020

"8. Examination of persons.-

8.3 Where the person being examined, or the accused to be tried, is in custody, the statement or, as the case may be, the testimony may be recorded through video conferencing. The Court shall provide adequate opportunity to the under-trial prisoner to consult in privacy with their counsel before, during and after the video conferencing."

Rule 11 of the Rule for Video Conferencing for Courts, 2020

"11. Judicial remand, framing of charge, examination of accused and Proceedings under Section 164 of the CrPC.-

11.1 The Court may, at its discretion, authorize detention of an accused, frame charges in a criminal trial under the CrPC by video conferencing. However, ordinarily judicial remand in the first instance or police remand shall not be granted through video conferencing save and except in exceptional circumstances for reasons to be recorded in writing.

11.2 The Court may, in exceptional circumstances, for reasons to be recorded in writing, examine a witness or an accused under Section 164 of the CrPC or record the statement of the accused under Section 313 CrPC through video conferencing, while observing all due precautions to ensure that the witness or the accused as the case maybe is free of any form of coercion, threat or undue influence. The Court shall ensure compliance with Section 26 of the Evidence Act."

4. The High Court of Patna, in exercise of the powers conferred under Articles 225 and 227 of the Constitution of India, 1950, framed rules and procedures relating to the use of video conferencing for Courts. This was done with the concurrence of the State Government. "Rules for Video Conferencing for Courts, 2020" delineate the general principles governing video conferencing. Rule 6 provides for an application seeking video conferencing.

When such an application is made, it has to be put to the other party followed by an appropriate order by the court indicating its satisfaction for granting approval. As per Rule 8, when the testimony of a person being examined is to be recorded through video conferencing, the court shall provide an adequate opportunity to the undertrial prisoner to consult in privacy with his counsel at different stages - before, during and after.

Under Rule 11, an act of securing the presence of an accused through video conferencing at the time of judicial remand for the first time or police remand, is not a matter of course and, therefore, it is to be exercised only in exceptional circumstances for the reasons to be recorded in writing. Similar is the case qua recording of the statement of an accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "CrPC, 1973"), in which case, it is obligatory on the part of the Court to make sure that the accused is free from any form of coercion, threat or undue influence.

5. On a conjoint reading of the aforesaid rules, it is only appropriate that the accused has to be produced before the Court, rather than marking his appearance through video conferencing, the latter being an exception. While applying its mind, the Court has to rule out the possibility of any misuse.

WITNESS PROTECTION SCHEME, 2018

6. Witness Protection Scheme, 2018 has been introduced in the interest of the administration of justice, while enforcing a criminal law. It is meant to take care of a situation where the witnesses are made to depose before the Court by completely abandoning the case of the prosecution, either by fear or favour.

The scheme provides for a competent authority which is the Standing Committee headed by a District and Sessions Judge with the head of the Police in the District as a Member and the head of the Prosecution as its Member Secretary. A witness is at liberty to seek protection before the competent authority. The head of the police is expected to place before the competent authority a "Threat Analysis Report". The Scheme lays down in detail, the action proposed to be taken, once such an application is filed.

FAIR TRIAL

7. A fair trial would include due compliance of the procedure with adequate opportunities for all the stakeholders. Such procedural safeguards and compliance are to be kept in mind by the Court, as any deviation might either impact the prosecution or the defence in a given case. In an adversarial system of criminal law, which is being followed in India, when an accused is prosecuted on behalf of the State, the interest of a victim cannot be ignored. An offence is presumed to be against societal values and, therefore, any crime would constitute a deviant act by the accused.

8. Every trial is a march towards the truth. It is the primary duty of the Court to search for the truth using the procedural law as its tool. Such a procedural law may have a substantive part extending certain inalienable rights to both, the accused and the victim. By non-compliance of the procedural law, justice cannot be allowed to derail. Anyone, who complains of an unfair trial, is duty bound to satisfy the Court that he stands prejudiced by it. This does not mean that a Court can be lackadaisical in following the rules and procedures meant to ensure justice.

9. A fair trial is the heart and soul of criminal jurisprudence. The principle of democracy lies in a fair trial. It is not only a statutory right, but also a human right, which would be violated when the safeguards provided under the Statute are not followed. The absence of a fair trial would seriously impair and violate the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India, 1950. What is important to be seen is the existence of a failure of justice, which is obviously one of fact. A mere violation per se would not vitiate the trial, especially when the degree of substantivity exhibited in a statute is minimal.

10. The right to fair hearing is a part of Article 21 of the Constitution of India, 1950. A trial should be a real one and, therefore, not a mere pretence. There shall never be an impression over the decision of a Court that it has predetermined and pre-judged a case even before starting a trial, or else, such a trial would become an empty formality. Precedents J. Jayalalithaa v. State of Karnataka, (2014) 2 SCC 401

"28. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case.

Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the "majesty of the law" and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.

29. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty.

Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. "No trial can be allowed to prolong indefinitely due to the lethargy of the prosecuting agency or the State machinery and that is the raison d'être in prescribing the time frame" for conclusion of the trial."

(emphasis supplied)

Rattiram v. State of M.P., (2012) 4 SCC 516

"39. The question posed by us fundamentally relates to the noncompliance with such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.

40. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2 SCC 258 : (2007) 1 SCC (Cri) 577] it has been laid down that "fair trial" includes fair and proper opportunities allowed by law to the accused to prove innocence and, therefore, adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial. It is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them.

41. In this regard, we may fruitfully reproduce the observations from Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] wherein it has been so stated : (SCC pp. 79-80, para 197)

"197. In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal.

In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."

(emphasis supplied)

42. It would not be an exaggeration if it is stated that a "fair trial" is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by rule of law. Denial of "fair trial" is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of "fair trial" and the practice of the same in the course of trial, it is obligatory on the part of the courts to see whether in an individual case or category of cases, because of non-compliance with a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred."

(emphasis supplied)

Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158

"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies.

Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it.

If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.

54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice.

When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings."

(emphasis supplied)

PRESUMPTION OF INNOCENCE AND SPEEDY TRIAL

11. Unless a statute indicates otherwise, a criminal trial would commence with the presumption of innocence. This principle is of utmost importance as the Court embarks upon a trial in its quest for the truth. Though an accused is charged with an offence, it is the Court which has to satisfy its conscience, upon the prosecution proving the charges levelled beyond reasonable doubt.

For the aforesaid purpose, an accused will have to be given a decent setting to prove his innocence. Compliance with the procedural safeguard is meant for the aforesaid purpose. However, such procedural safeguards would not only ensure a fair trial, but also help the prosecution in confirming that it did its part fairly.

12. The concept of fair trial is not a vague idea, but a decisive one. While a speedy trial is in the best interest of everyone, including the society, the pace can only be set through the procedural mechanism, and it cannot be done at the mere dictate of the Court in ignorance of the procedural law. At the same time, care has to be taken with the aid of the law, to prevent the miscarriage of justice, when the delay is caused on purpose.

Thus, a speedy trial, being a facet of fair trial, cannot be permitted to destroy the latter by its recklessness. Any anxiety on the part of the Court, either to expedite the trial in contravention of law, or delay it unnecessarily, would seriously impede fair trial. In such a case, either the prosecution or the defence would bear the consequences. Precedents Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 9 SCC 408

"40. "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances.

Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice.

The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered."

(emphasis supplied)

State of Haryana v. Ram Mehar, (2016) 8 SCC 762

"24. The decisions of this Court when analysed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application.

It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognised, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation.

It would be dependent on the fact situation; established norms and recognised principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalisation but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role.

The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds.

In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilised to build castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such."

Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 SCR 1226 (at page 1232)

"Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption; but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution.

The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender.

The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Courts to secure the ends of justice."

THE CODE OF CRIMINAL PROCEDURE, 1973 (CrPC, 1973)

13. The CrPC, 1973, though a Code dealing with procedural law, is embellished with numerous substantive elements in it. The substantive elements give effect to Articles 14, 20, 21 and 22 of the Constitution of India, 1950. Any Court that deals with a criminal case, starting at the magisterial level, is duty-bound to give effect to the CrPC, 1973 which would only mean the protection of rights conferred under the Constitution of India, 1950. To put it differently, the CrPC, 1973 is a handbook introduced to maintain and uphold fair play in a criminal case, starting with the investigation and ending with the acquittal or a conviction leading to a sentence.

SUPPLY OF DOCUMENTS

Section 173 of the Code of Criminal Procedure, 1898

"173. Report of police officer.-

(4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of, the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses."

Section 207A of the Code of Criminal Procedure, 1898

"207A. Procedure to be adopted in proceedings instituted on police report.

(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished."

Section 251A of the Code of Criminal Procedure, 1898

"251A. Procedure to be adopted in cases instituted on police report.

(1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished."

Section 207 of the CrPC, 1973

"207. Supply to the accused of copy of police report and other documents.-

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i)the police report;

(ii)the first information report recorded under section 154;

(iii)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;

(iv)the confessions and statements, if any, recorded under section 164;

(v)any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 :

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."

Section 208 of the CrPC, 1973

"208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.-

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under section 161 or section 164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."

Section 209 of the CrPC, 1973

"209. Commitment of case to Court of Session when offence is triable exclusively by it.-

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."

Section 238 of the CrPC, 1973

"238. Compliance with Section 207.

When, in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207."

14. To understand these provisions, one has to go back to the Code of Criminal Procedure, 1898 (hereinafter referred to as the "CrPC, 1898"). Section 173 of the CrPC, 1898 fixes the responsibility on the officer in charge of police station to serve a copy of the report of the Police Officer and of the First Information Report, along with the requisite documents, on the accused.

As per Section 207A of the CrPC, 1898 a Magistrate shall, after the commencement of the inquiry, satisfy himself that there was due compliance of Section 173 of the CrPC 1898 by furnishing all the requisite documents on the accused. Thus, the Magistrate was expected to find out due compliance on the part of the investigating agency and, if not done, must direct it to do so. A similar procedure was adopted under Section 251A of the CrPC, 1898.

15. Section 207 of the CrPC, 1973 has dispensed with the role of the investigating agency in serving the requisite copies on the accused, replacing it with that of the Magistrate. Additionally, the Magistratre is directed to make sure that due compliance is made at the earliest. Section 208 of the CrPC, 1973 reiterates the aforesaid position in cases instituted otherwise than on a police report and triable by the Court of Sessions. It is only thereafter, that the commitment of the case to a Court of Sessions, regarding an offence exclusively triable by it, shall take place.

16. Section 238 of the CrPC, 1973 mandates that while dealing with a warrant case instituted on a police report, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207 of the CrPC, 1973. In all these cases, due compliance is to be done when the accused is produced or appears before the Magistrate.

Therefore, Section 238 of the CrPC, 1973 reiterates the bounden duty of a Magistrate and, if not done, to be complied with at the time of commencement of the trial. Such a reiteration would only reinforce a renewed emphasis on due compliance being a facet of fair play. An accused shall be put to notice on the incriminating materials leading to the charges framed against him. As stated, the obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at the appropriate stage so that it does not brook any delay.

The idea is to enable an accused to face the trial by thoroughly understanding the case stated against him. However, a mere non-supply of a part of the documents would not lead to the trial being vitiated, unless an accused substantiates before the Court that it has caused prejudice to him. Obviously, it is ultimately for the Court to come to an appropriate conclusion by an adequate assessment of facts placed before it.

Precedents Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632

"13. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilised against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial.

The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan [AIR 1964 SC 286] and Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble [(2003) 7 SCC 749 : 2003 SCC (Cri) 1918]. It was held that non-supply is not necessarily prejudicial to the accused. The court has to give a definite finding about the prejudice or otherwise.

Even the supervision notes cannot be utilised by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes, as has been noted above they are not to be taken note of by the court concerned. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorised access to the official records."

(emphasis supplied)

P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161

"21. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution.

22. Similarly, in V.K. Sasikala v. State [(2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010], this Court held as under : (SCC p. 788, para 21)

"21. 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 [V.K. Sasikala v. State, 2012 SCC OnLine Kar 9209]. The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC 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 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 [V.K. Sasikala v. State, 2012 SCC OnLine Kar 9209] 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 belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."

(emphasis supplied)

38. It is crystal clear that all documents including "electronic record" produced for the inspection of the court along with the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen-drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen-drive.

It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India."

(emphasis supplied)

17. We make it clear that the right of an accused would arise, in getting the documents relied upon by the prosecution, after taking cognizance and before framing of the charges. Therefore, between taking cognizance and framing of charges, an accused should have sufficient window to go through the documents supplied to him as he is entitled to be heard at a later stage.

DISCHARGE

Section 227 of the CrPC, 1973

"227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

18. Before the stage of framing of charges, the Judge is expected to discharge an accused, if he is of the considered view that there is no sufficient ground to proceed against the accused. This being a judicial exercise, his discretion must be supported by adequate reasons. In discharge of his powers, he has to consider the records and documents submitted by the prosecution vis-àvis the arguments adduced by both sides. The words "after hearing the submissions of the accused" would imply an effective and meaningful hearing. It is not a mere procedural compliance.

A Judge has to satisfy himself that the accused had reasonable time to ponder over and prepare his arguments before seeking a discharge. At this stage, an accused gets a substantive right as there is a window of opportunity for him to get discharged, instead of facing a prolonged trial. Such an opportunity can only be exercised by not only supplying the documents needed, but also giving adequate and sufficient time to the defence to place its case. Granting time for the aforesaid purpose is the sole discretion of the Court.

19. The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused. What is to be seen is the existence of a prima facie case. The case is at a pre-framing stage and therefore, it cannot be a full-fledged pretrial. Adequacy and sufficiency are the relevant factors to be seen. The test is one of the degree of probability.

20. Section 227 of the CrPC, 1973, in fact, is a provision which gives effect to Article 22 of the Constitution of India, 1950. The right of an accused to be heard is inalienable. For exercising this right, there has to be due consultation. Such a right can never be termed as a procedural one. It would be a ground to challenge the proceeding at that stage, but the same would not vitiate the trial. Suffice it is to reiterate that it is the duty of the court to ensure that the accused is given sufficient opportunities to consult his lawyer.

Precedents

Anokhilal v. State of M.P., (2019) 20 SCC 196

"22. The provisions concerned viz. Sections 227 and 228 of the Code contemplate framing of charge upon consideration of the record of the case and the documents submitted therewith, and after "hearing the submissions of the accused and the prosecution in that behalf". If the hearing for the purposes of these provisions is to be meaningful, and not just a routine affair, the right under the said provisions stood denied to the appellant.

23. In our considered view, the trial court on its own, ought to have adjourned the matter for some time so that the Amicus Curiae could have had the advantage of sufficient time to prepare the matter. The approach adopted by the trial court, in our view, may have expedited the conduct of trial, but did not further the cause of justice. Not only were the charges framed the same day as stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful.

26. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded.

In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.

31. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:

31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter. There cannot be any hard-andfast rule in that behalf. However, a minimum of seven days' time may normally be considered to be appropriate and adequate.

31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160 : (2018) 3 SCC (Cri) 721] ."

(emphasis supplied)

Kewal Krishan v. Suraj Bhan, 1980 (Supp) SCC 499

"11. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 says:

"When in a case instituted on a police report or otherwise the accused appears or is brought before the magistrate and it appears to the magistrate that the offence is triable exclusively by the Court of Session, he s