I. Introduction
Discharge provisions, in the criminal justice system, are a critical safeguard against wrongful trials and an opportunity for the courts to assess whether the evidence is sufficient to proceed with prosecution and bring someone to trial hence, protecting individuals from going through the unnecessary harassment of trial. However, while the discharge provisions restrict courts to considering only prosecution-submitted materials during charge framing, Section 94, BNSS theoretically empowers courts to summon additional evidence. This creates a paradox where accused persons may be denied access to exculpatory evidence during crucial pre-trial stages.
II. Statutory Framework for Discharge
When deciding whether to proceed with the framing of charge stage, the law requires the Court to rely solely on the “record of the case” and on “police report” without considering any other evidence.
‘Record of The Case’ and ‘Hearing The Submission Of The Accused’ under Section 250 read with s. 251 BNSS
No provision in the Sanhita allows the accused the right to file any material or document during the framing of the charge. The trial court must apply its judicial mind to the facts presented in the chargesheet only. In State of Gujarat v. Dilipsinh Kishorsinh Rao, it was observed that “the record of the case” used in Section 227 CrPC is to be understood as the documents and articles, if any, produced by the prosecution. The Apex Court in State of Orissa v. Debendra Nath Padhi observed that:
“… It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. …At the stage of framing of charge, the submissions of the accused have to be confined to the material produced by the police.”
‘Police Report’ under S. 262read with Sub-section (6) of S. 193, BNSS
The ‘Police Report’ forwarded to the Magistrate together with the report includes all the documents on which prosecution relies and statements made by witnesses to police in favor of prosecution and there is no provision which makes it mandatory on the side of the Investigating officer (IO) to produce such documents which favors the accused person.
III. Invoking Section 94 BNSS Against the Accused During Discharge Proceedings
According to S. 94, the court can issue a ‘summon’ or any officer in charge of a police station can issue a ‘written order’ for the production of any document including digital evidence at any stage of inquiry, trial or even at the stage of framing of charge if the court or such police officer considers it necessary or desirable at that stage. However, if any document is necessary or desirable for the defence of the accused to show his innocence or any evidence which is exculpatory in nature, the question of invoking Section 94 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage.”
The issue came up before the Supreme Court in the Debendra Nath Padhi case, where the court provided a limited remedy by holding that in a case where an accused person is forced to face the trial despite having strong evidence in their favor, the High Court holds extensive powers under Section 482, Cr.P.C. and Article 226 but no such powers lie with the trial court. This conflict was tried to be resolved In Nitya Dharmananda v. Gopal Sheelum Reddy where the Supreme Court discussed that at the stage of framing of charge, ordinarily, an accused person cannot invoke S. 91 Cr.P.C, however, the trial court can invoke its power under S. 91 Cr.P.C for production of any document or other evidence to impart justice and to uphold the law only in exceptional circumstances if following conditions are satisfied:
a) there is material of sterling quality and
b) such document or thing is available with the IO and has been withheld by the investigator/prosecutor, and
c) The material withheld by the investigator/prosecutor has crucial bearing on the issue of framing of charge.
Therefore, it has been left again with the discretion of the court and ignored the situation when investigators conduct their work with predetermined conclusions and deliberately ignore the evidence favoring the accused (exculpatory evidence). So, the decision in the Nitya Dharmananda case gives rise to certain issues which demand reconsideration to ensure the rights of the accused.
List of Withheld Documents or Evidence
The documents annexed to the police report under S. 193 BNSS are typically referred to as “relied upon documents”, while other documents collected during the investigation but not included in the initial report are categorised as “un-relied documents”. Frequently, driven by the motivation to secure a conviction, the prosecution might deliberately omit such documents or evidence from the report filed under S. 193 BNSS. Consequently, the accused, who might be in custody, is left to independently gather and produce evidence, which involves filing a separate application, awaiting its adjudication, and obtaining a court order, even when the prosecution already possesses such exculpatory evidence.
In this regard, Supreme Court ‘In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. The State of Andhra Pradesh’, issued certain directions to remedial effect as follow:
“..while furnishing the list of statements, documents and material objects under Sections 207/208, CrPC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/ documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under the Cr. PC. for their production during the trial, in the interests of justice.”
The rules mandate that the prosecution must submit a comprehensive listof “un-relied documents” together with their report and not the actual documents. The subsequent discretion lies with the accused to determine which of these “un-relied documents” are pertinent to his defense. By filing a formal application requesting specific documents, the accused triggers a legal obligation for the Magistrate to furnish copies of the requested papers unless there exists a compelling and substantive justification for withholding them.
Notably, while the Supreme Court’s Draft Rules only required that a list of un-relied documents be shared with the accused, the Delhi High Court in an order in CBI v. INX Media Pvt. Ltd. went further by allowing the inspection and seeking of relevant documents, provided they met certain criteria.
Right of Accused Person to Request Copies of ‘Un-relied Evidence’
Under the BNSS, an accused is permitted to obtain copies of un-relied documents. For instance, in a case of alleged embezzlement or misappropriation or cheating of some amount, an accounting entry in a seized ledger might demonstrate that a purportedly misappropriated sum was actually repaid. Similarly, in a sexual assault allegation, a medical report revealing the accused’s physical incapability could exonerate them if not deliberately suppressed. The critical concern arises when an accused is denied the opportunity to highlight such compelling evidence during the initial charge-framing stage. If such crucial documents are withheld, the accused may be forced to endure a complete trial to prove their innocence with no intermediate stages for discharge.
Moreover, the prosecution’s primary obligation following Supreme Court directives, is to supply copies of “relied-upon documents” and simultaneously provide a list of un-relied documents. The accused then has the option to submit an application to the trial Court requesting some or all of the “un-relied documents” identified in the list. Upon such application, the Court must ensure these documents are made available to the accused. This scenario could lead to an unnecessary and emotionally exhausting judicial process, ultimately resulting in acquittal based on evidence that could have been presented and considered much earlier, thereby causing unwarranted psychological and reputational damage to the accused.
S. 250 BNSS empowers the accused with a crucial opportunity to demonstrate their innocence during the charge framing deliberations. The accused can effectively put up his case only if he has access to the documents upon which the case of prosecution is based and also documents which could prove his innocence but are a part of ‘un-relied documents’. The rationale for recognizing an accused’s right to obtain copies of these un-relied documents is straightforward, there is no justifiable reason to delay their provision. Denying access to such documents at the initial stage, specifically, immediately following the submission of the report under S. 193 BNSS, cannot be rationalized merely on the grounds that charges are pending or the trial has not yet commenced. Conversely, the prosecution cannot legitimately claim prejudice if these documents are supplied at the outset when requested. Therefore, the most equitable approach is to provide the accused with comprehensive copies of ‘un-relied documents’ promptly after the challan’s presentation and before charges are framed. This approach enables the accused to identify and leverage any exculpatory evidence, potentially applying for discharge and preventing an unnecessary trial.
Notably, S. 94 has expanded investigative capabilities by incorporating provisions for obtaining documents or evidence through electronic communication channels. For instance, once the police has taken into possession a record which is in digital form, a part of which could have propensity to dent the case of prosecution, the entire digital record ought to be supplied to the accused and the prosecution cannot be selective in furnishing such data.
IV. Conclusion
The investigating agency should not be entitled to use the power according to its whims and fancies so as to deprive an accused of his invaluable right to effectively defend himself and in such circumstances, the accused cannot be kept at a disadvantageous position by not supplying copies to him. While the BNSS ostensibly protects the accused from unnecessary prosecution, the practical implementation often falls short. The Supreme Court’s guidelines in the ‘In Re: To Issue Certain Guidelines’ case represent a nuanced attempt to address this imbalance by mandating the disclosure of ‘un-relied documents’.
REFERENCES
Acts
• The Constitution of India, 1950.
• The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023).
• The Bharatiya Sakshya Adhiniyam, 2023 (Act 37 of 2023).
• The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Case Laws
• State of OrissaDebendra Nath Padhi (2005) 1 SCC 568.
• State of GujaratDilipsinh Kishorsinh Rao 2023 (13) SCALE 603.
• Satish Mehra Delhi Administration (1996) 9 SCC 766.
• In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal TrialsThe State of Andhra Pradesh (2021) 10 SCC 598
• CBI v. INX Media Pvt. Ltd., 2021 SCC OnLine Del 4932.
• Sudhir Kumar MukherjeeState of West Bengal AIR 1973 SC 2655,
• Shivamurthy Murugha SharanaruState 2024 (3) KCCR 2888
• Muzammil Pasha National Investigation Agency 2023 (2) KCCR 922
• P. Velumani v. Arappor Iyakkam (2022) 12 SCC 745
• Ponnusamy v. The State of Tamil Nadu 2022 (16) SCALE 230
*Gaurav Maan (Advocate, Supreme Court of India)
**Kavya Arora (Supreme Court Law Clerk-cum-Reseach Associate)