Accused must get all records
When a criminal case is instituted against a person on a police report the accused has the right to get a copy each of the First Information Report (FIR), statements of witnesses recorded by the police, the police report and other records filed along with the police report. This is an obligation of the Magistrate under Section 207 of the Criminal Procedure Code, 1973 (CrPC).
In case any of such documents is voluminous the Magistrate can direct the witness to inspect them personally or by his pleader. It is not necessary to give copies of such voluminous documents.
Object is to capacitate the accused to defend his case
The object of providing the copies is to put him on what he has to face during inquiry or trial and to prepare himself for his defence in the trial.
Even if the case is instituted on a private complaint and the Magistrate ordered a police investigation leading to a police report, the accused has a right to get the documents in such a situation too.
In a Warrant Case, the Section 207 CrPC imposes a duty of disclosure of information on a Magistrate commencing a trial.
In a Summons Case instituted on a police report no such duty is specifically cast on the Magistrate conducting a trial.
In Sessions Case instituted by a police report the Magistrate has to supply free copies of documents to the accused under Section 207 CrPC. It is an implied one.
In a Sessions Case instituted otherwise than on a police report the accused may not have the right to get copies under Section 207 CrPC. In such a case if the accused has difficulty in preparing for his defence, the court can issue the copies of the statements recorded by the Magistrate under Section 200 or 202 CrPC or the statement of confession or other documents the prosecution propose to rely on as part of the trial.
Not providing copies is a serious irregularly
If copies are not provided to the accused it is a serious irregularity. It would prejudice the trial if it occasioned an undue prejudice to the accused.
In the appeal stage the appellate court must look at the records and if it finds some serious discrepancies in the witness statements before the police resulting in some prejudice to the accused, the conviction is amenable to be set aside.
Police to submit all documents to the Magistrate
The Investigating Officer (IO) investigating a criminal case has to forward all documents which the prosecution proposes to rely to the Magistrate along with the Police Report, as per Section 172(5) of the Criminal Procedure Code (CrPC).
But the IO can request the Magistrate, to exclude any document from the copies to be granted to the accused stating his reasons, under Section 173(6) CrPC.
On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 CrPC, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused.
Magistrate can withhold some statements
The Magistrate may, after perusing any such part of the statement taken from the accused under Section 161 CrPC and considering the reasons given by the police officer for not disclosing some statements to the accused u/s 173(6) CrPC, 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.
However, the Magistrate has authority to withhold any part thereof referred to in Section 207 (iii) CrPC, from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in Section 173 (6) CrPC.
Police can give documents to the accused
The Section 172 (7) CrPC, however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused.
However, that does not permit him to withhold any document, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate along with the police report.
Voluminous documents need not be given
If the Magistrate is satisfied that any document referred to in clause 207 (v) CrPC 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 the court.
That means the Magistrate can withhold only such document referred to in Section 207 (v) CrPC, which in his opinion, is voluminous.
Magistrate cannot withhold documents
In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any document submitted by the investigating officer along with the police report except when it is voluminous.
The Magistrate’s duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section.
This provision not only requires or mandates that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 CrPC whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the CrPC, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under Section 173 (5) CrPC.
In contradistinction to the provisions of Section 173 CrPC, where the legislature has used the expression documents on which the prosecution relies is not used under Section 207 of CrPC. Therefore, the provisions of Section 207 of CrPC will have to be given liberal and relevant meaning so as to achieve its object.
Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) CrPC would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 172 (2) of CrPC.
What the Police Report includes
In every case on completion of the police investigation, the police have to file a Police Report, under Section 173(2) of the CrPC.
Police investigation starts with what we call First Information Statement (FIS) by some informant and ends with submission of Police Report clearly denoting whether to proceed against the accused or not. The FIS leads to the recording of FIR.
The report shall contain the following items of information:
- the names of the parties
- the nature of the information
- the names of the persons who appear to have acquainted with the circumstances of the case
- whether any offence appears to have been committed and, if so, by whom;
- whether the accused has been arrested
- whether he has been released on his bond and, if so, whether with or without sureties
- whether the accused has been forwarded to custody under Section 170
- Whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code.
Submission of Police Report is the end of the investigation. It is based on the report that the Police Officer forms his opinion as to whether there is sufficient evidence or reasonable ground to justify forwarding of the accused before the Magistrate for trial.
The Police Report should contain not only the facts and circumstances against the accused but those in favour of him, as well. It should be a factual report based on which we build our edifice of prosecution.
Statements of police’s witness examination
The police officer has power to require attendance before him of any witness who has acquaintance with the facts and circumstances of the offence for their examination, under Section 161 of the CrPC.
The basic objective of the witness examination is to collect information for the investigation. It starts without knowing who the offender is. But the examination of the witnesses acquainted with the incident will help the police in finding the accused.
The witness is supposed to answer all the queries of the officer truly. The police officer must be an officer not below the level of a Sub-Inspector. The officer must reduce the statements into writing for each one of the witnesses. The witness need not sign the statement. The police officer should not use inducement, threat or promise on the witness get any statement. Any person familiar with the fact of the crime is duty bound to provide his statement in a truthful manner.
The statements made to the police have no evidentiary value. No such statement can be used for any purpose except as a dying declaration under Section 32 (1) of the evidence act or for recovery of weapon or material object, under Section 27 of the evidence act. The confession of an accused before the court is an admission.
A statement made to the police by a person produced as a prosecution witness can be used by the defence to contradict such a witness, as per Section 145 of the evidence act. But if the person is produced as a defence witness, his statement to the police cannot be used by the prosecution for contradicting him.
No right to get or see a copy of the Case Dairy
An investigating officer is duty bound to keep a Case Diary (CD) under Section 172 CrPC in which day to day proceedings of the investigation is to be recorded in a narrative form mentioning everything connected with the crime in a chronological order.
However, it cannot be used as a substantive piece of evidence of any fact stated in it. The accused or his pleader is not allowed to examine the CD except for some entries which have bearing for the court in contradiction under Section 165 and 145 of the Indian Evidence Act.
The CD should state the time at which the information reached the police, the places visited, the statements of circumstances ascertained etc, and the time when the investigation was closed. Witness statements need not be included in the diary. The CD must be recorded at the place of investigation itself as and when anything happens, but not at the end of the day at all.
If the accused is entitled to see the CD, it is quite possible that the investigating officer may not record some matters that would be injurious to the prosecution stand. That is why it is kept away from the examination of the defendant but the court is allowed to examine it. The CD is expected to include anything that is favourable to the accused also, if it is a material fact.
Fair adjudication demands fair disclosure
The purpose of providing all the documents that the prosecution relies on in the case to the accused, is to make the prosecution fair and to ensure not to punish an innocent person in any circumstances.
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 nonproduction or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.
Additional reading
- Code of Criminal Procedure, 1973
- K.Shasikala v. State [(2012) 9 SCC 771]
- Manu Sharma v State (NCT of Delhi), [(2010) 6 SCC 1]
