Accused has the right to get Un-Relied Documents

Accused has right to get unmarked documents

An accused has the right to get copies of (or examine) the unmarked and unexhibited documents, which are not being relied on by the prosecution, in a criminal proceeding, as per the Supreme Court ( SC) judgement in V K Sasikala v State Rep. By Superintendent Of Police and some other related judgements.

Under section 207 of the Code of Criminal Procedure, 1973 (CrPC), the accused has a right to get the copies of documents and statements which the prosecution relies on in the criminal proceedings.

The CrPC, however, casts no obligation on the prosecutor to provide unmarked or unexhibited, which are not relied on by the prosecution, to the accused for the purpose of his defence, as a practice of fair disclosure that exists in developed democracies.

Public Prosecutor must be fair to the accused

In Shiv Kumar v Hukam Chand And Anr, a three Judge Bench of the SC says, “The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge.”

Therefore, the court cannot remain absolved of its responsibility in disclosing any exculpatory document or material, brought before it as part of the investigation, to the accused

Investigation obtains many documents

Investigation Officer (IO) usually seizes several documents as part of the investigation in a criminal case.

After the investigation and before submission of the police report to the court under Section 173 (2) of the CrPC, the Investigating Officer may sort out the documents and records, which support the prosecution case and forward them to the court under Section 173 (5) of the CrPC.  Some of the seized papers and documents may support the accused. In such a case, the Investigation Officer has a duty to evaluate both the sets of documents and materials collected and to exonerate the accused at that stage itself, if the evidence is in his favour.

Some documents may not be sent to the court

The Investigating Officer, however usually, ignores the documents which favour the accused and forwards to the Court only those documents which support the prosecution.

In some cases, such documents are not forwarded by the Investigating Officer to the court. But in some other cases such documents, which are not being relied upon by the prosecution, would be sent to the court as unmarked and unexhibited documents, under Section 173 (5) CrPC.

The primary duty of a Public Prosecutor is to ensure that an accused is punished. But he has a duty to ensure that all relevant facts and circumstances are brought to the notice of the court to ensure fairness and justice in the proceedings.

Court must ensure fairness in disclosure

It is the responsibility of the investigating agency and the court to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law.

One of the facets of a just, fair, and transparent investigation is the right of an accused to ask for all documents that he may be entitled to under the law.

Provisions regarding sending of documents

Under Section 170 CrPC, the documents during investigation are required to be forwarded to the Magistrate.

The investigating officer is entitled to collect any material, which is required for proving the guilt of the offender. He can record statements under Section 161 CrPC and has wide powers to investigate all the faces of the matter.

Under the Section 173(5) CrPC all documents or relevant extracts and the statements recorded under Section 161 CrPC must be forwarded to the Magistrate.

The statements recorded under Section 161 is not evidence under Section 162 of the CrPC. The right of the accused to receive the copies of the documents/statements which are relied on for prosecution, is absolute and the court must ensure providing them to the accused.

Under the Section 162(1) CrPC, the accused has a statutory right to contradict the witnesses, as provided in the Section 145 of the Indian Evidence Act,  with the statements recorded under Section 161 of the CrPC.

Court can ensure production of any document

The Section 91 CrPC empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial, or another proceeding under the law.

Where the Section 91 read with Section 243 CrPC says that if the accused is called upon to enter onto his defence and produce his evidence then he has the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross- examination or the production of any document or other thing, for which the court has to pass a reasoned order.

The Section 207 CrPC 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, excluding any part of a statement or document which need not necessarily be disclosed  in the interest of justice according to the police officer as provided Section 173(6) CrPC, any other document or relevant extract thereof which has been submitted to the Magistrate and the police proposes to rely on, under Section 173 (5) CrPC.

In contradistinction to the words used in the Section 173 (5) CrPC, the Section 207 CrPC does not use the expression “documents on which the prosecution relies”. Therefore, the provisions of Section 207 CrPC will have to be given liberal and wide meaning to achieve its object. The documents submitted to the Magistrate along with the report under Section 173(5) CrPC, would include the documents which have to be sent to the Magistrate during investigation, under Section 170(2) CrPC.

Accused has only limited statutory right

The right of the accused regarding disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial.

On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the Police Report under Section 173 (6) CrPC as per the court orders.

Section 207 espouses doctrine of fair trial

But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial.

The question arising with the provisions of Section 207 CrPC would travel beyond the confines of the strict language of the provisions of the CrPC and touch upon the larger doctrine of a free and fair trial on a purposive interpretation of Article 21 of the Constitution.

SC grants disclosure of documents not relied on

In V K Sasikala v State Rep. By Superintendent Of Police, the SC allowed inspection of the unmarked and unexhibited documents, so as to be performed within a period of 21 days from the date of receipt of the judgement by the learned trial court.

The SC, in Manjeet Singh Khera v State of Maharashtra, upheld the view that the Trial Court should supply the copies of documents sent to the Magistrate but not relied upon by the prosecution to the accused for a just, fair, and transparent investigation/ trial.

Fair disclosure is an essential requirement

Fair disclosure of documents is a fundamental aspect of a just criminal justice system, and Sections 207 and 208 of the CrPC play a crucial role in ensuring accused individuals receive copies of relevant documents, irrespective of their use by the prosecution.

Even the SC have emphasized the need for providing the documents not relied on by the prosecution to the accused so as to ensure procedural fairness, it has not been well settled so far.


  1. V K Sasikala v State Rep. By Superintendent Of Police [(2012) 9 SCC 771]
  2. Manjeet Singh Khera v State of Maharashtra