[This Blog is part 1 of the article authored by Nishant Tripathi, a postgraduate student at West Bengal National University of Juridical Science]

Introduction

In any criminal justice system, the prosecutor is the helmsman of the boat of criminal prosecution. The Prosecutor’s role varies with the adopted structure of the criminal justice system. The inquisitorial system provides more active control to the prosecutor in investigation and prosecution than the adversarial system. One of the critical roles of the prosecutor in any criminal justice system is presenting evidence and witnesses relevant to the case in the interest of justice. It is in the hands of the prosecutor to decide which evidence and witness he would choose to rely on, and after that, the question of relevancy and admissibility comes in. The responsibility of marshalling evidence in the adversarial system relies more on the prosecutor, and at the trial stage, the defence counters the loopholes or finds  the gap in prosecution case.

Meanwhile, the inquisitorial system is more inclined towards the pre-trial process as the prosecutor and Magistrate supervise it. Also, the “examining Magistrate” is empowered to find loopholes and evidence favorable to the defence. The Prosecutor is the sole gatekeeper of evidence to be presented in court in the adversarial system. In an adversarial system-based country such as India, where the police system is governed by archaic colonized legislation, the role of the prosecutor for all practical purposes must be determined cautiously. Recently, the judiciary has discussed the prosecutor’s liability regarding disclosing of un-relied documents as evidence. One notable case that paid attention to the disclosure principle was Manish Sisodia v Directorate of Enforcement. While granting bail to former deputy CM of NCT Manish Sisodia, the court observed that the accused has the right to inspect “un-relied documents”. The observation has opened a plethora of debates regarding the jurisprudence of disclosure of evidence in India, which has always taken a backseat when discussing the fairness of the trial.

Statutory Control of Prosecutor on Evidence 

In India, the prosecutor directly or indirectly controls the marshalling of evidence under the provision of BNSS 2023. The accused’s right to disclose all evidence available during the investigation is minimal. It has to be analyzed in twofolds.

Firstly, Sec 94 of BNSS provides that any police officer or court can summon the production of the document during the investigation and trial stage. However, the apex court in the State of Orissa v Debendranath Pandey held that if a document is “desirable” and “necessary”, the accused is entitled to approach the court at the defence stage to summon the production of the document, although the court also clarified that the accused has no right to exercise such provision for any document which is in his possession to prove his defence. The finality to this legal position has also been stamped recently by the division appellate bench of the apex court in the State of Rajasthan v Swaran Singh. The precedent had provided limited relief to the defence to access the un-relied document collected during the investigation at the court’s discretion. However, the two conditions that need to be satisfied are the desirability and necessity of the document. Also, the stage at which the section is invoked has to be considered, as the accused can invoke it only after the charge is framed.  In Om Prakash Sharma v CBI, the court held that the accused must not use such provision for “fishing” or “roving” inquiry.

Another part of the string of disclosure is attached with the reading of sec 230 along with sec 193 of BNSS. Sec 230 provides that copies of FIR and police report submitted under sec 193 had to be furnished to the accused by the Magistrate. This provision further provides that the Magistrate would furnish copies of only those statements of witnesses recorded under sec 180 to accused, which the prosecution will examine in the trial. Pragmatically, the prosecutor  examines those witnesses and statements that prove the guilt of the accused, and hence the defence does not access the un-relied document that might prove his innocence. It can be argued that a statement recorded under sec 180 of BNSS can’t be used as substantive evidence by the prosecution, and it is used only to contradict the prosecution witness by defence; therefore, it doesn’t play any role in the conviction of the accused. However, the concern lies in the application of the provision, which solely applies to the prosecution witness, as the ball lies in the prosecutor’s court to pick and choose which witness and statement would be disclosed to the accused for contradiction. This promotes the likelihood of a doctored trial where evidence would be a puppet of the prosecutor, and the prosecution would result in the conviction of the accused instead of doing justice or searching the truth. Surprisingly, while rejecting the contention of pick and choose of the witness by the prosecution, Kerala High Court in State Of Kerala vs Raghavan Etc.  held that “Where the statements given by a witness on different occasions during the investigation are conflicting on material points, the position of the Public Prosecutor undoubtedly is not unenviable; even then, he is expected to display a sense of detachment and fair-play without being unduly influenced by a desire to secure the conviction of the accused at any cost. By attempting to withhold from the accused the inconvenient portion of the witness’s statement, the Public Prosecutor does not play his true role in assisting the court in correctly assessing the witness’s credibility or determining the degree of reliability of the oral evidence produced in the case”. The court also further noted that the lapses in the duty of police must not lead  to gain of the prosecutor or penalising the accused; therefore, any inconsistency in the statement must be disclosed to the accused. The above observation could find a place in the chapter on professional conduct or the role of the Prosecutor. But without mandatory obligation on part of prosecutor, it hardly reflects in the justice system.

Read Part 2 here: Non- Disclosure of Non-relied Evidence: An Obstacle in the Path of Fair Trial [Part 2 of 2]